law & practice of ios

8/2/2019 Law & Practice of IOs

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The Law & Practice of International Organisations Blokker

Is there really a proliferation? Are IOs really important? What is the current climate?

Counter arguments:

o There is increasingly less government and more market. There may therefore be

less of a need to cooperate between governments

o Today, states are more interested in cooperating through informal

networks/frameworks, such as the Quartet (US, Russia, UN, EU in Middle East),

G8, G20 (played a bigger role post credit crunch/recession-shows flexibility and

ability to adapt to new circumstances).

o Klabbers: there has been a change of climate from good-doers to wrong doers:

see table below. It is no longer the case that where there is an international

problem, an IO is automatically created.

Much more critical: Over 100,00 peacekeepers and some misbehave

(sexual exploitation and abuse). Much more attention to this now.

We still need IOs and they are still created:

o WTO

o EBRD

o ICPE (1970s; International Centre for Public Enterprises-less interest after fall of

Communism. Now: International Centre for the Promotion of Enterprises: shows

how IOs tend not to disband, but to change)

o OPCW (Org for Prohibition of Chemical Weapons)

o

CTBTO PrepComo ICC

o International Commission on Missing Persons (origin of IO in a press conference

post a G8 meeting: during civil war in Yugoslavia) etc. Created because it needed

to determine its relation to the host state in Bosnia. Then there was more interest in

its work round the world and so it was necessary to explain further

Context of IOs: There is a tension between the formal independence of states and their actual

interdependence. It is often the case the case that in order to exercise their independence, states are

forced to co-operate. This has been increasingly structured through the medium of IOs. IOs are not

therefore created to further world government/some other ideal, but to serve a practical need.

Why (continue to) create IOs?

Need to coordinate

o Therefore the first IOs dealt with rivers, post and telegraph: there was a needto

work together.

The need to coordinate happened at a national level first and then an

international level


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Universal Postal Union in Switzerland; Envelopes:

The size of envelopes: there used to be small envelopes in the

Netherlands now gone, because of international developments

Locking the stable door once the horse is gone states only then willing to overcome

sovereignty concerns, eg. LoN post WW1

Co-operation is in the common interest

o Art 11.1 LoN Covenant: Any war, or threat of war, whether immediately affecting

any of the Members of the League or not, is hereby declared a matter of concern to

the whole League.

o Regulate the time taken for opening speeches at IOs

Often to be found in the constitution of the IO, eg. UPU Art 1.1

Annan to UNGA 20/9/1999: State sovereignty, in its most basic sense, is being redefined

by the forces of globalisation and international cooperation

There is therefore often a tension between Virallys two poles in IO theory

1) State sovereignty

2) The concept of function (/the objective of the IO)

o The difference between states and IOs is that the finality of the state is integral

(i.e. it does not often have to be justified by reference to its function), whilst the

finality of IOs is functional

o The function authorises the IO to have a structure, competences and

instruments of substantive law (authorisation)

o The function provides inherent limits to the power of the IO (moderation)

o The function means IOs are obliged to perform their function (obligation)

This tension is seen by the fact that states often provide the opposition to action by IOs on

all three fronts w/in function

o There are often requirements for states to subjugate their interests to those of

the IO (eg. Art 2.2 UNC or Art 10 EC)

o Obviously the effectiveness of such provisions is dependent on the statesthemselves and the enforcement mechanisms employed.

Objectives in studying IOs


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Objective Detail 1) Describeand analyse law ofIOs

IOs have caused a shift in IL from a largely horizontal system of IL,where there are no centralised law-making bodies, no courts with compulsoryjurisdiction and no enforcement of judgements to a more vertical one, at leastw/in the area of competence of each IO examine the way in and extent towhich this superstructure has created a more horizontal system.

2)Contribute topracticalimprovements

IOs may have similar rules and problems, allowing extrapolations fromone IO to another, although it is necessary to bear in mind that the institutionalstructure of an IO will ultimately be determined by its specific function.


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3)Contribute to abetterunderstanding of IIlaw

The increasing proliferation of IOs means that it is particularly importantto study them to enable (1) and (2) to take place.

Klabbers: there have been 3 stages/emphases in this study:

a) Understanding IOs as new phenomena (peak with LoN)

b) Solving practical problems via comparative work(1945-1970s) c) Looking at IOs in a more conceptual and critical way (early 1990s).

This is especially advocated by Virally.


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Is the assumption ofunity w/in diversityjustified?

IOs vary according to their function, the number of members they have, their ability to

determine rights and obligations for members etc.

1) At any given time, IOs will face similar political events of the day (eg. the Cold War, or

US dominance)

2) IOs face similar day to day problems

o Eg. how to deal with break-up of Soviet Union

3) There are common rules for IOs

o Vienna II

o Future rules on responsibility of IOs

o Customary law

o Principles of law

Judicial bodies of IOs often refer to decisions of other such judicial bodies to aid in

interpretation.

IOs belong to all MS and to none: Lorimer paradox (1884)-Scottish lawyer

need headquarters agreements and immunities and independence

Method

Can study the law of individual IOs.

For these purposes, the comparative method is most useful, but which IOs can be

compared?

EU?

o Virallydistinguishes between:

1) IOs with international cooperation as their function leave present

structures and the idea of sovereign states intact

2) IOs with integration as their function certain essential functions of

states are taken removed to the IO level need certain checks andbalances that are not so necessary in category (1)

o Schermers and Blokker take the opposite view, that the EU should be included,

although some aspects of their institutional law may be harder to compare and the

reason for that may be precisely the distinction between (1) and (2) above

Definition

Is the definition important?

o For academic and practical purposes?


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o It determines the legal status of an organisation can then conduct themselves

on an international level

o Organisation for Security and Cooperation in Europe (OSCE)

Unclear status: states are called participating states and not members. It

started as a conference. There were then follow up ad hoc conferences. In

the early 1990s, it was decided to further institutionalise it. Changed from

C(onference)SCE to OSCE, but still without concluding a treaty.

In practice, Ned government needs to know if it is necessary to conclude a

headquarters agreement. Need to know how to deal with the OSCE.

Decided there was no legal person, so no treaty could be concluded with

the OSCE. They had tax problems, because the staff were not e-ees of an

IO. Therefore, there was no tax exemption, as there is for IO e-ees.

Solution was: national law was passed stating that the organisation was to

be treated like an IO for these purposes (law related to protected

minorities). BUT, this could change depending on the Dutch government of

the day.

o Public IOs may be more effective in enforcing their ideas. Although, orgs like

Amnesty, Greenpeace etc. can use the media very effectively.

The definition of IOs is not particularly clear cut and will vary depending on the purpose of

the definition. Often, organisations that start as merely loose forms of international co-

operation develop clearer rules and structures, such as in the case of GATT or the OCSE

(Organisation for Security and cooperation in Europe). See 30 for more examples.

Similarly, there can be a transition from IO to federation (eg. the Swiss Confederation, the

German Confederation, the EU?).

o Loose form of cooperation IO Federation


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By Whom DetailsILC pre-2003 Often used the term intergovernmental organisation, preferring not to elaborate a

definition, although clearly excluding NGOsILC 2003 IO = an organisation established by treatyor other instrument governed by

international law andpossessing its own international legal personality. IOsmay include as members, in addition to states, other entities.

This was introduced in the context of work on the responsibility of IOs.

Gaja (ILCSpecialRapporteur) in1st report

IO = an organisation which includes states among its members insofar it exercisesin its own capacity certain government functions.

This focuses on members and functions. Cf. the eventual definition, which focuses

on the method of creation.

Schermers and Blokker2003

(1) Form of cooperation

(2) Founded by international agreement: by treaty; or by agreement by

government representatives; or through development of loose cooperation. Between

at least 2 states/international organisations. Agreements between branches of

different governments do not normally create IOs, but Interpol shows that this can

sometimes be unclear (despite not being an agreement between states, it was

granted IO status by the UN in 1975: see 36),

Cf. organisations like Amnesty

Where there is no international treaty, there must be proof of an

international agreement to:

(1) Show separate legal personality. It may be necessary to determine

whether an organisation is an organ of another IO or an IO in its own right. The

distinction may often be down to whether it was practical to obtain a separate

international agreement.

