Summary: Law of Public International Organizations

Chapter 1: Introduction

The activities of international organizations are subject to law, and give rise to law. Each and every international organization has a set of rules relating to its own functioning. As international organizations do not exist in a vacuum, their activities are also bound to exercise some influence on other legal systems, and absorb the influence of such systems. While it is possible that international organizations are influenced by, and exert influence on, the law of individual nation-states, the more direct and influential links usually exist within the body of rules known as international law.

Critical legal theory

The law of international organizations is still somewhat immature. On numerous points the law lacks certainty. In particular, international legal doctrine has a hard time coming to terms with the relationship between an international organization and the very states which are its members. On the one hand, the law is supposed to respect the interests of individual states. Yet at the same time, the law must also take the interests of the international community into account. Following the critical legal tradition, international law is bound to swerve back and forth between these two poles of sovereignty and community. It is this tension which makes international legal rules often ultimately uncertain. This tension also reflects in the law of international organizations, for example regarding the so-called principle of attribution of powers. Strict adherents to the notion of state sovereignty will not easily admit the existence of implied powers; yet for the protection of community interests, an implied power may well be deemed desirable.

The main benefit of critical legal theory is its capacity to make visible the inherent tensions and contradictions which help shape the law. In this way it can provide great services in understanding international institutional law.

Defining international organizations

What exactly is an international organization? While it is structurally impossible to define in a comprehensive manner, something which is a social creation (social constructs, created by people in order to help them achieve some purpose) to begin with, it is common in the literature to delimit international organizations in at least some ways. One delimitation often made depends on the body of law governing the activities of the organization. If those activities are governed by international law, we speak of an international organization, or at least of an intergovernmental organization. If those activities are governed by some domestic law, we usually say that the organization in question is a non-governmental organisation.

Usually, those organizations that are subject to international law will have a number of characteristics in common:

• Created between states: international organizations are usually created between states, or rather by duly authorized representatives of states.

However, there are international organizations which are themselves members of other international organizations, and not all creatures created by states are generally considered to be international organizations.

• Established by means of a treaty: the creation of (many, not all) international organizations was done in the form of a treaty, which international law in general terms defines as a written agreement, governed by international law. And as the treaty will be governed by international law, so too will the organization.
  However, some organizations have not been derived by treaty but by the legal act of an already existing organization. The UN General Assembly has created several organizations by resolution. Furthermore there is an evident tendency to remain vague about intentions when creating international institutions. Sometimes legal status en structure remain subject to debate.

• An organ with a distinct will: the organization must possess at least one organ which has a will distinct from the will of its member states.
  The characteristic of the distinct will goes to the heart of the entire concept of international organization: the problematic relationship between the organization and its member states. The international organization must insist on having such a distinct will. Otherwise, it becomes indistinguishable from other forms of co-operation.
   

Chapter 2: The creation of international organizations

Traditionally, public international law has long been thought of as largely a law of co-existence: rules of international law were created, either by custom or by bilateral treaty, for the purpose of delimiting spheres of influence between states, dealing with such issues a the jurisdiction of states, access to each other’s courts, delimitation of maritime zones, etc. To the extent that co-operation took place at all, it was of the sort which follows naturally from this co-existential character of the law, for example to make possible the extradition of criminals captured abroad, or the enforcement of contracts concluded with foreign partners.

It was not until the nineteenth century that international organizations as we know them today were first established. The nineteenth century saw the creation of such institutions as the Rhine commission (and a number of other river commissions), in order to deal with issues of navigation or pollution on a regular basis. At roughly the same time, organizations started to be established by private citizens, in order to deal with international issues. In 1863 Henry Dunant created the Red Cross. Around the same time Karl Marx became involved in the creation of the International Working Men’s Association.

The rise of modern organizations

States remained sovereign and powerful, but as the river commissions showed, they could sometimes sacrifice some of their sovereign rights in order to facilitate the management of common problems. International co-operations showed promise in the area of transport and communication, as indicated by the creation of the river commissions. Regulation of other modes of transport and communication quickly followed, as did co-operation in the field of economics.

Public international law gradually transformed from a law of co-existence to a law of co-operation. The major breakthrough for international organization, however, would be the Versailles Peace Settlement which followed the First World War (1919), which would ultimately lead to the formation of the League of Nations and the International Labour Organization (ILO).

The League of Nations was the first international organization which was designed not just to organize co-operation between states in areas of ‘low politics’, such as transport and communication or economic co-operation, but to guarantee peace and the establishment of a system of collective security.

In the end, the League failed in its own main goal: preventing war. After the Second World War a new effort resulted in the Charter of the United Nations. In drafting the Charter, some of the lessons learned from the League’s failure were kept in mind. First a distinction was to be made between the major powers and ordinary states. The major powers were to become permanent members of a new institution, a Security Council, which would only be able to take decisions if the five major powers were in agreement. Second, the Charter did not and does not contain a withdrawal clause.

In 1944 the future of economic co-operation was mapped in Bretton Woods, where agreement was reached on the need to co-operate on monetary and trade issues, eventually leading to the creation of the IMF and the GATT.

The resurrection of Europe after the war also came accompanied by the rise of a number of organizations, such as the Council of Europe, the Organization for Economic Co-operation and Development and three organizations (European Coal and Steel Community, European Economic Community, European Community for Atomic Energy) that have now been merged into the European Union.

Military co-operation in Europe resulted in the creation of NATO, the Warsaw Pact, and the Organization for Security and Co-operation in Europe (OSCE). Moreover, many regional organizations were established, such as the Organization of American States, ASEAN, APEC, etc.

There is not a part of the globe which is not covered by the work of some international organization or other.

Classifying international organizations

Organizations are not monolithic, but are wide-ranging in variety. Each international organization is unique, based on its own constituent document and influenced as its development will be by peculiar political configuration. This attempt to classify the various organizations into different types, sorts, forms or categories has the function of organizing knowledge, nothing more.

• Functions
  Organizations may be classified in accordance with their stated function, like economics, peace & security, military alliance, public health, telecommunications, etc.
  Warning: whether or not we think of an organization as active in the economic sphere depends most of all on how we define economics. Moreover, an economically oriented organization can deal with a different topic if it can be seen to have economic consequences. For example, the European Community has developed from a purely economic organization into one that also deals with other aspects of life, provided there is an economic side to those aspects. This type of reasoning can be illustrated by the Bosman decision of the European Court of Justice.

• Membership
  Some organizations aspire to universal or near-universal membership, in principle inviting all states to join (United Nations). These are often referred to as ‘open organizations’. Other organizations may rest satisfied with a limited membership, and usually such limitations may derive from their overall purpose. These limitations may be based on considerations of geography (European Union), or on economic ties (OPEC).
  Where membership is limited to states from a certain region, such organizations may be referred to as ‘regional’, but the more generic term used is often ‘closed’.

• Political or functional
  A distinction sometimes made which refers to notions of integration theory is that between political and functional organizations. Some integration theorists have held that the chances of international integration or co-operation occurring are larger when the purpose is limited to some technical task: a clearly circumscribed function. The underlying idea is that technical functions do not involve great political sentiments.
  However, there is but a fine line between what some would appreciate as political and what other would regard as rather functional, and much may depend on one’s position (fisheries are more important, and thus more political for Iceland than for the Swiss or Austrians).

• Intergovernmental or supranational
  Does the organization ‘rise above its members’ (supranational) or does it ‘remain between its members’ (intergovernmental)?
  Any description of supranational organizations will inevitably be based on the EU. Three features render the EU distinct from the rest. First, under its constituent treaties, decisions which will bind the member states can be taken by majority votes. A member state may therefore have to adopt a course of behaviour which it opposes. Second, EC law attains supremacy over domestic law, regardless of what the laws of the member states stipulate and regardless of which one was enacted later. Third, much EC law may be invoked not just by one member state against another, but also by a citizen of one of the member states against his or her own government, or in other relations of a private nature.
   

Reasons for co-operation

Throughout history, observers have had a hard time explaining co-operation. The question as to why actors will co-operate is one of the central questions of the social sciences, and is particularly prominent in international relations theory.

Several international relations theories:

• Realism and neo-realism: starts form the proposition that the world is a jungle, an anarchy, where it is a fight of man against man and state against state. In order to ensure survival, the state must guarantee that its competitors do not become more powerful. Co-operation is almost by definition doomed to remain temporary or to be the result of submission or coercion. States will pursue their own interests.

• Functionalism or neo-functionalism: social actors may also strive to co-operate in order to combat problems that would typically require a joint effort, and co-operation may even take place out of altruism or some similar incentive.

• Liberalism: advocates far-reaching co-operation in various forms between like-minded states. Liberal states become embedded in a society that comprises trans-boundary relationships between private actors.

• Regime theory: states can and do co-operate on the basis of the realist premise of enlightened self-interest. In most situations states would actually have an interest in co-operation, since it was generally thought to result in a greater common good. According to Joseph Grieco however, this premise was wrong. Instead, states are interested in an increase of their relative power positions.

• Republican liberalism: co-operation takes place neither for the self-interest of states nor out of altruism, but rather because domestic forces wish to ‘lock’ their positions.
   

Additionally it has been suggested that states may join organizations because the cost of staying out may be too high (EU) and that states may engage in (what looks like) co-operation primarily to have a scapegoat for policy failures or as a means of suggesting that activities are taking place.

What emerges as the central problem in explaining the role and impact of international organizations is the relation between the organization and its member states: is the organization like a forum for the member states, or does it present itself as something that is distinct from its member states?

Functional necessity

Functional necessity is based on the idea that international law does not automatically grant any substantive rights or obligations to international organizations. Many scholars maintain that organizations can reasonably claim such rights and privileges as would enable them to function effectively; their legal position at international law is geared to their functional requirements, the necessities which flow from their function. Organizations generally are considered to possess the types of legal immunities which are necessary for them to work without interference from their host state, or their member states; at the same time, their privileges are limited to their functions.

The functional necessity concept suffers from some serious problems. First, it is biased in favour of international organizations, and is therefore based on the view that international organizations are necessarily a good thing. There is at least the hypothetical possibility that international organizations can be used for less than worthy purposes. Where the organization becomes a cover for exploitation or invasion, there appears to be less and less reason to promote anything which would facilitate its functioning. A second problem with the notion of functional necessity is that it is itself a rather empty notion to begin with. What is the functional necessity of any given organization, and who is to determine such issues? Third, the idea of ‘functional necessity’ suffers from the drawback that organizations are the result of negotiations, and therewith of power struggles and struggles between competing ideas. Negotiating partners are likely to entertain different ideas on the functional necessities of any given organization at any given moment in time.

Organizations and its members

Not the functional necessity theory will be the basis for the following chapters, but the idea that much of the law of international organizations is the result of the fundamental tension between the organization and its members. Discussions on issues such as the implied powers doctrine, the teleological interpretation of constituent documents, or whether member states retain a hold on an organization are endless. A common characteristic of such debates is that one can either occupy a position favouring the member states or occupy a position favouring the organization without being able to say which is the better view, at least not without lapsing into the type of normative thinking which supposedly ought not to form a part of the law. It is easy to advocate the implied powers doctrine with a view to the needs of the organization, but that is merely subjecting a claimed legal rule (i.e., the implied powers doctrine) to a political opinion (i.e., the needs of the organization must be taken into account). Without having the needs of the organization in view, advocacy of the implied powers doctrine falls flat. Its attraction exists precisely in its being hooked up to a normative proposition.

It follows that large branches of the law of international organizations are fundamentally uncertain: if we change our normative propositions, we find different legal rules to be hooked up with.
 

Chapter 3: The legal position

International organizations are counted among the subjects of international law. They are deemed capable of independently bearing rights and obligations under international law. As the ICJ recognized in the Reparation for Injuries opinion, the subjects of international law may come in various shapes and guises. There is no standard set of rights and obligations for each and every subject of international law.

Indicators of ‘subjectivity’

Given the fluid nature of the very notion of subjects of international law, and the circumstance that different subjects may entertain different sets of rights and obligations under international law, the precise degree of rights and obligations is a matter of analysis, and as a starting point most international lawyers will determine the extent of ‘subjectivity’ of any possible subject with the help of three indicators:

• Treaty-making capacity (jus tractatuum)
  At present, the treaty-making capacity of international organizations has been accepted. What is still a matter of debate, is where this capacity springs from, or more specifically, whether such power derives directly from public international law or rather from the constituent instrument of the organization in question. The 1986 Vienna Convention on the Law of Treaties appears to choose the first option. According to its preamble, ‘international organizations possess the capacity to conclude treaties which is necessary for the exercise of their functions and the fulfilment of their purposes’, suggesting that capacity derives from international law. Article 6 of the same convention further specifies in holding that ‘the capacity of international organizations to conclude treaties is governed by the rules of that organization’. Thus, while capacity stems from public international law, it is governed (and potentially limited) by the specific rules of the organization.

• The right to send and receive legations (jus missionis)
  A number of international organizations have permanent missions with states, and states have permanent missions with international organizations. Moreover, it is far from unique for international organizations to have missions with one another, and other entities may have missions as well. The existence of the jus missionis is also indicated by the conclusion of the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character.

