International Organizations and International Society Notes

International Organizations and International Society

Topic 1: International Organizations and International Society

Contents

• Historical evolution of International society.

• International society structure and International Organizations.

• International society fragmentation and International Organizations.

• International Organizations and subjects of International law.

• Globalization and International Organizations.

Historical Evolution of International Society

Introduction

• International Organizations (IOs) are relatively new subjects in International Law compared to the classic subject, the state.

• They have brought about a paradigm shift by creating new subjects and sources of international law.

• IOs represent a turning point from pre-World War II International Law.

• The proliferation of IOs occurred after the foundation of the United Nations, which was established through international treaties among many states.

Political Ideas

• Global political community vs. Anarchy: International Law development is influenced by the tension between:

  • The idea of a global political community with rules based on a social contract.

  • The idea of anarchy, characterized by the absence of rules and a superior authority.

• Social Contract:

  • The concept was first developed in Thomas Hobbes's "Leviathan" (1651).

  • Power is legitimized when collectives or groups agree to give some sovereign power to an authority in exchange for protection.

  • This concept underlies statehood creation.

  • It doesn't fully apply in International Law due to the decentralized nature of international society and the absence of a higher authority.

• Political Idea: a political idea has been developed about some connections to all humanity together, which fundaments the political community:

  • Ius Gentium

  • Catholicism and Protestantism: World Government

  • Law of the Civilized Nations

  • Humanitarian law

Historical evolution of International society Political ideas

• Ius Gentium

  • It is a concept created in Roman Law which involved the notion that all human beings have some minimum rights which are grounded on a basis of human features shared by all of us.

• Catholicism and Protestantism

  • There is a global political community ruled by God through its representative on Earth, the Pope which decided over religious and secular matters.

  • The kings are also nominated by God and they must respect the authority of the Pope.

  • This idea declined from the end of the Middle Ages until the Protestant Reform which openly challenged the position of the Pope.

  • With the Westphalian Peace a new conception arrived: the religion of the king was not essential, all states were equally sovereign and states recognized themselves and each other as equals.

• World Government

  • The main representative of this approach was Kant, with his book “Perpetual Peace” (1795).

  • He stated that to achieve global peace with a single centralized authority, ensuring order and security.

  • This idea was born in a context after Westphalian Peace in which states could declare war to each other, with no religious restriction, as a discretionary decision coming exclusively from political opportunity.

• Law of the Civilized Nations

  • It was a popular concept in the XIX century, as a way to difference between “civilized” and “non-civilized” nations and legitimate colonization of the former over the latter because they were not able to rule themselves.

  • An evolution of this idea which, containing some general principles of law, has continued until nowadays.

  • However, it can be understood as a way to impose western values on the rest of the world.

• Humanitarian law

  • The international law that regulates the situations in which states can use the military force (ius ad bellum), but also the protection of people and the limitation of warfare during an armed conflict (ius in bello or international humanitarian law).

  • It has become an accepted idea in international law: there must be a human treatment to the population during conflict, and there must be limitations to certain weapons or military practices.

  • Before the existence of the United Nations, the idea was introduced with the creation of the Red Cross and the Geneva Conventions.

Legal Concepts

• Territorial and political Sovereignty

  • The Westphalian Peace recognized the states as equals.

  • It was the first international Agreement with a non-intervention principle, so States decided not to intervene for war against any other state for religious matters (cuius regio, eius religio; The religion of the ruler was to dictate the religion of those ruled).

  • This process established the modern system of nation-states based on sovereignty, restructuring Europe, developing diplomatic relations and the establishing nation-states as main actors of international law.

  • The sovereignty of a state has two dimensions: internal sovereignty and international sovereignty:

    • International legal obligation Capacity to sustain international obligations to other parties.

    • International responsibility The situation that happens when the state does not fulfill an international legal obligation.

Impact of International Organizations

• Sources of international law: the creation of law.

  • The international organizations reorganize the traditional conception of law, creating a second level, which is mainly soft law, not binding.

  • So, besides international treaties and customary law, there are resolutions, declarations and other instruments from international organizations that have some impact in international law.

  • Also it is important the effort of drafting new treaties inside some key organizations: United Nations, regional organizations; and the possibility of signing and ratifying treaties by international organizations, like the European Union.

• Subjects of international law.

  • The traditional subjects are States.

  • Secondary subjects are international organizations, which have also changed the paradigm, including more agents and subjects in International Law.