(2) Contain a mutual commitmentby different PS (participating states). This

may be weaker than a treaty commitment, but is still binding.

(3) Ensure that national parliaments are involved in approving the creation

of the IO and so give it democratic legitimacy.

(3) Creating a new legal person. This distinguishes an IO from a treatyorgan (eg. ECtHR), which usually have a will of their own, but lack legal personality

With at least one organ with a will of its own, which should be formed by

delegates of 2/more states and not be dependent on any particular state


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(4) Established under international law. See 45 for examples. Cf.Amnesty for example.


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Cf. International Corporations, NGOs and informal groupings

International corporation are created under the domestic law of a particular state, even if

created by a treaty. The definition is not about commercial activity, as the World Bank for

example borrows in international markets and makes long term loans, but was established

under international law.

NGOs derive their name from the nature of the work they do, i.e. they do not have

governmental tasks. NGOs are not established under international law and are not created

by treaties.

o Some NGOs have acquired official recognition by the UN, such as the International

Committee of the Red Cross, which has a number of tasks related to international

humanitarian law.

How to Classify IOs

Virally suggests that classification should be related to function.

Universal vs Closed

o Universal:

Any organisation whose membership and responsibilities are on a

worldwide scale

have to balance membership conditions with desire for universalism

need to cope with large cultural, political, economic and social

differences between members and therefore recruit in a diverse

geographical manner

o Closed:

Regional organisations

Organisations of states with a common background

Closed special organisations such as OPEC (Organisation of Petroleum

Exporting Countries)

Often wish to resist external influence More homogenous membership

Intergovernmental vs Supranational

o Intergovernmental

Concerned with co-operation between the executives of different states

decisions are made by government representatives

governments may not be bound against their will in important matters

o Supranational

IO should be able to take decisions binding MS


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Organs taking decisions should not be entirely dependent on MS

consent

IO should be able to directly bind inhabitants of MS

IO should be able to enforce its decisions even w/o government

cooperation

There should be some financial autonomy

Unilateral withdrawal should not be possible

No IO fulfilling all of the above criteria currently exists

Special vs General


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Participants pp.52-151

General Points

Participation is mainly determined by pragmatism and the need to cooperate.

o It is therefore the function of the IO that determines participation

The idea of state sovereignty is prevalent in this area of IO law and practice.

o Seen in the external capacity of states

o Seen in the internal capacity as well: the system is usually 1 state 1 vote; idea of

micro-states

o Rule emitter and rule receiver are basically the same: debdoublement

fonctionnel (Scelle) There are not many organs composed of independent

persons and even then, they tend to be selected on the basis of MS

representation.

o MS can modify and disband IOs.

o Essentially, they are still Herren der Vertge

The ability to impose entry conditions etc. is down to the fact that states do need to

cooperate and have much to gain from membership of IOs.

Few universal rules in this area.

Distinguish between the internal and external role of MS

Internal = states as constituent parts of the organisation

External = MS as counterparts of the organisation who are confronted with decisions of the

IOo UNSC can create binding rules under Ch VII

o EU and directives etc.

EP v Council, EP v Commission (1993)

o FACTS: decision adopted at Council meeting to send aid to Bangladesh after a

1991 cyclone. EP sought annulment on the basis that it was a Council decision and

therefore required the Art 272 procedure, which had not been used. Council

claimed that it was adopted by individual MS and not by the Council and was

therefore not subject to the annulment procedure.

o HELD: ECJ upheld the Councils viewpoint: nature of an act is determined by its

content and effects, not its form.

Full Members

Possible Subjects

o States

Statehood sometimes a requirement

Micro-states


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Tension between sovereign equality of states (UNC Art 2.1)/1

state-1 vote principle and the factual inequality between members

and the disproportionate weight that can be given to verysmall

populations.

Also question of whether they can fulfil membership requirements

and actively participate (Art 4.1 UNC)

In UN, contributions depend on GDP


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Might not be able to contribute troops

No real solution

UNSC Committee of Experts 1969: never reached agreement

American proposal: category of associate membership

British proposal: voluntary renunciation of certain rights

Both proposals violated sovereign equality of UN

members and were seen as neo-imperialist

Liechtenstein: states during admission procedure to Council of

Europe stated that it would participate fully and had always acted

in a manner appropriate to its size.

o Territories which arent independent states

See 75 for examples of non-independent states admitted to IOs, whilst

not recognising statehood

Eg. UN and Ukraine, Byelorussia, Namibia before their formal

independence: not really compatible with Art 4

Eg. League of Arab State and PLO

Sometimes, there is a specific distinction between membership and

statehood, eg. UPU or GATT: see 76

Can sometimes prove problematic and encroach on questions of foreign

policy in determining whether certain delegations will be recognised: see

77

Best idea: give full powers only in fields where non self-governing

territories are self-governing.

o Groups of states

International Coffee Organisation: member groups are allowed where they

have common/coordinated coffee policies etc.

Distinguish this from collective representation in an organ of an IOs

May be useful for small states who dont have the resources to send

delegations to all IOs (solving the problem of microstates).o IOs

Rarely members; normally they have observer status and act as advisers.

Logically, IOs should be able to join other IOs if they have exclusive

internal competence over some aspect of policy, although whether this is

possible will depend on the governing document of the IO and whether the

second IO allows other IOs to become members.

EC is a member of many IOs, eg. FAO, WTO etc. (see 81)

The EC wants this so that it can use its increased power to

negotiate


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Usual interpretation is that constitutional amendments are necessary to

allow IOs to become members of other IOs.

WTO Art XIV.1 allowed the EC to become a full member

Bank of International Settlements defined country as a

sovereign state, a monetary zone w/in a sovereign state or a

monetary zone extending over more than one sovereign state

Some (eg. Denters) have argued for a similar interpretation of

country in relation to the IMF, although its constitution does not

contain a similar provision.

More normal approach is that of the Food and Agriculture

Organisation (FAO):

Amendment to allow any Regional Economic Integration

Organisation (REIO) to be admitted, although not as a full

member.

1) Majority of REIO must be members (so non-members

of the FAO dont get rights w/o being members)

2) REIO must have power in the FAO filed of activity

3) REIO must have the power to make binding decisions

in that area

Pay only administrative costs, so play a less prominent

role in the IO, because budget discussions involve policy

Cannot take part in non-plenary commissions.

Must provide a list of exclusive competencies. Any

other powers are presumed to be held by the REIO

members

Either the REIO votes or its members do, not both,

although decisions are usually taken by consensus, not by

voting

ECs participation in fisheries organisations is generally along thelines of the EC being a full member and constituent EC states nit

being separate members of these IOs.

Commencement of Membership

o On establishment: often there is a requirement for a certain number of founding

states to ratify the IO constitution first before the treaty comes into force (ICC after

60 ratifications). Sometimes there is a right for states to participate, but not vote

prior to ratification, See 86

Where a founding state signs, but doesnt ratify for a long time, can they

adhere at any time?


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Usually require admission, because a lot could have changed.

o Readmission of ex-members: no different to new membership proposals

E European members withdrawal from FAO had to be readimtted

Controversial example of China. ROC withdrew from GATT in 1950. In

1986, PRC stated that the withdrawal had been illegal, because ROC had

not been Chinas true representative. 1987 working party considered

Chinas case, but China didnt join the (then) WTO until 2001, with Taiwan

joining under a month later. In other words, the long period of absence and

discrepancies between GATT obligations and Chinese conduct made any

other solution unrealistic: it was anew entry, not a resumption of old

membership.

o Admission of new members

Admission by constitutional amendment

May need to amend the constitution to allow for new members at

all

May need to amend the constitution to adapt procedures and

processes to maintain voting balance for example

Eg. Council of European and composition of the

Parliamentary Assembly

If no rule, constitutional amendment can admit new members

Conditions imposed by the constitution

By unilateral notification: 90

Based on assumption that adherence by any interested

state will aid the organisation

By admission decision of the IO: 91

All States admitted by a decision

May necessitate deciding whether an entity is a state

(tendency to follow UNGA practice in this)

Schermers and Blokker advocate a rule of functionality,whereby the entity is admitted if it aids the function of the

IO. On these lines, refusal to admit DDR to World

Meteorological Organisation should be rejected.