• The right to bring and receive claims
  As early as 1949 the ICJ affirmed that international organizations may have the capacity to bring international claims. It did so in its Reparation for Injuries opinion, and the Court appeared to imply that the right to bring claims was inherent in being an organization.

Legal personality under domestic law

Hypothetically, entities can possess legal personality under any legal system, dependent on whether they meet the requirements which that legal system posits for acceptance of the entity’s personality. Each legal system is, essentially, free to develop its own requirements. That is not to say that those various differing legal personalities are unrelated. A legal person under the laws of state X may often be recognized as having personality by state Y, as comity may demand that state Y will not debate the validity of grants of personality by state X. Moreover, domestic legal systems used to look at international law for guidance: entities could be granted domestic personality on the basis of them already having been granted international legal personality.

Nowadays, many constituent treaties of international organizations make some form of provision as regards their personality under the domestic law of their member states. For example, Article 104 of the UN Charter states: ‘The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purpose’. This formula reflects something of a functional necessity test.

Such provisions (granting a broad scope of personality under domestic law) can only affect the organization’s position within its member states. This is an important principle of the law of treaties: the pacta tertiis maxim, holding that states cannot create rights and obligations for third parties without the consent of those third parties. Considerations of international law hardly enter the picture on this issue. The Arab Monetary Fund v. Hashim case illustrates to what extent issues of international and domestic law may get entangled when it comes to personality under domestic law as well as a fundamental degree of uncertainty concerning the legal nature of international organizations themselves.

The domestic legal personality of an organization may also extend to its organs, and even its subsidiary bodies.

International legal personality

The position of international organizations in various domestic legal systems is usually explicitly provided for in the constituent treaty of the organization; the main problem to overcome then is the position in non-member states. The debate on the international legal personality of organizations has been dominated by two theories, both of which invoke the International Court’s opinion in Reparation for Injuries in support: the ‘will theory’ and the ‘objective theory’ of personality:

• Will theory: it is the will of the founders of the organization which decides on the organization’s legal personality. Thus, if the founders intend to endow their creation with personality under international law, then such will be the case. It is difficult to go against states’ wishes in international law, so when states have clear intentions concerning the legal personality of international organizations they have established, then those intentions must be respected.
  A serious problem is that relatively few constituent treaties explicitly provide for the international legal personality of organizations. Another problem for the will theory is that it opens up the possibility that international legal personality of an organization is an empty concept: what if states wish to create an international organization with international legal personality, yet no one is willing to enter into relations with it? Many advocates of will theory resort to recognition by third parties of an organization’s international legal capacity, but that renders the will theory incoherent: then the importance of the will of the founders becomes difficult to sustain.

• Objective theory: the legal personality of international organizations follows the same pattern as that of states: as soon as an entity meets the requirements that international law attaches to its establishment, that entity possesses international legal personality. What are the main requirements of international law for possessing international legal personality? The main criterion is that the organization must possess a distinct will of its own. However, considering that most organizations cannot bind members unless the decision is unanimous, the organizations’ distinct will can usually be traced back to the member states. Moreover, the objective theory raises the prospect of going against the intentions of the founders, and therewith elevates itself to jus cogens status.

Practice has shown a more pragmatic approach to the questions of international legal personality, presumptive personality: as soon as an organization performs acts which can only be explained on the basis of international legal personality, such an organization will be presumed to be in possession of international legal personality. Thus, an organization will be presumed to have international legal personality unless and until the opposite can be shown.

Concluding remarks

Presumably, the main position regarding the personality of international organizations in domestic law is that personality is controlled by the rules of the organization. However, under international law personality is, pragmatically, treated as a presumption, to be rebutted if the evidence points in the other direction.

Despite the International Court’s suggestion in Reparations for Injuries, personality seems by no means a threshold which must be crossed before an entity an participate in international legal relations; instead, once an entity does participate, it may be usefully described as having a degree of international legal personality.
 

Chapter 4: The doctrines of powers

International organizations can only work on the basis of their legal powers. Organizations have acquired certain powers to found their actions on, and once they act beyond those powers, their acts may be declared invalid. That raises the fundamental question of where organizations derive their powers from. Because of the limited number of studies on this topic, questions on the origin and scope of the powers of international organizations have to be answered with the help of court decisions. In a request for an advisory opinion submitted to the Permanent Court of International Justice (PCIJ) in 1922, the International Labour Organizations wondered whether its powers extended to regulation of the conditions of labour in the agricultural sector. The question of the proper scope of the powers of international organizations was regarded merely as a matter of interpretation. No doctrine emerged out of those first opinions of the Court: legal questions were simply to be answered by reference to the established canons of treaty interpretation, rather than political principles (such as national sovereignty) or social theories.

The doctrine of attributed powers

In an advisory opinion on the Jurisdiction of the European Commission of the Danube between Galatz and Braila (1926), the PCIJ formulated what would later be called the principle of speciality or the principle of attribution: ‘As the European Commission is not a State, but an international institution with a special purpose, it only has the functions bestowed upon it by the Definitive Statute with a view to the fulfilment of that purpose, but it has power to exercise these functions to their full extent, in so far as the Statute does not impose restrictions upon it.’

This positivist mode of thinking became especially clear in the 1927 Case of the SS Lotus, where the Court made it clear that, as a matter of principle, restrictions on sovereign freedoms are not lightly to be presumed. Instead the rules of international law emanate from the free will of sovereign states, as the Court famously held, and from there it is only a small step to proclaiming that organizations must remain within the powers conferred upon them.

The idea behind attribution is, quite simply, that international organizations, and their organs, can only do those things for which they are empowered. Perhaps the clearest expressions hereof are to be found in Article 4 and 5 of the Treaty on European Union. Article 4 relates to member states' sovereignty and obligations. Article 5 sets out the principles of conferral, subsidiarity and proportionality with respect to the limits of its powers. The UN Charter too promises member states that the UN shall not intervene in matters which are essentially within their domestic jurisdiction (article 2, para. 7). Moreover, article 24, para. 2 UN provides that the Security Council shall act in accordance with the purposes and principles of the UN Charter, and article 11 jo. article 10 UN make clear that there are some limits to the powers of the General Assembly.

Its obvious attractions not withstanding, the principle of attribution encounters at least two problems. Theoretically, if the notion of attribution is taken to its extreme, then organizations are little more than the mouthpieces of their member states, and, if that is so, then their very raison d’être comes into question: why choose the particular form of an organization instead of, for example, a series of occasional conferences?

An objection with more fundamental consequences in practice, is that while the notion of attribution may be a nice point of departure when it comes to discussing the powers of international organizations, organizations are usually held to be dynamic, in constant development, and it is accepted that their founding fathers can never completely envisage the future. The constituent documents of organizations necessarily come with gaps, and the organizations should not be limited to those powers granted to it upon its creation; instead the organizations must be allowed some flexibility. It must be allowed certain powers which, while not expressly granted, are granted by implication. And it is this thought, the so-called doctrine of implied powers, which is at the heart of most of the talk about the powers of international organizations.

The doctrine of implied powers

There are at least two ways in which implied powers have been found to exist. The first holds that implied powers flow from a rule of interpretation which itself holds that treaty rules must be interpreted in such a way as to guarantee their ‘effet utile’: they must be interpreted so as to guarantee their fullest effect. This approach to the implied powers doctrine was embraced by the PCIJ in its advisory opinion of 1928 on Interpretation of the Greco-Turkish Agreement of December 1^st, 1926 and later in a similar fashion by the Court of Justice of the European Community for Coal and Steel, who argued in the classic Fédéchar case: ‘the rules laid down by an international treaty or a law presuppose the rules without which that treaty or law would have no meaning or could not be reasonably and usefully applied.’

Perhaps this first (rather careful) approach to the implied powers doctrine was best formulated by Judge Hackworth, in his dissenting opinion to the International Court’s advisory opinion in Reparation for Injuries. He wrote that ‘powers not expressed cannot freely be implied. Implied powers flow from a grant of express powers, and are limited to those that are “necessary” to the exercise of powers expressly granted.’ Judge Hackworth thus disagreed with the majority in Reparation for Injuries, and held that the majority used an unduly wide version of the implied powers doctrine by relating the power to be implied not to an express provision, but rather to the functions and objectives of the organization concerned.

As the majority had put it: ‘Under international law, the Organization must be deemed to have those powers which, though not provided expressly in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties. This principle of law was applied by the PCIJ to the ILO in its Advisory Opinion No. 13 of July 23^rd, 1926, and must be applied to the UN.’ Two comments on this passage: first of all, it is debatable whether the precedent invoked by the Court was actually on point. The Permanent Court did not find any powers to exist by necessary implication only; and it most certainly did not derive such powers as it did find to exist solely from the functions or objectives of the ILO’s constituent documents. Second, the criterion created by the Court (‘essential to the performance of its duties’) is by its very nature a highly flexible one. This criterion is not conducive to the creation of legal certainty.

Nonetheless, it is this wider version of the doctrine that is often thought to prevail. Judicial decisions that seem to point in this direction include the 1954 advisory opinion of the ICJ in the Effect of Awards case, the 1962 advisory opinion of the ICJ in the Certain Expenses case, and the decision of the Court of Justice of the European Community in ERTA. Regarding ERTA, an implied power was assumed on the basis of the fact that since the Community was internally competent to legislate in matters of road transport, such internal competence must have an external counterpart in order not to be circumvented. The reason why the ERTA decision is usually mentioned in support of a wide conception of implied powers resides in the fact that the Court ultimately sought a justification not so much in the ‘effet utile’ of the ‘internal’ transport provisions, but rather in the objectives of the Treaty and the duty of Community solidarity.

The attractions of the implied powers doctrine are the mirror image of what we dislike about the attribution doctrine, whereas the advantages of the attribution doctrine are the attractions of implied powers in reverse.

Reconciling the two doctrines

A compromise between the two doctrines would be to limit the applicability of the doctrine of implied powers in the way Judge Hackworth had in mind when dissenting from the majority in Reparation for Injuries.

A similar idea is laid down in Article 300 of the EC treaty: ‘If action by the Community should prove necessary to attain…one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall…take appropriate measures’. The wording of this Article 300 is in line with Judge Hackworth’s dissent: if a power is necessary for the objectives of the EC, then Article 300 can be used. Thus, there is no need to go around creating new powers with the help of the implied powers doctrine: Article 300 can simply be used, which automatically means that the implied powers doctrine should be of limited application only.

Inherent powers

Some writers have proposed a third source of power. Organizations, in this view, once established, would possess inherent powers to perform all those acts which they need to perform to attain their aims, simply because they inhere in organizationhood. As long as acts are not prohibited in the organization’s constituent documents, they must be deemed legally valid.

The idea of inherent powers has recently been revived in the context of both the UN and the EC. In the UN the inherent powers doctrine has been revived out of dissatisfaction with the implied powers doctrine, and offers two advantages. First, it is thoroughly functional: it helps organizations reach their aims without being ‘hidebound by the legal niceties of its individual, and often obscurely drafted, provisions’. Second, it makes legal control easier in that it reduces the number of legal controls on the organization’s functioning to two: first, the act must aim to achieve the organization’s purpose, and second, it may not be expressly prohibited.

In the context of Community law, the inherent powers notion is re-launched largely out of a growing sense of unease from viewing the external relations powers of the EC as being almost exclusively based on implied powers.

owever, the inherent powers doctrine also suffers from some serious drawbacks. One serious drawback (which also attaches to the related objective theory of personality, see ch.3) is that it possibly goes against the wishes of the drafters. Ironically, a finding that a specific act is not expressly prohibited in a constituent document may always be countered by the argument that it may have been prohibited by implication. The doctrine is incoherent by its insistence that a power is inherent as long as it is not expressly prohibited by the drafters. A power that is inherent in organizationhood cannot be cast aside by founders, for if it can be set aside, then it is not, in any meaningful sense of the word, ‘inherent’.

Another problem with the inherent powers doctrine is that it seems to rely on a solid vision of the nature of international organizations. But what things exactly ‘inhere’ in them?

On a more practical level, the test that an action must be aimed at contributing to one of the purposes of the organization is not terribly strict: there will be few activities which do not meet this requirement, particularly when the majority of the member states support the activity as being in conformity with the organization’s constituent documents.

Finally, the inherent powers doctrine presumes a degree of objectivity which is no doubt unattainable and presumes an objective third party to effectuate this objectivity. This objective third party, however, is lacking.

Some of the advisory opinions of the ICJ come close to supporting what looks like an inherent powers doctrine, despite making use of the terminology of implied powers, in particular in the Certain Expenses opinion.

Implied powers doctrine has passed its heyday

Within the European Community, the Court of Justice has, on several occasions, refused to find the Community endowed with a certain power only by implication, and such refusals are difficult to reconcile with earlier wide-ranging applications of the doctrine. Even more fundamentally, the Court flatly acknowledged the doctrine of attributed powers in a decision taken in October 2000 in the so-called Tobacco Directive case. A similar trend to interpret organizational powers rather more narrowly than in the past is visible in the recent decisions and opinions of the ICJ, such as its 1996 advisory opinion on Legality of the use by a state of nuclear weapons in armed conflicts.

