international orgs Flashcards
International organizations
Founded by states
→ Legal personality is derived and limited
To achieve common objectives
Established for the long term
Institutional structure (organs) for
-Decision making
-Implementation of decisions
Seat ( Headquarters agreement)
Tension: Integration — Sovereignty
Elements for a definition
“… an organization established by a treaty or other
instrument governed by international law and possessing its
own international legal personality. International
organizations may include as members, in addition to states,
other entities;”
(Art 2 lit a Draft Articles on the Responsibility of International
Organizations 2011)
History and Significance
Administrative Unions
* = technical organizations
(e.g. ITU 1865, UPU 1874)
Securing international peace
* = political organizations
(e.g. League of Nations1919
Types of International Organizations
Membership
* Universal
* Regional
Activities and Objectives
* Technical
* Political
Extent of Competences
* EU as a supranational organization
Supranational Organization
■ Founding document: multilateral treaty (treaties)
■ Members are states
■ Organs with independent decision making power
International Organization
BUT “higher degree of integration”:
▪ Binding majority decisions are the rule
▪ Effective enforcement
▪ Court of Justice with compulsory jurisdiction
▪ Direct effect and primacy of the law in member states
“Autonomous legal order“ sui generis created
▪ Directly elected parliament
▪ Financed not only by membership fees
“Prime example”: European Union
International Legal Personality
Important for concluding treaties (VCLT II)
■ Not “original”, but “derived” from member states
■ Limited by member states in the founding treaty
■ Possibility of “ultra vires” acts ( null and void)
But:
▪ Not only powers expressly mentioned in the founding treaty
▪ Also those necessary to carry out their tasks effectively
▪ Developed in several advisory opinions by the ICJ
“implied powers”-doctrine
≠ no original international legal personality → derived from MSs and limited by MSs → Functional legal personality = to the extent that has been conferred upon the IO by its MS
Legal Personality of IOs
legal personality under PIL: bearer of rights and obligations under PIL, legal capacity to conclude treaties, become responsible under PIL
legal personality under domestic aw: Bearer of rights and obligations under national law, Legal capacity to conclude contracts, e.g. to buy goods and services, Bring claims, Right to have property
Implied Powers
Advisory Opinions by the ICJ
■ Peace Keeping Operations
Certain Expenses of the United Nations (1962)
■ Functional Immunity
Compensation for Injuries Suffered in the Service
of the UN (Bernadotte 1949)
■ UN Administrative Tribunals
Effect of Awards of Compensation Made by the
United Nations Administrative Tribunal (1954)
Peace Keeping Operations:
Certain Expenses of the UN (1962)
A group of States had refused to co-finance the
peacekeeping operations (PKO) in the Middle East (UNEF)
and in Congo (ONUC) arguing that these operations were
in contradiction to the UN-Charter
The GA of the UN requested an Advisory Opinion of the
ICJ to determine whether the expenditures relating to
UNEC and ONUC constituted “expenses of the
organization” within the meaning of Article 17(2) of the
Charter.
ICJ: Expenditures must be assessed in light of the
purposes of the UN (maintaining peace and security)
PKO serve the maintenance of peace and security in the
region they are to be viewed as “expenses of the
organization” within the meaning of Article 17(2) UNC
Peacekeeping Operations of the UN
Not expressly mentioned in the Charter but → Serve the main purpose of the UN: maintenance of international peace and security = implied powers
Bernadotte-Case (1949)
November 1947: UN GA Resolution 181 plan of partition the former British Mandate into two states (Israel and Palestine)
May 1948: Declaration of independence by Israel, followed by invasion of 5 Arab states ▪ Bernadotte elected as UN mediator in the conflict
Negotiations with Israel on the recognition of the Palestinian refugees’ right to return
Sept. 1948: Count Bernadotte murdered by zionist paramilitary group Lechi, together with his colleague André Serot (F)
General amnesty by the Israeli government for members of Lechi
The UN General Assembly requested an Advisory Opinion from the ICJ: Can the UN claim reparation for itself, the injured, and their relatives?
