Cases and Materials on the Law of International Organizations

William Thomas Worster

• Publisher: Routledge
• Year: 2020
• eBook ISBN: 9781351676342
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

In less than 100 years, international organizations have evolved from curiosities into keystones of international law. What began long ago as an unremarkable effort to coordinate a limited number of technical issues has grown into a global, multilevel, blended governing project with diverse competences in most fields of human endeavor and interests.

Law graduates who enter the field of international law, as well as political science, international relations, and diplomacy, are increasingly expected to have a strong knowledge of the law of international organizations. Beyond knowledge, graduates are also expected to be able to solve new emerging legal problems confronting organizations.

This book introduces students to the law of international organizations through the careful study of the most recent cases and other materials from the International Court of Justice, United Nations Security Council and General Assembly, World Trade Organization, international criminal tribunals, European Union, European Court of Human Rights, International Labour Organization, various domestic courts and arbitral panels, and other bodies. In doing so, it undertakes a critical examination of legal rights and duties, exposing the fundamental questions that arise when addressing a range of issues within an organization. In order to provide the best foundation, the textbook focuses on several key topics: the law of treaties, creation of organizations, membership, powers of organizations, legal effects of their acts, organs, immunities, and responsibility.

This book is best suited for students who are studying international organizations and who have already had one or more courses on international and/or European law.

Chapter 1

Introduction to International Organizations

1.1 Introduction to International Organizations

In less than 100 years, international organizations have evolved from curiosities into keystones of international law. What began long ago as an unremarkable effort to coordinate a limited number of technical issues has grown into a global, multilevel, blended governing project with diverse competences in most fields of human endeavor and interests, including nuclear weapons, migration, weather activity, telecommunications, languages, rivers, intellectual property, criminal activity, tuberculosis, bananas and coffee, and so on. In New York, Brussels, Geneva, The Hague, Vienna, Nairobi, and cities throughout the world, thousands of international civil servants and experts go to work every day, each attempting to make one small contribution in the larger web of organizations. This decentralized, fragmented, and sometimes overlapping governance project is, in principle, focused on the goal of addressing international challenges efficiently, effectively and peacefully, without the resort to competitive violence that has characterized the human condition for most of our history. To a degree, this goal has largely been achieved, although admittedly large-scale violence does still happen all too frequently, and many organizations still struggle with a legacy of embedded political and coercive power differentials.

The emergence of international organizations has been both rapid and incremental. It is rapid in the sense of the sheer number of organizations constituted since the creation of the United Nations (UN). It is incremental in the sense that each organization is created to solve a discrete problem, often with little regard to the other organizations already operating, and yet may experience significant mission creep as the nature of the problem, and the organization’s relationship with its member states, evolve over time. There was no real “constitutional moment” in international law, so this rapid and incremental development applied to an international legal community with deeply entrenched differences in power and role. Now, international organizations operate as some of the most important actors in international law, though the legacy of their growth raises a wide range of questions about their nature, powers, governance, responsibility and overall relationship to the states that created them.

1.2 Definition of an International Organization

A preliminary issue is to establish the scope of this textbook by defining international organizations. For students who have already studied international law, they will recall the difficulties in defining a state, in order to determine whether a given entity qualifies as a state. International organizations are not so different. The challenge is to determine from what source a definition would come.

In its project on international organization responsibility, the International Law Commission (ILC) looked to customary international law for a definition of an organization. The ILC, based on the research of the Special Rapporteur, Giorgio Gaja, concluded:

International Law Commission, Draft articles on the responsibility of international organizations II(2) Yearbook of the International Law Commission (2011) UN Doc. A/CN.4/SER.A/2011/Add.1 (Part 2)¹

Article 2 Use of terms

For the purposes of the present draft articles,

1. “international organization” means 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;

Other authors have disagreed on these elements. For example, Niels Blokker offers the following definition:

Henry G. Schermers & Niels M. Blokker International Institutional Law (Brill/Martinus Nijhoff, fourth revised edition, 2003)

