Law of International Organizations

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International Legal Personality

  • Def: Bundle of rights which allows the entity to exist and be a subject of international law - REF (AO Reparations for Injuries ICJ)
  • Where to be found? In the constituent document of the IO, relevant case law reviewing the IO
  • Implied - exists as it is necessary to have in order to achieve the purpose of the IO
  • What comes first, action which proves the existance of LP or the creation of LP? Depends, the action of being a subject of Internaitonal Law may be the proof the IO has LP. However, this debate is a 'chicken or egg' scenario as one is needed for the other to exist.'
  • Importance of LP - limits the liability of MS, recognizes IO as a group, establishes relationship between the entity and powers inherent to IOs
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Powers of an International Organization

  • not the same general powers as a state, the IO only has the powers which is enclosed in its purpose, oly limited by whats in the statute (PCIJ, Advisory Opinion, Jurisdiction of the European Commission of the Danube, 1927) 
  • IO are goverened by the principle of speciality, meaning hey 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 (ICJ Advisory Opinion, WHO.)
  • 3 Different origins of powers, the spectrum of consent of states
  • 1st Attribution of Powers - eg. Agency= IO function as an agent for the MS, Delegated= the powers are given or handed down from the MS; Transfer=decision making powers given to the IO instead of the MS ie see UN charter 2(7) & 24(2)
  • 2nd Implied Powers - in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities. (ICJ Advisory Opinion WHO) Meaning
  • 3rd Inherent Powers - powers not written out in the constituent documents, but used in international law anyway, eg, treaty making powers, bringing international claims etc
  • Powers cannot be thought as discrete powers held exclusively by the member or IO, powers in tension, may be functioning for one organ, but not all of teh IO 
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Ultra Vires

  • Def. an act which is outside the mandate of the IO or organ of the IO
  • Who can question an act of an IO to be Ultra Vires? - The MS, and organs of the IO (Kadi case) (ICAO Council Case 1972 ICJ Reports ICJ held that it had competence to review ICAO council for ultra vires)
  • Who can decide if the act was Ultra Vires? 3 alternatives: 1. If IO asks Q on UV, the IO itself, however there is always a presumption of Intra Vires (Certain Expenses AO) 2. If IO has not, other tribunal/organ may be precluded from review f.eg. CJEU revision organ in EU, UN often (not always) use ICJ, However, If not a judicial body -  a non-judicial organ should not be empowered to take such a judicial decision (Namibia case (Fitzmaurice)) 3. States and other tribunals may be able to review act for ultra vires in absence of above (ICAO Council Case 1972 ICJ Reports ICJ held that it had competence to review ICAO council for ultra vires)
  • Was the act Ultra Vires? - Difference between UV of an Organ and the entire IO, As it may be UV for the organ but not the entire IO ( Expenses case) BUT distinguish after presumption - act does not conform with the conditions but does not give rise to an essential defect is probably not ultra vires (Certain Expenses (Morelli)), act does not conform with the conditions and gives rise to an essential defect is ultra vires = invalidated
  • Consequence of Ultra Vires act? act becomes void/voidable/nullified (IMCO case) Or survives and compensation is awarded (ILO to Regulate Agricultural Production Case, PCIJ)
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Decision Making in IO's

  • enables state to respond to future situations, should have some level of flexibility
  • as new situation arises the IO need to respond = Decision Making eg. UNSC discussion on East Ukraine & Minsk Agreement
  • Rules on Decision Making - very different depending on the IO, the power it as been given, the size of the IO, its purpose etc. eg. creation of UN Charter - VETO powers of the 5 permament members vs other voting rights
  • How to find how the IO makes decisions? - 1 Constituent Document, 2. Rules of Procedure, 3. Practice of the IO eg. UN Art 18 states UNGA has majority voting, but practice shows that consensus is also used frequently!
  • However! The decision making also shows that the substance is about power and influence, its not all about the legal procedure! eg UNSC
  • Different types of decision making. 1. Consensus = no one actively disagrees with the decision/no formal objection to the suggestion, Single Majority, Quourum Majority
  • Example of Decision Making - UNSC - Art 27 UN Charter outlines the decision making process of the SC. Non-procedural need Yes from 9 members including permament members. - Abstention from permament member could mean affirmative (Namibia AO) gives general practice which interprets the need for permament members
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Practice of Decision Making in IOs

  • Practice may derivae from the written law - creates customary law (opinio juris + state practice)
  • Ex. UN Peacekeeping missions. Regarded as a Ch 6.5 mechanism. No Ch 6.5 in un charter but still applied as necessary for the protection of international peace and security -> inherent/implied power
  • another Ex. Accepting both Netherlands and Italy to Security Council (each take 1 year instead of full 2 years like Sweden got) This is technically not allowed in UN CHarter but allowed as common practice to round the edges of politics/compromise for the sake of common good
  • Subsequent practice can be used as a means to interpretation (WHO Nuclear weapons case case) BUT whose subsequent practice does this fall on? (Reparations case)
  • Practice of consenure has developed over time, from unaminity to majority to consensus - good examples of consensus used today -> ICC assembly of state parties, ICC review conference Kampala (2010), Paris Agreement
  • Legal basis ex of consensus - WTO art IX footnote
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Executive Powers of an IO