“Implied powers” after the Bernadotte-Case
The UN Charter does not explicitly confer legal personality to the UN
Nevertheless, the UN has legal personality, because this is necessary to achieve the goals of the UN Charter
The UN has legal personality not only in relation to its members, but also towards third states (objective, not only subjective legal personality)
The UN has the capacity to claim reparation in its own right
The UN has the right to claim reparation for the injured and their relatives the “right of functional protection” (similar to the right of “diplomatic protection” of states)
Advisory Opinions of the ICJ are not binding, but a significant and authoritative interpretation of PIL
UN Administrative Tribunal
- Effect of Awards of Compensation Made by the United
Nations Administrative Tribunal (1954)
Some employees had been granted awards of compensation by
the UNAT after their dismissal
Disagreement in the GA against a special budget
UN GA: Request to the ICJ on the following question:
− Does the GA have the right to refuse to give effect
to an award of compensation made by an
administrative tribunal?
ICJ: Administrative Tribunal not provided for in the Charter, but
necessary to fulfil the tasks of the UN “implied powers”
UNAT was established by a UN GA as an independent tribunal
for deciding disputes with binding effect
Binding effect of judgements also extends to the GA
Administrative Tribunals
■ Necessary because of immunity of IOs before national (labour)
courts
■ Otherwise, no legal protection of IO employees after dismissals
etc.
■ UN Appeals Tribunal (UNAT)
▪ New system since 2009
▪ Two instances (UNDT and UNAT)
▪ Office of Administration of Justice
▪ Headquarters in New York, 4 branch offices
■ ILO Administrative Tribunal
▪ Successor of the AT of the League of Nations
▪ Competent for labour law disputes of more than 50 IOs
▪ Seat in Geneva
Treaties between IOs
Vienna Convention on the Law of Treaties II
(1986)
* Applies to treaties between:
- States and IOs
- IOs
* Not applicable to founding treaty VCLT I 1969
* Not yet in force: still not enough ratifications (min. 35,
as of now: 33)
Examples of treaties by IOs
Bilateral treaties between IOs and states
▪ Headquarter agreements
▪ Deployment of peace keeping troops
■ Treaties between IOs
Example “Agreement for Mutual Enforcement of Debarment
Decisions” (9 April 2010):
▪ African Development Bank Group
▪ Asian Development Bank
▪ European Bank for Reconstruction and
Development
▪ Inter-Amercian Development Bank Group
▪ World Bank Group
Typical organisational structure
Representative organ with limited membership (“council”)
* Meets more frequently
* Ability to act more rapidly
* e.g. UN Security Council (15 members, 5 permanent)
* e.g. UN Economic and Social Council (54 members)
makes sure, even w limited membership that all continents are represented to some extent
Plenary organ (“assembly”) (all members are represented)
* General and broadest powers
* Meets annually, biannually, or in other defined intervals
* Takes fundamental policy decisions
* e.g. UN General Assembly
Administrative organ (“secretariat”)
* Headed by Secretary General or similarly designated officer
* Administrative tasks
* Sometimes participation rights, rights of initiative, etc.