States belonging to a particular group

Usually a question of fact can be determined by the

secretariat of the IO. (eg. EU, ICAO)

General conditions


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Eg. for the UN: membership is open to all other (1) peace-

loving (2) states which (3) accept the obligations

contained in the present Charter and, in the judgment of

the Organization, are (4) able and (5) willing to carry out

these obligations. Current practice is that the concept of

membership is unconditionally universal.

Advisory Opinion on Conditions of Admission of a State to

Membership in the UN (1947)

FACTS: the GA referred the question of whether a state

called upon to vote on admission of a state to the UN

could make its consent dependent on conditions not in Art

4.1 UNC , in particular whether if a state recognises that a

particular state fulfils the requirements, it can make it a

condition of its consent that another state be admitted to

the UN.

Art 4.1 provides: membership is open to all other peace-

loving states which accept the obligations contained in the

present Charter and, in the judgment of the Organization,

are able and willing to carry out these obligations.

HELD: 9:6

o The natural meaning of the words used leads to

the conclusion that these requirements are

exhaustive. Otherwise the provision would be

redundant and Members could impose any

condition they liked. This interpretation is

supported by the spirit and the wording of Art 4.1.

o In any case, the wording of 4.1 is already broad

and open to interpretation.

o No need to look at preparatory works, becausethe provision is sufficiently clear.

o Art 4.2, stating that the GA decides on a

recommendation from the SC is procedural only

(will be effected) and cannot change the above

conclusion

o Answer is no, both to the general and the

particular question asked.

Concurring Opinions:


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o Alvarez: Juridcally, he agrees with the majority,

but states that a case may arise where the

admission of a state is likely to disturb the

international situation, eg. where such admission

would give a great influence to certain groups of

states/produce profound divergencies between

them. Therefore, admission may refused in such

exceptional cases and the ICJ must declare it has

no jurisdiction. He also states that where more

than one state applies simultaneously on the

break up of a previous state, they might be

considered together.

o Azevdo: nothing really new to add, but take into

account the object and purpose of the UN and the

obligation to fulfil obligations in good faith (Art 2.2)

Dissenting Opinions:

o Basdevant, Winiarski, McNair, Read:

By setting up a system of admission and

not one of mere accession by

declaration, the Charter allows political

considerations to come into play in the

SC deciding to make a recommendation.

Therefore, the UN organs are bound not

to admit a state that does not conform to

the requirements of 4.1, but that does not

mean there is any other legal restriction

on those organs.

Any restriction upon a power must be

clearly established (PCIJ rule ofinterpretation)

membership is open and admission will

be effected are permissive in ton, not

obligatory

Looked at traveaux and concluded that

they support this empowerment

interpretation.


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There is no restriction on what can be

discussed by the SC/GA: organs can

regulate their own procedure according to

Arts 20 and 21.

The diversity of states and how they may

be created etc. makes it wise to adopt

this approach.

There is still an obligation to act in good

faith and to carry out the principles and

purposes of the UN, and the SC is

responsible for the maintenance of

international peace and security but that

does not mean that freedom is

unlimited/discretion is arbitrary.

o Zoricic:

(1) Thinks advisory opinion jurisdiction is

permissive and in this case, the court

could be drawn into political criticism of

an SC member. Will answer in any case,

because the court gave an opinion.

Generally agrees with the other

dissenters.

(1) The Committee drafting the provisions

had as a task to consider: the extent to

which it was desirable to establish limits

w/in which the organisation would

exercise its discretionary power with

respect to the admission of new

Members.Didnt want to enumerateelements to be taken into account.

Intention was to give the GA discretion.

(2) SCs 1y responsibility reinforces this

Discussions would be difficult if a limit

was placed on the freedom of expression

of council members.


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(3) There is no rule requiring members to

give reasons for their vote, so each

member is juridically entitled to vote

according to his own opinionBUT, this

cannot be a pretext to act arbitrarily: good

faith requirement etc. Good faith is

presumed, unless proven to the contrary

The second question depends on the

context of ex-enemy states. One SC

Member (USSR) agreed to vote for the

recommendation of two ex-enemy states

(Italy and Finland) only on condition that

the 3 other ex-enemy states (Bulgaria,

Hungary and Romania) were

recommended as well. Requirement in

the Declaration of Potsdam and peace

treaties with the 5 enemy states to

support application for admission. The

Declaration was subsequent to the

Charter and if it does not conflict with the

Charter, the Member can rely on an

obligation contained in it. Therefore, the

Member was entitled to maintain its

interpretation (because of sovereign

equality of states) and to call for

simultaneous admission of ex-enemy

states.

o Krylov:

Clearly a political question Agrees with other dissenters

Went through SC and GA practice

specifically and then agreed with Zoricic

COMMENTARY:

o USSR never accepted this

o US implicitly rejected this when it blocked

admission of Democratic Republic of Vietnam and

Republic of South Vietnam for other reasons


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o China abstained from voting in 2000 on Tuvalus

admission due to close relationships with Taiwan.

o Mosler (1958) considered that France could have

found in default when it barred the UK and other

countries from entry into the EC

Specific conditions can be imposed in each case: 97

Art 49 EU allows specific conditions to be

imposed/negotiated in each case.

o Eg. Turkeys membership of EU dependent on

solving situations re. Cyprus

o Often, there are economic conditions.

o Acceptance of Membership is also necessary 100-101

Many conventions provide that a candidate must accept the convention

under its own national law as well

VCLT Art 46: state may not invoke fact that its consent has been

expressed in violation of its internal law regarding competence u/l violation

was manifest and concerned a rule of its internal law of fundamental

importance

o Date of Commencement of Membership

It should be after the IO has admitted the member and the member has

ratified the constitution., eg. UNC 118

o Establishment of New States

When states merge

Egypt and Syria United Arab Republic

Tanganyika and Zanzibar Tanzania

North Yemen and South Yemen Yemen

new state replaced old states, even where one constituent part

had not previously been a member of an organisation.

When states split Larger state generally recognised as the successor state

The smaller state may be treated as a new state or as reviving an

old state

Examples include Syria, but not Austria after de-

Anschluss

Advantages:

o They resume all treaty obligations asap and

automatic resumption is easier


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o This becomes harder the longer a state has been

gone for

Re Czechoslovakia, neither one really succeeded

State disintegration

UN practice of not expelling Yugoslavia, but preventing it

from participating in the plenary organ

FRY: treated as a new member when it was admitted in

2000

Decolonization: 1978 UN Conv on Succession of States in Respect of

Treaties: a newly independent state can choose to be bound only by the

treaty obligations that it wishes to be bound by. This does not apply to IOs.

Termination of Membership

o Withdrawal may be harmful for the IO:

US and UK withdrawal from UNESCO in 1984 and 1985 reduced the

budget by 30%

Re UN, troops may be committed

May have lots of experience in committees etc.

o Withdrawal by MS

Allowed by constitutional provisions

Often require prior notice of a year to allow time for the IO/ other

MS to adapt.

Notice of withdrawal can be retracted

Operates immediately in IMF and World Bank

Where there are no such constitutional provisions

UN: no constitutional right. Instead a declaration of interpretation

was adopted, which disapproved of withdrawal

UNC doesnt contain this right, but a declaration of interpretation

was adopted, essentially indicating that it is possible. Schermers and Blokker think that the US reservation to the WHO

treaty indicates that it thought it may not be able to withdraw w/o it

UNESCO id not accept the withdrawal Of Poland, Hungary and

Czechoslovakia . When they rejoined, UNESCO managed to

recoup some of the accrued contributions


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WHO never formally annulled contributions for years when states

were not members, but on rejoining, allowed them not to be

bound by certain interim regulations ifthey notified the WHO w/in

3 months. In 1955, when USSR wished to rejoin the WHO, WHO

said that for rejoining states, 5% of contributions had to be paid.

