2 - Participants and membership issues

Question 1

What are the 2 roles/capacities MS can have in relation to an IO?

Answer 1

1/ internal role = constituent parts of the IO’s organs

2/ external role = counterparts of the IO

Question 2

What may be a consequence of the external role of MS in relation to an IO? (2)

Answer 2

1/ MS may criticise and blame the IO

2/ this is justified by the fact that it is easier for States to criticise something external

Question 3

Although States may criticise IOs, what must be kept in mind? (3)

Answer 3

1/ there are several examples of States blaming and criticising IOs (LoN, UN, EU)

2/ States must remember they are also members of the IOs

3/ it is incorrect to solely blame the IO when things go wrong - often it is the MS that fail rather than the IO

Question 4

What are some examples that illustrate the fact MS can play a big part in failures of an IO? (4)

Answer 4

1/ UNSC must act in the common interest of the IO as a whole

2/ the World Bank Executive Board’s 25 directors have constituency

3/ EU-Turkey migration deal was concluded between MS and Turkey, and not between EU institutions and Turkey

4/ ICJ, “FYROM v Greece” (2011) : Court didn’t look at whether NATO decision was attributable to Greece but at whether Greece violated the Interim Accord as a result of its own conduct

Question 5

Who can be full members of IOs? (3)

Answer 5

1/ in most IOs, only States

2/ even mini-States can be full members of IOs

3/ sometimes, IOs can also be full members (see ILC definition of IOs -> “can have as members…other entities”)

Question 6

How can membership in an IO start? (2)

Answer 6

1/ original members present at the creation of the IO

2/ other members that join after the IO has been created and for which additional rules may exist (conditions, procedure)

Question 7

What can be some of the generally recognized conditions for membership? (5)

Answer 7

1/ unilateral notification by the candidate (Int. Whaling Commission, OPCW)

2/ decision by the IO (ESA)

3/ only States belonging to a certain group (EU, Cooperation Council of Turkic Speaking States)

4/ general conditions are applicable (UN)

5/ specific conditions are applicable (EU, WTO)

Question 8

What are the 4 main conditions for UN membership?

Answer 8

See Article 4 UN Charter

1/ State
2/ that is peace-loving
3/ that accepts the Charter obligations
4/ that is willing and able to carry the Charter obligations

Question 9

What was the legal issue in the 1948 Conditions of Admission of a State to Membership in the UN AO? (2)

Answer 9

1/ can an argument made by the UNSC about admission conditions not explicitly mentioned in the Charter be considered legal?

2/ this is a legal question of interpretation (although there was also a context of political dispute)

Question 10

What did the ICJ hold in its 1948 AO? (5)

Answer 10

1/ textual interpretation of Article 4

2/ every application for admission has to be examined separately and on its own merits

3/ subject an affirmative vote to the condition of admission of other States would prevent MS from exercising their judgment with complete liberty

4/ this would be incompatible with the letter and spirit of Article 4

5/ therefore, no juridical entitlement for a State to make its consent to the admission dependent on conditions not expressly provided by Article 4

Question 11

To what extent can the 1948 AO be criticised? (2)

Answer 11

1/ 4 judges dissented, referring primarily to the political nature of the decision on admission

2/ this AO was in reality really about law v. politics

Question 12

What is another example of the involvement of a Court in admissions to an IO? (4)

Answer 12

1/ Court of Justice of the East African Community in 2015

2/ South Sudan applied for membership in the EAC

3/ Ugandan traders brought case against the then-5 MS of EAC claiming South Sudan did not meet admission requirements

4/ Court decided the admission of a new member was a function of the EAC Summit

Question 13

What is the general admission procedure? (3)

Answer 13

1/ see law and practice of each IO

2/ in UN, SC recommendation and UNGA vote (Art. 4(2))

3/ example of Palestine, which was not admitted as a MS in UN (2011)

Question 14

What are the 4 ways in which membership may come to an end?

Answer 14

1/ withdrawal
2/ expulsion
3/ disappearance of a member
4/ dissolution of the IO

Question 15

What are the 2 types of IO constitutions regarding withdrawal?

Answer 15

1/ with a provision (EU)

2/ without provision (European Communities)

Question 16

Examples of withdrawals from IOs? (6)

Answer 16

1/ EU : GB
2/ UNESCO : Israel and US
3/ ICC : Burundi and Philipines
4/ International Coffee Organization : US
5/ Universal Postal Union : US threat, withdrawn
6/ International Whaling Commission : Japan

Question 17

Counter-arguments to assertion there are many withdrawals today? (4)

Answer 17

1/ there are withdrawals, yes

2/ but this is not new

3/ often leavers return after some time

4/ also put it in perspective : joining remains the principle, leaving the exception

Question 18

What are some special cases regarding withdrawal? (2)

Answer 18

1/ 1965-1966 : Indonesia temporarily suspended its cooperation with the UN

2/ Brexit and long procedure before withdrawal became effective

Question 19

What are some particularities of the EU-withdrawal procedure? (6)

Answer 19

1/ Article 50 TUE

2/ in principle, 2 years to leave

3/ no unilateral notification of withdrawal but a key role for EU institutions

4/ sovereignty prevails - if no agreement after 2 years, automatic end of membership

5/ withdrawal notification may be revoked

6/ negotiations on future relationship

Question 20

What are the 2 types of constitutions regarding expulsion?