* Staff appointment, employed ppl have contract w administrative organs
* Often located in headquarter of IO
Further Possible Organs
Parliamentary Bodies: e.g. European Union, Council of Europe
Expert Bodies: e.g. International Law Commission (ILC) of the UN
Judicial Bodies : e.g. ICJ, UN, UNDT, UNAT * e.g. ECtHR, CJEU
decision making
Unanimity e.g. decision making on EU Common Foreign and Security Policy, admission of new EU members ; need unanimity because MSs care about keeping most decisions about topics like this for themselves
Voting by majority Specified in the founding treaty of each IO
▪ Simple majority
▪ Qualified majority (e.g. 2/3 in UN GA)
▪ Special quorum (e.g. 9/15 in UN SC)
Voting Procedure
Principle of Equality of States: „one state, one vote“
▪ Sometimes special rights
e.g. veto right of P5 in UNSC
Weighted votes
▪ Reflecting factual inequality of states (e.g. in size,
population, economic factors)
e.g. financial organizations (World Bank, IMF): voting
rights based on quotas
e.g. Council of the EU: number of votes depends on size of
country/population
Consensus procedure
▪ No voting, negotiations until no active opposition
e.g. OSCE, WTO
Privileges and Immunities
Immunity of IOs
▪ “Functional”: the functioning of the IO should not be
interfered with by activities of national administrative
authorities or courts
Result in practice: “absolute” immunity
▪ No differentiation between private and sovereign acts
(as opposed to state immunity)
▪ Usually granted in founding treaty, headquarters
agreement, national laws
Privileges and Immunities
■ Dispute Resolution
▪ Immunity can lead to lack of legal protection
▪ Needs to be offset by alternative dispute resolution mechanisms
(e.g. arbitration or administrative tribunals)
■ Inviolability
▪ Buildings, archives, etc. of IOs must not be entered by state organs
▪ Assets of IOs cannot be seized by state organs
▪ However, this does not mean that IOs are “extraterritorial”
■ Far-reaching tax exemptions
Staff
■ Not state representatives
■ Functional immunity
▪ Only applies to acts in performance of professional duties
▪ Also vis-à-vis home state (unlike diplomats)
▪ Broader immunity possible: e.g. high officials
■ Employment
▪ Professional qualifications
▪ Geographical distribution of nationality
▪ Political considerations (e.g. support by the home state)
■ Staff Rules (International Employment Law)
▪ Disputes arising out of employment: not subject to national
courts due to immunity
▪ Special administrative tribunals (e.g. ILOAT, UNDT, UNAT)
Headquarters Agreement
■ Important source for rights and obligations of an IO
■ Bilateral treaty between IO and state
■ Concluded by Austria with all IOs in Vienna
■ Regulate
▪ Legal status of the IO
▪ Immunities and privileges of staff
Headquarters Agreement
between the United Nations and Austria
Inviolability of the Seat of the United Nations
Section 15
(a) The Government recognizes the inviolability of the seat of the United
Nations, which shall be under the control and authority of the United Nations
as provided in this Agreement.
(b) Except as otherwise provided in this Agreement or in the General
Convention and subject to any regulation enacted under Section 16, the laws
of the Republic of Austria shall apply within the seat of the United
Nations.
(c) Except as otherwise provided in this Agreement or in the General
Convention, the courts or other competent organs of the Republic of
Austria shall have jurisdiction, as provided in applicable laws, over acts
done and transactions taking place within the seat of the United Nations.
Inviolability of the Seat of the United Nations
Inviolability of the Seat of the United Nations
Tax exemptions
Section 24
(a) The United Nations, its assets, income and other property
shall be exempt from all forms of taxation; […]
(b) In so far as the Government, for important administrative
considerations, may be unable to grant to the United Nations
exemption from indirect taxes which constitute part of the cost of
goods purchased by or services rendered to the United Nations
including rentals, the Government shall reimburse the United
Nations for such taxes by the payment from time to time, of lump
sums to be agreed upon by the United Nations and the
Government. […]
Admission to IOs
Art. 4 UN Charter
(1) Membership in the United Nations is open to all
other peace-loving states which accept the
obligations contained in the present Charter
and, in the judgment of the organization, are able
and willing to carry out these obligations.
(2) The admission of any such state to membership in
the United Nations will be effected by a decision of
the General Assembly upon the recommendation
of the Security Council.