VCLT 1986, Art 56: where a treaty contains no provision on withdrawal

or denunciation, it is not subject to such, except for:

Where it is established that parties intended to allow it

See UN declaration

Where a right of denunciation/withdrawal may be implied by the

nature of the treaty

What arguments are used to support the right to withdraw? See

135

State sovereignty, but then there is no role for PIL

Equity: inequitable to be forced to stay where other states

are not forced to become members

Such a prohibition cannot be enforced: pragmatic

argument per Schermers and Blokker; IO has to continue

sending documentation etc.

General principle of law: in national law it is generally

recognised that membership of private organisations may

be unilaterally terminated. BUT, IOs are different in

character. Federated states are not normally able to

withdraw from a federation

Fundamental change of circumstances: see Art 62 in

1969 and 86 VCLT. Should interpret this provision

restrictively

Partial Withdrawal

Per Schermers and Blokker, shouldnt be allowed unlessexpressly allowed by the constitution.

Frances withdrawal only from the military cooperation

(main purpose of IO) of NATO was accepted by NATO

states (maybe because they didnt want France to leave

completely). France said, if we can withdraw fully, we can

withdraw partially.

o Termination by IO

Less frequent than withdrawal, but often an IO will force a MS to withdraw

voluntarily


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Distinguish expulsion from suspension

Expulsion can be used as a sanction

May harm the IO as much as it harms the member

It should only be used in line with the objectives of the

organisation

Expulsion can be used as a defensive measure to prevent obstructive

members

Only a limited number of constitutions allow for expulsion

UNC Art 6, IMF, World Bank, Council of Europe, League of Arab

States

Possible w/o constitutional permission?

IOs often force members to withdraw voluntarily or threaten to

amend the constitution to allow expulsion

See egs, mostly relating to SA in 146

Can a state be expelled w/o waiting for the amendment to come

into effect?

It is always controversial

No such general right in international law

Accepted that this is allowed in extreme cases, based on

3 arguments:

o (1) Implicit power to expel an obstructive member

to protect itself

o (2) Art 60.2 VCLT allows suspension/termination

of a multilateral treaty with regard to a defaulting

state in material breach of the treaty (does this

include non-participation where unanimity is

required?)

o (3) Art 62 VCLT: fundamental change in

circumstanceso Disappearance of MS or loss of essential qualifications: 149

Quite rare, fairly self-explanatory

o Dissolution of IO

Rights and Obligations

o Individual

Obligation to be a good member

Unclear if obligations can be waived

o Collective

To dissolve the IO


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Supranational organisations should theoretically be outside the control of

MS. The EU has taken a step in this direction. The step that would actually

make this final would be making it a federal state.

Associate Members: 166

This was often introduced for colonies or other non-autonomous territories

This has decreased in significance, although is now sometimes granted to liberation

movements/governments in exile

It has also been useful for delegates of newly independent countries who could thereby

obtain experience prior to independence.

Usually entails membership w/o the right to vote or hold office in principal offices of the

organisation.

Partial Members: 169

States are full members of some organs, but not all.

Has been used in the UN

Practical problems:

o In the UN, have to be assessed separately in the budget of the organs of which

they are a member, but they are not represented in the GA (responsible for the

budget)

o See 171

Affiliate Members

Only in the World Tourism Organisation

Open to international bodies (intergovernmental and non-governmental) and to commercial

bodies

Represented in the Committee of Affiliate Members which may send 3 delegates to the

general congress.

They may also be independently involved as observers, but not on the board.

Observers: 173

Suy (legal counsel of the UN), 1978:

o practice is far from being clear, uniform or complete. This is because of:

(1) Variation of observers

(2) Different circumstances and terms under which they acquire and

practice this status

o Advantage is that this minimizes political tensions due to the flexibility of the

process


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o Disadvantage is that the process can become chaotic

o practice has reached the point where it would benefit from general guidance

from the parent organs of IOs

Particular question that has arisen: should a meeting be free to hear statements from the

observers?

General characteristics:

o Access to meetings

o Inability to vote

Often:

o Ability to speak to delegates

o Ability to speak and reply at meetings

o Receive working documents

o Ability to circulate documents

o Ability to put proposals

Observers often have more influence in small, technical IOs.

Categories of Observers

o States: 180-1

Where questions of interest to them are discussed: UNGA wont grant it on

a permanent basis, but other UN organs do

Sometimes a stepping stone to full status: in WTO, observers must apply

to become members w/in 5 years

Sometimes an inherentright to send observers to organs of which they are

not a part, . Not in UN, but in practice, the SC does not turn down such

requests. The last time this happened was

o Liberation Movements: 182-4

Originally, invitations were limited to liberation movements recognised by

the OAU. Later, this was extended to the PLO (Recognised by the LAS

(League of Arab States). Does not equal recognition.

1980 GA Res calling upon states to grant facilities, privileges andimmunities to such observers in accordance with the 1975 Vienna

Convention on the Representation of States in their Relations with IOs

Western states were very critical of this, as the Convention had

never entered into force and only states who were not principal

hosts had ratified it.

o IOs: 185-7

Agreements between the UN and specialised agencies often provide a a

reciprocal right to propose agenda items and for participation w/o vote.

o Private organisations: 188 ff


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NGOs/civil society

They often bring together experts

Helps maintain contact with citizens of MS

ECOSOC has the most sophisticated structure for dealing with them.

Often such private IOs are consulted: ECOSOC Committee on

NGOs

Three groups:

Organisations in general consultative status

Organisations in special consultative status

Other organisations are placed on the roster.

See 193 for rights

o Individuals and Private Companies: 196-7


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WG 1 Participants: Discussion Questions

1. Purposes Conditions for Admission


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UNU 1.1 To maintain international

peace and security, and to that

end: to take effective collective

measures for the prevention and

removal of threats to the peace,

and for the suppression of acts of

aggression or other breaches of

the peace, and to bring about by

peaceful means, and in

conformity with the principles of

justice and international law,

adjustment or settlement of

international disputes or

situations which might lead to a

breach of the peace;b

1.2 To develop friendly relations

among nations based on respect

for the principle of equal rights

and self-determination of peoples,and to take other appropriate

measures to strengthen universal

peace;

1.3 To achieve international co-

operation in solving international

problems of an economic, social,

cultural, or humanitariancharacter, and in promoting and

encouraging respect for human

rights and for fundamental

freedoms for all without

distinction as to race, sex,

language, or religion; and

1.4 To be a centre for

harmonizing the actions of

nations in the attainment of these

4.1 Membership in the United

Nations is open to all other peace-

loving states which accept the

obligations contained in the

present Charter and, in the

judgment of the Organization, are

able and willing to carry out these

obligations.

4.2 The admission of any such

state to membership in the United

Nations will be effected by adecision of the General Assembly

upon the recommendation of the

Security Council.


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EU

2 The Union is founded on the

values of respect for humandignity, freedom, democracy,

equality, the rule of law and

respect for human rights,

including the rights of persons

belonging to minorities. These

values are common to the

Member States in a society in

which pluralism, non-discrimination, tolerance, justice,

solidarity and equality between

women and men prevail.

3.1 The Union's aim is to

promote peace, its values and

the well-being of its peoples.

3.2. The Union shall offer its

citizens an area of freedom,

security and justice without

internal frontiers, in which the

free movement of persons is

ensured in conjunction with

appropriate measures with

respect to external border

controls, asylum, immigration

and the prevention and

combating of crime.

3.3 The Union shall establish an

internal market. It shall work for

the sustainable development ofEurope based on balanced

economic growth and price

49 Any European State which

respects the values referred to inArticle 2 and is committed to

promoting them may apply to

become a member of the Union.

