The law of international organisations: Third edition

The law of international organisations

Melland Schill Studies in International Law

Series editor Professor Dominic McGoldrick

The Melland Schill name has a long-established reputation for high standards of scholarship. Each volume in the series addresses major public international law issues and current developments. Many of the Melland Schill volumes have become standard works of reference. Interdisciplinary and accessible, the contributions are vital reading for students, scholars and practitioners of public international law, international organisations, international relations, international politics, international economics and international development.

Principles of direct and superior responsibility in international humanitarian law

Ilias Bantekas

The treatment and taxation of foreign investment under international law

Fiona Beveridge

War crimes and crimes against humanity in the Rome Statute of the International Criminal Court

Christine Byron

The boundaries of international law

Hilary Charlesworth and Christine Chinkin

The law of the sea

Robin Churchill and Vaughan Lowe

International law and policy of sustainable development

Duncan French

The changing rules on the use of force on international law

Tarcisio Gazzini

Contemporary law of armed conflict

Leslie Green

Child soldiers in international law

Matthew Happold

Human rights in Europe

J.G. Merrills and A.H. Robertson

The rights and duties of neutrals

Stephen Neff

Law on the battlefield

A.P.V. Rogers

Indigenous peoples and human rights

Patrick Thornberry

Jurisprudence of international law

Nicholas Tsagourias

The law of international organisations

Third edition

NIGEL D. WHITE

Copyright © Nigel D. White 2017

The right of Nigel White to be identified as the author of this work has been asserted by him/her in accordance with the Copyright, Designs and Patents Act 1988.

Published by Manchester University Press

Altrincham Street, Manchester M1 7JA

www.manchesteruniversitypress.co.uk

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Contents

Preface

Abbreviations

Introduction

1Inter-governmental organisations

Inter-governmentalism

Positivism: the orthodoxy

Realism and liberalism

Functionalism

Constructivism

Critical theories

The law of international organisations

Interpretation of constitutive treaties

Case Study 1: The veto

2Membership, voting and funding

Case Study 2: Blocking applications to join the UN

Joining an IGO

Case Study 3: Palestinian membership of the UN

Withdrawal

Case Study 4: The break-up of member states

Suspension and expulsion

Representation: which government?

Voting methods

Funding IGOs

Withholding contributions

3Legal character of the constituent treaty

Different types of treaty

Constitutional and contractual treaties

The UN Charter as constitution?

The primacy of the UN Charter?

Case Study 5: The Lockerbie cases, Article 103 and judicial review

Case Study 6: The Al-Jedda case, Article 103 and human rights

4International legal personality: the key to autonomy

Case Study 7: The assassination of Count Bernadotte

Debates about the nature of the UN

The search for separate will

The significance of international legal personality

Consequences of personality

5The doctrine of powers: the key to governance

The doctrine of powers

Attribution and delegation of powers

Case Study 8: The Security Council as Legislator

Implied powers

Case Study 9: The power to mandate peacekeeping forces

Inherent powers?

Case Study 10: The WHO and the legality of nuclear weapons

6Institutional lawmaking: a new source of international law?

Legal output of IGOs and traditional sources

Forms of IGO law

Executive lawmaking

Plenary lawmaking

Case Study 11: The General Assembly and the regulation of outer space

Technical lawmaking in the specialised agencies

Case Study 12: The WHO and health regulations

A new source of international law?

Conflict of institutional norms

7Sanctions

Nature of sanctions

Universal and regional sanctions

Sanctions against states

Case Study 13: Sanctions and the Iraqi population

Comprehensive sanctions and human rights

Targeted sanctions

Case Study 14: Targeted sanctions and terrorism

Case Study 15: Targeted sanctions and the courts

8Military measures

IGOs and the use of force

Military enforcement action

Case Study 16: From Korea to Kuwait

Case Study 17: Uniting for Peace Resolution 1950

Case Study 18: The UN, the Responsibility to Protect and Libya 2011

Peacekeeping law and practice

Consent

Impartiality

Defensive use of force

Applicable law

Regional peacekeeping

9Responsibility of international organisations

ARIO and the problem of attribution

Case Study 19: The failure to clear cluster bombs in Kosovo

Case Study 20: The failure to protect civilians in Srebrenica

The functions of ARIO

10Accountability, access to justice and remedies

The meaning and forms of accountability

Political accountability

Democratic accountability

Judicial accountability

Access to justice and remedies in peacekeeping operations

Case Study 21: The UN’s claim to immunity in Haiti

Case Study 22: Sexual abuse by peacekeepers in the DR Congo

Index

Preface

International organisations are a central component of modern international society. The sheer number, variety and complexity of these international actors create an impression of chaotic activity, sometimes of immense importance, sometimes of profound impotence. Organisations can act in a governmental capacity, on other occasions they resemble diplomatic conferences of sovereign equals prevalent in the nineteenth century, with the result that some organisations challenge the supremacy of the nation state, others simply facilitate the continued dominance of states as established international actors.