  • IOs protects their own rights and enforces their obligations = Sanctions
  • Different in each constituent document, BUT two common features; 1. the acquisition of evidence after a notification of a breach in obligation by reports, investigation, complaint or petition, 2. the determination of the breach by a political organ in the IO & determination of what action is reasonable
  • Some actions include judicial actions, cultural and communications measures, diplomatic and political measures, economic measures and military measures
  • Ex. of UN measures used, Ch 16 suspend the MS rights to vote, represent or expulsion of specific organs, if f.eg the MS stops paying their MS fee. However, the UN does not expel the state from the IO, simply remains as an observer
  • SC may impose sanctions, not only as a military bases (granting use of force) but also ecnomic sanctions in order to aid international peace and security ex Rse 278 (south Africa) (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276, 1971 ICJ), - GA may recommend sanctions, but only SC can enforce them. 
  • Both states and Individuals can be subjected to sanctions, eg SC sanctions against usama bin laden & others on the UN Sanctions Committee list (S/RES/1822)
  • Very little review of UNSC sanctions - but have been questioned (Ex Kadi case)
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Judicial Review of IO Acts (Security Council)

  • Closely connected to determination of Ultra Vires
  • Mostly only legal body of IO can reveiew its own actions, but sanctions are rarely reviewed
  • The tribunals created by the SC, hybrid and the standing court, does not have the authority to review the acts created by Security Council. In no case has this been shown (Prosecutor v. Ayyash,Decision on the Defence Appeals against Trial Chamber’s “Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal”, Appeals Chamber STL: Prosecutor v Tadic, ICTY, Decision on Jurisdiction, Trial Chamber, Kadi et al v Council, 2008 CJEU; Nada v. Switzerland ECtHR)
  • only exception Prosecutor v Tadic, ICTY, Decision on Interlocutory Appeal on Jurisdiction, Appeals Chamber,
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Privileges and Immunities

  • Immunity is a procedural bar on jurisdiction
  • Immunity = the state cannot exercise adjudicative/enforcement jurisdiction over certain persons and/or certain topics – so those things can be illegal acts
  • Privileges = the state cannot exercise prescriptive jurisdiction over certain topics – so those things cannot be made illegal
  • Ratione Personae: personal immunity - cannot be prosecuted, as all acts are under the protection of imunity eg. HoS, HoG, Ministers, Diplomats (during assignment) can only per prosecuted in international courts (Arrest Warrant case (ICJ), Charles Taylor case (SCSL))
  • Ratione Matriae: functional Immunity - cannot be prosecuted for acts within the function of the role the person has. eg. HoS, HoG, Ministers diplomats (After missions) - Can be prosecuted for private non-official acts (Pinochet case, Hissane Habre)
  • Which Immunities does IOs have? - Protection from interference in performing their job – as a functional necessity, protection of the IO's independance (UN Charter art 105, UN Convention on Privileges and Immunities) - employees of the IO gain immunity as to their functions. BUT waiver of immunity is possible, the immunity belongs to the IO not the person themselves!
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Immunities of the UN & Other IO's

  • UN (IO's) haev four kinds of immunities 1. The organization itself (e.g. UN)  2. Representatives of the member-states (humans)  3. Officials of the IO (humans) 4. Experts of the mission (humans) (UN Convention on Privileges and Immunities.)

  •  Cumaraswamy case - acts (libel) were done in the course of furthering the purposes of the UN, so immune ( also underlined in Mazilu case)

  • Iran – United States Claims Tribunal v. A. S. (The Hague District Court and Supreme Court) – translation activities were “acta jure imperii”

  • Interference with Human Rights, right to effective remedy? - immunities are OK for the proper functioning of international organizations, no violation of right of access to courts (Waite and Kennedy v. Germany (ECtHR); Beer and Regan v. Germany ECtHR) 
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Responsibility

  • Draft Articles on IOs Responsibility - drafted by the ILC, was adopted as UNs official position in regards of international responsibility (DARIO) 
  • 2 elements of international wrongfull act found in art 4 of the DARIO. 1.action/ommission is attributable to that organization under international law; 2. constitutes a breach of an international obligation of that organization
  • International Obligation? IO's are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties (Agreement b. WHO & Egypt ICJ AO) 
  • UNSC res Obligations - when creating new obligation there is an assumption that states do not derogate from previous obligations (Nada v. Switzerland) BUT SC res hold primacy over other obligations (Lockerbie) as the obligations by the UN is held above obligations of other treatiies (UN Charter art 103) Also, there is an obligation that SC does not intend impose any obligation on MS which breaches FR and HR (Al-jedda v. UK) However, the states have a measure of appreciation on the implementation as the obligation much be proportionate and necessary in an democratic sociaty (but include the presumption of SC res) (Nada v. Switzerland)
  • Are IOs bound by HR? - 1st look above. 2nd IOs are made up of MS, which have some state responsibility 3rd IOs are bound by treaties, including HR treaties (WHO & Egypt AO)
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Responsibility - Act Violated & Remedy

  • The act violated, strict liability or negligent? usually more in line with negative obligation ie. do no harm, if harm done the act violated the obligation
  • Case study! Srebenica genocide, did the UN have an obligation to stop teh massacre? & NATO bombing Yoguslavia, was this within the obligation?
  • Act done attributed to the IO? - Art 6 DARIO - The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent, whatever position the organ or agent holds in respect of the organization. (functions of agents/organs is determined by the constituent doc of the IO) Art 7 DARIO The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.
  • At disposal of another IO/State is determined through Effective Control of teh Agent/organ (Art 8 DARIO) 
  • But Dual Atrtibution of responsibility (b state and IO) is favourised approach in int. law
  • 3rd Condition (added cond) is Injury. - generally same as state obligation
  • COnsequences for breach - same as state obligation ie. Damages, restitutio in integram, retraction of law/act, etc
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