The European Parliament and

national Parliaments shall be

notified of this application. The

applicant State shall address its

application to the Council, whichshall act unanimously after

consulting the Commission and

after receiving the consent of the

European Parliament, which shall

act by a majority of its

component members. The

conditions of eligibility agreed

upon by the European Councilshall be taken into account.

The conditions of admission and the

adjustments to the Treaties on

which the Union is founded, which

such admission entails, shall be the

subject of an agreement between

the Member States and theapplicant State. This agreement

shall be submitted for ratification by

all the contracting States in

accordance with their respective

constitutional requirements.


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2. Advisory Opinion on Conditions of Admission of a State to Membership in the UN

(1947)

FACTS: the GA referred the question of whether a state called upon to vote on admission

of a state to the UN could make its consent dependent on conditions not in Art 4.1 UNC , in

particular whether if a state recognises that a particular state fulfils the requirements, it can

make it a condition of its consent that another state be admitted to the UN.

Art 4.1 provides: membership is open to all other peace-loving states which accept the

obligations contained in the present Charter and, in the judgment of the Organization, are

able and willing to carry out these obligations.

HELD: 9:6

o The natural meaning of the words used leads to the conclusion that these

requirements are exhaustive. Otherwise the provision would be redundant and

Members could impose anycondition they liked. This interpretation is supported by

the spirit and the wording of Art 4.1.

In any case, the wording of 4.1 is already broad and open to interpretation.

No need to look at preparatory works, because the provision is

sufficiently clear.

Art 4.2, stating that the GA decides on a recommendation from the

SC is procedural only (will be effected) and cannot change the

above conclusion

Answer is no, both to the general and the particular question

asked.

Concurring Opinions:

o Alvarez: Juridcally, he agrees with the majority, but states that a case may arise

where the admission of a state is likely to disturb the international situation, eg.

where such admission would give a great influence to certain groups of

states/produce profound divergencies between them. Therefore, admission may

refused in such exceptional cases and the ICJ must declare it has no jurisdiction.He also states that where more than one state applies simultaneously on the break

up of a previous state, they might be considered together.

o Azevdo: nothing really new to add, but take into account the object and purpose of

the UN and the obligation to fulfil obligations in good faith (Art 2.2)

Dissenting Opinions:

o Basdevant, Winiarski, McNair, Read:


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By setting up a system of admission and not one of mere accession by

declaration, the Charter allows political considerations to come into play in

the SC deciding to make a recommendation. Therefore, the UN organs are

bound notto admit a state that does not conform to the requirements of

4.1, but that does not mean there is any other legal restriction on those

organs.

Any restriction upon a power must be clearly established (PCIJ rule of

interpretation)

membership is open and admission will be effected are permissive in

ton, not obligatory

Looked at traveaux and concluded that they support this empowerment

interpretation.

There is no restriction on what can be discussed by the SC/GA: organs

can regulate their own procedure according to Arts 20 and 21.

The diversity of states and how they may be created etc. makes it wise to

adopt this approach.

There is still an obligation to act in good faith and to carry out the principles

and purposes of the UN, and the SC is responsible for the maintenance of

international peace and security but that does not mean that freedom is

unlimited/discretion is arbitrary.

o Zoricic:

(1) Thinks advisory opinion jurisdiction is permissive and in this case, the

court could be drawn into political criticism of an SC member. Will answer

in any case, because the court gave an opinion. Generally agrees with the

other dissenters.

(1) The Committee drafting the provisions had as a task to consider: the

extent to which it was desirable to establish limits w/in which the

organisation would exercise its discretionary power with respect to the

admission of new Members.Didnt want to enumerate elements to betaken into account. Intention was to give the GA discretion.

(2) SCs 1y responsibility reinforces this

Discussions would be difficult if a limit was placed on the freedom of

expression of council members.

(3) There is no rule requiring members to give reasons for their vote, so

each member is juridically entitled to vote according to his own opinion

BUT, this cannot be a pretext to act arbitrarily: good faith requirement etc.

Good faith is presumed, unless proven to the contrary


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The second question depends on the context of ex-enemy states. One SC

Member (USSR) agreed to vote for the recommendation of two ex-enemy

states (Italy and Finland) only on condition that the 3 other ex-enemy

states (Bulgaria, Hungary and Romania) were recommended as well.

Requirement in the Declaration of Potsdam and peace treaties with the 5

enemy states to support application for admission. The Declaration was

subsequent to the Charter and if it does not conflict with the Charter, the

Member can rely on an obligation contained in it. Therefore, the Member

was entitled to maintain its interpretation (because of sovereign equality of

states) and to call for simultaneous admission of ex-enemy states.

o Krylov:

Clearly a political question

Agrees with other dissenters

Went through SC and GA practice specifically and then agreed with Zoricic

COMMENTARY:

o USSR never accepted this

o US implicitly rejected this when it blocked admission of Democratic Republic of

Vietnam and Republic of South Vietnam for other reasons

o China abstained from voting in 2000 on Tuvalus admission due to close

relationships with Taiwan.

o Mosler (1958) considered that France could have found in default when it barred

the UK and other countries from entry into the EC

3. How have IOs been admitted, in particular the EC

Usual interpretation is that constitutional amendments are necessary to allow IOs to

become members of other IOs.

o WTO Art XIV.1 allowed the EC to become a full member

o Bank of International Settlements defined country as a sovereign state, a

monetary zone w/in a sovereign state or a monetary zone extending over morethan one sovereign state

Some (eg. Denters) have argued for a similar interpretation of country in

relation to the IMF, although its constitution does not contain a similar

provision.

o More normal approach is that of the Food and Agriculture Organisation (FAO):

Amendment to allow any Regional Economic Integration Organisation

(REIO) to be admitted, although not as a full member.

1) Majority of REIO must be members (so non-members of the FAO dont

get rights w/o being members)


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2) REIO must have power in the FAO filed of activity

3) REIO must have the power to make binding decisions in that area

Pay only administrative costs, so play a less prominent role in the IO,

because budget discussions involve policy

Cannot take part in non-plenary commissions.

Must provide a list of exclusive competencies. Any other powers are

presumed to be held by the REIO members

Either the REIO votes or its members do, not both, although decisions

are usually taken by consensus, not by voting

ECs participation in fisheries organisations is generally along the lines of

the EC being a full member and constituent EC states nit being separate

members of these IOs.

5. Should the UN have expelled Serbia/Montenegro because of its aggressive acts in the former

Yugoslavia and non-compliance with SC Resolutions?

Actual situation: UNGA (on a recommendation from the SC) stated that it could not take

over Yugoslavias place in the UN, although declared that Yugoslavia had ceased to exist.

It was only formally admitted in 2000, as a new member.

UNC does allow this in Art 6, where the principles set out in Art 2 are violated.

Disadvantages:

o Goes against the universalising tendency

o Would lose revenue (although only a very small amount here)

o The Charter Obligations would no longer apply to them

o Lose opportunity to censor/show disapproval/pressure the state from w/in

o State likely to benefit indirectly from UN in any case.

Advantages:

o Shows strength of disapproval-being used as a sanction here BUT this may be a

token of impotence

o Does fit with the purpose and principles of the organisationo FRY responsible for split and therefore not peace-loving.


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Rules for International Organs

General Points

Work of IOs is carried out by organs

Although they differ hugely, there are some common features:

o Daily work is determined by the doctrine of attributed competences

o All organs need rules governing their composition and functioning

Provisions on the composition and credentials of delegations

Quorum, frequency and duration of meetings

Privileges and immunities

Procedure

Languages

Function vs state sovereignty poles help in understanding the composition and function of

organs, but the notion is vital in understanding the power of organs

Powers of IOs

Attribution

o General: distinguish between the power of IOs and the power of organs

If action is taken to fulfil one of the stated purposes of the IO, presumption

is that it is not u/v: ICJ in Certain Expenses

Often there are limiting provisions, eg. UNC 2.7: UN cannot intervene in

matters w/in the domestic jurisdiction of MS Aka principle of speciality; aka principle of conferred powers

o Often disputed

UNSCR 678 (1990) (Use of force against Iraq). Cuba said it violated the

UNC

UNSCR 955 (creation of ICTR)

o To the IO

Powers of IOs are restricted to those attributed to them by MS. CP. States,

who can do anything u/l not permitted by PIL.