The message seems clear: the more well-established international organizations have reached the limits, at least for the time being, of what they can actually engage in. Their initial developmental stages are behind us, and now is not the time to add new powers, but instead to fulfil their main tasks as envisaged.

Critiques of the powers perspective

Thinking in terms of powers is slowly subjected to critiques. Two manifestations of this have become visible. First, and predominantly within the EU, practice suggests that the classic ‘powers’ perspective is not longer sufficient in order to explain what is going on. It is no longer considered accurate to suggest that a power either belongs to the member states, or to the EU, for in the EU’s practice it turns out that even when a member state is exercising a power, it is still possible to interfere with the exercise of powers of the EU. As a result, powers can no longer be conceptualized as communicating barrels (or a zero-sum game). A good illustration is SPUC v. Grogan, a judgment from 1992.

A second manifestation of the growing sense of dissatisfaction with a ‘powers prism’ resides in the ICJ’s opinion on the WHO’s request relating to nuclear weapons. The point to note here is that a power derives not solely from the member states, but also from other circumstances, such as the WHO’s place within the larger scheme of things.

Concluding remarks

The fact that the implied powers doctrine is losing some of its appeal may well indicate that organizations themselves are losing some of their appeal. In addition, there is probably some dissatisfaction with the state of thinking on powers generally.

Chapter 6: Membership issues

Usually, the constituent treaties of international organizations control who can join the organization, under what conditions, and following which procedure. Often a distinction is made between original members and those who join later, with the original members being those states that have expressed their consent to be bound by the Organization’s terms before the Organization’s constituent instrument entered into force, or before a certain specified date, or perhaps a combination thereof. This distinction is, however, only rarely of great legal significance.

Membership

When it comes to deciding on membership, the point of departure is that each and every organization will have its own rules on the matter. For example, Article 4 of the UN Charter lays down four conditions for membership.

First, only states are allowed to join. What exactly constitutes a state is a different matter altogether. The UN Charter does not provide a definition and general international law is also not very precise on the requirements of statehood. While it is clear that most entities which have an effective government, territory and population, and the capacity to enter into international relations (criteria derived from the Montevideo Convention, 1933) will qualify as states, the matter is complicated by issues of recognition. Nowadays, admission to the UN establishes a strong presumption that an entity is a state. Clearly there is a certain amount of circularity in the discussion on admission and recognition.

Secondly, states applying for admission must be peace-loving. As a requirement for admission, this criterion does not appear to carry too much weight. Not only is this criterion to a large extent in the eyes of the beholder, but it is also often thought that the best way to ensure a peace-loving attitude is actually to incorporate a potentially aggressive state in the UN.

Third, aspirant UN members must accept the obligations of the Charter. Reservations, while not explicitly prohibited, are difficult to envisage. Reservations are not supposed to affect the object and purpose of the organization, and since the object and purpose of the Charter are quite broad by any standard, it follows that no reservation will stand a chance of success.

Fourth, aspiring members must be able and willing to carry out the obligations of the Charter.

Admission is to some extent based on considerations that are not expressly mentioned in Article 4 of the Charter. The political nature of admission follows from the little caveat in Article 4: what matters is the judgement of the Organization. Thus, in theory it is possible that a state could apply for membership and would objectively meet all requirements, but still be refused, because a majority within the UN did not want it to be a member.

In the Conditions of Admission of a State to Membership in the United Nations advisory opinion of 1948 the ICJ held that the conditions mentioned in Article 4 are exhaustive: thus, states may not be refused for reasons other than those mentioned in Article 4, although it conceded that Article 4 itself is cast in broad terms and ‘does not forbid the taking into account of any factor which it is possible reasonably and in good faith to connect with the conditions laid down’ in it. Still, since admission depends on the judgment of the Organization, in the end all that can be said is that applications should be judged in good faith.

Article 4, para. 2, indicates the proper procedure for the admission of new member states to the UN: the Security Council recommends, the General Assembly decides. If the Security Council does not recommend a state for membership, then there is really no recommendation, and thus no basis for the General Assembly to act upon (Competence of the General Assembly for the Admission of a State to the UN, ICJ advisory opinion, 1950).

With regard to the European Union, Article 49 of the TEU holds that membership shall be decided unanimously by the Council, having consulted the Commission and having received the assent of the European Parliament. Apart from the consideration that there are general requirements relating to respect for liberty, human rights, democracy and the rule of law, the difficulty resides especially in the circumstance that the precise conditions of membership are subject to agreement between the members of the Union and the applicant states. Such accession agreement shall also be subjected to approval procedures in each of the member states, making it possible that in the end the parliament of a single member state is in a position to reject the application of an aspirant state.

Other forms of membership

Sometimes organizations allow for such phenomena as associate membership, partial membership and affiliate membership, and usually such atypical forms of membership constitute pragmatic answers to problems which would be difficult to solve following prescribed procedures.

Associate membership appears usually to be membership with limited rights, possibly leading up to full membership at a later date. Within some organizations, associate membership is envisaged for entities (territories) which are not themselves responsible for the conduct of their international relations This is usually a remnant of colonial days.

Another class is that of partial membership, whereby a state is a full member of some organs without being a member of the parent organization itself. For example, for a long time Switzerland was not a member of the UN, but nonetheless was a party to the Statute of the ICJ.

It may also happen that organizations give some states, or other entities, the status of observer, usually through the adoption of a resolution to that effect by the competent organ. Sometimes it is meant as something of a substitute, or starting point, for full membership; sometimes it is also to accommodate entities which cannot become members because they are not states. Thus, the Palestine Liberation Organization (PLO) has had observer status with the UN. It is a flexible way of reflecting the political significance of such entities, for, surely, the Middle East situation requires the participation of the PLO if a solution is ever to be reached.

The rights of observers are not full rights. Observers usually cannot vote; they usually cannot circulate documents as official documents unless with special permission; and if the observer has a proposal relating the organization’s field of activities, it may need a full member to table the motion.

State succession & membership

When states fall apart, come together, merge ore gain independence, an important question is what will happen to the obligations incurred by the predecessor states.

Regarding obligations under customary international law, a successor state will be as much bound by existing customary rules as its predecessor(s). With regard to treaty obligations, things are less clear. Succession does not guarantee continuity. In some cases it is said that succession is, or ought to be, automatic; in other cases, so-called ‘newly independent’ states are held to have the right to start with a clean slate, meaning that they do not succeed to any treaty obligations incurred by their predecessors.

When it comes to membership of international organizations, the point of departure is that the rules of each international organization will prevail. The problem, however, is that few organizations have their own rules on the topic, perhaps for two reasons: first, issues of succession are relatively rare and tend to come in waves; and second, it is difficult to make rules on succession because the modalities of succession may differ greatly from case to case.

If two members merge and become one, then the new state simply takes over, including possible obligations that one of the two previously existing states still needed to fulfil. In the context of German unification, the question arose whether the new Germany would be bound by conventions to which the former GDR had been a party; the new Germany denied this to be the case, and is probably correct in doing so, for one of at least two reasons. For one thing, on the theory that German unification concerned an accession rather than a merger, there is no rule of international law which stipulates that the obligations of the acceding entities become obligations of the new whole. Second, in such a case, the rebus sic stantibus doctrine can play a useful role. Under this doctrine, states are allowed to escape from their treaty obligations upon the occurrence of a fundamental change of circumstances, and for some the very fact of state succession constitutes such a fundamental change.

Things become even more complicated when at issue is not merger or accession, but where a state dissolves, such as with the USSR and the SFRY. The basic idea underlying discussions concerning succession of membership is that when a state disappears, its place can at best be taken by one successor state only. The case of the former USSR was relatively simple: all old USSR members agreed that Russia would be the continuation of the USSR. With Czechoslovakia, no continuation was identified, and both the Czech Republic and Slovakia applied again for membership of most international organizations, and were accepted without problems. Both states had agreed to start from scratch. Neither claimed to be the continuation of the former Czechoslovakia. Serious legal problems arose in connection with the dissolution of the SFRY. Here, the issue of the continuation state was controversial. Since Slovenia, Macedonia, Croatia and Bosnia-Herzegovina had all left the SFRY, Serbia argued that it (with Montenegro) was the only one left in the end, and thus it was the logical continuation of the SFRY. The world community disagreed, and treated Serbia merely as one of the five successor states to the former SFRY, and thus it had to file for admission as a member of most international organizations that the SFRY had been a member of.

The alternative to treating none of the new states in the former Yugoslavia as successor members would have been to treat all successor states as successor members. However, such an approach would be difficult to reconcile with the idea that membership of organizations is personal and limited to one state at a time. Nonetheless, collective succession to membership is exactly what took place with respect to both the former Yugoslavia and Czechoslovakia within the context of the IMF and the World Bank.

Generally, the 1978 Vienna Convention favours continuity of treaty commitments, but with one important exception: so-called ‘Newly Independent States’ (i.e. former colonies) are allowed to start independence with a clean slate.

Representation

Which government is supposed to represent a state within an international organization? The classic problem concerned the representation of China: is this to be done by the government of mainland China, or rather by those governing Taiwan?

Generally speaking, the constituent treaties do not address the issue of representation, although it may be dealt with in the rules of procedure of the organization, and perhaps even in the various organs of the same organization. Thus, within the Security Council a majority decision is needed to dismiss an individual’s credentials. In 1971, the representative of Taiwan was dismissed in this way from the Security Council: nine members opposed his credentials for representing China. In the General Assembly as well there was agreement in 1971 to dismiss the representatives from Taiwan and let in those from the mainland: here the required two-thirds majority was mobilized.

Credentials are supposed to certify that Mr X rightfully represents the government of the state he claims to represent; verification of credentials is not supposed to amount to an analysis of the policies of the government concerned. This is what happened to the credentials of the representatives of South Africa during most of the 1970s and the 1980s (apartheid). While this use of credentials is of doubtful legality, it may turn out to be a reasonable political solution if the choice is the stark one of either letting a state fully co-operate, or expelling that state from the organization altogether or suspending its rights. Where the Charter provides no middle way, it is only to be expected that some such middle way arises in practice.

Termination

The UN Charter provides for expulsion. Article 6 holds that the General Assembly, upon recommendation of the Security Council, may expel a member if it ‘has persistently violated the Principles’ contained in the Charter. It is decision not taken lightly and for good reason: if you expel a state, you also lose control over it. Thus, it may be better to keep the state in, and try and make them feel in other ways that their behaviour cannot be tolerated.

Another method which tries to persuade reluctant member states of the errors of their ways, and is somewhat softer than expulsion is, with respect to the UN, laid down in Article 5 of the Charter: suspension of rights and privileges of membership – and this usually relates to voting.

In recent years it has become rather popular practice to legislate on what will happen once a member state breaches the organization’s rules. Instead of using the notion of material breach (Article 60 of the Vienna Convention on the Law of Treaties), the constituent documents of organizations increasingly prescribe their own systems of sanctions, and they usually refer to suspension of rights and privileges. An example is the inclusion in Articles 6 and 7 of the TEU of essential bases of membership in combination with sanctions when those essential bases (respect for liberty, democracy, human rights and the rule of law) are violated: certain rights attaching to membership, including voting rights, may be suspended. A sanction similar to that of Article 5 of the Charter is provided for in Article 19 of the UN Charter: if a membership stays in arrears (i.e. does not pay its contribution) it may be stripped of its voting rights within the General Assembly.

Whether expulsion or suspension may take place in the absence of an explicit provision to that effect is debated. Compare this debate with the debate on attributed or implied powers doctrine. If other powers may be implied, then why not a power to suspend or even expel?

Besides expulsion, there are other ways of terminating a state’s membership of an international organization. Obviously, termination of membership will take place when the organization is dissolved. Membership may also come to an end by means of withdrawal, or in connection with an amendment of the constituent treaty. Some international organizations provide that if the treaty is amended and a party does not accept the amendment, that state stops being a member state. Finally, membership may also come to an end if the state ceases to exist. However, statehood does not cease to exist very quickly. There appears to be a strong presumption in public international law in favour of the continuity of statehood, even if some of the requirements for statehood are no longer met (such as the lack of effective government in the case of Somalia).

Concluding remarks

Even on issues of membership, the law is far from clear, and much depends on policy preferences.

Chapter 7: Funding

Member states usually have an obligation to pay some form of fee or contribution; if they do not pay, they are in violation of the obligations assumed upon membership, and certain consequences can follow. In addition, there may be voluntary contributions. The financing of the EC, however, provides a special case, as it is the one organization which can boast its own resources. And in a different way, the financial institutions also form a special case.

The politics of procedure

Both estimated income and estimated expenditures will be laid down in the organization’s budget, usually prepared by the organization’s administrative organ (UN: Secretariat and Secretary-General) and, after several advisory bodies (UN: the Programme Planning and Budgeting Board) have had their say, submitted for decision to its plenary body (UN: General Assembly). The only legally significant principle is that the budget must be approved in accordance with the appropriate procedure by the appropriate organ.

