INTERNATIONAL ORGANIZATIONS 1. United Nations 2 Six U.N. Organs Security Council Trusteeship...

INTERNATIONAL ORGANIZATIONS

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United Nations

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Six U.N. Organs

Security Council Trusteeship

Council Economic and

Social Council

General Assembly Secretariat International

Court of Justice

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Voting in the General Assembly

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Article 18 Each member of the General Assembly shall have one vote. Decisions of the General Assembly on important questions shall be

made by a two-thirds majority of the members present and voting. These questions shall include: recommendations with respect to the maintenance of international peace and security, the election of the non-permanent members of the Security Council, the election of the members of the Economic and Social Council, the election of members of the Trusteeship Council in accordance with paragraph 1 (c) of Article 86, the admission of new Members to the United Nations, the suspension of the rights and privileges of membership, the expulsion of Members, questions relating to the operation of the trusteeship system, and budgetary questions.

Decisions on other questions, including the determination of additional categories of questions to be decided by a two-thirds majority, shall be made by a majority of the members present and voting.

If We Were to Create a New International Organization . . .

One member, one vote

Certain categories require 2/3 vote

Otherwise simple majority

Consensus? Base votes on population? Base votes on financial

contributions to the budget?

Should we create a bicameral international organization?

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Present Voting Rules in the U.N. General Assembly

Possible Options for a New International Organization?

What else would be different in a new international organization?6

Membership in the General Assembly? Security Council? Trusteeship Council? International Court of Justice?

1. Some Legal Aspects of International Organizations

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International Organizations

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1. The Legal Personality of International Organizations2. Constitutions of International Organizations as Treaties3. Membership4. Powers of International Organizations5. Law-Making By International Organizations6. Applicable Law7. Responsibilities of International Organizations8. Member State Liability for Actions of International

Organizations9. Accountability and Good Governance10. Privileges and Immunities of International

Organizations and Their Representatives11. Dissolution12. Succession

1. The Legal Personality of International Organizations

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Legal Personality10

International Law Commission Draft Articles on the Responsibility of International Organizations, art. 2:

“an organisation established by a treaty or other instrument governed by international law and possessing its own legal personality.”

Legal Personality11

Personality under international law Personality under domestic law

Legal Personality12

International Court of Justice decision in Reparations for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 179: The U.N. members, “by entrusting certain

functions to [the United Nations], with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged.”

Legal Personality13

International Court of Justice decision in Reparations for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 185: The “fifty states, representing the vast

majority of the members of the international community, had the power in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognised by them alone.”

Legal Personality - Domestic

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Many constitutions of international organizations provide that the organization should have personality in domestic law to enable it to (for example): Contract for goods or services Acquire or dispose of property Institute legal proceedings in local courts Have the legal capacity to exercise its

functions

Legal Personality - Domestic

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U.N. Charter art. 104: 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 fulfillment of its purposes.

Legal Personality 16

To say that an international organization has legal personality does not in itself determine the full scope of what that personality entails.

“The subjects of international law in any legal system are not necessarily identical in nature or in the extent of their rights, and their nature depends on the needs of the community.” 1949 I.C.J. at 330

Legal Personality 17

Legal personality should be recognized by members of the organization (and host nations), but must it also be recognized by non-members?

2. Constitutions of International Organizations as Treaties

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Constitutions19

Constituent instruments of international organizations have a dual nature: They set forth the structure They are treaties between members

ICJ Advisory Opinion20

“The constituent instruments of international organisations are also treaties of a particular type; their object is to create new subjects of international law endowed with a certain autonomy, to which the parties entrust the task of realising common goals. Such treaties can raise specific problems of interpretation owing, inter alia, to their character which is conventional and at the same time institutional; the very nature of the organisation created, the objectives which have been assigned to it by its founder, the imperatives associated with the effective performance of its functions, as well as its own practice, are all elements which may deserve special attention when the time comes to interpret these constituent treaties.”

Legality of the Use of Nuclear Weapons, 1996 I.C.J. at 74-75.

Interpreting the Constitution (the treaty establishing the organization)21

The character of the constitution/treaty (which is conventional and at the same time institutional)

The nature of the organization created The objectives assigned to the organization The importance of effective performance of

the functions of the organization The organization’s own practice

3. Membership

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Membership23

(1) The membership of an international organization consists of the states (and other entities) that become members in accordance with provisions of the organization’s constitution.

(2) The organization itself decides questions as to representation of a member state (or entity).

