topic 5

Organs of International Organizations

  • Depending on Functions:

    • Representative
    • Administrative (Executive)
    • Jurisdictional
    • Advisory
    • Technical

  • Depending on Period of Establishment:

    • Permanent
    • Temporary

  • Depending on Composition:

    • Plenary (full membership)
    • Limited membership

  • Depending on Method of Establishment:

    • Statutory
    • Established by decision of other organs

  • Organs may be composed of:

    • Representatives of States: They express the will of their governments with a status similar to members of permanent diplomatic missions.
    • International employees

Corporate Nature and Membership

  • Members:

    • Typically, sovereign states.
    • Other subjects of international relations may participate as associate members or observers.

  • Associate Members:

    • Partial members participating with the right of advisory vote.
    • Do not participate in voting.
    • Representatives cannot be elected to the bodies of the IO.
    • Example: Palestine in the UN.

  • Observers:

    • Representatives of states and IOs sent to participate in the work of IOs, international conferences, and other international events.
    • Not members, do not have the right to vote.
    • Representatives cannot be elected to the bodies of the international organization.
    • Example: The Vatican in the UN since 1964.

Sovereign Equality of Members

  • Activities of IOs should be based on international law, including the principle of sovereign equality.

  • Elements of Sovereign Equality:

    • All States have equal rights to participate in the establishment of an IO if interested.
    • Each State, if not a member, has the right to join according to the principle of universality.
    • Organizations may have specific rules for admission and restrictions, creating closed international organizations.
    • All member States have an equal right to raise issues and discuss them.
    • Each member State has an equal right to represent and defend its interests in the organs.
    • In making decisions, each State has one vote, irrespective of size, population, economic, or military strength, or contribution to the budget.
    • Decisions apply equally to all members unless specified otherwise.
    • The principle of unanimity of permanent members of the UN Security Council (veto power) complies with the special responsibility of the great powers for preserving international peace and security.

  • Membership Types:

    • Universal organizations are open to any State agreeing to accept charter obligations.
    • Closed organizations require specific criteria to be met.
    • Membership is formalized by a decision of the organs; the candidate State's will is insufficient.
    • Closed organizations often require an invitation.
    • Acquiring membership can be comparable to concluding an international treaty.

Subordination to International Law

  • Relations between an IO and other subjects of international law are governed by international law.
  • Relations between the IO and its employees, as well as among its organs, are governed by corporate law (law of the international organization).
  • Property relations between the IO and private persons are governed by international private law (domestic law).

Classification of International Organizations

  • Circle of Participants:

    • Universal (e.g., UN)
    • Regional (e.g., EU)
    • Interregional (e.g., OECD - Organisation for Economic Co-operation and Development)

  • Competencies:

    • General competence: Deals with any issues ensuring the achievement of the organization's goals (e.g., UN).
    • Special competence: Established to cooperate in a specific area (e.g., ICAO - International Civil Aviation Organization).
      • ICAO's purpose is safe, regular, efficient, and economical international air transportation, ensuring the safe and orderly growth of international civil aviation.

  • Order of Admission:

    • Open: Any state can become a member.
    • Closed: Admission requires consent of original members (e.g., NATO).

  • International Para-Organizations (Quasi-Organizations):

    • Associations lacking constituent treaty, headquarters, organizational structure, permanent bodies, or competence but playing a prominent role in international relations (e.g., G7, G20).

  • Evolution of Organizations:

    • Dynamic development leads to expansion of competence and membership, affecting their legal nature (e.g., EU, evolving from economic association to supranational entity).

  • International Organization Sui Generis:

    • The EU combines attributes of both an international intergovernmental organization and a state but is formally neither.

International Legal Personality

  • IOs possess objective international legal personality, depending on constitutional status, powers, and practice.

  • Factors Indicating Personality:

    • Capacity to enter into relations with states and other organizations and conclude treaties.
    • Status under municipal law.