§33 In this study, international organizations are defined as forms of cooperation founded on an international agreement usually creating a new legal person having at least one organ with a will of its own, established under international law

Yet another author, C.F. Amerasinghe, suggests his own distinct definition:

C.F. Amerasinghe, Principles of the Institutional Law of International Organizations (Cambridge University Press, second revised edition, 2005)²

[p. 10] … Suffice it to identify the basic characteristics which distinguish the public international organization from other organizations, particularly private international organizations. These are: (i) establishment by some kind of international agreement among states; (ii) possession of what may be called a constitution; (iii) possession of organs separate from its members; (iv) establishment under international law; and (v) generally but not always an exclusive membership of states or governments, but at any rate predominant membership of states or governments.

1 From the Yearbook of the International Law Commission, by the International Law Commission © 2011 United Nations. Reprinted with the permission of the United Nations.

2 Reproduced with permission of The Licensor through PLSclear.

Notes

• What are the elements in each definition? Compare and contrast with the elements in the competing definitions.
• What are the significances of the differences?
• How do we explain these differences? What are the authors looking for?
• Is it problematic if there are multiple definitions? Does that outcome undermine the coherence of international law of organizations? Consider a situation where an organization qualifies as such under one definition, but not under another definition? What would such an organization look like?

Notwithstanding the differences in the definitions, these divergences may not be as problematic as they might appear. In the ILC study, the Special Rapporteur also included the following observation in the commentary to the draft articles:

International Law Commission, Draft articles on the responsibility of international organizations II(2) Yearbook of the International Law Commission (2011) UN Doc. A/CN.4/SER.A/2011/Add.1 (Part 2)³

Article 2 Use of terms

Commentary

1. The definition of “international organization” given in article 2, subparagraph (a), is considered as appropriate for the purposes of the present draft articles and is not intended as a definition for all purposes. It outlines certain common characteristics of the international organizations to which the following articles apply. The same characteristics may be relevant for purposes other than the international responsibility of international organizations.
2. The fact that an international organization does not possess one or more of the characteristics set forth in article 2, subparagraph (a), and thus is not within the definition for the purposes of the present articles, does not imply that certain principles and rules stated in the following articles do not apply also to that organization.
3. Starting with the 1969 Vienna Convention, [footnote omitted] several codification conventions have succinctly defined the term “international organization” as “intergovernmental organization”. [footnote omitted] In each case, the definition was given only for the purposes of the relevant convention and not for all purposes. The text of some of these codification conventions added some further elements to the definition: for instance, the 1986 Vienna Convention only applies to those intergovernmental organizations that have the capacity to conclude treaties.[footnote omitted] No additional element would be required in the case of international responsibility apart from possessing an obligation under international law. However, the adoption of a different definition is preferable for several reasons. First, it is questionable whether by defining an international organization as an intergovernmental organization one provides much information: it is not even clear whether the term “intergovernmental organization” refers to the constituent instrument or to actual membership. Second, the term “intergovernmental” is in any case inappropriate to a certain extent, because several important international organizations have been established with the participation also of State organs other than Governments. Third, an increasing number of international organizations include among their members entities other than States as well as States; the term “intergovernmental organization” might be thought to exclude these organizations, although with regard to international responsibility it is difficult to see why one should reach solutions that differ from those applying to organizations of which only States are members.

3 From the Yearbook of the International Law Commission, by the International Law Commission © 2011 United Nations. Reprinted with the permission of the United Nations.

Notes

• What does the Special Rapporteur mean by this article? Are the ILC articles governing international organizations or not? Are any organizations excepted? If so, what rules govern them?
• The Special Rapporteur refers to “purposes.” What is the purpose of the draft articles he wrote? What would be other purposes? How would different purposes necessitate different definitions? Is not the point of creating international organizations to have objective entities that can accomplish certain objectives?
• This textbook uses the term “international organizations.” The Special Rapporteur distinguishes this term from “inter-governmental organizations.” Why? What significance does this have for the study of organizations? Would this textbook be different if it focused on inter-governmental organizations?
• Does this commentary mean that we cannot study international organizations as a coherent topic? Are all organizations so different that they share no commonalities? If they do share commonalities, what would those areas be?