(3) The organization itself decides questions as to succession of a state’s membership.

4. Powers of International Organizations

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Powers of International Organizations25

International organizations cannot exercise general powers (as can sovereign nations).

International organizations are governed by the principle of speciality.


International organizations “are invested by the states which create them with powers, the limits of which are a function of the common interests whose promotion those states entrust to them.” Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996 I.C.J. 66, 78-79.

Powers of International Organizations

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Powers may be express (in the constituent instruments)

Powers may be implied (by the purpose for which the organization was established, and by state practice)


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“Under international law the organization must be deemed to have those powers which, though not expressly provided in the charter, are conferred upon it by necessary implication as being essential to the performance of its duties.” Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996 I.C.J. 66, 78-79.


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Example: ICJ held that the General Assembly could validly establish an administrative tribunal even without express power to do so in the U.N. Charter. Effect of Awards of Compensation Made by the U.N. Administrative Tribunal, 1954 I.C.J. 47.

But note that any attempts to exercise powers in contravention of the U.N. Charter would be prohibited.


Is the action one expressly authorized by the constituent instrument?

Is the action inconsistent with an express power?

Is the action one “necessarily intended” by the member states when they established the organization?

5. International Law-Making By International Organizations

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Law-Making32

Treaty Negotiations For the organization For the members For non-members

Dispute Settlement by Judicial (and Quasi-Judicial) Bodies

Resolutions Binding? Non-binding?

Law-making (Treaties)33

Can international organizations conclude treaties?

Article 6 of the Vienna Convention on the Law of Treaties between States and International Organizations: “The capacity of an international organization to conclude treaties is governed by the rules of that organisation.”

Law-making (Treaties)34

According to the International Law Commission the “rules of the organization” include Constituent instruments (treaty); Relevant decisions; Relevant resolutions; and Established practices of the organization.

Law-Making35

Dispute Settlement by Judicial (and Quasi-Judicial) Bodies Examples

International Court of Justice International Criminal Court International Criminal Tribunal for the Former

Yugoslavia (ICTY) International Criminal Tribunal for Rwanda (ICTR) International Tribunal for the Law of the Sea

(ITLOS) World Trade Organization Dispute Settlement

Panel Decision

Law-Making36

What is the effect of an international judicial decision?Does it bind the states?Does it bind the organization?Does it bind other member states?Does it bind non-member states?Does it bind individuals?

Law-Making37

Resolutions Binding?

On members? On non-members?

Non-binding? Do non-binding resolutions have any legal

effect? If not, why do countries and organizations

make these non-binding resolutions?

6. Applicable Law

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Applicable Law - International

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The constituent instruments of international organizations are generally interpreted by “international law”

If the international organization entered into a treaty relationship with a particular state (such as a headquarters agreement), that agreement would also generally be interpreted by international law. Possible issues: existence, constitution,

status, membership, representation

Applicable Law - Domestic40

Some issues may be governed by domestic (national) law Examples

Purchase of property Equipment lease Employment law?

International Organizations

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1. The Legal Personality of International Organizations2. Constitutions of International Organizations as Treaties3. Membership4. Powers of International Organizations5. Law-Making By International Organizations6. Applicable Law7. Responsibilities of International Organizations8. Member State Liability for Actions of International

Organizations9. Accountability and Good Governance10. Privileges and Immunities of International

Organizations and Their Representatives11. Dissolution12. Succession

7. Responsibilities of International Organizations

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Responsibilities43

If you create a new organization with legal personality, the actions of that organization may carry responsibilities.

If the organization harms a member state, the organization should be called upon to remedy that harm.

If a member state harms the organization, the member state should be called upon to remedy that harm.

Responsibilities44

ICJ: There is an “undeniable right of the organization to demand that its members shall fulfill the obligations entered into by them in the interest of the good working of the organization.” 1949 I.C.J. at 184.

Responsibilities45

“Responsibility is a necessary consequence of international personality and the resulting possession of international rights and duties.”

The “precise nature” of responsibility will depend upon the circumstances and analogies to the law of state responsibility.

“The basis of international responsibility is the breach of an international obligation and such obligations will depend on the situation.”