Political considerations also enter the picture, for the budget is precisely the way to get one’s political visions across. There are various ways in which politics enter the budget process. A first consideration is to decide on which organ shall have the ‘power of the purse’. In the UN, the budgetary power is the sole prerogative of the General Assembly. The Council has been left out of the budget process.

A second potential politicizing moment arrives when it is time to decide on how the budget itself shall be adopted. Preparing for the UN Charter, in 1944 the US proposed a system of voting rights in relation to a member state’s financial input; however, the proposal disappeared rapidly, and would only find acceptance within the IMF and the World Bank.

Another moment for politics is the decision whether the preparation and execution of the budget should be entrusted to a political organ, or whether it is best left to supposedly neutral civil servants.

Budgeting techniques themselves are also not nearly as neutral as they would seem. For example, different techniques in calculating the base period may influence financial assessments of states and thus the amount of contributions a state has to pay.

Expenditure

The regular expenditure of international organizations is mostly related to their organizational existence: rent, salaries, equipment, etc. Most organizations will, however, also incur some operational expenses. Organizations generally provide some form of service (for example, the UN sends peace-keepers all over the world) which brings expenditure with it.

The main legal question regarding the expenses of an international organization is whether they are the type of expense that the organization is empowered to incur to begin with, or whether it is beyond the scope of proper activities of the organization. Related is the question of who should bear the expenses incurred. These questions came before the ICJ in 1962 in the Certain Expenses of the United Nations advisory opinion discussed next.

Problems and crises

With the UN, the budget is intially governed by Article 17 of the Charter. The Assembly decides which states shall pay how much, and does so with binding force and by a two-thirds majority. In doing so, the Assembly makes use of the so-called ‘scale of assessment principle’: a member state’s assessment is based on its perceived capacity to pay which, in turn, depends largely on such things as national income, national per capita income and the general level of development. While based on such factors, any decision on assessment is, in essence, a political decision by the Assembly.

In case a member state is in arrears, Article 19 of the Charter provides for a sanction: any country that falls two years behind in its dues will lose its vote in the General Assembly. Should a member state be able to show that failure to pay is due to circumstances beyond its control, than that member may be permitted to vote. The decision to allow a state in arrears nonetheless to exercise voting rights is to be taken by the General Assembly itself, by a two-thirds majority.

The relative textual clarity of Article 19 notwithstanding, practice appears to be in two minds. Some claim that the suspension of voting rights envisaged in Article 19 occurs automatically, and does not depend on a decision by the General Assembly. Others are less confident about the automatic application of the sanction of Article 19, and refer to the crisis of the 1960s. The crisis reffered to arose when the General Assembly, stepping into the vacuum created by the indecisiveness of the Security Council, decided to organize peace-keeping operations in the Middle East and Congo. Two of the permanent members of the Security Council refused to pay their contributions, on the theory that, as the peace-keeping was not ordained by the Security Council, it was illegal under the Charter, and member states could hardly be expected to help finance illegal activities.

The matter was submitted to the ICJ for an advisory opinion (Certain Expenses, 1962), the question submitted being whether expenditures authorized by the Assembly for peace-keeping purposes constituted ‘expenses of the Organization’ within the meaning of Article 17 of the Charter. The Court noted that drawing a distinction between administrative expenses and operational expenses was rejected by the drafters of the Charter. Consequently, such a distinction ought not to be read into the text of Article 17. Next, the Court discussed the legality of Assembly ordained peace-keeping, and arrived at the intermediary conclusion that the General Assembly could well occupy itself, within limits, with the maintenance of international peace and security, and that legitimate expenses incurred in the process would no doubt qualify as expenses of the Organization. But then, how can it be determined whether a particular expenditure is needed in conformity with the Charter? The Court had to find some form of yardstick to test the legality of the expense at issue, and it found this by testing them in the light of their compatibility with the purposes of the UN. Given the broad nature of the purposes of the UN, it was almost inevitable that the Court would reach the conclusion that the expenses at issue constituted expenses of the UN. Even if the wrong organ has taken the decision, the decision is not by definition falling outside the regular budget. The Court bolstered its conclusion by pointing out that when the issue of sending troops to the Middle East and Congo had been discussed in the General Assembly, no objections were raised. Objections to the legality of an organ’s act, so the Court implied, ought to be raised when the organ is acting. When they are not raised at that moment, acquiescence may be presumed (in line with general international law).

What is clear, since the Certain Expenses case, is that peace-keeping expenses are to be considered as expenses of the organization within the meaning of Article 17 of the Charter, and are thus subject to binding determinations by the General Assembly.

Attempts to establish a single comprehensive budget for all peace-keeping operations have so far failed, but at least something approaching a single system has been set up to apportion the costs, with the adoption by the General Assembly of Resolution 3101.

Due to the reluctance of member states to pay their share, special measures were required, resulting in the creation of a Peace-keeping Reserve Fund as of 1 January 1993.

Sometimes states promise to pay provided the Organization meets certain unilaterally determined requirements. This practice must be deemed legally invalid. Upon joining, the member states can possibly extract valid promises, but to do so later on, under threat of withholding contributions it is duty bound to pay, is legally dubious.

Another issue is the precise scope of the sanction provided for in Article 19: the loss of the right to vote in the Assembly.

Finally, the legal situation concerning contributions when a succession of member states occurs is far from clear. To the extent that a member state breaks up, few problems arise, as usually all new states will have to apply for membership anew. And where, as with the Russian Federation, membership is deemed to be continuous, outstanding payments will most likely simply be transferred. Things are more difficult with unification, as the unification of the two Germanys illustrates. The UN presumed that with the GDR joining the FRG, the latter would take over all financial obligations of the GDR, following an ‘inheritance’ theory of state succession. The German government regarded the situation as the UN losing a member state. In the end, a compromise was reached, with FRG paying something extra, while denying any legal obligation to do so.

Many organizations’ constituent documents do not contain any explicit provision on what to do in case contributions are not forthcoming. This presumably means that general principles of the law of treaties and the law of state responsibility will apply.

Sources of income

In practice, large parts of the income of organizations may stem from voluntary contributions.

It is perhaps inevitable in an increasingly privatizing world that international organizations too, have come to rely on the private sector. Besides individual gifts, many organizations accept contributions or donations from corporations. Of greater structural relevance, perhaps, is where organizations engage with the private sector in all sorts of public-private partnerships. Finally, private sector involvement may also take the form of sponsoring conferences or meetings. The obvious risk here is that of ‘selling out’. There are situations where an organization’s constitution prohibits the acceptance of some private gifts.

More usually, voluntary contributions are granted by an organization’s member states, and the main advantage for states of doing this is that they can usually wield considerable political influence by using voluntary contributions. This immediately raises the main objection to voluntary contributions: an inordinate amount of influence is exercised by a handful of member states, thus potentially eroding the Organization from the inside.

In addition to voluntary contributions, some organizations derive some income from providing services or selling goods on commercial terms.

The financial institutions (IMF and World Bank in particular) diverge from the general pattern. Typically, their income stems not from member state contributions, but from their lending activities.

While a reputable organization such as the UN could considerably increase its income by using its name and emblem for commercial purposes, the Office of Legal Affairs of the Secretariat has vehemently opposed such use. The UN needs an image of being above and beyond the world of finance and commerce.

A special case is that of the European Community which boasts a system of so-called ‘own resources’. It soon became clear that the scope of its operational expenditures could never be matched by a system of membership fees alone. A system of ‘own resources’ was devised, and adopted in the form of a series of decisions. The first of these provided for three resources: customs duties, agricultural levies and VAT collections.

Still, a system of own resources is not as unproblematic as it looks. The possibility arises that member states contribute far more to the Community budget than they will receive from the system. Besides, states may well view the income of organizations as a zero-sum game: whatever the organization gains, the members lose, even if it concerns income which did not exist before (for example taxes on environmental pollutants).

Concluding remarks

The power of the purse (payment or threatening to withhold it) is an important tool in the exercise of political influence. This political importance ensures that the law relating to the financing of international organizations is more volatile than is sometimes imagined. Here too the complicated relationship between the organization and its members causes uncertainties in the law. The discussion on own resources is an uncomfortable reminder that the interests of organizations and their members need not always coincide.
 

Chapter 8: Immunities

States, their (political) leaders and their diplomatic representatives claim, and usually are granted, privileges and immunities in their mutual relations. As far as the privileges and immunities of diplomatic agents go, these are usually explained with the help of the theory that, without immunities and privileges, diplomats cannot freely do their work. Some observers speak of ‘functional necessity’ as underlying the granting of privileges and immunities to diplomatic agents and others in the service.

States and their leaders can also boast some privileges and immunities, most important among these being the immunity from suit in the courts of a foreign state, at least for acts which may be qualified as governmental (acta jure imperii) rather than commercial (acta jure gestionis). Here it would seem that sovereign immunity is largely based on the idea that states require a space for the conduct of politics without fear of legal consequences, rather than on functional necessity.

In much the same way as states enjoy privileges and immunities, so too do international organizations and the people working for international organizations.

The theoretical basis of privileges & immunities

In order to explain and delimit the privileges and immunities of organizations, resort is usually had to a theory of ‘functional necessity’. The idea is that organizations enjoy such immunities as are necessary for their effective functioning: international organizations enjoy what is necessary for the exercise of their functions in the fulfilment of their purposes. Moreover, this is usually deemed to be a normative proposition: organizations are entitled to such privileges and immunities.

Article 105, para. 1 of the UN Charter provides that the UN shall enjoy in its member states ‘such privileges and immunities as are necessary for the fulfillment of its purposes’.

The functional necessity thesis has some considerable weaknesses as well. For one thing, it may well adopt too instrumentalist a view of international life and ignore that the granting of privileges and immunities is usually the result of negotiations between the organization and its host state rather than the application of any blueprint.

Another drawback (but probably also the main source of its attraction) is precisely its open texture. Functional immunity means different things to different people. The determination of functional needs of an organization is essentially in the eye of the beholder.

The idea of functional necessity has occasionally also caused confusion on the conceptual level. In United States v. Melekh et al., in which the defendant (a UN official) was charged with espionage, it was argued that since espionage is not part of the functions of the UN, it is not an activity to which immunity could possibly apply. Yet, the activity itself may well be engaged in to further the purposes of the organization. It is too simple then merely to look at the activity concerned and condemn it as being inexcusable and thus outside the scope of immunity from suit. This would lead, eventually, to the untenable position that immunity from suit is no longer required because only lawful behaviour qualifies.

It turns out that concrete decisions relating to the scope of an organization’s privileges and immunities are almost unpredictable. At the one extreme one can find a case coming close to granting absolute immunity to the organization, whereas at the other end of the continuum there are decisions in which the scope of immunities is considered to be much more narrow.

Yet another problem with anything like the functional necessity thesis has recently been observed to reside in the possibility that the organization can commit violations of public order, or even human rights, under the shield of its functional necessity. The insight has gained ground that far-reaching immunities may come to affect access to justice. The leading case is Waite and Kennedy v. Germany, a 1999 decision of the ECHR in which it accepted that the immunity from suit of organizations may have ‘implications as to the protection of human rights’.

There seems to be a more basic flaw in the idea of functional necessity: it is almost by definition biased in favour of international organizations, to the possible detriment of others.

Finally, it would seem that the idea of functional necessity would require the legal position of international organizations to remain relatively stable. Yet, the variety of judicial proncunciations on the scope of organizational privileges and immunities suggests that predictability remains difficult to attain.

The theory of functional necessity may serve as a useful shorthand way of describing what people may have in mind when granting privileges and immunities, and when assessing them. The problem then resides not so much in the description, but in the fact that this description has taken on normative dimensions.

Applicable law

There are strong arguments to uphold the view that host state law continues to apply, at least as something of a default position.

Moreover, the very concept of immunity would seem to imply that there is something to be immune from, and that something can hardly be anything other than the local legal system.

Distinguishing rationales

Apart from the circumstances that international organizations are always located in the midst of the territory and population of a state, there are several reasons why organizations would warrant a treatment different from that accorded to states when it comes to privileges and immunities. First, while it is unthinkable that a state diplomat would require protection against his own state, it is by no means implausible to suggest that officials of organizations may need protection against the states of which they are nationals. Another factor distinguishing the diplomatic relations of states and their representatives from those of organizations and their agents may well have to do with the far greater variety among organizations. Finally, diplomatic law is one of the branches of the law often explained by pointing to reciprocity. Yet, with organizations this is not the case. While most states will be members of several organizations (and thus be sending states), the amount of host states is relatively limited.

In stark contrast to the diplomatic relations between states, which are by and large governed by a single, almost universally accepted treaty (the 1961 Vienna Convention on Diplomatic Relations), no one document governs the diplomatic relations involving international organizations and their staff, and those representing states to those organizations. Instead, the law relating to privileges and immunities of organizations is a labyrinth of treaties and other legal instruments, including domestic legislation. Indeed, it is usually the case that each organization will have its own treaty on privileges and immunities.

