International Organizations

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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

• 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.

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

• Present Voting Rules in the U.N. General Assembly

• Possible Options for 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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What else would be different in a new
international organization?

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

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1. Some Legal Aspects of International
Organizations
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International Organizations

1. The Legal Personality of International
   Organizations
2. Constitutions of International Organizations as
   Treaties
3. Membership
4. Powers of International Organizations
5. Law-Making By International Organizations
6. Applicable Law
7. Responsibilities of International Organizations
8. Member State Liability for Actions of
   International Organizations
9. Accountability and Good Governance
10. Privileges and Immunities of International
    Organizations and Their Representatives
11. Dissolution
12. Succession

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1. The Legal Personality of International
Organizations
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Legal Personality

• 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.

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Legal Personality

• Personality under international law
• Personality under domestic law

12
Legal Personality

• 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.

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Legal Personality

• 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.

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Legal Personality - Domestic

• 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

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Legal Personality - Domestic

• 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.

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Legal Personality

• 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

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Legal Personality

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

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2. Constitutions of International Organizations
as Treaties
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Constitutions

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

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ICJ Advisory Opinion

• 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.

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Interpreting the Constitution (the treaty
establishing the organization)

• 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 organizations own practice

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3. Membership
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Membership

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

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4. Powers of International Organizations
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Powers of International Organizations

• International organizations cannot exercise
  general powers (as can sovereign nations).
• International organizations are governed by the
  principle of speciality.

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Powers of International Organizations

• 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.

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Powers of International Organizations

• 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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Powers of International Organizations

• 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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Powers of International Organizations

• 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.

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Powers of International Organizations

• 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?

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5. International Law-Making By International
Organizations
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Law-Making

• Treaty Negotiations
• For the organization
• For the members
• For non-members
• Dispute Settlement by Judicial (and
  Quasi-Judicial) Bodies
• Resolutions
• Binding?
• Non-binding?

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Law-making (Treaties)

• 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.

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Law-making (Treaties)

• 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.

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Law-Making

• 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

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Law-Making

• 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?

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Law-Making

• 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?

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6. Applicable Law
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Applicable Law - International

• 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

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Applicable Law - Domestic

• Some issues may be governed by domestic
  (national) law
• Examples
• Purchase of property
• Equipment lease
• Employment law?

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International Organizations

1. The Legal Personality of International
   Organizations
2. Constitutions of International Organizations as
   Treaties
3. Membership
4. Powers of International Organizations
5. Law-Making By International Organizations
6. Applicable Law
7. Responsibilities of International Organizations
8. Member State Liability for Actions of
   International Organizations
9. Accountability and Good Governance
10. Privileges and Immunities of International
    Organizations and Their Representatives
11. Dissolution
12. Succession

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7. Responsibilities of International
Organizations
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Responsibilities

• 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.

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Responsibilities

• 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.

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Responsibilities

• 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.

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Responsibilities

• 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)

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8. Member State Liability for Actions of
International Organizations
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Liability of Member States

• For injuries or debts of the international
  organization
• To other member states
• To non-member states
• To other international organizations

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Liability of Member States

• 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

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Liability of Member States

• 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?

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Liability of Member States

• 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.

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9. Accountability and Good Governance
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Accountability and Good Governance

• Following Basic Principles of Good Governance
• Acting Only in Good Faith
• Acting Only within the Constitutional Powers of
  the Organization

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Accountability and Good Governance

• 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

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Accountability and Good Governance

• 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

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10. Privileges and Immunities of International
Organizations and Their Representatives
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Privileges and Immunities

• 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

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Privileges and Immunities

• 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

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Privileges and Immunities

• 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.

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Privileges and Immunities

• 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)

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Privileges and Immunities

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

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Privileges and Immunities

• 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).

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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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Privileges and Immunities

• Representatives (addressed in headquarters
  agreements)
• Officials of the international organization
• Experts performing missions for the international
  organization

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Privileges and Immunities

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

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11. Dissolution
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Dissolution

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

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Dissolution

• 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

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Dissolution

• 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.

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Dissolution

• Open questions
• Is unanimity required to dissolve an
  organization?
• What happens to the assets?
• What pays the debts?
• Who keeps the archives?

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12. Succession
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Succession

• Succession of International Organizations
• Succession of Member States

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Succession

• 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

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Succession

• In general, the assets (and archives) of the
  predecessor organization will go to the successor
  organization.
• Whether the debts also transfer is unsettled.