Law of International Organizations
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| Why do we study IOs? | Influence on all dimensions of contemporary life, regime and institution makers, means of multilateralism, global players
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| IOs definition #1: A simple legal definition | 1986 Vienna Convention on the Law of Treaties between States and IOs or between IOs: International organization means intergovernmental organization
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| IOs definition #2: Structuralist definition | IOs are the formal embodiment of International Institutions.
IIs = content of law
IOs = Containers of the content + where IIs are practiced multilaterally
**Both are interrelated
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| IOs definition #3: Treaty-based organs | IOs are a collection of sovereign states bound under international treaties. IOs have no independence or personality
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| IOs definition #4: IOs are constructed | IOs are constructed by states (which are themselves constructed). This gives them a distinctive will and they should have an independent personality
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| Categories of IOs | Public and gov. vs. private, Universal vs. closed, supra-national vs. non-supranational, General vs. technical
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| Historical Background | First Generation = Westphalia - LoN
Second Generation = LoN - UN
Third Generation = UN - ?
Fourth Generation = EU/ICC?
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| First Generation: Westphalia-UN | Statism and power politics favored #realism
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| Second Generation: LoNs-UN | Bare politics and community focus #liberalism
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| Third Generation: UN-EU/ICC | Society and statist focus #socialism
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| Fouth Generation: EU/ICC | Society and community focus #criticaltheory
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| Legal Theory and IOs | Legal theory is not an adequate framework to examine IOs. Does not approach issues of personality etc.
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| Why cooperate? | Answered differently from different points of view
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| Realist framework | The international community is a zero-sum game and the everything can be broken down to power struggles. With more power states can better the lives of their citizens. There are two sub-sections; traditional realism and structuralist realism.
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| Traditional realism | Law is the cheap-talk of states who have the main goal of self-help. Cooperation only takes place for the sake of achieving benifits.
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| Structuralist realism | Similar to the above but the point of cooperation in the international world is to reduce security concerns and because they are only a piece in the puzzle that is the international organization of states
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| Liberal Approach | Cooperation takes place willingly in the international system because it is to the benefit of all. Entomological and technocratic societies will be established in the hopes of achieving objective and meaningful goals. #humanrightslaw #Int.Federalism
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| Liberal Functionalism | Organizational tasks beyond political controversies increase international cooperation. The index of power will transfer to the index of needs. #WTO #WHO
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| Liberal Neo-functionalism | Critique of technical cooperation and adds in political functionalism as well. There are benefits to be achieved through integration of states.
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| Critical Legal Theory | Law moves between the poles of sovereign rights and benefits of the international community and it is important to find a compromise. Liberalism is riddled with contradictions and is self-deceptive.
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| Constructivist Approach | Behaviors are stemming from beliefs and cultures and IOs are socially constructed. Cooperation comes from inter-subjective understandings and norm-based laws are more compelling and appealing.
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| Are IOs subjects of international law | Yes - Reparations Case
No - East Karlelian Case
The difference in opinions is due to the fact that over time the roles of IOs has changed and there are conflicting views about the legal personality of IOs
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| East Karelian Case | An area on the border between Finland and Russia. Territorial dispute was brought to the PCIJ by Finland but ultimately the court decided that Russia was not a member of the League so it was not subject to ruling. Shows the court cannot even give advise
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| Reparations Case | A lawsuit brought forth to the ICJ against the UN and the court found that the UN could be responsible setting up a legal personality of IOs
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| Behrami and Samarati Cases | A father pursued legal action against the UN as an independent body when two boys were killed by land mines that the UN had failed to clear.
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| Agreement between the WHO and Egypt | The WHO tried to move it's regional headquarters outside of Alexandria and to Jordan. The ICJ determined that it did not have the power to pursue this action unilaterally and that it had to consult the Egyptian government before doing so.
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| Subjectivity | Subjectivity is a sketchy status conferred by the academic community and is not that reliable and is used to determine if a body is a subject of International law and there are indicators
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| Personality | This is a status conferred by the legal community and refers to the fact that a body has an independent existence in the international community. However the legal community is not competent to confer such a personality.
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| Indicators of Subjectivity | 1 - Treaty making capacity
2 - The right to send and receive litigation
3 - The right to bring and receive claims
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| Legal personality of IOs under domestic law | Depends of the legal system #sovereignty. This makes constitutive documents key points of referance
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| 3 main theories of legal personality | 1 - Subjective or will theory
2 - Objective theory
3 - Presumptive theory
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| Subjective/Will theory | Personality of the IOs depends on the will of the founders. #Realism
ex.
Danube Case - PCIJ
Reparation Case
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| Objective theory | Personality comes from the existence of the IOs. As soon as an IO fulfills establishment criteria (as seen in the legal community) it has personality. There is no need of recognition.
ex.