  • Examples and Case Law:

    • The International Court of Justice in Certain Phosphate Lands (Nauru v. Australia) noted that joint administration arrangements do not necessarily establish a separate international legal personality.
    • The International Court in the Reparation for Injuries case held that the UN has international legal personality as it is indispensable to achieve the purposes and principles specified in the Charter.
      • International personality means the organization is a subject of international law capable of having international rights and duties.

  • Determination of Personality:

    • The ICJ examined the UN Charter and subsequent relevant treaties and practices.
    • Considered the obligations of members, the ability to make international agreements, and Articles 104 and 105 of the Charter (legal capacity, privileges, and immunities).

Creation and Termination of International Organizations

  • Creation:

    • A political decision by States that an organization is needed with a specific infrastructure, staffing, and status.
      • If created, the organization holds international rights and obligations, officials benefit from immunity, and acts carry legal effect.
      • If dissolved, all created legal rights and obligations may be in jeopardy.

  • Elements for Creation:

    • International legal personality.
    • Created by an agreement under international law:
      • Typically a treaty.
      • Sometimes part of a larger treaty (e.g., the International Labour Organization in the Versailles peace treaty).
      • Created by a UN General Assembly Resolution (e.g., UNIDO, UNEP, UNRWA).
      • Created by a Memorandum of Understanding (e.g., OPEC).
      • Created by passive, implied agreements (e.g., de facto international trade organization following GATT).
    • Between subjects of international law:
      • Must be adopted by subjects of international law, because legal persons other than states can constitute and become members of IOs.
      • International organizations can create another international organization (e.g., EU member of WTO).
      • Other subjects of international law, such as the Holy See, can become members of international organizations.
      • Requires at least two subjects of international law as participating entities.
      • Participation of non-international law entities doesn't undermine status if at least two subjects of international law are party to the agreement (e.g., Bank for International Settlements).
      • Few cases exist where an entity, not established by subjects of international law, is elevated to the international plane (e.g., the International Committee of the Red Cross (ICRC)).

  • Degree of Independence:

    • Meaningful independence from its members:
      • The organization can make decisions and take actions separate from the will of any single state or group of states.
      • Actions taken in the best interest of all States parties and accountable to the entire membership.
      • Organization should not be a proxy for one state or a small group of powerful states.

  • Accomplishing Objectives:

    • IOs are created deliberately for certain purposes.

  • Termination:

    • Organizations may be dissolved when they are no longer useful (e.g., the Warsaw Pact).
    • Constitutive instrument rarely includes terms on dissolution.
    • Constitutive instruments may grant the plenary organ the power to dissolve the organization by vote (e.g., the World Bank).
    • Usual method is for member states to reach an international agreement terminating the organization.
    • Organizations may wither without formal abolition (e.g., the East African Community).

  • Succession:

    • Often dissolved in the context of creating a new IO to take over tasks.
    • Terms on succession are in the constitutive instrument of the new organization or in a protocol agreement.
    • Example: The Council of the European Union agreed that the European Union Satellite Centre would assume the residual tasks of the Western European Union.

Membership in International Organizations

  • General Information:

    • Active participation achieved through membership.
    • Belongs to the sovereign rights of the State.
    • Admission procedures in the constituent instrument, subject to VCLT (Art. 5).
    • Provisions on rights and obligations in constituent instrument and documents adopted within the framework of an IO (rules of procedure, regulations, decisions).

  • Accession:

    • The constituent act contains criteria for membership.

    • For example, according to para. 1, Art. 4 of the UN Charter, membership is open to all other peace-loving states which accept the obligations contained in the present Charter.

      [m]embership : in : the : United : Nations : is : open : to : all : other : peace-loving : states : which : accept : the : obligations : contained : in : the : present : Charter

    • Advisory opinion of May 28th, 1948, the ICJ stated that the criteria enshrined in para. 1 Art. 4 the UN Charter are exhaustive.

    Condition : of : admission : of : a : State : to : membership : in : the : United : Nations

    • According to the ICJ’s position, recognizing the right of UN member States to impose additional conditions for membership would result in giving UN members an undefined and virtually unlimited right to impose new conditions, which would directly violate the UN Charter.
    • Criteria depend on aims and objectives, generally including:
      1. Express consent of the State to be bound by the instrument.
      2. Consent of other members to accept the new State.