This book provides a concise account of the principles and norms of international law applicable to the main type of international organisation – the inter-governmental organisation (IGO). That law consists of principles and rules found in the founding documents of IGOs along with applicable principles and located of international law. The book also identifies and analyses the law produced by IGOs, applied by them and, occasionally, enforced by them. There is a concentration upon the United Nations, as the paradigmatic IGO, not only upon the UN organisation headquartered in New York, but on other IGOs in the UN system (the specialised agencies such as the World Health Organization, the International Civil Aviation Organization, the International Monetary Fund and the International Telecommunications Union).

The book also draws upon examples of other IGOs of a universal, regional or functional nature (such as the World Trade Organization, the Organization of American States, and the International Atomic Energy Agency). Together with the UN, these form the main and distinct type of international cooperation known as the inter-governmental organisation. Other types of supranational and integration organisations, principally the European Union, are referred to in a comparative manner in order to compare and contrast them with IGOs. The focus on the UN and its various bodies increases the coherence and accessibility of this third edition of a text designed for students who want an understanding of the legal issues concerning the UN, but placed within the broader context of the law of international organisations.

One way of making sense of the legal and political evolution of IGOs embodied in the UN is to understand their legal character and attributes within broader historical and political contexts. Political context has immense practical implications in helping to understand the development and significance of many of the legal elements of IGOs such as personality, powers, privileges, immunities and responsibility. In truth no one political approach dominates, although some have had more influence than others. There is a spectrum of possibilities, and the UN must be placed somewhere along that spectrum, even if that position changes as the political context changes, so it can move from a state-dominated model at one end, to a liberal, global governance model at the other. The shape-shifting nature of the UN is multiplied by the fact that the UN system is made up of many different components, not only IGOs and their organs, such as the Security Council and General Assembly, but also subsidiary organs, programmes, administrators and agents, as well as member states.

Although the above overview might suggest that the search for unifying legal attributes that span such a vast system of organisations, organs, entities, governments, officials, agents and individuals will be a fruitless one, a law of international organisations has developed in certain well-trodden areas such as international legal personality, legal powers, membership, finance and decision-making. Although such a body of law encompasses contributions from a wider range of organisations, it is the UN that has led the way, and it is to the UN that other organisations are compared, whether positively or negatively. Even in basic areas of law there is still a great deal of controversy, for example, on the issue of the existence of legal personality and the extent of institutional powers. Although the terms of the legal debate have become clearer, there remains plenty to argue about given that these issues are heavily dependent upon political choices, and those political choices are themselves a product of differing ideological, economic or security contexts. In other, newer, areas of institutional law – accountability, responsibility and access to justice – politics are much rawer, and the processes of international lawmaking have not yet fully converted political debate and ideas into legal concepts and principles. Nonetheless, these issues have become the new ideological battlegrounds in the area of international law we call the law of international organisations.

The first edition of this book was written in 1995 and was to some extent experimental with its application of legal and political theories to the law. The second edition of 2005 carried on this approach, but focused it much more on to the legal character or nature of organisations, as a more concrete legal manifestation of the various approaches to organisations. Moreover, the book took on a much more conceptual framework thereafter, concentrating on six main unifying features of the law, some of which were not covered in the first edition. In this edition the opportunity has been taken to reintroduce a more substantive feel, as well as greater coherence with the book’s focus on the UN. Each chapter now contains a number of case studies featuring controversial aspects of IGO practice, as well as a number of new chapters including extended analyses of non-forcible and forcible measures taken by organisations. An opportunity has also been taken to restructure the book to develop a narrative, starting with an explanation of the subject matter, to an analysis of the UN’s legal nature, competence and powers. The exercise of those powers are then exposed and analysed in terms of their legality under the constituent treaty and under international laws (thereby necessitating a debate as to whether the UN is bound by international law). Finally, the book considers the responsibility and accountability of the UN and similar IGOs for breaches of international law.

