Non-state Actors Flashcards
Variety of IO’s (bilateral, subject, .)
We have a lot of international organizations nowadays.
- bilateral = two states, multilateral = more than two states and universal = all states or most of them (such as the UN).
- the subject matter can either be general or specific. The UN is very broad
- there are different levels and types of powers
The rise of international organizations
They are comparatively recent ➞ the first were created to deal with localized issues such as the management of international waterways or neutral territory.
- first multilateral international organizations were very practical. They were broader and were focused on very practical issues related to interstate cooperation (e.g. telegraph union)
➞ there was a shift of the functions of IO with the League of Nations 1919. It was the first international organization dealing with wider political questions and affected inter-state relation
The definition of international organization
➞ ARIO article 2
Three elements:
1. Membership
2. Governed by international law
3. International legal personality
Membership (article 2 Ario)
The membership is predominantly member states, but non-states may also be members (e.g. the EU).
- the EU can also sign and ratify treaties
➞ this distinguishes IOs from NGOs as these do not have states as members
Governed by international law (article 2 Ario)
It needs to be constituted under and governed by international law (basis in IL).
- usually: constitutive document in the form of a treaty (UN charter e.g.), but sometimes other forms of
➞ distinguishes IOs from other corporations as they are governed under domestic law
International legal personality (article 2 Ario)
- must possess a legal personality distinct form its individual members ➞ they need to be able to make decisions to possess the personality and to operate in IL in a way that is separate from which aggravate the members
- usually presupposes a set of decision-making bodies or organs
- distinguishes IOs from intergovernmental groups like the G20
Creation of international organizations
➞ created by document, usually by way of treaty
- sometimes via UNSC Resolution or joint unilateral acts, although this is unusual
- states confer international legal personality to an organization. ➞ they can do so via the treaty or other methods. (The Maastricht Treaty was the EU treaty which confers its powers from member states to the EU)
Conferral of international legal personality (creation of international organizations)
The classic position was that only states have legal personality, but it can now also be conferred to international organizations.
- states cam confer ILP to IOs in order to allow it to perform certain functions
- the ILP of IOs therefore derives from states ➞ it is a derivative form of ILP
How is legal personality conferred? (International organizations)
➞ it is necessary to look at the constitutive document (so usually the treaty)
Implicit or explicit (in some treaties it is states, and in others it isn’t)
(Full) objective legal personality
Full objective legal personality means that you have full legal capacity with respect to rights, powers, and obligations within the legal system. Normally only States have this, but in the advisory opinion of the ICJ it states that the UN also has this.
Different approaches to international legal personality
1. Functionalist approach = the idea that internationally legal personality is required to perform the functions that is given to the organization, therefore the IO must have ILP.
- you can assume that the states granted legal personality to the IOs
2. Will approach = if member states intended for the organization to have ILP, and this intention can be deduced from its capacities, powers, rights and futures, then the IO has ILP
- positivist view ➞ focus was on the intention
3. Objective approach = there are objective criteria, and if the organization meets the criteria they will have ILP.
- less popular approach ➞ more empirical
What are the consequences of ILP? (Rights, powers, responsibility)
With ILP comes the capacity to hold rights and obligations under international law.
- the right to bring a claim to enforce one’s rights
- the ability to enter into an international agreement ➞ (treaties) (jus tractatuum). The EU is a member to many treaties and is bound by those treaties just as state parties are bound to it. International organizations are also responsible for the fulfillment of obligations that they bear under international law.
- privileges and immunities necessary for the functioning of the organization ➞ the UN has many immunities in IL (the immunity in peace keeping operations)
➞ different organizations will have different rights and obligations, bound by what is said in their constitutive
Powers: express and implied
The classic position is that the only powers that IOs have is that which is explicitly conferred ➞ the last few decades we also have implied powers
- implied powers = those which are not written in the constitutive document (has to be essential to the performance of its duties)
The ICJ says about reparations: that if the organizations are required to do some thing although not expressly provided, they are confirmed upon it by necessary implications as being essential to the performance of its duties. So when trying to figure out what powers it has, there are a few things to keep in mind.
Powers: interpretation of the constitutive document
It is usually to be interpreted in accordance with the VCLT
- the organs of the organizations itself usually have ‘competence de la competence’ ➞ to interpret their own constitutive treaty. The organs can determine itself what powers they have and which powers they do not.
Powers: decision-making and outputs of IOs
iOS can make different kind of decisions and outputs (declarations, resolutions)
- the voting procedures may differ in one institution (simple majority etc), it depends on what the treaty says.
- the decision of IOs can be binding and non-binding: they can create legal obligations that are binding on member states (also non-binding outputs, think of general resolutions)
- internal and external consequences: decisions that effect the IO itself (approval of budget, procedural rules, etc), or things such as UN decisions that impact states are external consequences (outside the IOs itself).
- the power in IOs may differ between IOS or even between the organs of the same IO
- non-binding outputs may still impact customary law ➞ opinio juris or state practice