Beharami Case
Reperations Case
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| Presumptive theory | An independent personality is established once an IO acts as if it has an independent personality. This means the levels of legal personality can differ greatly between IOs
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| 3 Power theories of IOs | 1 - Expressed power theory
2 - Implied power theory
3 - Inherent power theory
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| Expressed will theory | Power of IOs derives from the constituent documents. This is very restrictive and relates to subjective theory of personality. Pro-statism.
ex.
Danube River Case
WHO and Egypt
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| Theory of implied power | To properly preform IOs must be conferred implied powers. Powers come from the necessity of proper function. Power is needed to answer contemporary questions.
ex.
Reparations Case
Namibia Case
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| Theory of inherent power | IOs would have an inherent powers that they require to function properly but these powers must not extend beyond the constitutive documents.
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| Namibia Case | South Africa was charged under the mandate system to develop South West Africa. In 1966 the UNGA ended the mandate because SA was not following the mandate. In 1971 the ICJ favored independence of SWA
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| Can IOs create binding legal instruments? | Depends on the constitutive documents. UNSC vs. UNGA and the EU.
Lisbon Treaty - European Courts
Political involvement - UNSC
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| Binding Instruments examples | UNSC decisions, European court findings, UNGA expense cases
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| Non-binding instruments | Administrative acts, acts of household nature, acts that impact behavior but do not generate laws.
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| Soft International Law | Informal standard setting norms without any control. These rules are imprecise and ambiguous.
ex. UNGA resolution
Declarations
Codes of Behaviour
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| Why are non-binding instruments still important? | They can sometimes be 'made' binding and they can inform and influence future binding decisions and international norms
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| Law-making theories | 1. Treaty-analogy
2. Delegation Theory
3. Legislative theory
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| Treaty-analogy | Decisions of IOs, if adopted unanimously, can be considered as analogous to treaties formulating will of the participating states.
ex. 1931 Railway Traffic case by the PCIJ
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| Delegation theory | Member states when consenting to be bound to an organization choose whether or not to grant that organization the right to create binding rules of law.
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| Legislation Theory | Consent of states need not always be decisive and may at times be overruled for the sake of the interests of mankind. Majority rule
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| Membership into the UN | Membership rules:
1) be a state
2) be peaceful
3) accepting the obligations contained in the Charter
4) be willing and able to carry them out
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| Categories of membership in the UN | Original, subsequent, associate, partial, permanent observers, intergovernmental organizations observer class, invited members, NGOs as observers
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| State Succession | Succession of state means replacement of one State by another in the responsibility for the international relations of territory.
Scenarios:
Unification of two or more states
Merging
Dissolving - Yugoslavia + USSR
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| Issue of representation | Who is truly the representation of a country? Political factors involve credentials and representation.
ex.
Taiwan, South Africa, Isreal, Pakistan
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| Foundations of immunities | 1)Legation abroad would continue to be the territory of the sending state.
2) Privileges an immunities derive from the independent personality of organizations.
3) Immunities and privileges stem from the functional necessity of organizations
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| Privileges of International Organizations | These will depend on the type of organization and how privileges will be handed out in the constitutive documents
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| Categories of immunities and privileges | 1) Immunities from jurisdiction
2) Inviolability of premises and articles
3) Inviolability of archives
4) Freedom of communications
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| Models of adopting legal instruments | 1) The principle of unanimity
2) Principle of Majority rule
3) Qualified majority voting
4) Weighted voting
5) Relative unanimity voting
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| The principle of unanimity | In conformity with the principle of sovereignty and results in binding instruments
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| Principle of Majority rule | An inclusionary process and creates effective instruments. Standard process for universal organizations and very useful for multilateral conventions
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| Qualified majority voting | A high level of harmony among the states and decreases obstructive votes but has more benefits for decisions. #UNSC
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| Weighted voting | Usually weighted in comparison to financial contribution or political influence. This challenges the idea of sovereign equality. #IMF
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| Relative unanimity voting | Abstention does not prevent the decisions. This is a quality alternative to absolute unanimity.
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| Illegal instruments | When an action is against a fundamental legal norm
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| Invalid Instruments | When the decision is adopted as opposed to rules and procedures of an organization
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| Do states have the right to challenge legal instruments? | Legally it is the right of the states to challenge international law but politically it may not be favorable for the image of the state
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| Ultra vires actions | Decisions in excess of the authority of the IO.