From one perspective the book traces the development of the UN from its inception in 1945, when the Charter was adopted, with earlier chapters discussing concepts that were shaped in the early years of the UN such as personality, powers and membership (all subject to judicial opinions from the International Court of Justice in the late 1940s). It then considers how the legal framework has been expanded (or indeed breached) as the UN has moved into new areas, for instance, in developing a range of targeted sanctions against non-state actors including individuals (measures that have been subject to challenge before national and regional courts in the twenty-first century). These new initiatives have arguably been necessitated by the changing nature of international relations but they still raise questions concerning the limits on the UN’s powers. Increasingly active, the UN is now under that most modern of spotlights, namely that of accountability including scrutiny of the legality of its actions, and is under pressure to uphold a basic human right – the right to a remedy.

Nigel D. White

Nottingham

Abbreviations

Introduction

From the outset, this text makes it clear that the law of international organisations is dominated by the UN and is actually best understood through a focus on that organisation. It defines and explains inter-governmentalism and the role of law in its regulation. The chapters in the new edition are not only re-ordered (with some merging), but have largely been rewritten with the insertion of a number of case studies that help to bring home how the law works within an institutional order dominated by politics. The case studies highlight the debates that surround even the most basic legal issues; for example, the furore surrounding the membership application of Palestine to join the UN, or the UN’s claim to immunity in Haiti where it has been responsible for a catastrophic outbreak of cholera. There are new chapters that focus on the enforcement side of the UN, when it utilises a range of non-forcible and forcible measures. Within an IGO, such as the UN, politics is not only the dominant force but the key for achieving the goals of the UN – the maintenance of peace and security, sustainable development, human rights and environmental protection – largely through cooperation, occasionally through coercion. Nonetheless, the aim of this book is to show that law plays a significant role in curbing excesses and the abuse of power, as well as facilitating the channelling of power to achieve those purposes. The opening chapter makes it clear that law and politics can be separated but it is important to understand their relationship, an understanding that provides the method behind this book; making the book attractive to non-lawyers, but also widening the law student’s horizons.

Explanation of structure

The book starts with a definition of an IGO and an explanation of the centrality of the UN to this concept. It then picks out a legal path amongst the different approaches to IGOs, thereby establishing the significance of law in the UN and other organisations. It then moves on to consider the building blocks of an IGO, namely the member states, and their uneasy relationship with an organisation they are responsible for creating. The next step is to consider the legal nature of the relationship between member states and the IGO in terms of governance with a consideration of the claims to constitutionality of the UN Charter and other foundational documents within the UN system. The book then explores the nature of an IGO’s autonomy from member states by considering the meaning and significance of international legal personality, and the nature of the powers that flow from it. The next step is to consider whether the powers of IGOs incorporate that most crucial feature of any legal order – the ability to make law – a competence which, if present, has the potential to radically change the nature of international lawmaking. The analysis then moves on to other types of power exercised by IGOs, especially the UN, in the form of both non-forcible and forcible measures, the operation of which has raised numerous questions of legality in terms of compatibility of the measures taken with the UN Charter and international law more broadly. With IGO initiatives, measures and actions increasingly impacting upon individuals as well as states, there has been greater recognition that such organisations can indeed violate international law and be responsible for such breaches. This finally leads on to a consideration of mechanisms of accountability, access to justice and remedies against the UN and other IGOs. It is at this point that the issue of organisational immunity comes into consideration.

Chapter summaries follow with the intention of providing a basic guide to the book.

Chapter 1: Inter-governmental organisations

This chapter defines and explains an IGO and argues that the UN is paradigmatic of this genre. A contrast is made with other forms of organisation, particularly the supranational integration organisation (exemplified by the European Union – EU). The chapter also defines the law of international organisations as the law governing, applicable to, and produced by, such organisations, and explains how this is best studied through a focus on the UN and related IGOs. The method used in the book is explained. This is not a complex theoretical exposition but involves different perspectives on the UN and IGOs, from international relations, to law and history, a combination that helps to explain how law and politics work within the UN. This assists the reader in understanding how to identify and apply the law, and to be able to critically evaluate the strengths and weaknesses of the law. The chapter concludes with a case study to illustrate the legal method of being able to distinguish when practice is a valid interpretation or development of the law, and when it is a breach, by considering legal aspects of that most political of powers – the veto in the Security Council.

