3 - Rules for international organs Flashcards
Structure Chapter 3 on the Rules for int. organs? (3)
1/ powers
2/ composition
3/ functioning
What are some of the similar institutional issues IOs may encounter regarding the composition of their organs? (6)
1/ size of organs
2/ size of delegations
3/ credentials
4/ quorum
5/ status of members
6/ tension between function and State sovereignty
How to determine the status of members of organs? (2)
1/ law (representatives of gvt, expert individuals)
2/ practice (intermediate solutions)
What are some of the similar institutional issues regarding the functioning of organs? (4)
1/ rules about sessions of organs
2/ rules about officers and their appointment
3/ rules about term of office
4/ rules about languages
What are some aspects the rules about sessions of organs cover? (7)
1/ frequency and duration of sessions
2/ time limits of speeches (esp. during general debate)
3/ costs
4/ place
5/ privileges and immunities
6/ procedure (e.g. agenda, procedural motions)
7/ new rules of procedure for new organs
Why can it be relevant to have rules on time limits for speeches? (2)
1/ in the common interest to organize time limits so as to make the machinery work
2/ each IO therefore has its own rules
What are the 2 possibilities regarding the creation of new rules of procedure for new organs?
1/ start from scratch and develop completely new rules
=> criticism : reinventing the wheel
2/ copy rules of existing organs
=> criticism : comparing apples and oranges?
What are some considerations surrounding the rules on languages? (4)
1/ bc most IOs have members practicing different languages, there is a need for language rules
2/ see UNGA Rules of Procedure for example ; same for Council of Europe
3/ the use of more languages could however introduce an element of division, fragmentation (E. Hambro)
4/ moreover, costs involved in translation+interpretation are not negligible
How to approach the rules on composition & functioning of IOs? (2)
By keeping in mind the 2 poles of the law of IOs :
1/ function
2/ State sovereignty
What are 2 ways to approach the study of the law and practice related to the composition & functioning of IOs?
1/ dull details
2/ fundamental elements for forging agreement on substance
What is an important premise regarding the powers of IOs? (2)
1/ clear, convincing and comprehensible basic rule (attribution principle)
2/ messy and complex practice
What is the basic rule regarding the powers of IOs?
The attribution principle
=> also called principle of speciality, principle of conferral, conferred powers
What are the 2 sides of the attribution principle?
1/ empowerment : powers are given
2/ limitation : powers are not given (explicitly or implicitly)
Why does the principle of attribution apply to IOs?
Because unlike States, IOs do not have general powers (ICJ, 1996)
What are some important cases relating to the principle of attribution? (2)
1/ PCIJ, Jurisdiction of the European Commission of the Danube AO (1927)
2/ ICJ, Legality of the Use by a State of Nuclear Weapons in Armed Conflict (also called WHO AO) (1996)
How did the ICJ approach the principle of speciality in its 1996 WHO AO?
“International organizations are governed by the “principle of speciality”, that is to say, they 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.”
How can the practice regarding the powers (and their potential expansion) of IOs be approached? (2)
1/ functional necessity
2/ mission creep
What are 2 examples that were criticised with respect to the powers of the UNSC?
1/ creation of ICTY (Res. 827)
2/ creation of ICTR (Res. 955)
=> remember criticism of Brazil (lecture notes)
What are other examples that lead to criticism and a questioning of the extent of powers of several IOs? (5)
1/ OPCW (dismissal of director general, role of Secretariat in identification of perpetrators, involvement with Navalny all ultra vires?)
2/ CTBTO PrepCom (use of installations for tsunami warning purposes lawful?)
3/ HR Council (discussion of NATO operation in its report ultra vires?)
4/ NATO (use of force in Libya ultra vires?)
5/ UN Working Group on Arbitrary Detention (opinion regarding case of Julian Assange within its mandate?)
What is a central question regarding instances of expansion of IOs’ powers beyond the attributed ones?
Are there any limits to the dynamic interpretation of constitutions of IOs?