The sources of the law on privileges and immunities of international organizations, their staff, and members of delegations are varied, and often comprise, in addition to general conventions and headquarters agreements, national legislation as well.

The UN Convention

Perhaps the most important document is the Convention on the Privileges and Immunities of the United Nations, as it provides a model for many other similar documents. The Convention creates four different subjects of attention.

There is, first of all, the organization itself: Article II holds that the UN, its property and its assets shall be immune from legal process, unless immunity is waived. The premises, archives and documents of the UN are inviolable, and the UN shall be exempt from direct taxes and customs duties and restrictions. Article III, moreover, accords the UN most-favoured nation status with respect to communication facilities; it also confirms that ‘no censorship shall be applied’.

The second subject of attention consists of the representatives of the UN’s member states. Those occupy a somewhat ambivalent position: they are both national organs and part of an international organization. Article IV creates a number of immunities and exemptions. The UN Convention does not specifically refer to entities with observer status, yet it is generally accepted that these too can often rely on a similar degree of protection. Article IV does posit two important limitations to the privileges and immunities of representatives of member states. First, it specifically states that the privileges and immunities are granted in order to safeguard the exercise of functions in connection with the UN. Member states are under a duty to waive immunity if they feel that continued immunity would impede the course of justice. A second limitation is the principle of nationality discrimination: if the representative of a member state happens to be a national of the host state, then no privileges and immunities apply.

The third subject demanding specific attention is the category of officials of the UN. Article V grants a number of privileges and immunities to UN officials. Article V does not contain a clause relating to nationality discrimination but, similar to article IV in respect of member states’ representatives, it spells out that privileges and immunities are granted in the interest of the UN: where the course of justice would be impeded, the Secretary-General has the duty to waive immunity, and if it concerns the Secretary-General himself, this duty falls upon the Security Council.

The fourth and final subject of attention is the somewhat random category of experts on mission for the UN. In the Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the UN (Mazilu) advisory opinion, the Court presented a rather wide definition of experts on mission: ‘The Court takes the view that Section 22 of the General Convention is applicable to persons (other than UN officials) to whom a mission has been entrusted by the organization. The Court based itself predominantly on the practice of the UN: members of peace-keeping forces, technical assistants, members of committees and commissions, all had consistently been treated as experts on mission within the meaning of section 22.

Section 22 provides for immunity for official acts only, but fails to specify when an act is to be considered as official, and does not indicate who shall make such determinations either. The UN position has traditionally been that this determination is the exclusive province of the Secretary-General. The ICJ agreed that the Secretary-General, ‘as the chief administrative officer of the Organization, has the authority and the responsibility to exercise the necessary protection where required.’ Consequently, where a domestic court is confronted with a legal issue in which the immunity of a UN agent is involved, it should immediately be notified of the Secretary-General’s opinion, for this opinion ‘creates a presumption which can only be set aside for the most compelling reasons’.

Headquarters Agreement

A number of things were left out of the UN Convention, and consequently had to be addressed in the Headquarters Agreement, concluded in 1947 between the UN and the USA. The Headquarters Agreement, moreover, specifies that it is to be read against the background of the 1946 Convention on Privileges and Immunities. The seat of the UN is in New York City, in an area called the Headquarters District. Generally, US law (federal, state and local) continues to apply in this area. Section 7 provides that the privileges and immunities of the UN are to be viewed as exceptions to US jurisdiction, and therefore warrant a restrictive interpretation. The Headquarters District is inviolable, according to section 9. Under section 11, the USA shall not restrict the travel to and from the area of various categories of persons: representatives of members of the UN, experts performing missions for the UN, media representatives accredited by the UN, representatives of NGOs, and others on official business with the UN.

Of some historical importance is that section 11 applies irrespective of political relations between the USA and the state to whom a person may belong (section 12). Thus, the USA will also have to respect representatives from states which it has not recognized.

While it can be argued that headquarters agreements may be terminated in accordance with the law of treaties, it is less certain that such agreements can be unilaterally modified by the host states.

Other sources of law

Differences in the level of privileges and immunities between the various organizations are usually a matter of detail rather than principle, and it would seem that the granting of privileges and immunities to any particular organization is dependent to a large extent on the prevailing political climate.

There is one organization where many of the pertinent cases end up before that organization’s own court, and that is the EC. In a number of cases, the Court of Justice of the EC has applied and interpreted the Protocol on the Privileges and Immunities of the European Communities. The Protocol applies to the EC itself and its officials and the representatives of member states, but also to members of the European Parliament and officials of the Court and to an affiliated institution such as the European Investment Bank. The Protocol provides, moreover, in Article 17 that missions of third countries accredited to the EC shall be accorded privileges and immunities by the EC’s host state.

It is argued that there is also an obligation under customary international law to grant privileges and immunities. There are so many treaties, so the argument goes, that their sheer abundance provides evidence of both state practice and the required opinio juris. However, such a customary rule to grant privileges and immunities is bound to remain fairly abstract, for what is usually at issue is not so much privileges and immunities per se, but rather their precise scope.

Domestic law

There are various ways in which domestic law may play a part in the framework of an organization’s privileges and immunities. One way is by means of an act incorporating the organization and its status in domestic law. Another way is to provide for a general act on international organizations in conjunction with decrees establishing which organizations shall qualify for privileges and immunities under the act. This is the system which prevails in both the UK and the US. In the UK, the government decides which organizations qualify by Order in Council; in the US, this is done by presidential decree. It is a matter of controversy whether such instruments are constitutive of the organization’s legal existence in the legal system concerned, or whether they merely serve to declare and, perhaps, specify the organization’s existence in law. The prevailing view is that Orders in Council and presidential decrees mostly serve to specify the precise scope of the legal position of the organization within a state, including the scope of privileges and immunities.

In some cases, privileges and immunities are directly granted by domestic law, and, in some cases, domestic law may even grant privileges and immunities to NGOs.

Some domestic law may also provide for the regular granting of privileges and immunities in case of meetings by organs of organizations.

Concluding remarks

The field of privileges and immunities is also rich in illustrations of the tensions between the organization and its members. For example, the view that an organization, while not a signatory to a convention on its privileges and immunities, can nevertheless be regarded as a party to that convention, is particularly illustrative of this complex relationship.

The same tension comes to the fore in connection with the functional necessity doctrine, which is arguably mostly referred to in the context of the privileges and immunities of organizations. What is functionally necessary is, however, in the beholder’s eye, and the members may have rather different conceptions from the organization itself.

Finally, there is the paradoxical consideration that, as the level of integration increases, the logic of the reason for being granted privileges and immunities may become less convincing. For example, when it comes to the policing tasks involved in the administration of territory by organizations (e.g. Kosovo), there is tension between privileges and immunities and the very idea of the rule of law.

By the same token, the finding that practitioners working for international organizations are not subject to administrative or disciplinary proceedings from professional organizations might mean that their activities end up without any supervision or control whatsoever. In short, as soon as the organization aims to act as more than a co-ordination and focus point for its members and actually develops activities of its own, its activities become indistinguishable from those of others.

Chapter 9: Institutional structures

The idea of the institutional balance as a principle behind the distribution of powers has gained some prominence, especially within the EU and the UN.

While it seems reasonably clear that states acting together can create organizations and endow those with organs, two questions may occasionally give rise to problems. First, can organs themselves create other organs, and if so, under what conditions? Second, what exactly is the position of member states of the organization: are they to be considered not just as creators of the organization, but also as its organs?

Regular organs

Where the EC Treaty speaks of institutions, the UN Charter speaks of principal organs: Article 7, para. 1 lists six of those principal organs (Security Council, General Assembly, ECOSOC, Trusteeship Council, Secretariat, ICJ), while Article 7, para. 2 allows for the establishment of such subsidiary organs ‘as may be found necessary’ (examples: ILC, ICTY).

Organizations will generally have at least three main organs. First, they will usually have a plenary body: a body where all members meet at more or less regular intervals. Usually, the persons composing the plenary will represent their government, but this is not necessarily the case. Examples include the Council of Ministers in the EU and the General Assembly within the UN.

Second, organizations typically have an executive body, which meets and may take decisions on shorter notice. Some of those have been granted the power to make binding decisions (Security Council), whereas others are largely engaged in regulatory and executive activities. The EC Commission may largely, but not completely, be cited as an example of the latter.

Third, organizations typically possess an administrative body, a secretariat or suchlike. The international civil service is usually thought to be neutral or impartial, working only for the interests of the organization as a whole. As Article 100, para. 1 of the UN Charter puts it, the staff are ‘responsible only to the Organization’. That is not to say that secretariats, or, more particularly Secretaries-General, are necessarily passive observers performing strictly delimited administrative tasks. Under Article 99 UN Charter, for example, the UN Secretary-General has a clear political role to fulfil, as it allows the Secretary-General to bring problems to the attention of the Security Council. However, this may put a test to the supposed neutrality of the Secretary-General.

The staff employed in the secretariats are usually selected on the basis of something approximating neutrality, while taking adequate geographical representation into account (Article 101, para. 3 UN Charter). It is clear that there may on occasion be something of a tension between the requirements of capability on the one hand, and geographical representation on the other.

Some other bodies

Some organizations are in the luxurious position of being endowed with judicial bodies. These can be created to solve disputes between member states (ICJ) or to solve disputes between the organization and its staff (the various administrative tribunals). The EU Court (which also comprises a Court of First Instance (CFI)) also settles disputes between its institutions and member states, and even between the Community’s various institutions. In addition, it famously serves as a point of reference for domestic courts, due to the preliminary ruling procedure of Article 267 TFEU.

When it comes to judicial organs the idea of representation is anathema: Article 2 ICJ Statute holds, for example, that the Court shall be composed of independent judges, ‘elected regardless of their nationality’. However, in practice the five permanent members of the Security Council always have their own judge. The Court is supposed to represent the main forms of civilization and the principle legal systems of the world (Article 9 ICJ Statute).

In the EC Court, and the CFI as well, all member states are naturally represented; with the ECHR, however, the number of judges shall equal the number of parties to the Convention, which gives rise to the possibility that judges need not necessarily be nationals of the state proposing them.

Some organizations also possess a parliamentary body. The most famous among these is doubtless the European Parliament, but other organizations also have assemblies, such as the Council of Europe.

Committees

In particular within the EU, there are numerous committees which help the institutions in their tasks of policy making and decision-making or represent various interest groups at some stage in the decision making process. The creation of such committees (‘comitology’) creates a few serious legal problems. One relates to the question whether the creation of committees left, right and centre does not disturb the vision of the founding fathers too much, in particular their system of institutional checks and balances. Another question relates to democracy and transparency: where decision making takes place in committees, far from the public eye, it follows that any form of control is difficult to realize. A third problem has to do with the composition of, in particular, advisory committees: which interest groups are represented and can they exercise some influence on decision making?

The growth of such committees in relative disregard of constituent documents is presumably inevitable, for it represents two intuitions of timeless quality. On the one hand, there is our need to take politics out of politics, as it were: scientific objectivity should take the place of passionate politics. On the other hand, there is also a strong desire to politicize things, in the sense of making sure that those who take decisions can in some way be held accountable. Hence, committees tend to be created as watchdogs over those who are to prepare or implement policy.

Creating organs

The standard method of creating organs is by means of the constituent treaty, and when a new organ is added, it is often done by amending the constituent treaty.

The reason why the most obvious method of creating organs is by means of an amendment of the constitution is that it may cause problems with member states if existing organs are to create organs on the same hierarchical level. It may be considered to erode the sovereignty of the member states. Nonetheless, it is generally accepted that organs may create subsidiary organs. In addition to the general power to create subsidiary organs granted by Article 7, para. 2, which provides that ‘such subsidiary organs as may be found necessary may be established in accordance with the present Charter’, the Charter also grants a specific power to do so to the General Assembly (Article 22), the Security Council (Article 29) and, arguably, to the Economic and Social Council (Article 68). Judging by their wording, Articles 22 and 29 limit the power to establish subsidiary organs for the Assembly and the Council, respectively, to such subsidiary organs as are deemed necessary for the exercise of their respective functions. Article 7, para. 2 is framed in broader terms: the reference to the principal organ’s functions is absent.

Effect of awards

Does the General Assembly have the right to refuse to give effect to an award of compensation made by the Tribunal (UNAT)? This question was asked to the ICJ. The Court first looked at the statute of the Tribunal: what did the General Assembly intend to do when it created UNAT? The Court found that the Assembly had intended to create a judicial body, not just an advisory committee. It followed that decisions of a judicial body were res judicata, having binding force between the parties to the dispute. Since the UN was bound by judgements of UNAT, so too were the organs of the UN, such as the General Assembly.

One of the arguments made before the Court was that the Assembly did not have the power to create UNAT: nothing in the Charter would give it this power. The Court simply noted that while the power to create UNAT was indeed not specified in the Charter, it could nonetheless be implied from the Charter ‘by necessary intendment’.