IOs have no Kompetenz-kompetenz (Maastricht-Urteil(1993))

Reuter: Competence of IOs is functional and not sovereign

Competence stretches to include all acts indispensable for the

performance of the functions of the organisation

WHO Advisory Opinion on the Legality of the Use by a State of

Nuclear Weapons in Armed Conflict(1996):

TAGLINE:no general powers, unlike states; only possess

conferred powers


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FACTS: WHO asked whether in view of the health and

environmental effects, the use of nuclear weapons by a state in

war or other armed conflict would be a breach of its obligations

under international law, including the WHO Constitution


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Art 96(b) UNC: Other organs of the United Nations and

specialized agencies, which may at any time be so authorized by

the General Assembly, may also request advisory opinions of the

Court on legal questions arising within the scope of their activities

[my italics].

HELD:

Preliminaries:

o WHO Constitution allows WHO to request an

advisory opinion from the ICJ, Art 76 and

Agreement between UN and WHO in 1948

allowed the WHO to do so

o The ICJ can only exercise its discretionary power

if jurisdiction is established in the first place

o Question is a legal question, despite political

aspects: see Conditions of Admission to UN

Advisory Opinion

W/in the scope of its activities aka w/in the WHOs

competence

o Look to constitution and apply general rules of

treaty interpretation: Art 31 VCLT69: interpret

treaty terms in light of object and purpose, taking

into account subsequent practice in the

application of the treaty

o Objective of WHO in Art 1: the attainment by all

peoples of the highest possible level of health.

List of principles in preamble stating this is be

fundamental to attaining peace and security.

There is then a list of functions to achieve the

objective in Art 2.o Competence of WHO to deal with effects of

nuclear weapons (which the WHO could deal

with) is notdependent on their legality Even the

function of generally to take all necessary action

to attain the objective of he organisation does not

have a sufficient connection with the question

before the ICJ to be w/in the scope of WHO

activities


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o WHO could only be competent to take action of

primary prevention that falls w/in the functions of

the WHO. None of the functions include

determining the legal status of the nuclear

weapons.

The Court need hardly point out that IOs are subjects of

international law which do not, like states possess a

general competence. IOs are governed by the principle of

speciality, that is to say, they are invested by states which

create them with powers, the limits of which are a function

of the common interests whose promotion the states

entrust to them.

Implied powers: necessities of international life may

require these subsidiary powers not expressly provided for

in basic documents: where it is essential to the

performance of its duties (from Reparations for Injuries

suffered in the service of the UN, Advisory Opinion

(1949), quoting the PCIJ in relation to the ILO

o Not a necessary implication for the WHO, so to

give this implied power would be to ignore the

principle of speciality

Also need to bear in mind the overall structure of the

Charter which set up various specialised agencies and the

UN, which has powers of a more general scope.

Questions on the use of force and armaments are w/in UN

scope

Any other conclusion would render the notion of a

specialised agency meaningless.

Past WHO practice confirms this: all reports look at theeffects of nuclear weapons, not their legality. Resolution

requesting the opinion cannot constitute practice in itself.

COMMENTARY:

Situation in the EU [FILL IN]

Statement about conferral made twice!

TEU 4.1: competences not conferred upon the Union

remain with MS


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TEU 5: Limits of Union competences are governed by the

principle of conferral Under the principle of conferral,

the Union shall act only within the limits of the

competences

BUT, new powers have been given to the EU under Lisbon

BVerfG 30/6/2009: Is the Act approving the Lisbon Treaty

compatible with the GG?

Yes, except certain parts. More participation righst for the

Bundestag and Bundesrat in European lawmaking and

treaty amendment procedures are necessary.

EU must comply with principle of conferral Especially

after failure of the constitutional project, MS remain

Herren der Vertrge Even after entry into force of

Lisbon, Germany will remain a sovereign state

Still no Kompetenz-Kompetenz

German implementation act amended and adopted ,

Germany ratified in October.

Lisbon entered into force 01/12/2009

o Concept of Domestic Jurisdiction

Powers in general/political IOs are often broadly defined

members often seek further restrictions in domestic jurisdiction

clauses: eg. UNC 2.7 (covering all UN activities except Ch VII] or Art 15.8

LoN Charter, which only covered dispute settlement

Art 2.7 is often invoked, but isnt often a big obstacle, eg.

Rhodesia, SA or repression of the Kurds by Iraq.

The same principle is behind safeguard clauses in international economic

organisations, eg. WTO and the possibility of emergency action to protect

domestic producers against competitive imports (Art XIX)

Danger of abuse Existence of a judicial organ is extremely useful to determine whether

the use of such clauses is correct

Fulfil a psychological political need. Lead to MS giving greater powers to

IOs BUT dont often prevent action

Often, no list of specific areas belonging to the sphere of the IO.

No such clause in EC, but see Art 5 EC and subsidiarity.

Protocol on the application of the principles of subsidiarity and

proportionality to the Amsterdam Treaty:


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Require transnational aspects that cannot be regulated by

action by MS

Actions by MS alone/no EC action would conflict with

requirements of the Treaty

Action at a Community level would produce clear benefits

by reason of its scale/effects compared with action at MS

level

o Attribution of Powers to Organs (and therefore the relationship between them)

Competences also normally conferred on organs. They are also often

vaguely defined conflicts

Assembly and Council in LoN had the same competence.

Rectified with UN, although GA Uniting for Peace resolution

shows that there may still be conflicts

Sometimes the vagueness is OK, because the organ can only

issue recommendations/make non-binding decisions

Customary law to the effect that organs decide on their competence for

themselves: ICJ is not the ultimate authority in interpretation of the

Charter. each organ determines its own jurisdiction, at least in the first

instance

EU is an exception: introduced the institutional balance principle in

Parliament v Council [1990]: each institution must respect the role of the

other. Possible to penalise any breach of that rule

Unique to EU, probably because the EU has substantive powers.

W/in the UN there is no explicit jr. However, the ICJ has always made clear

that the fact of the SC dealing with a matter should not preclude the ICJ

from doing so. The ICJ is the principal judicial organ (UNC 92), while the

SC is a political organ: see Nicaragua Case (1984) pp 434-5; Genocide

Case 1993 at 19

In the Lockerbie Case on Libyas request for the indication ofprovisional measures, jr was not addressed by the ICJ, but some

judges referred to it in their separate opinions. EG. Lachs: framers

of the Charter did not effect a complete separation of powers and

the 2 main organs should act in harmony-though not of course, in

concert: basically like institutional balance

o TO DO:

Read articles on JR in the UN/rel between ICJ and SC: see fn48 223

Read Lockerbie case

UN Secretary General vs GA


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Summarise EU position and effect of Lisbon in relation to

competences conferred and the relationship between the different

organs: fn 43 221; fn 41 220

Delegation: 224

o Many constitutions expressly allow this, eg. UNC Arts 7.2 (UN), 22 (GA), 29 (SC

can create subsidiary organs), 68 (ECOSOC)

o Even if not, can still do so, unless there are implications which increase the

obligations of the IO or its members

o Trend towards being more restrictive and requiring authorisation to do this: UNGA

decided on this in 1974.

o Restrictions:

No more powers can be delegated than the organ itself possesses (i.e. any

restrictions must be passed on)

Responsibility may not normally be transferred.

o Meroni[1957-8] ECJ

FACTS: High Authority of ECSC had delegated the equalisation of scrap

prices to 2 private institutions in Brussels. The decisions of these

institutions were not subject to the same conditions as the decisions of the

High Authority: there was no duty to state reasons, to publish an annual

report and there was no possibility of review by ECJ.