Answer 20

1/ with a provision (UN)

2/ without a provision (EU) - in principle, not lawful to expel in such cases

Question 21

What are the main other forms of participation in IOs? (4)

Answer 21

1/ associate members

2/ partial members (full members of an organ)

3/ affiliate members

4/ observers

Question 22

Some general considerations about observers? (3)

Answer 22

1/ there exists a wide variety of arrangements for observers

2/ observers always have some access to meetings and no right to vote

3/ IOs became more important for private organizations and vice versa

Question 23

What are some types of observers in the UNGA? (2)

Answer 23

1/ non-member States (Holy See, Palestine)

2/ non-member entities (international organizations)

Question 24

What are the types of observers in ECOSOC? (3)

Answer 24

1/ general consultative status

2/ special consultative status

3/ “on the Roster”

Question 25

Observers at the WHO? (5)

Answer 25

1/ only mentioned in the Rules of Procedure (not the WHO constitution)

2/ mainly developed in WHO practice

3/ can be potential WHO members and quasi permanent observers

4/ Taiwan applied for observer status and was granted it from 2009-2015

5/ notion of function (health) v. sovereignty (politics)

Question 26

What capacity is a MS in when voting in IO organs? (2)

Answer 26

1) not fully internal (Greece v FYROM)

2) not fully external (1948 Admissions AO)

Question 27

Where a condition for admission to an IO is decision by the IO and there are no general/special conditions for admission, how may the MS vote? (2)

Answer 27

1/ the MS may vote as they wish as long as done in internal capacity

2/ ideally they should base vote on ‘rule of functionality’ (would it benefit function of the IO), but not strict rule

Question 28

What instances of practice seem to contradict the 1948 AO? (3)

Answer 28

1/ USSR explicitly reject it

2/ US implicitly rejected by blocking VIET in 1975 for reasons external to Art 4

3/ PAL non-admission in 2011: in UNSC Committee talk about conditions external to Art 4 (2-state solution etc)

Question 29

Where the constituent instrument has no provision for withdrawal may a Ms withdraw? (2)

Answer 29

1/ Theory: Art 56 of VCLTs 1969 and 1986
- yes if parties intended to permit it or if implied by nature of treaty

2/ Practice: since most IOs do not have separate judiciary it will be for ind. MS to interpret - in practice MS have withdrawn without provision

Question 30

What are 3 potential exceptions to the rule of no expulsion without provision?

Answer 30

1/ Implied powers

2/ material breach

3/ fundamental change in circumstnaces

Question 31

What is the impact of permitting private organizations as observers in IOs? (4)

Answer 31

1/ NGOs’ observer status grants legitimacy to IOs by representing the people

2/ IOs receive expert advice from industry experts

3/ Are NGOs pushing a northern agenda in IOs through backdoor?

4/ NGOs can help create momentum and advise (ICC Statute)

Question 32

May territories seceding from a MS join the IO automatically? (4)

Answer 32

1) NATO SG: stated SCO would not be able to do so
2) no legal reasoning granted
3) Political reason: not want to encourage secession
4) HOWEVER might be in IOs interest to have the territory join

Question 33

What happens to memberships of parts of States when a state dissolves? (3)

Answer 33

1) USSR: RUS took its seat in UNSC - other parts of USSR reapplied
2) YUG: SER had to reapply (even tho Belgrade was capital of YUG)
3) Difference: peaceful or violent dismemberment?

Question 34

What was found in the CJEU case on the CRO-SLOVE arbitration? (4)

Answer 34

1) CRO wanted to withdraw from arbitration under treaty due to ex parte communication
2) withdrawal must not be contrary to object and purpose (Art 56 VCLT)
3) default 12 month sunset clause for withdrawal (Art 56)
4) Art 70 VCLT: withdrawal does not affect rights/obligations already accrued through the treaty

Question 35

Arguments for and against being able to withdraw from UN? (3 + 3)

Answer 35

1) for withdrawal
- discussed at UNCIO
- VCLT permits withdrawal absent provision?
- could have put express provision prohibiting withdrawal

2) against withdrawal
- intentionally left out provision
- not clear that VCLT permits withdrawal
- express provision against withdrawal too politically difficult?

Question 36

What is the situation with the DPRK and ICCPR? (3)

Answer 36

1) DPRK purport withdraw from ICCPR
2) HRCtee: legally impossible to withdraw from ICCPR (law)
3) but potentially unhelpful if obstructive members? (practice)