Chapter 2: Membership, voting and funding

This chapter explores the key relationship between the IGO and its member states – a theme that runs through the book and culminates with debates about when the UN is responsible for wrongful acts and when it is the responsibility of member states. For example: who is responsible when a UN peacekeeper from a member state illegally uses lethal force; or when a veto prevents the Security Council sending an emergency force to prevent genocide? This chapter examines the basic relationship between the UN and states in terms of membership: through admissions (including the membership crisis of the late 1940s and 1950s reviewed by the International Court in the Admissions cases); withdrawal, expulsion and suspension; and representation (when there are competing governments). Case studies in this chapter, including the pursuit of Palestinian membership and the consequences of the break-up of states for membership, show how the rules on membership are at the same time rudimentary and difficult to adhere to. The chapter also shows that membership of an IGO no longer guarantees full sovereign equality of member states, and that with qualified majority voting and, in some cases, weighted voting, sovereign equality becomes more and more qualified. This theme is continued with the issue of the financing of IGOs. This chapter explores how the obligation to pay, when combined with a scale of assessments that requires powerful states to pay more, produces considerable tensions within the UN and other IGOs, sometimes in the form of a refusal to pay. Can such withholding ever be lawful?

Chapter 3: Legal character of the constituent treaty

This chapter discusses what makes the constituent treaty of the UN and similar IGOs different from many other treaties so that it is appropriate to use the term constitution in relation to such treaties, although the legitimacy and strength of such constitutions varies (so the UN Charter is a constitution in a stronger sense than the constituent treaties of the specialised agencies, though still in a much weaker sense than the constitutions of stable states). Separation of powers is shown not to be a feature of the UN or similar IGOs. A contrast is made with IGOs that are contractually based (NATO, for example). A discussion of the evidence in favour and against the UN Charter being seen as a constitution is followed by the debates surrounding the primacy of Charter obligations, in particular those imposed by the Security Council, by virtue of Article 103 of the Charter. Two case studies featuring judicial decisions on the primacy of UN obligations by the International Court of Justice in the Lockerbie cases of 1992 and 1998, and the European Court of Human Rights in the Al-Jedda case of 2011, serve to illustrate the controversies surrounding constitutionalism.

Chapter 4: International legal personality: the key to autonomy

This chapter addresses the legal construction that helps to answer the question of how the UN and similar IGOs are separate and autonomous i.e. independent of member states, when member states have created IGOs and sit and vote in their organs. The reader is reminded that it is of course possible to create separate, abstract legal entities: clubs, societies, corporations, states are all abstract legal entities. In international law these issues are considered through the legal personality of the UN and similar IGOs on the international plane, in other words whether the UN is a legal subject of the international legal order, separate from the main legal subjects – states. In 1945 such an idea was still a radical one given the domination of international relations by states. This explains why the UN Charter was silent on the matter of international legal personality (although it granted the UN legal capacity in national legal orders). However, by 1949 the matter was settled in favour of the UN possessing international legal personality, with the concomitant right to bring claims against states, following the International Court’s advisory opinion in the Reparations case.

Chapter 5: The doctrine of powers: the key to governance

The possession of international legal personality explains how the UN and similar IGOs have extensive powers separate from those rights of states (for example, the power to impose sanctions on a state or an individual, thereby creating binding duties for all states). Powers are not only those expressly granted, but also those necessary by implication and, some would argue, powers inherent in the very nature of being an autonomous legal entity on the international stage. The debate about the extent of the doctrine of legal powers is addressed through three case studies: the legality of peacekeeping (including a discussion of the Expenses opinion); the legality of IGOs’ concerns over the continued possession of nuclear weapons by a limited number of states (including a discussion of the Nuclear Weapons opinions); and the legislative powers of the Security Council (focusing on Resolution 1373 of 2001).

Chapter 6: Institutional lawmaking: a new source of international law?

