THE LAW APPLICABLE TO INTERNATIONAL ORGANISATIONS/THE LAW OF IO

Question 1

THE LAW APPLICABLE TO IO : The question of human rights

Answer 1

Is an IO bound by human rights ?

• Issues : no legal basis :
  • the UNCH : rare references to human rights, art 1 §3 only said that it is one of its purposes to promote and encourage the respect for human rights but remain silence on any obligations regarding. -> not sufficient to conclude that the UN has a legal obligation on the matter.
  • member states : the human rights treaties are only binding to them BUT nothing prevents the IO from being party to them (for instance, art 6 Lisbonne Treaty states that the UE is bound by the Charter of fundamental rights and art 6.2 provides that the UE shall access to the ECHR. But the ECJ always refused this possibility.)
• solutions :
  • ICJ, first advisory opinion on the conditions of admission of a State to membership, 1947 : the organs of the IO are bound by the constitutive treaty. So if it does no provide obligations under human rights, there is not. BUT :
  • ICJ, advisory opinion on the agreement of 25 march 1951 : as international legal subjects, IO are bound by any obligations implemented by international general rules = conventionna + customary law (and thus, some human rights).

Question 2

The right to self défense ?

Answer 2

As self défense is a customary rule, can IO enjoy it ?
-> art 21 of Articles on the Responsability of IO : save the possibility for IO to claim self-défense. Not a right but not impossible either.

Question 3

THE LAW OF IO

Answer 3

= the law produced by the IO as legal persons. They are created to assist states in the production of international obligations BUT also of non binding norms (soft law) = non binding rules but that have an influence on the conduct of legal actors.

• treaties concluded by or under the auspices of IO
• unilateral acts of IO
• International law as IO

Question 4

Treaties concluded by or under the auspices of the IO

Answer 4

IO is a place were treaties are concluded, they have a legal service made of experts that will help states to negotiate treaties. BUT some IO go beyond that developing a treaty creating competence, as the UN :
- art 13.1 UNGA : states that the GA has a competence to codify customary law and to develop it.
- art 102 : provides a competence of depositary and registration of every actions made on the treaties (signatures, reservations..).

-> based on that, the UN has been the place where the most important conventions were concluded (UN convention of the sea, Paris agreements..). They don’t idk the UN as such,, but they are produced by it.

-> also, specific bodies within the UN are created to create conventional law : the international law commission is the one within which all the «Vienna conventions» have been adopted. Same at the European level with the Council of Europe which role is to be a place where treaties are negotiated (ECHR).

Question 5

Unilateral acts of IO

Answer 5

= acts performed by an international actor. Criteria :

• public
• known to the actor
• intended to create a legal effect either on the producteur or other actors.

Unilateral act of IO = an act produced by the IO and designed to have some legal effect on the member states or other subjects = external effect, not just regarding relationships within the IO. 2 types :

• no biding effect (UNGA ; advisory opinons of the ICJ).
• binding effect (UNSC ; decisions of ICJ)

Question 6

Binding acts (in general)

Answer 6

Two types :

• regulations : very. Powerful unilateral act that will have to be directly implemented by member states in all its aspects.
• directives : also an unilateral binding act but more flexible because member states have the choice to adapt their legal system to fulfill their obligations.

Question 7

Binding acts (UNSC)

Answer 7

Origin :

• art 39 UNCH : gives a power of qualification to the UNSC. Based on that, it can take recommendations or any other mesures in accordance with art 41 and 42 :
• art 41 : binding acts but with NO recourse to the use of force.
• art 42 : if mesures provided by art 41 are inadequate, actions including the recourse to use of force can be taken.

Conditions for a decision to be binding :

• qualification of a treat to. Breach of peace/security : it’s the prerequisite.
• the use of a decisive langage : The mention of a threat to peace/security is enough. «Take all necessary measures», «authorises» ..

-> either way, there is a negotiation within the UNSC to design and find the most appropriate langage in order to be adequate with the interests from political parties (ex : RES 2023 on the Gaza situation has no reference to chapter VI nor decisive langage).

Question 8

Non binding acts (UNGA)

Answer 8

The langage of UNGA RES is never binding («encourages, emphasises..». The only binding act the UNGA can adopt is those within the O. BUT it has nevertheless some legal power -> some of UNGA RES are considered as codification of international law, such as the RES 1514 as confirmed by the ICJ in the Chagos advisory opinion. = resolutions that are not legally binding but their content is.

Question 9

IO as international legal actors

Answer 9

= the question of the relationship between the norms produced by IO and other international norms.

• the role of IO in the formation of customary rules
• IO and the building of an international legal order

Question 10

The role of IO in the formation of customary rules

Answer 10

ICJ, advisory opinion legality of the threat or use of nuclear weapons, 1996 : recognises that UNGA RES may be not binding but can have a normative value = provide evidence for establishing the existence of a practice/opinio juris.

• normative value : it is different from the binding character. A text may have normative value even though it is non binding = constitute the base of important negotiation.
• the positioning of member states towards the resolution : the voting result of the resolution can express customary international law. It shows that all States, even if different political/economical/social systems agree with the rule. Examples :
  
  • UNGA RES 2625, 1970 : interpretative development of art 2.4 UNCH because it qualifies a war of agression as a threat against peace while the word «agression» doesn’t appear in the Charter = codification of international law.
  • UNGA RES 1514 : uses the vague reference of self determination in the Charter to almost create a right of indépendance for colonial people. Resolution that applies to colonial people but also to sovereign states.
  • UNGA RES 2625, 1970 : dedicates the principle of non intervention which does not exist in the Charter BUT reflects customary law. (Confirmed by the ICJ in the Nicaragua case).

Question 11

IO and the building of an international legal order

Answer 11

There is no hierarchy in the international legal system. BUT art 103 UNCH instaures a preference at the benefit of the UN obligations in case of conflicts of norms = a provision to protect the integrity of the Charter. BUT limits :

• the obligation is a statement under the UNCH only : it only applies to UN member states. Actors that are not bound by art 103 are not legally expected to respect this obligation.
• some regional systems refused to comply with art 103 :
  
  • ECHR, Mothers of Srebrenica, 2007 : the Court faced a conflict of obligations = protection of the right to justice and the immunities of the UN agents -> the Court created a presumption that the UNSC is supposed to respect human rights and thus accepted the immunities.
  • ECHR, Kadi case : conflitct between a sanction adopted by the UNSC under Chapter VII and the access to a tribunal within the UN to contest -> the Court considered that it was a breach of the right to fair trial + that EU is not bound by the Charter + acts talent by member states respecting the obligations under the UN can lead to a breach of the ECHR.