Withdrawal and expulsion
■ Withdrawal
▪ Sometimes provided for (e.g. EU; not in UN)
▪ Even without explicit permission possible based on state
sovereignty (e.g. Indonesia‘s withdrawal from the UN)
■ Expulsion
▪ Sometimes provided for, if member persistently violates its
obligations (e.g. Art. 6 UN Charter, Council of Europe: Russia)
▪ Questionable political value: loss of political influence on state
▪ Other possibilities: non-acceptance of accreditation letter;
suspension of voting-rights upon failure to pay financial
contributions (Art. 19 UNC)
Funding
■ Membership fees
e.g. in UN: financial contributions splitted in % among MS
“poorest” states: 0,001 %
USA: about 22%, Germany: about 10%, Austria: close to 1%
■ Payment of membership fee = legal obligation
Failure to pay is a violation
Sanctions (e.g. loss of voting rights)
Means of exerting pressure
■ Voluntary contributions (e.g. programmes and aid funds of
the UN / peacekeeping operations)
■ Income from their own activities (e.g. World Bank and
other international development banks)
Legal significance of decisions
■ Different!
■ Binding decisions
▪ Binding character depends on tasks and competences of
the organization or the organ
▪ Intent of the organ important (content/wording of decision)
▪ Scope:
- Internal organisational decisions
- UN Security Council decisions, organs of EU
- Decisions of technical IOs (ITU, ICAO)
■ Non-binding decisions
▪ No state responsibility, if violated
▪ Political consequences
▪ Often first steps for binding decisions or treaty negotiations
Legal significance of
non-binding decisions
■ Recommendations, Declarations, Guidelines, …
▪ Varying legal authority
▪ States must consider them “in good faith”
Conduct in conformity: presumption of lawfulness
▪ First step to develop CIL or treaty
▪ Support of argumentation before courts
■ Preservation of freedom of action for states
▪ Less benefitial for effective cooperation and integration
United Nations
■ Founded after WW2, San Francisco 1945
■ 51 founding states, now 193
■ Seat in NYC, Geneva, Vienna (1979), Nairobi
(1998)
■ 6 Organs (GA, SC, EcoSoc, Secretariat, ICJ,
Trusteeship Council)
■ 6 official languages (E, F, Sp, Rus, Arab, Chin)
■ Prohibition of the use of force (Art. 2/4)
■ System of collective security (Chapter VII)
■ Pacific settlement of disputes (Chapter VI)
UN Plenary Organ: The General Assembly
■ 193 member states; One State, one vote (Art. 18)
■ General principles on preserving world peace and international securtiy,
including demilitarisation (Art. 11/1)
■ Questions relating to preservation of peace concerning individual dispute
resolutions (Art. 11/2, 12)
■ Initiates studies and makes recommendations for the purpose of political,
economic, humanitarian and cultural cooperation, including education and
health; progressive development and codification of CIL (Art. 13)
■ Receives and examines reports of the SC and other UN organs (Art. 15)
■ Examines and approves the budget (Art. 17)
■ Elects non-permanent SC members and members of other organs;
appoints the General Secretary of the UN – upon recommendation by the SC
(Art. 23)
UN-organs with limited membership:
Security Council
■ 15 members
■ 5 permanent members: China, F, Rus, UK und USA
■ 10 non-permanent members elected for a term of 2
years
■ Geographical distribution: Africa, Asia,
Eastern-European States, Latin America and the
Carribean, Western-European and Other States
■ Makes recommendations to the GA for the
appointment of the SG and accession of members
■ Elects (together with the GA) judges of the ICJ
Competences of the UN Security Council
■ Primary responsibility for the maintenance of international
peace and security (Art. 24/1)
■ Competences in Chapter VI, VII, VIII und XII (Art. 24/2)
■ Decisions of the SC are binding (Art. 25)
■ Voting requirements: 9 out of 15 (Art. 27/2)
■ Decisions on non-procedural matters: no veto by any of
the 5 permanent members (Art. 27/3)
UN-Organs with limited membership: The
Economic and Social Council (EcoSoc)
■ 54 members (Art. 61)
■ Elected for a 3-year term (Art. 61)
■ Geographic distribution: 14 Africa, 11 Asia,
6 Eastern European states, 10 Latin-America and the Carribean,
13 Western European and other states
■ Coordinating the economic and social fields of the organization,
the regional comissions and UN-fonds and programmes
■ Specialized agencies: FAO, ICAO, UFAD, ILO, IMF, IMO,
ITU, UNESCO, UNIDO, UPU, WHO, WIPO, WB, WMO, WTO
(Tourism) (Agreement following Art. 57 and 63 UNC)
■ “Related organizations”: WTO (Trade), IAEA, CTBTO, OPCW
“UN Specialized Agencies”
Article 57 UN-Charter
1. The various specialized agencies, established by
intergovernmental agreement and having wide international
responsibilities, as defined in their basic instruments, in
economic, social, cultural, educational, health, and related fields,
shall be brought into relationship with the United Nations in
accordance with the provisions of Article 63.
