8 - External Relations

Question 1

Initial considerations about IOs and their external relations? (5)

Answer 1

1/ IOs are int. legal persons

2/ they can thus operate on the int. plane and have external relations

3/ external relations are justified by fact that IOs are created to perform certain functions and do not work in isolation

4/ this creates a need for negative and positive coordination

5/ IOs therefore refer to each other and must pay due regard to the functions of other IOs

Question 2

Who can be partners of IOs? (4)

Answer 2

1/ non-member States

2/ member States (esp. host State)

3/ IOs

4/ other entities such as NGOs, private enterprises, academic institutions

Question 3

Examples of IOs having relations with non-member States? (3)

Answer 3

1/ NATO with ind. countries, countries structured within Partnership for Peace (but Skripal/novichok case & tensions with Russia)

2/ ICC-US (revocation entry visa, measure later withdrawn)

3/ EU and EU delegations in 140 NMS/IOs

Question 4

Characteristics of EU delegations? (2)

Answer 4

1/ appointed by EU High Representative for Foreign Affairs and Security Policy

2/ role of European External Action Service (EEAS)

Question 5

What can be said about IOs’ practice regarding protocol dilemmas? (5)

Answer 5

1/ offering credentials is an ancient tradition functioning based on rules on préséance

2/ if IO has a permanent representative in a State, he/she usually offers his/her credentials to Minister of Foreign Affairs

3/ but practice of EU permanent representative different, credentials usually offered following the State system (to Prime Minister or President)

4/ also difficulties with respect to placement of ICC in order of rules on préséance

5/ also US/EU hiccup when US downgraded EU in order of precedence (but later upgraded again)

Question 6

What can be said about EU external relations? (5)

Answer 6

1/ see Art. 27(3) TEU

2/ doubts regarding the legal framework for relations btwn EU delegations and host countries

3/ it has been suggested to apply 1961 VC on Diplomatic Relations, but rejected bc EU is not a State and therefore not a party

4/ in practice, agreements have been concluded btwn EU and host country (these require application of 1961 VCDR provisions mutatis mutandis)

5/ EU has also developed Protocol 7 on the P&I of the EU

Question 7

Recent troubles in diplomatic relations EU-UK? (3)

Answer 7

1/ UK insisted EU delegation would be treated as representation of an IO as EU is not a State

2/ EU considered this to be an issue of pcple as the safety+protection of EU diplomats was needed in 3rd countries

3/ compromise was reached but uncertain whether this amounts to CIL or just practice

Question 8

Characteristics of the perspective of the IO with respect to the relationship IO-host State? (4)

Answer 8

1/ IO needs to perform functions without having own territory

2/ if locations in different countries, IO must still perform functions under same conditions, P&I

3/ IO also needs general working conditions

4/ see 19th century proposal of James Lorimer to create an int. locality, which was never implemented in practice

Question 9

Characteristics of the perspective of the host State with respect to the relationship IO-host State? (4)

Answer 9

1/ host State has 2 capacities : member and seat

2/ host State has specific interests (costs and benefits)

3/ laws of host State must be observed, but IO must still be able to operate independently (jurisdiction to prescribe vs to enforce)

4/ see example of ICC Headquarter Agreement

Question 10

What are the main legal instruments for relations IO-members concerning status, P&I? (3)

Answer 10

1/ constitution

2/ multilateral agreements

3/ headquarters agreements

Question 11

Which organisations have rules on status and P&I in their constitution? (2)

Answer 11

1/ UN (Art. 105)

2/ EU (Art. 343 TFEU)

Question 12

Which IOs have multilateral agreements concerning status and P&I? (5)

Answer 12

1/ UN : 1946 UN General Convention

2/ UN Specialized Agencies : 1947 Specialized Agencies Convention

3/ EU : EU Protocol on P&I

4/ ICC : 2002 ICC Agreement on P&I

5/ IRENA : 2012 P&I Agreement on the International Renewable Energy Agency

Question 13

Characteristics of headquarters agreements? (4)

Answer 13

1/ IO itself is a party

2/ there can be competitions to become host State (eg Germany vs Switzerland for WTO HQ)

3/ contain many detailed provisions depending on function IO

4/ but core provisions are generally similar (inviolability premises, protection HQ, visas for guests, immunity from jurisdiction)

Question 14

History immunity rules of IOs? (4)

Answer 14

1/ in particular developed in 1920s/1930s in practice & in doctrine, often borrowing rules of diplomatic immunity (but denial of justice pb)

2/ rules codified and elaborated in 1944-45

3/ question today : changes since 1990s?

4/ today, very broad practice (many agreements for almost each IO but seemingly no CIL as of yet)

Question 15

What are 2 questions regarding immunity of IOs today?

Answer 15

1/ essential for IOs to protect independence and performance functions?

2/ smokescreen to prevent accountability?

Question 16

What were the conclusions of 2013 Leiden Conference on immunity of IOs? (4)

Answer 16

1/ no need for complete overhaul current regime (raison d’être immunity IOs has not changed)

2/ immunities IOs differ from State immunity (rationale, character)

3/ need for a global convention on immunity of IOs

4/ role for national courts, alternative remedies, residual function

Question 17

General considerations on relations IOs with other IOs and entities? (5)

Answer 17

1/ wealth of practice

2/ legal framework generally composer of agreements and memorandums of understanding

3/ “partnerships”, i.e. forms of cooperation of IOs with external entities

4/ globalization entails need for IOs to cooperate, without necessarily establishing new IOs

5/ criticism : questions about who is to be held responsible if things go wrong

Question 18

What is negative and positive coordination between IOs in their external relations? (2)

Answer 18

1) Negative: avoid interfering with each other’s work

2) Positive: acknolwedge each other’s work to achieve common goals

Question 19

What does Protocol 7 on the Privileges and Immunities of the EU require? (2)

Answer 19

1) Art 16
2) the MS with EU’s seat shall accord the customary diplomatic immunities and privileges to the missions of third countries accredited to the Union

Question 20

What is the dilemma with regards to adopting a convention on IO immunity? (2)

Answer 20

1) could clarify the law

2) BUT cf. Vienna II and ARIO not yet in force

Question 21

What is the nature of IOs’ immunities? (2)

Answer 21

1) Absolute (no question of acta iure imperii/gestionis)

2) HOWEVER no immunity for ultra vires acts (but who determines this?)

Question 22

What is the role for national courts when it comes to responsibility of IOs? (3)

Answer 22

1) growing notion that there must always be a remedy
2) if IOs do not provide remedy, national courts may waive immunity
3) not ideal but wake-up call function

Question 23

What are examples demonstrating that IOs have responded to pressure by providing remedies? (2)

Answer 23

1) UN ISIL/Al Qaida ombudsperson: revised internal justice system (UNAT)
2) New admin. tribunal created + IOs join ILO AT

Question 24

What are the types of cooperation IOs may engage in with non-state actors and which? (2)

Answer 24

1) actors: IOs, NGOs, private enterprises, academic institutions
2) types of cooperation: binding/non-binding, IL and domestic law