Strangely enough, no one knows how many international organizations exist. There are some obvious ones, such as the United Nations and European Union (EU). Then there are ones that students of international law may learn about, such as the World Trade Organization (WTO), International Criminal Court (ICC), International Atomic Energy Agency (IAEA), North Atlantic Treaty Organization (NATO), and various UN agencies, but the bulk of organizations are not present in the front of most people’s minds, even if they might be critical to the world we have today. These organizations include the World Health Organization (WHO), Organization of Petroleum Exporting Countries (OPEC), or International Labour Organization (ILO). Very few people may think of the World Meteorological Organization (WMO) or World Intellectual Property Organization (WIPO), and even fewer may know of the World Tourism Organization (UNWTO), the Rhine Commission, the Organisation internationale de la Francophonie, or the International Coffee Union. There are surely more international organizations than there are states in the world, but the vast numbers of them are smaller, relatively technical bodies that do not dominate the front pages of newspapers.

A secondary reason for not knowing the number of organizations is the problem of the definition above. Some restrictive definitions of international organizations might limit the scope of consideration to only the UN family of organizations, while other, more liberal definitions would include the International Olympics Committee and the International Committee of the Red Cross (ICRC). Most authorities consider the first international organization, which still exists, to be the Administration général de navigation du Rhine, founded in 1804. Other older organizations are the International Telephone (now Telecommunications) Union (ITU) and Universal Postal Union (UPU). Whether these entities are the oldest organizations depends, in turn, on the definition. This textbook does not take a definitive view on the definition, other than to suggest a possible working one, but would prefer to leave it to the reader to formulate a definition of his or her own making. The result is that the student of international organizations law must begin the study of organizations already in a state of inquiry about the scope of the study itself, its definition, and how many organizations are even included.

This textbook proposes the following working definition of international organizations for the purposes of this study: an international legal person established by agreement under international law between subjects of international law with a degree of meaningful independence of judgment and action from its members to accomplish certain limited objectives. Students will note that this definition overlaps in many important ways with the definitions reproduced above, but it also excludes certain topics, such as the need to have organs, and it brings in a revised element, the notion of meaningful independence, rather than “will of its own.” Students are invited to critique this definition and find its shortcomings; however, this is the definition that will be applied in the remainder of chapter, and the book as a whole. We will revisit this definition in the chapter on the creation of a new international organization.

1.3 International Organizations as a Field of Study

A very natural question to ask at this point is whether it is even possible to study the law of international organizations as a coherent course. Many law schools, even those specializing in international law, often do not even offer a course on international organizations. To some degree this can be mitigated in various other substantive courses where there may be some overlap. A course in international trade might feature the WTO, a course in international criminal law will probably discuss the ICC, a course in European law must include the EU, and virtually any course in general international law must certainly cover the United Nations. However, these courses will likely address these organizations from the perspective of substantive law, so a course covering the WTO, ICC, or EU would most likely focus on the WTO agreements, crimes under the Rome Statute of the ICC, or EU internal market rules, rather than discussing those organizations as institutions governed by law. It would be comparable to studying a state’s constitution with an almost exclusive focus on the individual rights enumerated within the constitution, and largely omitting discussion of the legal issues involved in governance, such as federalism and the balance of powers. A large part of this lack of courses on international organizations is based on the view that organizations are not a study unto themselves, but rather merely a phenomenon emerging from treaties and international relations.

If we do attempt to study organizations as such, one must wonder whether it is possible, given their variety. If every organization was founded for a particular purpose, ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of cases and materials
• List of abbreviations
• 1. Introduction to international organizations
• 2. Law of treaties
• 3. Creation and dissolution
• 4. Membership
• 5. Powers
• 6. Legal effects of acts
• 7. Organs
• 8. Privileges and immunities
• 9. Responsibility
• 10. Conclusion
• Index