2. Such agencies thus brought into relationship with the United
Nations are hereinafter referred to as specialized agencies.
Article 63 UN-Charter
1. The Economic and Social Council may enter into agreements
with any of the agencies referred to in Article 57, defining the
terms on which the agency concerned shall be brought into
relationship with the United Nations. Such agreements shall be
subject to approval by the General Assembly.
2. It may co-ordinate the activities of the specialized agencies
through consultation with and recommendations to such agencies
and through recommendations to the General Assembly and to
the Members of the United Nations.
Consultative Status of NGOs
Article 71 UN-Charter
The Economic and Social Council may make suitable
arrangements for consultation with non-governmental organizations
which are concerned with matters within its competence. Such
arrangements may be made with international organizations and,
where appropriate, with national organizations after consultation
with the Member of the United Nations concerned.
Access to ECOSOC and its many subsidiary bodies, human
rights mechanisms of the United Nations, ad-hoc processes on
small arms, as well as special events
Functions of EcoSoc
■ Promoting a higher standard of living, full employment
and economic and social progress
■ Solving international economic, social and health
problems
■ International cooperation in the fields of culture and
education
■ Promoting and strenghtening worldwide
acknowledgement of human rights and fundamental
freedoms
■ Recommendations and programmes for member states
and the UN-system
■ Broad mandate; 70 % of the personal and financial
resources of the UN
UN-Organ with judicial capacity:
The International Court of Justice (ICJ)
■ Seat in the Hague
■ 15 judges, elected for a 9-year term with the possibility
of re-election
■ tri-anually, 5 new judges are elected by the GA and SC
■
“Persons of high moral character, who possess the
qualifications required in their respective countries for
appointment to the highest judicial offices, or are
jurisconsults of recognized competence in international
law.” (Art. 2 ICJ-Statute)
■ “Representation of the main forms of civilization and of
the principal legal systems of the world” (Art. 9)
■ “Nominated by the national groups in the Permanent
Court of Arbitration” (Art. 4)
International organizations in Vienna
UNHCR
founded 1951 (Geneva); since 1951 branch office in Vienna
■ Compliance with international agreements
■ Material aid
IAEA
founded 1957; in Vienna since 1957
■ Peaceful use of nuclear energy
■ Monitoring the Nuclear Non-Proliferation
Treaty (since 1970)
OPEC
Founded 1960; in Vienna sicne 1965
■ International oil cartel
■ Determination of production quotas
UNIDO
founded 1966; in Vienna since 1967
■ Poverty Reduction through Productive Capacities
■ Trade Capacity Building
■ Energy and Environment
CTBTO
Comprehensive Nuclear Testban Treaty 1996;
Preparatory Comission in Vienn since 1997
■ Efforts to obtain ratifications/signatures
■ Global monitoring system: seismic, hydroacoustic,
infrasound and other measurement data
OSZE
Founded 1995; in Vienna since 1995
■ Successor to the CSCE as a platform
between East and West
(Europe, Soviet Union, USA, Canada)
■ Legal nature?
UN - Human Rights Council
- 47 members
- Replaced the Human Rights Commission
(53 members) - Strengthening and protecting human rights
worldwide - Installed by UN General Assembly
resolution of March 15, 2006 - Investigates in the event of human rights
violations and adopts recommendations - Members are required to meet the “highest
standard” of human rights; must undergo
periodic reviews - Members can be voted out of office by a
two-thirds majority of the GA