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| Substantive ultra vires actions | When the IO makes a decision that they do not have the power to carry out
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| Procedural ultra vires actions | When proper procedure is not followed
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| Hierarchy of legal instruments | Jus cogens norms > Principles of Public international law > Resolutions of the UNGA
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| Why has the principle of unanimity prevailing | Liberal predominance and sovereign equality, state-based international system
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| Three scenarios of ultra vires actions | 1) When the case is illegal ab initio, never considered as legally effective
2) If invalidity does not occur ab initio, it is declared invalid, but without retroactive effect (ex posto facto)
3) partial invalidity
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| Disputes in international organizations | Disputes in international organizations (Between states, organization to organization and members of organizations with members of other organizations). Can be brought to the ICJ
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| Classification between the nation-states | 1)Disputes between the nation-states
2)Disputes between organization and its members
3)Disputes over interpretations
4)Dispute among staff
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| Dispute settlement by UN non-judicial organs | The UNSC, the UNGA, the office of the Secretary General, Secretariat
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| Dispute settlement in the UNSC | Initiating an investigation,laying down dispute settlement principles, special procedures, reference to regional organizations. These are promotional, declarative and interpretive and not equal to law-making
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| Dispute settlement with the UNGA | Has the power to talk to a lot of issues and it can make binding decisions on nations
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| Dispute settlement with the UN Secretary General | Negotiator, Mediator, Fact finder, Re-conciliatory role, Arbitrator, Good-offices role. Non-legal but can help the UN specialized agencies. Responsible for the interpretation of the Charter and drafting of international aw norms and principles.
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| Dispute settlement with the UNCC (UN compensation commission) | The responsibility of states for wrongdoing. The commission has both judicial and non-judicial components but is not a court and is a political organ.
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| International Court of Justice | Established in 1945 and preceded by the PCIJ. Principle judicial organ of the UN and is a principle organ. Ad hoc judges may be appointed but it is made up of 15 judges on 9 year terms.
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| Two types of cases in the ICJ | 1)Contentious Cases which involve legal disputes between states involving questions of international law
2) Advisory opinions which are granted to any legal questions posed to the court by any authorized body, as outlined in the Charter.
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| Who can submit cases to the ICJ? | Only states who are parties to the court can be subjected to contentious cases. Only states can take up cases in the ICJ on behalf of their nationals as a dispute between states.
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| What are contentious cases? | Cases brought to the court by states only. Revolve around disagreements of interpretation of treaties. The court can make binding decisions and it is based on the principle of tacit consent.
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| How do states refer cases to the ICJ? | 1) Special agreements
2) Treaty clauses
3) A unilateral declaration
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| Advisory opinions | UN agencies and organs could seek legal advice from the court with issues under their mandates. The court is not bound to have an opinion on fully ultra vires requests. These serve only as consultations but are widely respected. Norm setting
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| Two types of advisory opinions | Advisory arbitration - the binding effect is approved in advanced.
Advisory opinions with non-binding effects - Court decisions are mere opinions
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| Dispute settlement in the EU | The Court of Justice in the EU is the supreme judicial body and all decisions are binding and national courts cannot contradict these decisions. This court can also settle disputes between EU governments and EU institutions. Private cases allowed
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| Dispute settlement in NATO | Disputes are directly submitted to good offices procedure before being referred to international agencies. Legal disputes submitted to a judicial tribunal and economic issues settled by specialized economic organizations
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| Are treaties made by IOs subjects of international law? | Yes - 1969 Vienna Convention on the law of treaties article 5:
Yes (conditionally) - Dual characteristics of the constitutive documents are the conventional dimension of the treaty and the constitutional and organic dimensions of the treaty
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| What are reservations? | When a country wishes to not accept part of a treaty. 1969 Vienna Convention.
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| Can you make a reservation on a constitutive document? | Depends on the constitutive document. The UN Charter cannot be interpreted
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| Theories of conflicting interpretations | 1) Subjective/restrictive interpretations
2) Extensive (Teleolical) interpretations
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| Subjective/restrictive interpretations | You must analyse the treaty in a legal sense and must not go beyond the treaty in any way and look at the intentions of the treaty
ex. Lockerbie case, WHO vs. Egypt
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| Extensive interpretations | Exploring intentions are not sufficient and treaties must be interpreted in context. This allows for the increased affectivity of IOs.
Ex. Golder Case, Competence of ILO case, Namibia Case
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| Who is entitled to interpret treaties? | Organs? The IO? States? Who the f*ck knows
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| Where does the treaty-making capacity of IOs come from? | 1986 Vienna convention.
ex. The Rome Statute of 1989, The Land Mine convention of 1997 and the Cairo Declaration of HR in Islam
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| Advantages of treat-making by IOs | More participatory, less room for imposition of power, more democratic, NGOs can get involved, Open to observation and non-state actors, facilitating the emergence of an international civil society
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| Sources of International Law | 1) International treaties/conventions
2) International customs
3) General Principles of law recognized by civilized nations
4) Judicial decisions and teachings of the most highly qualified publicists of the various nations
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| IOs and the changing context of International Law | Soveriegn rights being diminished, changing concepts of the state and of peaceful coexistence in the world in terms of increased dialogues, no zero sum games, and improving erga omnes duties (duties that are shared by all)
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| IOs and public choice: Beyond Sovereignty | Public choice helps states to contribute in international cooperation effectively and this contribution impacts domestic policies
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| New concepts of treaties | More transparency and international law is becoming more democratic
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| IOs as law-makers | IOs gain increased law making capacities. This creates new players and new roles such as the involvement of NGOs
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| IOs and patterns of compliance | Increasing the dialogue between actors means less direct conflict and power struggles
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