How did the IDI approach the dynamic interpretation of IOs’ constitutions? (4)
1/ recognized right of IOs to resort to an evolutive interpretation of their constituent instruments
2/ this is allowed when need to address current challenges and to fill unforeseen gaps
3/ such evolutive interpretation may however not violate jus cogens
4/ and IOs must take into account functions of other IOs
How did IDI define “evolutive interpretation” ? (3)
1/ interpretation of the constituent instruments
2/ to achieve perceived needs of an IO
3/ that are consistent with its object, purpose and functions
Do the principles regarding the powers of IOs also apply to the EU? (2)
1/ it is questionable whether the EU is different in this respect
2/ after Lisbon Treaty, more emphasis on the attribution principle (see articles TEU and TFEU)
What are 2 other examples that allow for more flexibility regarding the attribution principle, i.e. that refer to the purposes and/or functions of the IO to determine its powers?
1/ ICMP (Art. VI)
2/ AIIB (Art. 16)
What are the 2 main reasons justifying the existence of implied powers?
1/ all powers cannot be spelled out in detail
2/ it is impossible to foresee what powers are necessary in the future to perform functions of the IO
What are 2 cases relating to implied powers and the fact it is impossible to foresee all powers from the start?
1/ ICJ, Reparations AO (1949) : mentioned “the requirements of int. life”
2/ ICJ, WHO AO (1996) : referred to “the necessities of int. life”
What are some dangers / disadvantages regarding implied powers? (2)
1/ to make implied powers greater than expressly granted powers (see SCOTUS, M’Culloch v The State of Maryland (1819))
2/ the broader the scope of implied powers, the closer it comes to a “general competence” for IOs
What is the relevance of the Reparations AO regarding implied powers? (4)
1/ recognized and confirmed implied powers doctrine
2/ such powers depend on purposes and functions of the IO, as specified or implied in constituent docs and developed in practice
3/ defined implied powers as “those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties”
4/ see however dissent of Hackworth (lecture notes)
What is the relevance of the WHO AO regarding implied powers? (3)
1/ analyzed whether the request for an AO by the WHO fell within the powers of this IO
2/ considered question on the legality of the use of nuclear weapons did not fall within the competences of the WHO
3/ indeed, such a competence could not be considered as a necessary implication of the WHO constitution
What is the relevance of the Certain Expenses AO regarding implied powers? (3)
1/ questioned whether UNGA authorization of expenditures related to peacekeeping missions fell within the powers of this organ
2/ held that if it is asserted that an action is appropriate for fulfilment of a stated purpose of the UN, presumption is that action is not ultra vires
3/ it is for each organ to determine its own jurisdiction in the first place
Where is the expression “practice of the organization” mentioned? (2)
1/ VCLT 1986, Art. 2(1)
2/ ILC Articles on the Responsibility of IOs, Art. 2
What is the legal meaning of the expression “practice of the organization”? (2)
1/ could be an exception to the principle of attribution
2/ principle of attribution could be defined in a broad way so as to incl. practice of the IO
Some considerations surrounding the legal relevance of “practice of the organization”? (4)
1/ how important is practice of the IO really?
2/ does not seem to cover “any” practice but only “established” practice
3/ practice of the IO is not required to be “in accordance with instruments”
4/ has been referred to as “quasi-customary law of the IO”
What is an example of established practice of an IO?
2 year term of non-permanent members of UNSC may be split in 2 terms of 1 year
What are the disadvantages of amending the constituent instruments? (2)
1) takes a long time
2) opens pandora’s box (everyone might have something they want to change)
How did the CTBTO-PrepCom solve the issue of wanting to provide tsunami warnings? (1)
It makes bilateral agreements with States to provide the information
What are 3 remarks about the CTBTO-PrepCom tsunami arrangement?
1) shows societal needs can prevail over strict interpretation of powers
2) easier to permit this^ though here since tsunami-use does not inhibit the original purposes of the facilities
3) Since PrepCom is preparatory: when start functioning CTBTO should approve the tsunami arrangements
What was the tension in the OPCW-situation with dismissal of DG? (2)
1) provision for dismissal intentionally left out to ensure impartiality
2) implied power of OPCW to dismiss to ensure functioning?
What did IDI say about the presumption of legality? (3)
1) If MS of IO agree generally as to an interpretation
2) that interpretation is presumed valid and intra vires
3) EXCEPT if contrary to constituent instrument
What 2 reasons did the ICJ base its rejection of the request for an AO by WHO?
1) Principle of Attribution: questions of legality are outside WHO’s scope of functions
2) specialized agency: the question fell within another part of the system of which WHO was part
What are 4 limits to how broadly powers can be implied?
1) ‘essential’/necessity for IO’s purposes
2) Explicit powers in same area
3) fundamental rules and principles of IL
4) the distribution of functions within the IO must not be changed