The most important counter-argument, however, was that UNAT was but a secondary or subsidiary organ: consequently, it could not bind its own creator, the General Assembly. The Court held otherwise: the General Assembly was not delegating the performance of its own functions, but rather exercising a power it had under the Charter. The Court argued that Article 22 of the Charter was clear enough, and ‘specifically leaves it to the General Assembly to appreciate the need for any particular organ, and the sole restriction placed by that Article on the General Assembly’s power to establish such organs is that they should be “necessary for the performance of its functions”.

The Tadic case

What the Effect of Awards case leaves by and large unanswered is whether there may be limits to the powers of an organ to establish subsidiary organs. Such a question arose in 1995 in the Tadic case before the ICTY. The Appeals Chamber of the Tribunal was asked to investigate whether the Security Council had the power to establish the Tribunal, or whether it had acted ultra vires. While Article 39 and 40 of the UN Charter clearly did not apply, the Appeals Chamber argued that the Security Council had acted under Article 41, which provides in part that ‘the Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the members of the UN to apply such measures’. In other words: under Article 41 the Security Council had a wide discretionary power to take whatever measures it wants to take, as long as those ‘maintain or restore international peace and security’.

A jump of some magnitude has to be made here, and that is the jump that the establishment of a tribunal will indeed contribute to the maintenance or restoration of peace. However, as the Appeals Chamber rightly remarked, the expected success or failure of policy cannot be a criterion of the legality or validity of that policy. In short, the conclusion presents itself that, at the very least, there is an extremely strong presumption that Security Council acts will be intra vires. After all, the same wide discretion also applies to other acts.

As a basic principle, much the same will apply to and within other organizations. In the absence of express prohibitions to create subsidiary organs, existing organs must be deemed to be allowed to create sub-organs within the limits set by their constituent documents.

Inter-relationship: hierarchy or not?

Can organs of international organizations control each other, and, if so, under what conditions? It the Tadic case, the question arose whether the Appeals Chamber was competent to hear such a question, relating to its own establishment. Did the Chamber have the Kompetenz-Kompetenz?

The solution of the Appeals Chamber is debatable, for various reasons. One reason is that the Statute itself remains silent, and, as noted, it clearly describes and limits the competence of the Tribunal. Second, to paraphrase the Appeals Chamber, the modern administration of justice does not just have to listen to demands of common sense and the higher interests of justice, but also places a premium on reasoning at the basis of an opinion. Third, while it is one thing to have the competence to decide on your own competence, as a matter of principle it is somewhat mystifying to judge on the validity of your own creation. In this light, perhaps the Appeals Chamber would have done better to ask the ICJ for an advisory opinion.

In the Certain Expenses case, a question did arise related to the topic of the financing of peace-keeping operations. Asked to give an advisory opinion, the Court found that since the Assembly had some responsibilities when it came to peace and security, costs made in that connection qualified as ‘expenses of the Organization’ within the meaning of Article 17, and could therefore simply be put in the normal budget. What is important is the way the Court reached its decision. The Court refused to create a hierarchy between the Security Council and the General Assembly, and could use the text of the Charter for that purpose. Under Article 24, para. 1, the Security Council bears ‘primary’ responsibility for the maintenance of international peace and security, and, thus, it followed that the Council’s powers were precisely that: primary. They were not, however, exclusive, as also appeared from the Assembly’s power to recommend measures, for example, under Article 14. In other words: the Assembly’s power to deal with peace and security was complementary. There was but one important limitation: under the Charter, only the Security Council could take enforcement action (action under Chapter VII).

The qualification that each organ determines its own jurisdiction ‘in the first place at least’ keeps the door open for a more final determination. None yet has been issued.

In the Lockerbie case, the Court left open the issue of hierarchy between itself and the Security Council. In other organizations, the hierarchy between the various organs may be more clearly posited. Thus, within the EU, the Court of Justice is the ultimate guardian of legality: “The Court of Justice shall ensure that in the interpretation and application of this Treaty the law is observed’, as Article 19 TEU puts it.

The general picture is that in most cases, regardless of any formal power distributions, the member states remain masters of the treaty, and it is here of course that the distinction between the member states acting together and the plenary organ becomes very fine. For even where a plenary organ would be subordinated to another organ, acting outside the confines of the plenary, the very same states can circumvent that other organ.

The position of member states

Much of the implementation of decisions of international organizations rests with the member states, and that raises the question of the exact position of those member states within these organizations. In many organizations the member states are in part subordinate to the organization. This is partly expressed in the circumstance that in some organizations, binding decisions can be made even against the wishes of one or more members, but partly also in more general clauses laying down duties of co-operation, often referred to as a duty of community solidarity. Examples of such provisions are Article 4, para. 3 TEU and Article 2, para. 2 UN Charter.

Rather than merely confirming the pacta sunt servanda principle, such solidarity clauses remind the member states of organizations that they may be called upon to do things which are not to their liking and which they may never even have expected.
 

Chapter 10: Legal instruments

What are the legal instruments that organizations may create, and where does their binding character – if any – stem from? The legal nature of instruments of international organizations, and the ways those instruments are created, are in principle determined by what the constituent treaty says.

Any thoughts on law-making by international organizations depend on two preliminary issues. First, opinions on law-making depend greatly on the underlying concept of law. Legal theorists tend to agree that what matters is not only the behaviour of actors, but also their sense of being under a legal obligation. And for actors to understand themselves as being under a legal obligation, such formal things as whether or not the institution in question is endowed with legislative powers becomes an important question.

Second, much may also depend on the underlying concept of international organizations. Those who view organizations as mere aggregates of states will be reluctant to concede that they can make law. Arguably the treaty analogy stems from such a concept. If, on the other hand, one thinks of organizations as separate actors, then all of a sudden it makes a lot more sense to think of them as being engaged, in a meaningful way, in law-making activities.

Categories

A distinction is often made among various types of legal instruments according to what those instruments are supposed to do. Some aspire to be of a law-making nature, laying down more or less general application, binding upon all subjects of a given legal system (for example: ‘regulations’ in EU law). We may also distinguish acts that are more in the nature of applying the law to certain configurations of facts: more or less the equivalent of administrative acts (for example: ‘decisions’ in EU law). Third, then, there is the category of acts of a ‘household nature’, such as the making of the budget and the election or selection of officials. And fourth, there is a large category of acts which aims to influence behaviour, but without creating law: many organs of many organizations habitually adopt recommendations, declarations, codes of conduct or generally non-binding resolutions. In addition to the categories of clearly binding rules and clearly non-binding recommendations, many observers have seen fit to posit the grey in-between category of ‘soft law’. Usually, the concept of ‘soft law’ entails the notion that rules may exert influence without being clearly ‘hard’ law.

The division between law-making, the application of law and household acts is arbitrary. There may also be instruments which, while clearly legal in one way or another, nevertheless do not fit in: a prime example is the ‘directive’ in EU law, which leaves the member states free to decide on how to achieve a binding result. Finally, there is the amorphous category of instruments adopted by the member states of an organization, or by its organs but seemingly outside the regular decision-making procedures. The Charter on Fundamental Rights of the EU is but one of the more recent examples.

Three theories of law-making

Following the treaty analogy, decisions of international bodies, if and where they require unanimity, can be considered as analogous to treaties, formulating the combined will of the participating states. Nowadays, the theory that decisions of international organizations are to be regarded as somehow similar to treaties is largely discarded, mainly because the theory is unable to explain the binding nature of majority decisions.

The most popular theoretical basis espoused nowadays appears to be that the binding nature of acts of organizations can be explained on the basis of delegation of powers. In this view, the member states, when consenting to be bound to the constitution of an organization, may or may not give that organization the power to create binding rules of law.

Both the treaty analogy and the delegation theory are founded upon positivist premises, and thus derive much of their attraction from fitting nicely into the main mode of international legal thinking. Both, after all, stress the importance of consent.

These theories have their counterpart in the legislation theory, the theory that some acts of international organizations can be explained, rather controversially, as instances of international legislation. The basic idea behind this notion is that the consent of states need not always be decisive, and may at times be overruled for the sake of the interests of mankind.

Non-binding instruments

There is no explicit law-making power to be found in the Charter, and no tribunal has ever reached the conclusion that the General Assembly has a general implied power to make law. That is not to say that occasionally General Assembly resolutions have not been treated as being legally relevant by courts, because they have. In the absence of general law-making power vested in the General Assembly, the legal effects of General Assembly resolutions have been explained along a couple of lines. Thus, following a first line of argument, they may reflect ‘authoritative interpretations’ of the UN Charter. There are two problems with this approach. One is that the Charter does not explicitly authorize the General Assembly to make authoritative interpretations, although it does not forbid it either. Second, it still leaves the position of states who voted against any particular resolution unclear: should they abide by the majority position, or not?

A second approach has been to regard at least some resolutions as being declarative of international law. Again there is a lack of explicit power.

Having said that, at the very least General Assembly resolutions can be seen as evidence of opinion juris, as indeed the ICJ clarified in 1986 in the Nicaragua case, and confirmed in its opinion on the legality of nuclear weapons. And that leads to a third explanation: General Assembly resolutions as customary international law. Well settled, already before the Nicaragua decision, is the version which says that indeed they may reflect opinion juris. The question then arises of what to do with state practice.

A final explanation for the legal effects of General Assembly resolutions has centred around the notion of estoppel. Under this version, at the very least a state which has voted for something would be precluded from practising the opposite.

Within the OECD, there has arisen the habit of adopting only documents which are formally non-binding: guidelines, model agreements, etc. Yet, adherence to them is not legally required, but, in practice, those instruments are among the most successful international legal instruments in terms of compliance. OECD acts come interestingly close to such phenomena as self-regulation by industries.

EU instruments

In some organizations there can be no misunderstanding about the legal nature of particular acts. Thus, Article 288 of the TFEU clearly indicates that regulations, directives and decisions are binding. In contrast, recommendations and opinions ‘shall have no binding force’.

Regulations are par excellence the instruments for EC law-making, binding as they are in their entirety and being directly applicable. Directives, on the other hand, are only binding as far as their result is concerned, and leave the member states the choice as to how to achieve that result. Decisions, finally, are best regarded as administrative acts. These decisions are, of course, binding, but generally speaking they do not create abstract and generally applicable rules of behaviour.

It is clear that regulations, directives and decisions derive their binding nature from the Treaty. However, this is not the case with other instruments, such as action programmes, guidelines, codes of conduct, or resolutions. Still, by focusing on their contents, the Court has mot often found some legal obligation to be contained in them, presumably on the theory that such instruments would not be made if there was not the intention to have them adhered to. A new development is the so-called ‘inter-institutional agreement’. Sometimes Council, Commission and Parliament issue a joint declaration or joint agreement, for example on the budget procedure. Nothing in the EU Treaty refers to such instruments, but again the Court appears to have treated them as binding upon the institutions.

In other organizations things are, generally, a lot less complicated than in the EU, and are to some extent still comparable to the classic treaty analogy: a decision of an organization reflects the unanimous agreement of its member states in much the same way as a treaty does.

Adopting conventions

International organizations may use different techniques when it comes to sponsoring treaties. The standard technique is simply to draft a treaty which will then become binding upon those who ratify it.

A second technique is to adopt conventions but, instead of insisting on ratification, to allow rather for so-called ‘opting-out’ procedures. Thus, member states will have a certain period of time in which they can make it known that they do not accept a certain convention.

Third – and a variation on the same theme, designed to speed up the process a bit – is to have a lengthy opting-out period, but to start applying the terms of the convention provisionally, awaiting the decision of the member states either to opt-in or opt-out.

Internal and household matters

There are few international organizations which actually come close to having organized some form of legislation. The main exception thereto is when the organization aims at creating rules relating to its own functioning: not so much normatively, but rather practically. Here decisions can usually be taken by some form of majority, yet are to be binding upon all members. An example is the power of the General Assembly to ‘consider and approve the budget’ (Article 17, para. 1).

Applying the law

There are organizations which have given some organ the task of applying the law, and thus of acting pretty much as the executive, in Montesquieuan terms. Perhaps the clearest example is the Commission of the EU. In short, the administration of the EU is to a large extent in the hands of the Commission, and by definition, administration implies the application of rules of law.

In other organizations things are less clear. Generally, most executive bodies seem to have some administrative powers, but subject to approval or disapproval by the plenary body.

It would seem that the powers of the Security Council are limited to making decisions, and do not include law-making. Therefore, the Council’s activities may perhaps be compared to administrative acts, rather than legislation. Having said that, though, there is but a fine line between making law and applying law, and, especially with the Security Council, the problem may take on rather large proportions, as its decision-making powers are rather wide to begin with. Thus, not many activities of the Council (not even, arguably, law-making activities) are likely to be ultra vires.

Concluding remarks

The law of international organizations is still looking for a convincing way to explain the binding force of decisions of international organizations, and it seems more likely that such a convincing explanation is impossible to find: the law must do justice to dual demands of catering to the needs of the organization (which would seem to favour the legislation theory) and those of its members (which would favour a consent-based theory). Those demands are, however, mutually exclusive.