HELD: Delegation contrary to ECSC Treaty.

Consequences resulting from a delegation depend on whether the

decisions to be taken involve a lot of discretion or whether the

delegation involves clearly defined executive powers subject to

strict review in light of objective criteria.

The first type is a transferof responsibility

Such a transfer is not permitted :

There is a guarantee to undertakings and associations

made as a result of the institutional balance of powers. Delegation of a discretionary power renders that

ineffective, because the specific composition of the High

Authority and the rules under which it operates protect

stakeholders.

COMMENT: Objections are also valid for other IOs. Although the

institutional balance concept is not present. The rules etc determined by

the MS on composition, function, transparency etc. are there to ensure

legitimacy and accountability etc. This will be lacking if the delegation is

subject to the two rules above.


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o Examples from UN practice:

Establishment of Ad Hoc Tribunal on War Crimes in the Former

Yugoslavia: how could SC create a subsidiary organ with powers it did not

have. Appeals Chamber of the tribunal stated that the SC did this to

maintain peace and security. Did not completely silence critic, BUT was

generally agreed to

1990s practice of authorising coalitions of the willing and able to use force

increase in requirement to report and specification of mandate and

duration of the operation

o As a general rule, a delegation of powers can be retracted.

o Delegating organ is responsible for the actions of the subsidiary organ

Sacrifice of Powers: 231

o Not generally allowed, subject to 2 exceptions:

1) When gaps in the institutional structure are filled by the creation of new

organs

Effect of Awards ICJ (1954) decided that the GA was bound by the

decisions of an administrative tribunal it had established, since

that was what it had intended

2) Politically (although not legally), a long tradition of not using a power

may make it hard to use it again

Implied Powers

o Implied vs Customary

Implied powers: attributed to the IO in the Constitution to give effect to

intention: controversial

Customary powers: during the life of the IO, MS consent to new powers for

it; less controversial, as often agreed

o Why?

Constitution writers cant foresee everything

The world is changing: need flexibilityo Disadvantages

Possibility of abuse

Comes close to a general competence

o Distinguish powers implied from explicit powers from powers implied from purposes

and functions, although they are often conflated.

o Ask whether the power is necessary/essential for the organisation to perform its

functions

o Comes from MCulloch v The State of Maryland (1819) US Supreme Court

o Accepted by ICJ:


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Reparations for Injuries Advisory Opinion (1949):

FACTS: UN rep (Count Bernadotte) killed in what is now Israel in

1947. Could the UN claim reparation from Israel? Sweden could,

because he was a Swedish national, but could the UN?

HELD: UN possessed capacity to bring an international claim in

respect of damage caused to UN and to victims entitled through it:

UN agents must be ensured of having effective protection in

carrying out their functions. This was even though it was not

stated in the UN Charter; in fact, explicitly decided not to say UN

was an international legal person in SF Conference.

Rights and duties must depend on its purposes and

functions, as specified or implied in its constituent

documents and developed in practice

Deemed to have power not expressly provided as are

conferred upon it by necessary implication as being

essential to the performance of its duties.

DISSENT:

Hackworth (English judge): too vague cannot relate to

functions/aims/objectives. Must be linked to a grant of

express powers. Limited to what is necessary to the

exercise of such powers.

COMMENTARY: case established legal status for IOs

Certain Expenses of the UN Advisory Opinion (1962)

TAGLINE: no express basis for peacekeeping forces in the UN

Charter, but they were constitutional, because they related to the

purposes of the UN. Looked at powers oforgans.

FACTS: Does the expenditure authorised by the GA in relation to

peacekeeping action in the Congo (ONUC) and the expenditure

relating to the UN Emergency Force (UNEF) in the Middle East(inEgypt as buffer zone) constitute expenses of the organisation w/in

the meaning of 17.2. Essentially, could the GA create these

peace-keeping forces, when the SC has 1y responsibility for

maintenance of international peace and security? USSR and

France refused to pay share of budget for these operations.

Art 17.2: the expenses of the organisation shall be borne by the

members as apportioned by the General Assembly

HELD:

What are the expenses of the Organisation?


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o The budget, which the GA approves under 17.1

has included all types of expenses, not just

administrative ones, but operational ones as well.

o Expenses means all types of expenses

o Argued that expenses relating to the maintenance

of international peace and security do not fall w/in

expenses of the organisation, as they fall to be

dealt with exclusively by the SC and since the GA

is limited to discussing, considering, studying and

recommending, it cannot impose obligations to

pay expenses which result from the

implementation of its recommendations

o SC only has primary responsibility under Art 24

UNC in order to ensure prompt and effective

action. Only restriction on GA is that it should not

recommend measures while the SC is dealing

with the same matter u/l the SC so requests. Art

11.2 on the GAs powers states that any question

on necessary action shall be referred to the SC

either before or after discussion. Could also be a

measure recommended under Art 14

o ***Expenses must be tested by their relationship

to the purposes of the UN***

o ***When IO takes action which warrants the

assertion that it was appropriate for fulfilment of

the purposes of the UN, presumption is that the

action is not u/v***

o ***If w/in scope of functions, but carried out in a

manner not in conformity with the division offunctions among organs, may be irregular as a

matter of internal structure, but can still be an

expense of the organisation: a legal person can

be bound, as to third parties by u/v acts (this

principle is to be found in domestic and

international law)***

o ***Each organ must, in the first place at least,

determine its own jurisdiction. ICJ was not given

ultimate authority to interpret the Charter***


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COMMENTARY:

Blokker: important bit is: for each organ to determine its

jurisdiction itself (at least in the first instance); no jr by ICJ:

then, how can you resolve the question? Must rely on

organ itself, o/w no legal certainty

WHO Advisory Opinion: quoted the above case, but then applied it

restrictively. Note however that the ICJ addressed the nuclear issue in an

advisory opinion on the same day. This probably influenced their decision.

o Tadic(1995): had ICTY been established in a lawful way?

HELD:

Looked at implied powers of SC: allowed it under UNC 41

Trial chamber said they couldnt even look at that question

Appeal chamber said the ICTY had the implied power to do so. No

other court can answer this question.

o Accepted by ECJ

o Art 308 EC: if necessary to attain, in the course of the operation of the common

market, one of the objectives of the Community and the Treaty has not provided

the power, the Council shall, acting unanimously on a proposal from the

Commission and after consulting the Assembly, take the appropriate measures.

This allows new powers

Preferred view is that this does not render the implied powers doctrine

inapplicable elsewhere in the EU.

Only adds powers and not objectives: Opinion 2/94 re accession to the

ECHR: not allowed because it would change the whole structure of the

Union

This provision is subsidiary: Commission v Council[1987]

o Provides huge flexibility

How to find out what powers IOs have

o Start with the constitution Objectives and functions

o Implied powers

Composition of Organs

Size

o Efficiency factor

o Vs Representative factor (rep of expert knowledge and members)

Representation of Members: required members are legal persons

o Representation by delegation


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Size of delegations: VCRSRIOUC 75: size of the delegation shall not

exceed what is reasonable and normal having regard to the functions of

the organ or the object of the conference, as well as the needs of the

particular delegation and the circumstances and conditions in the host

state.

Small delegation more likely to speak with one voice

Large delegation more likely to contain broader expertise

Composition:

IO rules might require one type of representative, but in practice, it

may be necessary to have different sorts of members of

delegations

Eg. negotiations re definition of crime of aggression. A

very political issue. Superpowers are involved. Samoa is

also very involved: representative is Professor Roger

Clark, from Samoa, now living in US. Liechtenstein has

chaired these meetings for years, despite it not being

necessary for Liechtenstein foreign policy. Even though

meant to be reps of governments, get experts in in this

way.

