3 - Rules for international organs

Question 1

Structure Chapter 3 on the Rules for int. organs? (3)

Answer 1

1/ powers

2/ composition

3/ functioning

Question 2

What are some of the similar institutional issues IOs may encounter regarding the composition of their organs? (6)

Answer 2

1/ size of organs

2/ size of delegations

3/ credentials

4/ quorum

5/ status of members

6/ tension between function and State sovereignty

Question 3

How to determine the status of members of organs? (2)

Answer 3

1/ law (representatives of gvt, expert individuals)

2/ practice (intermediate solutions)

Question 4

What are some of the similar institutional issues regarding the functioning of organs? (4)

Answer 4

1/ rules about sessions of organs

2/ rules about officers and their appointment

3/ rules about term of office

4/ rules about languages

Question 5

What are some aspects the rules about sessions of organs cover? (7)

Answer 5

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

Question 6

Why can it be relevant to have rules on time limits for speeches? (2)

Answer 6

1/ in the common interest to organize time limits so as to make the machinery work

2/ each IO therefore has its own rules

Question 7

What are the 2 possibilities regarding the creation of new rules of procedure for new organs?

Answer 7

1/ start from scratch and develop completely new rules

=> criticism : reinventing the wheel

2/ copy rules of existing organs

=> criticism : comparing apples and oranges?

Question 8

What are some considerations surrounding the rules on languages? (4)

Answer 8

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

Question 9

How to approach the rules on composition & functioning of IOs? (2)

Answer 9

By keeping in mind the 2 poles of the law of IOs :

1/ function

2/ State sovereignty

Question 10

What are 2 ways to approach the study of the law and practice related to the composition & functioning of IOs?

Answer 10

1/ dull details

2/ fundamental elements for forging agreement on substance

Question 11

What is an important premise regarding the powers of IOs? (2)

Answer 11

1/ clear, convincing and comprehensible basic rule (attribution principle)

2/ messy and complex practice

Question 12

What is the basic rule regarding the powers of IOs?

Answer 12

The attribution principle

=> also called principle of speciality, principle of conferral, conferred powers

Question 13

What are the 2 sides of the attribution principle?

Answer 13

1/ empowerment : powers are given

2/ limitation : powers are not given (explicitly or implicitly)

Question 14

Why does the principle of attribution apply to IOs?

Answer 14

Because unlike States, IOs do not have general powers (ICJ, 1996)

Question 15

What are some important cases relating to the principle of attribution? (2)

Answer 15

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)

Question 16

How did the ICJ approach the principle of speciality in its 1996 WHO AO?

Answer 16

“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.”

Question 17

How can the practice regarding the powers (and their potential expansion) of IOs be approached? (2)

Answer 17

1/ functional necessity

2/ mission creep

Question 18

What are 2 examples that were criticised with respect to the powers of the UNSC?

Answer 18

1/ creation of ICTY (Res. 827)

2/ creation of ICTR (Res. 955)

=> remember criticism of Brazil (lecture notes)

Question 19

What are other examples that lead to criticism and a questioning of the extent of powers of several IOs? (5)

Answer 19

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?)

Question 20

What is a central question regarding instances of expansion of IOs’ powers beyond the attributed ones?

Answer 20

Are there any limits to the dynamic interpretation of constitutions of IOs?

Question 21

How did the IDI approach the dynamic interpretation of IOs’ constitutions? (4)

Answer 21

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

Question 22

How did IDI define “evolutive interpretation” ? (3)

Answer 22

1/ interpretation of the constituent instruments

2/ to achieve perceived needs of an IO

3/ that are consistent with its object, purpose and functions

Question 23

Do the principles regarding the powers of IOs also apply to the EU? (2)

Answer 23

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)

Question 24

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?

Answer 24

1/ ICMP (Art. VI)

2/ AIIB (Art. 16)

Question 25

What are the 2 main reasons justifying the existence of implied powers?

Answer 25

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

Question 26

What are 2 cases relating to implied powers and the fact it is impossible to foresee all powers from the start?

Answer 26

1/ ICJ, Reparations AO (1949) : mentioned “the requirements of int. life”

2/ ICJ, WHO AO (1996) : referred to “the necessities of int. life”

Question 27

What are some dangers / disadvantages regarding implied powers? (2)

Answer 27

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

Question 28

What is the relevance of the Reparations AO regarding implied powers? (4)

Answer 28

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)

Question 29

What is the relevance of the WHO AO regarding implied powers? (3)

Answer 29

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

Question 30

What is the relevance of the Certain Expenses AO regarding implied powers? (3)

Answer 30

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

Question 31

Where is the expression “practice of the organization” mentioned? (2)

Answer 31

1/ VCLT 1986, Art. 2(1)

2/ ILC Articles on the Responsibility of IOs, Art. 2

Question 32

What is the legal meaning of the expression “practice of the organization”? (2)

Answer 32

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

Question 33

Some considerations surrounding the legal relevance of “practice of the organization”? (4)

Answer 33

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”

Question 34

What is an example of established practice of an IO?

Answer 34

2 year term of non-permanent members of UNSC may be split in 2 terms of 1 year

Question 35

What are the disadvantages of amending the constituent instruments? (2)

Answer 35

1) takes a long time

2) opens pandora’s box (everyone might have something they want to change)

Question 36

How did the CTBTO-PrepCom solve the issue of wanting to provide tsunami warnings? (1)

Answer 36

It makes bilateral agreements with States to provide the information

Question 37

What are 3 remarks about the CTBTO-PrepCom tsunami arrangement?

Answer 37

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

Question 38

What was the tension in the OPCW-situation with dismissal of DG? (2)

Answer 38

1) provision for dismissal intentionally left out to ensure impartiality
2) implied power of OPCW to dismiss to ensure functioning?

Question 39

What did IDI say about the presumption of legality? (3)

Answer 39

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

Question 40

What 2 reasons did the ICJ base its rejection of the request for an AO by WHO?

Answer 40

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

Question 41

What are 4 limits to how broadly powers can be implied?

Answer 41

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