Chapter 11: Decision making & judicial review

How are legal instruments adopted? And to what extent is the adoption of instruments governed and controlled by legal factors? In other words: are there possibilities for judicial review, and if so, on what grounds? This entails in particular the topic of validity of legal instruments. Studying the validity of legal instruments, in turn, leads almost inevitably to discussion of a third topic: the possibility of a hierarchy between various categories of legal instruments.

With all these issues, the complicated relationship between the organization and its member states once more comes to the fore, and the complication can perhaps best be described as one of how to protect the interests of a minority of members against the wishes of the majority.

Adopting legal instruments

As an alternative to unanimity, another method of decision making is to adopt decisions by consensus. Usually, consensus is taken to mean that no participant seriously objects. There is a natural relationship between voting by consensus and the conclusion of package deals. While initially, consensus was heralded as a new form of decision making, finding a balance between unanimity and QMV and uniquely geared to foster negotiations and compromise, it has turned out to be less beneficial than some expected. Indeed, the connection with package deals even carries a serious legal danger: if an instrument is supposed to codify existing customary law, but is decided upon by means of consensus and package deals, it may well happen that customary law is actually being weakened rather than codified.

Where formal provision for consensus is made, it is often accompanied by a reference to QMV, so as to prevent consensus from lapsing completely into unanimity. An example is voting in the Security Council, at least on substantive issues: it requires the affirmative vote of nine members (out of fifteen), including the five permanent members. In practice the rule has become a bit more lenient: as long as the five permanent members do not object, a proposal can be carried. In its 1971 Namibia opinion, the Court argued that the members of the Council ‘have consistently and uniformly interpreted the practice of voluntary abstention by a permanent member as not constituting a bar to the adoption of resolutions’. This, the Court continued, had been generally accepted by the UN’s membership, and ‘evidences a general practice of that Organization’. Here, the Court comes close to accepting the practice as customary law, yet it stops just short of doing that, calling the decision-making practice ‘a general practice’ instead. And, presumably, it could not have gone further, for three reasons. First, the practice of the permanent members is, in the end, the practice of five states only. Second, the Court at no point investigates whether the practice is accompanied by opinion juris, and arguably evidence of opinion juris would be hard to find. Third, had the Court opted for claiming the decision-making procedure as being of customary law nature, then it would have had to pronounce itself on the possibility of customary law developing within the UN to begin with: Article 108 (the amendment article) may militate against such a conclusion.

Presumably what the Court had in mind was that at the very least the ‘general practice’ could be regarded as ‘subsequent practice’ (Article 31, para. 3(b) Vienna Convention) for the purpose of interpretation of the Charter. That still leaves the exact legal status of the Security Council’s decision-making practice somewhat in doubt, but is probably the most forceful explanation.

European Union

When it comes to qualified majority the voting, the EU does things in accordance with a pre-negotiated distribution of votes. Within the Council of Ministers, each member state has been given a certain number of votes (Article 238 TFEU). The EU system is, therefore, an elaborate form of weighted voting. Moreover, decision making involves other actors as well. Thus, EU regulations and directives usually originate in a Commission proposal, and require either the advice or consent of the European Parliament. In a number of cases, moreover, advisory bodies such as the Economic and Social Committee or the Committee of the Regions (or both) must be heard.

A peculiar feature of decision making within the EU is that many of the Council’s legal acts are, in fact, adopted by high-ranking civil servants, assembled in the Committee of Permanent Representatives (COREPER).
 

Validity

If and where international organizations perform administrative acts or adopt legislative acts, it makes sense if the various subjects of the law of that particular organization can protest or appeal against those administrative or legislative acts.

In a few controversial cases (Kadi v. Council, Yusuf and Al Barakaat v. Council) the Court of First Instance (CFI) has assumed the power to review Security Council acts at least to the extent that these can be said to be in conflict with jus cogens norms, while declining more general powers of review.

Elihu Lauterpacht has given a convenient overview of the types of unlawful acts usually at issue in the context of international organizations. To his mind, an element of illegality of the act ‘involves a reference to the special nature of international organisations as artificial legal persons deriving all their powers from a conventional or statutory source and bound to act only within the limits and in accordance with the terms of the grant made to them’. In addition, defects that result from a violation of a substantive rule of law may occasionally prove a ground for invalidity.

The rather broad principle that an organizations acts are to be tested against the objects and purposes of that organization has been upheld in several opinions, most notably the 1962 Certain Expenses opinion. As long as an act of an organization can somehow be fitted into the scheme of that organization’s purposes, there is at least a presumption that the organization was entitled to undertake that activity. Given the generally broad nature of the purposes of most organizations, chances are that in practice the presumption of legality cannot be rebutted, except perhaps in the most blatant of cases. But even then the legality of the decision may still stand due to such factors as acceptance or approval. Only rarely has the ICJ declared that an international decision had been adopted unconstitutionally (one example: Legality of the use by a state of nuclear weapons in armed conflict, 1996 advisory opinion, ICJ).

The possible consequences of invalidity of a decision of an international organization are varied. A first possible consequence is that the act is invalid ab initio and thus never considered as legally effective. This is, in general international law, the situation when a treaty is concluded under duress or in violation of a norm of jus cogens, and, by analogy, it has been argued that the same could possibly apply to decisions of international organizations.

The second consequence is that invalidity does not occur ab initio, but will be declared without retroactive effects. After all, the invalid act may have engendered legal effects in the period between entry into force and the finding of invalidity and the position of parties that have acted in good faith on the basis of the invalid decision may well need to be preserved.

A third possible consequence is partial invalidity. Where only part of an organizational act is tainted by a defect, it might be sensible, if and when possible, to invalidate merely the tainted part, while leaving the remainder of the act valid.

A final possible consequence: except where acts are void ab initio (and arguably even in such a situation), many a defect may be cured, as it were, through the operation of acceptance, acquiescence or estoppel. Thus, even if it is clear that an organ acts ultra vires, but none of the organization’s member (or anyone else affected) objects, then in all likelihood the decision will stand.

For many commentators the doctrine of ultra vires is so bound up with the possibility of judicial review, that, in the absence of a well-developed system of judicial review, the ultra vires doctrine has little chance of successful application.

The one safeguard that the law has created against the abuse of executive power turns out to be a reluctant safeguard: the doctrine of ultra vires, and the related doctrine of procedural irregularity, are incapable of putting a stop to illegal but accepted exercises of power. The only possible remaining defence then is to try and stop an illegal decision from being taken by trying to persuade the organization’s other members of its undesirability, but that, typically, is an exercise in politics.

Judicial review in the EU

The most elaborate system of judicial review exists in the EU, and it is largely laid down in Article 263 TFEU. The bottom line is that the EU members, its institutions in most cases, and sometimes also individuals and companies, can ask the ECJ to review the legality of legal acts adopted by the EU.

Article 263 mentions four grounds for annulment. The first of these is lack of competence. The second ground for annulment is the infringement of an essential procedural requirement. Third, most substantively, if a legal act infringes the EU Treaty or any rule relating to its application, it may be annulled. Finally, a measure can be annulled on the grounds of misuse of powers, and that is perhaps the most arbitrary of grounds.

Judicial review of Security Council Acts

The UN Security Council should stay, generally speaking, within the purposes and principles of the Charter. As much follows from Article 24, para. 2, and Article 25 of the Charter. Those purposes and principles are, however, broad. Most famous among them, from a validity point of view, is perhaps Article 2, para. 7, the domestic jurisdiction clause. Those principles and purposes are ambiguous and often pointing in different directions; Article 2, para. 7 was not written as a validity clause, and not too much weight should be placed upon it.

Presumably then, Article 2, para. 7, prohibits the UN from sending fact-finding missions without the consent of the state concerned, as well as sending peace-keepers or human rights rapporteurs without consent. Whether it goes much further than this appears dubious, and, at any rate, Article 2, para. 7 can safely be circumvented by the Security Council if it acts under Chapter VII of the Charter, as is often the case when setting up schemes which have great domestic impact.
 

Hierarchy between acts

International law in general has a hard time thinking in terms of a hierarchy of norms. While in particular the concept of peremptory norms of international law (jus cogens) has been forcefully advocated, others have pointed out that such peremptory norms ought to be binding even without a consensual basis, which in turn is difficult to reconcile with the very notion of state sovereignty.

Jus cogens aside, there are few provisions of general international law which indicate a possible hierarchy of norms. Perhaps the main example is Article 103 of the UN Charter, which provides that, where conflict arises between obligations under the UN Charter and obligations under other treaties, the UN Charter prevails.

With many international organizations, the question of hierarchy does not give rise to many problems, for it is clear that, normally speaking, the basic rule is that, if there are superior norms at all, these will be contained in the constituent treaty. It is no coincidence that in EU law circles, regulations and other instruments are invariably referred to as ‘secondary legislation’, while the constituent treaties are dubbed ‘primary legislation’.
 

Chapter 12: Dispute settlement

Litigation, with its connotation of winners and losers, guilty parties and victims, crime and punishment, is not conducive to fostering the spirit of the community. This may explain why advisory opinions are relatively popular within international organizations, whereas binding judicial settlement is reasonably rare and usually deals with the legal protection of individuals or companies rather than with inter-state disputes.

Additionally, the variety of dispute settlement mechanisms reflects a variety of ideas as to the roles of law and of dispute settlement within the organization. In the EU, the Court is not just the ultimate guardian of legality, but is also assigned the task of guaranteeing the unity of EU law (in particular via the preliminary reference procedure) and has traditionally been viewed as the motor of the integration process. Something similar is sometimes expected with respect to the WTO’s dispute settlement mechanism. In contrast, dispute settlement procedures in other organizations are usually more limited in ambition: they purport to settle disputes, by legal means if possible, but taking liberties where necessary.

The types of disputes to be settled may also vary, and will vary from organization to organization: between member states, between a member state and the organization or a member and one or more organs of the organization, or between various organs of the organization. A recurring feature, typical of international organizations, is the settlement of staff disputes.

Where international organizations themselves are involved, formal methods of dispute settlement may not always be utilized: organizations have no standing before the ICJ, and claims before domestic courts may often encounter immunity defences. Hence, recourse is often had to arbitration or to claims commissions. In both cases, the organization remains in control, as its consent is required for the establishment of an arbitral tribunal or claims commission.

The ICJ’s advisory junction

The UN Charter enumerates, in Article 33, a number of methods for the peaceful settlement of disputes. States may resort to negotiations, conciliation, good offices, mediation, arbitration, judicial settlement, etc.

The ICJ does not, in contentious proceedings, grant access to entities other than states, and this renders the possibility of requesting an advisory opinion the sole means by which international organizations may come before the court. The facility of rendering advisory opinions is provided for in Article 96 of the UN Charter. Through its advisory powers the ICJ is in the position to provide legal counsel to the UN. It follows that the Court has usually been very broad-minded concerning its advisory role. While the power to accept a request is discretionary, there are few, if any, arguments which it will invoke to deny a request for advice, provided of course the request itself is admissible. The Court has been quite willing to lend an ear to requests for advisory opinions, even if the background would involve a clear dispute between states. States have made the most curious arguments in trying to stop the Court from rendering an advisory opinion, but as soon as the Court can identify any link between the request and the work of the organization concerned, it will assume that it has the required jurisdiction.

It could be argued that there are two kinds of advisory opinions. The first sort is the sort contemplated by the UN Charter and the Court’s Statute, where the Court literally gives advice. In some cases, however, the power to request an advisory opinion is not based on the Charter and the Statute, but on a different convention. An example is Article 30 of the 1946 General Convention on Privileges and Immunities of the UN: “(…) The opinion given by the Court shall be accepted as decisive by the parties.” Thus, although in name an advisory opinion, it will be accepted as ‘decisive’ or final. Several other conventions contain similar clauses, opening up the possibility of adding weight to advisory opinions.

Other tribunals within the UN system

A number of specialized human rights treaties concluded under the aegis of the UN all have their own supervisory organs. In addition, the two general human rights covenants (ICCPR and ICESCR) also have their own supervisory organs. Strictly speaking, all those bodies will hardly qualify as judicial bodies; none of them can make binding decisions in cases before them, and, indeed, actual cases can only come before a few of them to begin with. Nonetheless, their impact is generally felt to be considerable, their statements regarded as authoritative interpretations of the underlying conventions, and the absence of the power to make binding determinations has not impeded (in particular) the Human Rights Committee in coming up with an impressive body of ‘case law’, while further developing the contents of the ICCPR by means of General Comments.

More in the nature of judicial bodies are the two ad hoc bodies established by the Security Council in the early 1990s. Both the Yugoslavia Tribunal and the Rwanda Tribunal allow for binding determinations. The very creation of the tribunals by the Security Council implies that the consent of states is deemed of lesser importance. The binding nature of the tribunals’ decisions derives from Article 25, in conjunction with Chapter VII, of the Charter. Where a jurisdictional claim of a tribunal may overlap with that of a state, the basic notion to be applied is that of primacy: the tribunal has the final say.