Responsibilities46

Direct breach of an obligation Other direct harm Indirect harm Assisting another state (or another

international organization) in a wrongful act (where the organization knows that the circumstances of the act would be wrongful if done directly by the international organization itself)

8. Member State Liability for Actions of International Organizations

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Liability of Member States48

For injuries or debts of the international organization

To other member states To non-member states To other international organizations


Starting point in analyzing liability is considering the legal personality of the organization If an international organization does not

possess an independent legal personality, liability falls upon the member states

If the organization has legal personality, that implies liability for activities entered into by the organization


What kind of liability? Joint and several liability? Was the action under the control of a

particular state (or group of states)? Did the organization act as an agent of a

particular state?


What kind of liability? Joint and several liability? Was the action under the control of a

particular state (or group of states)? Did the organization act as an agent of a

particular state?

If member states act together with an international organization in the commission of a wrongful act, then it will also be liable.

9. Accountability and Good Governance

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Accountability and Good Governance53

Following Basic Principles of Good Governance

Acting Only in Good Faith Acting Only within the Constitutional

Powers of the Organization

Accountability and Good Governance

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Transparent Conduct of the Organization, Its Subsidiary Organs, and Its Agents

Effective Organizational Monitoring Principle of Due Diligence Investigation and Disclosure When

Things Go Wrong Safeguards

Accountability and Good Governance

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State reasons for decisions Follow procedures and rules (among

other things, to prevent abuse of discretionary powers and errors of fact or law)

Follow principle of objectivity and impartiality

10. Privileges and Immunities of International Organizations and Their Representatives

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Privileges and Immunities57

States and their representatives enjoy a variety of privileges and immunities

International organizations and their representatives enjoy them as well

Usually sovereigns recognize equality and sovereignty of other nations

International organizations are unable to grant (or withdraw) sovereign immunity as a reciprocal gesture


“The true bases for the immunities accorded to international organizations is that they are necessitated by the effective exercise of their functions.”

Question as to how you measure the level of immunities in the light of such functional necessity


U.N. Charter art. 105: (1) The Organization shall enjoy in the

territory of each of its members such privileges and immunities as are necessary for the fulfillment of its purposes

(2) Representatives of the members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.


The general provisions of U.N. Charter art. 105 is supplemented by the General Convention on the Privileges and Immunities of the Specialized Agencies

That General Convention is also supplemented by bilateral agreements (particularly host country agreements)


ICJ: Treaty provisions will generally prevail over domestic law of a state party to the treaty. 1988 I.C.J. 33-34.


Functional approach to recognizing privileges and immunities

Reason for granting immunities to international organizations was to enable them to pursue their functions more effectively and to permit organizations to operate free from unilateral control over the organization by the host country.

See, e.g., Mendaro v. World Bank, 717 F.2d 610, 615-17 (D.C. Cir. 1983).

Privileges and Immunities

Immunity from personal arrest or detention

Immunity from seizure of baggage

No liability for words spoken or written in their official capacities

Security for papers and documents

Right to use codes Right to receive

papers and documents by courier or in sealed bags

Exemption from immigration restrictions, alien registration, national service obligations

Exemptions extended to spouses and family

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Privileges and Immunities

Ability to exchange currency (similar to what is allowed for representatives of foreign governments on temporary official missions)

Immunities for personal baggage (similar to diplomatic envoys)

Generally all other privileges and immunities similar to diplomatic envoys

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Representatives (addressed in headquarters agreements)

Officials of the international organization Experts performing missions for the

international organization


May sometimes be waived if it would serve the interest of justice

11. Dissolution

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Dissolution68

Once you create an international organization, how do you get rid of it?

Dissolution69

Dissolution may be covered in the constituent instrument E.g., World Bank may be dissolved by a

vote of the majority of governors European Bank for Reconstruction and

Development may be dissolved by two-thirds of the members and three-fourths of the voting power

International Monetary Fund may be dissolved by a simple majority

Dissolution70

If dissolution is not covered in the constituent instrument, then the organization might be dissolved by a decision of its highest representative body.

Example: The League of Nations was dissolved by a decision taken by the Assembly without the need for individual assent by each member nation.

Dissolution71

Open questions: Is unanimity required to dissolve an

organization? What happens to the assets? What pays the debts? Who keeps the archives?

12. Succession

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Succession73

Succession of International Organizations

Succession of Member States

Succession74

Functions, rights, and obligations of one international organization are transferred to another

Could happen by: Straightforward replacement Absorption Merger Transfer of functions from one organization to

another Could be:

Express Implied

Succession75

In general, the assets (and archives) of the predecessor organization will go to the successor organization.

Whether the debts also transfer is unsettled.

INTERNATIONAL ORGANIZATIONS 1. United Nations 2 Six U.N. Organs Security Council Trusteeship...

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