International Society Structure and IOs

International Obligations

Subjects

International Society Structure and IOs

International Obligations

• Legal obligations (art. 38 ICJ statute): erga omnes & discretionary

  • The art. 38 of the International Court of Justice statute provides the system of sources of international law: treaties, custom, general principles of law, judicial decisions and the interpretation of qualified scholars.

  • They provide both erga omnes obligations and discretionary obligations.

  • These sources are state-related: states create treaties.

  • There is a Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986), but this treaty has not come into force.

  • And it is similar with custom, because the key element is state conduct.

• Moral obligations (ideological & political)

  • They are previous to contemporary international law, but they are state-centric too.

Subjects

• Society of States

  • The subjects of International society are essentially states.

  • It is important the democratic principles, because only with democracy the population of a state can manifest its will and exercise its sovereignty in the international society. Non democratic states are equally represented in international society.

• International Organizations are created by states (in an international Treaty)

  • They are not created by individuals or other private entities.

  • International Organizations are welcomed into the international society because this is the will of states, following the criteria of a founding treaty, permanence and a recognition of independent autonomy.

International Society Fragmentation and IOs

International Regimes.

Fragmentation and IOS

International Society Fragmentation and IOs

International Regimes

• International society is fragmented in international regimes.

• An international regime is a system of cooperation, including rules and institutions.

• States have a territory and the capacity to display their authority in that territory; international regimes have an equivalent way of acting.

• These regimes are very specialized.

• Sometimes there are contradictions between regimes, something problematic for international relations

• Collective regulation of an international matter.

  • International regimes are a set of specific regulations on an international issue that are agreed by the states that form that regime.

• Independent and self-contained.

  • Some regimes have developed very profoundly, having many specific regulations and institutions.

  • A big number of specificities may lead to self-containment, which may make them independent from another regime and from international law.

Fragmentation and IOs

• Creation of standards

  • International Organizations create new rules for their member-states.

  • They also promote the formation of certain regimes in order to further develop international law.

• Capacity to judge and allocate responsibility

  • Some International Organizations have this capacity in case of noncompliance with the standards.

IOs and subjects of International law

Subjectivity and legal personality

Purpose of IOs

IOs and subjects

IOs and subjects of International Law

Subjectivity and legal personality

• Subjectivity: Treaty, Organs, Autonomy

  • The International Organizations are close to the states in international law, being responsible for the expansion of the subjects of international law.

  • There are some factual criteria to know if an international institution is an authentic international organization:

    • There is an international treaty that creates it.

    • The organs are foreseen in the treaty, and they are different from the member states organs.

    • There is some autonomy: the organs can act independently from the states.

• International Legal personality.

  • Considering a legal perspective, the international legal personality can be:

    • Domestic: within member states.

      • It is the recognition of the legal personality by the founding states.

      • For example, the article 104 of the UN Charter empowers the UN to operate in the member-states territory: “The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes”.

    • External: within third parties.

      • It is the recognition of rights/duties by third parties (other states or other international organizations).

      • Problematic, cause states do not have the capacity to create obligation to third parties.

Purpose of IOs

• Goals and Objectives

  • This is not a distinctive characteristic of International Organizations because every institution have a purpose.

• Functionality principle

  • The relevant issue is that the purpose of an international organization leads with the functionality principle.

  • The international organizations are endowed with a specific purpose which is a factual element, essential to understand the attributions and powers of it.

IOs and Subjects

• The international organizations are making more rules, but also increasing the importance of more international subjects, with qualified legal personality and the possibility of a bigger intervention in the international society:

  • Individuals.

    • In classical international law, the individuals could not claim against their own states in case of rights violations.

    • Nowadays, the European Court of Human Rights (Council of Europe) allows individuals to do it.

  • NGO´s.

    • Article 71 of the UN Charter gave consultative status to NGOs in the Economic and Social Council (ECOSOC).

  • Corporations.

    • The International Civil Aviation Organization gets technological development that corporations can incorporate.

  • Civil society.

    • The trade unions are important in setting the standards of international labor regulations.

Globalization and IOs

• The international organizations have helped the cooperation between states because a single state may have many difficulties to achieve its objectives and interests alone.

• This fact has revitalized an old debate.

• There are 3 approaches when understanding international organizations:

  • Realism.

    • The states are the only subject of the International Society, and the international organizations are nothing but the “long arm” of the interests of states.

    • Powerful states may use the international organizations to influence international politics.

  • Internationalism.

    • The states share political power with the international organizations, that are “independent”.

  • Universalism.

    • The states are yielding their power to international organizations because states are less and less able to tackle issues by themselves.

    • Yielding their power decreases their sovereignty and increases the power of IGOs.

    • As a consequence, international organizations are the main subjects of International society and they are substituting states.