Of a different order altogether is the UN Compensation Commission, designed to provide compensation for war damages on the basis of claims, after Iraq’s invasion of Kuwait. The Commission, it has been observed, is a political body, despite the facts that its main function consists of the consideration and verification of claims and the determination of any losses. Obviously then, political as it may be, its tasks ensure that judicial elements are not entirely absent. The Yugoslavia Tribunal, Rwanda Tribunal and UN Compensation Commission have in common not only that they were all created by the Security Council on the basis of the collective security functions of the Charter, but also that their existence is, in principle, temporary. Their jurisdiction is limited in time.

By contrast, the International Tribunal for the Law of the Sea is established for an unlimited period of time. It has jurisdiction in cases arising under (but not limited to) the Law of the Sea Convention, provided that the parties to the dispute have accepted its jurisdiction. Also noteworthy is the fact that a right of access is granted to non-state entities.

Dispute settlement in the EU

Traditional inter-state dispute settlement is almost non-existent before the Court. To some extent, this finds its cause no doubt in the circumstance that cases against member states may be, and often are, brought by the Commission, under Article 258 TFEU. A peculiar feature is the facility for the EU’s institutions to bring proceedings against each other. Usually, such cases reflect constitutional struggles about which institutions shall exercise what powers, or struggles relating to the proper decision-making procedures to be followed. The most innovative feature of the judicial mechanism of the EU is without a doubt the possibility for national courts to refer matters to the EU Court: the preliminary reference procedure.

Finally, apart from the possibility of appearing as a sort of cassation court in cases first brought to the Court of First Instance, the EU Court may also act in something of an advisory capacity when it concerns the conclusion of international agreements by the EU. Under Article 218 TFEU, the Council, the Commission, or any member state may ask the Court of an ‘opinion’ as to whether ‘an agreement envisaged’ is compatible with the EU Treaty. The terms of Article 218 are somewhat ambiguous on the legal effect of the Court’s opinions, but by and large appear to suggest that they are best regarded as binding. The provision specifies that if the Court finds that an envisaged agreement is adverse to EU law, then the agreement may only enter into force in accordance with Article 48 TEU. In other words: if a proposed treaty conflicts with the EU Treaty, the EU Treaty should be amended. That itself seems to point in the direction that the Court’s opinions are to be regarded as binding.

Dispute settlement in other organizations

Other organizations have, as a rule, less elaborate dispute settlement mechanisms, although the machinery set up to supervise the implementation of the European Convention on Human Rights, concluded under the auspices of the Council of Europe, is impressive in its own right.

In quite a few organizations, dispute settlement is to a large extent an overtly political mode of dealing with conflicts, applying diplomacy rather than strict legal rules.

In some cases, the creation of special ad hoc (quasi-)tribunals can serve useful purposes, and not only legal purposes at that. Perhaps the prime example is the creation by the EU, during the dissolution of Yugoslavia, of the Badinter Commission, which functioned as a high-level policy adviser rather than a settler of disputes.

In addition, the very existence of organizations where states may meet both formally and more informally may already provide valuable services relating to dispute settlement. With regard to NATO and the disputes over Cyprus it was noted that ‘the fact that all states concerned were members of NATO ensured that lines of communication remained open, despite a degree of bitterness and hostility which on several occasions led to the use of force’.

The GATT / WTO system

Most international dispute settlement is rather political in nature, and is destined to retain that character in most cases. One of the few exception thereto is to be found in the world trading regime.

GATT was created in 1947 as the General Agreement on Tariffs and Trade. As GATT was but an agreement, it did not mention any institutions, with the exception of a plenary body called the ‘Contracting Parties’. If there was a dispute, parties were supposed first to enter into consultations, and, if that did not work out, to resort to the Contracting Parties. The Contracting Parties would establish a panel, and the panel would produce a report. If the report met with the approval of the Council, it would qualify as ‘accepted’, and the advice or the recommendation of the panel would be given the stamp of approval of the Council. Questions always remained as to whether these panel decision were binding upon the parties to the dispute and upon others besides the parties directly concerned. There are some grounds to suppose they are binding to the parties directly concerned. For one thing, many adopted decisions have been adhered to. Moreover, if states really would have a hard time agreeing to a panel report, they could simply block its adoption: the Council was supposed to adopt the panel’s decisions by consensus, effectively giving every Council member a veto. As to other parties than the parties directly concerned, perhaps the better view is that no binding precedents are created.

The dispute settlement has been streamlined and, many think, improved with the creation of WTO. The most eye-catching innovations are that blocking panel reports is now only possible by consensus, and that an Appellate Body has been created, which may and does scrutinize panel reports on points of law and has already been considered instrumental in cementing an otherwise rather incoherent body of case law. On the topic of precedent, the WTO agreement remains less than unequivocal.

An intriguing feature of the GATT / WTO dispute settlement mechanism is that it may be activated even without a violation of the organization’s rules (Article XXIII).

Administrative tribunals

There is also a whole class of disputes that concern the organization and its employees: the staff cases.

Some organizations have created specialized tribunals to deal with such cases in a more or less legal procedure. The General Assembly has created such a tribunal under the name United Nations Administrative Tribunal (UNAT).

Some points concerning the administrative law of international organizations are worth mentioning. First of all, there is a certain logic involved in having a unified system of labour rules for employees and having internal systems to deal with disputes. Equally obvious, they should be independent from their home states in all possible respects. Moreover, as organizations are usually immune from local jurisdiction, it stands to reason that their servants should have other possibilities for legal recourse.

In essence, international civil servants are hired on two bases: employment on the basis of a contract, or statutory employment. Most organizations use the contract; the EU, however, is an important example of an organization using statutory employment.

Apart from contract or statutory employment, the employment of law of international organizations may have some other sources as well: constituent treaties, staff rules and regulations, and even manuals, circulars and similar documents may be deemed to be ‘law-creative’. The administrative law of international organizations also has a place for general principles of law, such as good faith or force majeure.

Alternatives

Experiences appear to indicate a move away from traditional dispute settlement mechanisms, and towards a replacement by two distinct, but presumably related, phenomena. The first is an increasing emphasis on the management of international regulatory regimes, guiding states towards compliance with norms formulated both within and without international organizations rather than assigning blame-worthiness and responsibility. The second is an increasing tendency to settle disputes ‘indoors’, using the organization’s own substantive rules and leaving the general doctrines of international law, most notably the law of treaties and the law of responsibility, aside.

Chapter 13: Treaty-making

Nowadays, it is reasonably well established that international organizations may conclude treaties, although there is still some debate as to where the capacity to conclude these treaties comes from if no explicit competence is contained in the constituent documents.

Where capacity is said to derive from general international law, competence (or power) would derive mainly from the rules of the organization. The majority of observers nowadays accept that organizations can and do conclude treaties, and that the specific sorts of treaties they can conclude depend on their constitution. Thus, practice walks the middle ground, more or less ignoring the doctrinal debate on capacity and competence; moreover, with the help of the implied powers doctrine many treaties which the founders had never envisaged have been concluded by international organizations. Excess reliance on implied powers suggests that competences are not always clear-cut and self-evident, and may well lapse into the more abstract notion of capacity.

The 1986 Vienna Convention

The capacity of organizations to enter into treaties is not unlimited. Article 6 VCLT specifies that the capacity of an international organization to conclude treaties is governed by the rules of the organization. Those rules of the organization include, according to the definition of Article 2, para. 1(j) VCLT, ‘in particular, the constituent treaty, decisions and resolutions adopted in accordance with them, and established practice of the organization’.

Apart from those rules referred to in Article 2, here too the implied power doctrine plays a tremendously important role. Many treaties concluded by organizations are difficult to trace back to the constituent treaty, decisions or resolutions, or established practice. Instead, they themselves constitute established practice, and find their justification not in an explicit power, but rather by implication.

If supported by all members (or even by only a majority), three possible arguments may be used in support of the conclusion of the agreement in question. First, the members were of the apparent conviction that the agreement was intra vires. Second, if the power to conclude an agreement is not expressly provided for in the organization’s constituent document, it may nonetheless be implied in it. Third, at the very least, the conclusion itself qualifies as subsequent practice of the organization and, if meeting with support, can be deemed to be acquiesced in. In other words, the main mechanism that exists so as to protect an organization’s members from excess authority in the organization, i.e., the doctrine of ultra vires, may always be manipulated out of existence by those very same member states. The doctrine of ultra vires seems a paper tiger.

Treaty-making powers

There are, actually, not that many explicit treaty-making powers to be found in the constitutions of international organizations. In the UN, for example, there are only scant references (Article 43, 57, 63). Yet, the UN has concluded numerous other agreements. In other words: the UN concludes treaties on a far grander scale than was ever envisaged by the founders, and while the implied powers doctrine can be of some help in explaining and justifying this situation, one may wonder whether the legal situation has not become strained when most activities can only be explained with the help of implied powers.

The EU in particular concludes agreements on an impressive scale. With respect to the EU, the power to conclude certain types of agreements is explicitly laid down in the constituent treaties. The power to conclude other sorts of agreements has been found implied in the treaty. Thus, in the classic ERTA case, the power to deal with the external aspects of transport was implied on the basis of the existence of a power to regulate transport within the EU and the need to protect the unity of EU law.

This underlying logic has later been abandoned in Opinion 1/94. Instead of finding a power to exist because otherwise another, existing power would make little sense, the Court found another basis, far more in line with the ICJ’s finding in the Reparation for Injuries case – some power can be implied if necessary for the effective functioning of the international organization, and here the EU Court decided, moreover, to subject this to a rather narrow test: a power can only be implied if it is inextricably linked to these objectives.

In recent years the discussion seems to have settled down a bit, with the ECJ focusing not so much on powers as such, but finds member state action precluded on the basis of the notion of Community fidelity laid down in Article 4, para. 3 TEU.

The ties that bind

Which is the exact entity that becomes bound with the conclusion of treaties: the organization itself, or, as the case may be, the particular organ of the organization that entered into the agreement? And what is the position of the member states of the organization: if the organization concludes an agreement, are the member states also bound?

One may reach the conclusion that agreements entered into by the principal organs (or other organs for that matter) will come to bind the organization as a whole. International law does not readily recognize administrative entities as being capable of bearing independent rights and duties under international law as long as they remain part of another entity.

With regard to the position of member states, it is clear that, under EU law, treaties concluded by the EU and third states bind the member states and the institutions. It is important to realize, though, that the binding force stems from EU law: it is EU law which proclaims that treaties shall be binding upon the member states and the institutions. International law itself is less clear about the topic, and perhaps the rule formulated by the International Law Commission, in the defeated Article 36bis, still stands: member states will only be bound if they have expressed their consent.

A hypothetical rule that member states are bound by definition is ultimately based on the thought that there is no distinction between the organization and its members, and that, in turn, is difficult to maintain.

Since the 1969 Convention prescribes that treaties shall create neither rights nor obligations for third states, neither do treaties concluded by international organizations.

Mixed agreements

A phenomenon peculiar to international organizations is that of the so-called ‘mixed agreement’, whereby both an international organization and some or all of its member states become parties to a treaty. The main legal reason for doing this resides in the circumstance that an international convention may deal with topics which are partly within the powers of the organization, and partly within the powers of the organization’s member states. The practical occurrence of this phenomenon is largely limited to the EU, which is a party to a number of treaties, alongside some or all of its member states.

As a theoretical matter, mixed agreements are far from elegant solutions to practical problems. They rupture the unity, and it sends the message that its ambitions cannot be realized without the separate involvement of its member states. Where it is no longer possible or useful to separate the powers of the EU from those of its members, mixity become an obvious answer when it comes to the conclusion of treaties.

Organizational liaisons

The capacity of international organizations to help create, or join, other international organizations is not yet generally accepted.

Many of the problems discussed earlier return in this context, albeit in more complicated form. Again the question may arise who is bound: the organizations, or their members? Matters are more complex here for two reasons. First, there is not one organization involved, but two. Second, those two organizations (often) have overlapping membership. This seems immediately to make clear that the agreement must be considered to bind only the organizations.

Other problems are more specific to inter-organizational relations and in particular to the situation where one organization is a member of another organization, such as the question of voting rights and procedure. While practice is relatively scarce, it would seem that voting rights and voting procedure are to be determined by the target organization (i.e., the organization that comprises another organization).

A few other issues are also of relevance. Thus, the constituent document of the target organization must allow accession or membership of international organizations. Target organizations usually attach the condition that such an organization must be able to take decisions which bind its members. In addition, at least ideally, the prospective member organization should have an internal rule granting it the power to join other organizations; it has been argued that, with respect to the EU, the existence of such a rule is doubtful. As so often, it has been the implied powers doctrine that has come to the rescue: where a substantive power exists, this must be deemed to imply the power to join or even help establish international organizations.

Finally, another issue of relevance is the member organization’s contribution to the budget. If the member states of the member organization themselves contribute in full, there appears to be little reason to expect an additional contribution from the organization, save perhaps to cover any additional costs arising out of its separate membership.

Concluding remarks

There is a constant oscillation between the position of the organization as a party in its own right, and the position of the organization as a vehicle for its own member states.

Published in

2013