  • Categories of Members:

    • Full members (original and later members).
    • Original members (founding States).
    • Members with limited rights.
    • Associate members.
    • According to the CIS Charter, “on the basis of a decision of the Council of Heads of State (Совет глав государств), a state wishing to participate in certain types of its activities may join the Commonwealth as an associate member under conditions determined by an agreement on associate membership”.
    • Non-member states may participate as observers or dialogue partners.
    • According to the 2002 SCO Charter (Art. 14): “The SCO may interact and maintain dialogue, in particular in specific areas of cooperation, with other States and international organizations. The SCO may grant to the State or international organization concerned the status of a dialogue partner or observer. The rules and procedures for granting such a status shall be established by a special agreement between the member States”.
    • UN practice includes permanent observers.
      • The status of permanent observers can be granted to states that are members of one or more UN specialized agencies but are not members of the UN itself.
      • Entities like the Holy See and Palestine are permanent observers.
      • Various IOs also act as permanent observers (e.g., ICC, INTERPOL).

Withdrawal, Expulsion, Suspension

  • Members may be expelled or withdraw voluntarily.

  • Expulsion:

    • A State failing to meet obligations may be expelled.
    • According to Art. 6 of the UN Charter: “[a] Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council.”

    [a] : Member : of : the : United : Nations : which : has : persistently : violated : the : Principles : contained : in : the : present : Charter : may : be : expelled : from : the : Organization : by : the : General : Assembly : upon : the : recommendation : of : the : Security : Council

    • No State has been expelled from the UN; Indonesia temporarily withdrew in 1965 but regained membership in 1966.

  • Suspension:

    • According to Art. 5 of the UN Charter contains provisions regarding the possibility of suspension: “[a] Member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council. The exercise of these rights and privileges may be restored by the Security Council.”
    • Suspension possible if preventive or coercive action is taken by the Security Council.

    [a] : Member : of : the : United : Nations : against : which : preventive : or : enforcement : action : has : been : taken : by : the : Security : Council : may : be : suspended : from : the : exercise : of : the : rights : and : privileges : of : membership : by : the : General : Assembly : upon : the : recommendation : of : the : Security : Council

    • Any State may suspend or withdraw, providing written notice in good time.
    • Obligations during membership bind until fulfillment.
    • Withdrawal does not preclude future membership.
    • Example: Uzbekistan terminated membership in the CSTO in 1999 but restored it in 2006.

  • Succession of State:

    • Arises in cases of dissolution of a predecessor State.
    • Successor States decide whether to participate in an IO.
    • Usually, successor States must rejoin anew.
    • Example: Russia continued its UN membership after the USSR's collapse based on continuity.

Functions and Competence

  • Functions:

    • Participate in the formation of international law norms.
    • Develop recommendations.
    • Monitor compliance with international obligations.
    • Assist in the settlement of international disputes.
    • Provide financial and informational assistance.
    • In some cases, IOs exercise functions of governing a certain territory.
    • Example: United Nations Transitional Administration in East Timor (UNTAET).

  • Competence:

    • A set of rights or powers granted to exercise rights and achieve objectives.
    • Professor A. Y. Kapustin states that competence correlates with functions.
    • Determining competence requires comparison with legal capacity.
    • Legal capacity is necessary for an IO to exercise its competence.
    • Competence and legal capacity are complementary components of legal personality.
    • Competence may be special or functional, limited by statutory functions.

  • Classification of Competence:

    • Subject matter competence:
      • Determines the range of issues dealt with (general, special).
      • Example: The UN deals with economic, political, cultural, ecological, social spheres of international relations, UNESCO deals with education, science, and culture, WHO - health issues, UNEP - environmental issues, etc.
    • Jurisdictional competence:
      • Determines the legal effect of acts and their hierarchy.
      • Includes the settlement of disputes.
    • "Implied" and "intrinsic" ("immanent") competence:
      • They emerged in the doctrine of international law and are a type of subject-matter competence of international organizations.
    • Implied competence:
      • The essence of “implied” competence is that an international organization may have so-called implied powers.