Governmental delegates

Might contain experts (perhaps civil servants, who deal

with issues on a national level) and diplomats where the

experts may be too specialised

Need sufficient authority to commit government

Delegates representing specific interests

ILO is the most important exception to the rule that

delegations represent the governments of members

representation from governments, e-ers and workers

This caused problems when socialist states entered theILO, but ILOs aspiration to be universal triumphed over

the strict principle of tripartism

Delegates from national parliaments

Sometimes states include parliamentarians in delegations

to protect government policy from later disapproval by

parliament, eg. influential US senators were sent to the

San Francisco Conference in 1945 to prevent a

recurrence of non-ratification (think LoN)


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Parliamentarians must still be subject to instructions, so

sometimes they are appointed as observers instead: done

by the Dutch in 1971 at GA, but the observers could not

participate in confidential meetings and were treated with

less respect by other delegations, so this policy was

reversed.

Foreign delegates

Generally delegates should be MS nationals (VC75 73.1)

BUT, this is not obligatory, although if they are from the

host state, the host states permission should be asked

(VC75 73.2)

Multinational delegations

Useful for small states

Obligation to send a delegation: no legal requirement. Perhaps a moral

obligation to participate

Credentials

If the organisation is small, probably not a problem.

Proved by a letter in which the government of the MS lists the

names of members of the delegation (may need to mention

title/special credentials etc)

Issued by HSG, or Foreign Minister. An ambassador to the IO is

often given delegated power to do this. If delegates are from

parliament, the President of the Parliament should do this.

Credentials Committee determine this

Often, reports are not issued until near the end of the

session, which means that delegates can take part in

most of the session.

(1) Where 2 governments claim to be the only lawful government

Generally accepted that the GA has competence toinquire into the matter of representation and to take

decisions regarding recognition. GA Res 396(V) states

that the attitude adopted by the GA should be taken into

account by other organs and specialised agencies

Arguments of effective control vs arguments of legitimacy.

The former seem to be in the ascendant


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China: Mao and the Communists came to power after the

1949 Revolution. ROC government only remained in

power in Taiwan. Until 1971, the UN and specialised

agencies approved the ROC credentials

Cambodia after the Vietnamese invasion led to Pol Pot

retreating to a border region. Didnt want to approve of Pol

Pots genocide or Vietnamese invasion

GA normally meets in September, so difficulty due to

WHO general congress in May or ILOs general congress

in June

o Different delegations were approved by the

President and the governments transitional PM in

relation to Zaire. The WHO recognised the

credentials of both (highly unsatisfactory). The

ILO requested advice from UN legal counsel, but

had to make a choice, so preferred the

credentials issued by the Permanent Mission of

Zaire in Geneva, subject to the proviso that this

did not imply recognition of the government,

which was to be left to the UNGA. UNGA

eventually accepted credentials issued by the

President as HS. This was criticised by some

countries, eg. Austria, who made it clear that they

did not recognise that government.

(2) Where there is only 1 government, can rejection of credentials

be used to condemn the legality of that government/to expel it

from the session?

Reluctance to use credentials for this, although increasing

tendency to do thiso Leads credentials committee/organ to consider

questions of recognition, the problems of

expulsion and the suspension of rights and

privileges of membership. Other organs may be

responsible for this and different voting majorities

may be required.


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o In 1956, did not want to approve the Hungarian

delegation, so from 11th-17th session no decision

was made. Credentials were not approved, but

the Hungarian delegate could participate

o In 1970, UNGA refused to recognise SA delegate

credentials, but the delegation from SA was

nevertheless accepted as representing the

member: The Hambro Formula. In 1974,

concluded that after a rejection of credentials, SA

could no longer participate, after which SA sent

no delegation to UNGA until the end of apartheid

in 1994.

o In 1990, 1991 and 1992, decided to take no

decision on the credential committees report in

order to avoid potential problems re Israel.

In general, IO rules state that credential committees should

examine credentials and the organ itself will make a decision.

Initially at least, it was considered that this meant a technical

verification. UN Secretariat still supports this view: recognition is

not involved (unlike in bilateral relations)

(1) above is generally recognised as an exception to this.

(2) is not generally recognised as an exception, although

as the non-Western countries who generally support this

are in the majority, credentials are often used in this way.

This should not be allowed: circumvents the procedures in

UNC 5 and 6. Serbia and Montenegro prevented from

representing Yugoslavia in 1993 in that way, not through

rejecting credentials. SA w/o representation at all.

Countries could make a short statement explaining howthey view the credentials committee, clearly indicating

non-recognition separately, eg. BRD made such a

statement re Afghanistan in 1981

o Representation by proxy

Some IOs allow this and some dont.

Where the rules are silent, assume it is possible, as some IOs expressly

exclude the possibility.

Prior to 1975, UN Secretariat said no unless clearly allowed for in

rules. 1975 VC 42.2 allows this (although not in force yet)


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Sometimes majorities come from thosepresentand voting

Pros:

Allows members who cant be present to be represented

Reduces the no of delegations efficiency

Cons:

Inconsistent with ideas of mutual discussion and persuasion

Might be confusing if its not clear on whose behalf someone is

speaking

Use of Individual Experts

o Eg. in judicial organs or international secretariats

o Tendency for independent committees to come under increasing influence from

governments (FAO and UNESCO), although there are also examples in the

opposite direction (Committee on Economic, Social and Cultural Rights)

o Pro:

Can base decisions entirely on interests of the IO (not such a strong

argument if the organ has a coordinating function

May have more prestige (more important for highly technical tasks)

Experts will always be available, whereas MS may not always cooperate.

o Cons:

MS will want some representation. Experts may be influenced by their own

governments policy

Government representatives are a better guarantee of consistent policy in

different organisations

If the same question arises in different organisations, it will be

dealt with in a similar way

Where a 2y organ prepares a report for a 1y organ, it is more

likely that MS will support the report in the 1y organ if they have

had a hand in drafting it in the 2y organ.

Government representative are backed by a large organisation, which maygive them more info than individuals and means that the rep can be more

easily replaced if s/he cannot attend

Decisions by independent experts may be harder to implement

Many individually elected experts are actually not independent of their

governments or may be greatly involved in national policy

o UN Office of Legal Affairs produced a memo in 1986 dealing with how to select

independent experts etc.

Objective criteria should be used to indicate expertise


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Monitored by requiring consultation with an international official or provide

for international selection after consultation with MS

Ensure that they cannot be easily replaced

Fixed term renewable tenure

Dont allow alternates

Reduce political influence by having closed meetings, without advisors

Use of Civil Servants

o In their official capacity, but not as government representatives, which means that

they do not have to represent what can be elaborate compromises that have been

worked out at a national level on issues of controversy

o Negotiate before a national position has been established

o Often only advisory

o Common in Benelux

o W/in EU:

Committees of national civil servants presided over by a Commission

member prepare legislative proposals

Comitology: Council has delegated power to the Commission to implement

rules laid down by the Council. Committees were created, composed of

government officials which must be consulted by the Commission, to retain

some MS input

Often controversial and seen as undemocratic: examples of

decisions are British beef ban and approval of GM foods

Operation of committees governed by Council Decisions

Advisory procedure

Management procedure (if Comm decision not in accordance with

committee, have to communicate with the Council)

Regulatory procedure: may only submit aproposalto the Council

if there is lack of accord with the committee

Equitable Representation of Interestso Geographical representation

Need an understanding of how different ideas will be received in different

places.

Important to have rotating memberships of non-plenary organs

Usually reserve a number of seats for members of particular regions

Regions can be created along many different lines, eg. in WMO, it is based

partly along lines of latitude and longitude


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UN has 5 regional groups: African states, Asian states, E

European states, Latin American and Caribbean States, W

European and other states

o Specific Interests

Producers vs consumers (commodity councils)

Devloped vs developing states (UNDP, UNFPA)

States with a big interest in something (fishing/aviation) vs those w/o

ILO is only IO where representatives of the interest groups themselves sit

with MS

o Means of strengthening representation

Attribute extra votes to the most interested members or have weighted

voting

Allow a member to send more than one delegation to a meeting (eg. larger

no of delegates with voting rights or giving a separate delegation to a part

of a state

Larger states send more members to the Parliamentary Assembly

of the Co

law & practice of ios

Documents