Although there are controversies about the UN Security Council making binding general international law, this should not disguise the fact that the UN General Assembly has been hugely influential in shaping international law since 1948 (with the Universal Declaration of Human Rights). This has occurred less through ‘executive’ lawmaking but, rather, through plenary organs including those in the specialised agencies. The orthodox view is that, despite a dramatic increase in the institutionalisation of norm making, the outputs of IGOs remain in accord with the traditional forms of international law produced by states (as located in Article 38 of the Statute of the International Court of Justice) either as treaty obligations, customs or general principles of law. Indeed, many resolutions have passed into customary international law, but such an analysis disregards the normative value of the resolutions themselves, a value that more accurately reflects the autonomy of IGOs. This chapter explores institutional lawmaking in the modern era, looking in detail at the impact of General Assembly Resolutions on outer space and the Health Regulations of the World Health Organization (WHO). Both of these are shown to be international laws in their own right and that, in fact, they are paradigmatic of UN lawmaking more generally. Such an approach does not undermine the importance of states in making international law. Instead this approach enables states to create, amend and modify international law in a dynamic way that is necessary in a rapidly changing world.

Chapter 7: Sanctions

This chapter examines non-forcible measures adopted by the UN and similar IGOs in terms of their legality (constitutionality and conformity to international law), legitimacy and effectiveness. Are sanctions used to punish breaches of law by states or for wider purposes? The main focus will be Article 41 of the UN Charter, a provision that empowers the Security Council to adopt sanctions against states, although it has further developed this power to promulgate targeted sanctions against individuals and other non-state actors (NSAs). The move away from general sanctions against states, such as Rhodesia, Iraq, Serbia and Libya, is analysed, especially for their impact on the human rights of the population (for example the right to health). The applicability of human rights norms to the UN is discussed. The Security Council has, more recently, favoured targeted sanctions against individual leaders, regime elites and NSAs, such as terrorists held responsible for threats to peace but these, in turn, have raised human rights concerns, and have led to litigation before various national, regional and international courts and bodies. Intriguingly, in 2009, the Security Council responded by creating an ombudsperson to hear complaints about wrongful listing. Is this a response to human rights concerns? More importantly, does it satisfy human rights norms?

Chapter 8: Military measures

Non-forcible measures potentially put IGOs into conflict with principles of international law such as human rights. Forcible sanctions, involving the use of force organised or authorised by the UN, regional or defence organisations, raise issues of compatibility with the rules governing the use of force in international relations, which are found in the UN Charter and customary law. This chapter considers the role of IGOs in implementing and upholding those rules, necessitating an analysis of Article 2 and Chapters VII and VIII of the UN Charter, and the constituent treaties of security organisations. The different military responses undertaken by IGOs, ranging from observation and peacekeeping, to peace enforcement and war-fighting, are discussed in terms of legality and practice. The legality of the 1991 action against Iraq is contrasted with the illegality of the 2003 invasion. The chapter considers whether there is an emerging duty upon the UN (and possibly other IGOs) to take action in response to the commission of core crimes, embodied in the idea of a Responsibility to Protect (R2P) and, arguably, practiced in Libya in 2011. The rights and duties of IGOs continue to be a theme throughout the book.

Chapter 9: Responsibility of international organisations

While the primary rules of international law are those norms applicable to IGOs in their decisions and operations, such as those rules governing the use of force or those protecting human rights, secondary rules of responsibility are concerned with the consequences of breach of those primary rules by an organisation, sometimes known as liability. In simple terms, an IGO, with international legal personality, has obligations under international law and can be held liable or responsible when it commits an internationally wrongful act in breach of those obligations. The complexity arises in determining when an IGO has itself breached international law as opposed to states or other actors who may claim to be acting on behalf of the organisation. This chapter considers the development of secondary rules of international law to cover the wrongful acts and omissions of IGOs. It analyses the Articles on Responsibility of International Organisations (ARIO) developed by the International Law Commission (ILC). The chapter focuses in particular on the weaknesses of the ARIO in distinguishing the responsibility of the UN from that of member states, something that has caused difficulties in judicial interpretation of the ARIO in the case of UN-mandated operations (made up of contingents drawn from troop contributing nations or TCNs). The chapter concludes by examining issues of attribution in the Behrami case before the European Court of Human Rights, a case that concerned the failure to clear cluster munitions by the Kosovo Force (KFOR) and the United Nations Mission in Kosovo (UNMIK) in Kosovo in 1999, and various cases before Dutch courts following the failure of the Dutch battalion of the United Nations Protection Force (UNPROFOR) to protect civilians in Srebrenica in 1995.

Chapter 10: Accountability, access to justice and remedies

The expectations placed upon the UN have led to a change from it being viewed as a benign, if ineffective, IGO – one that could not be expected to make a real difference – to it being seen as a source of legitimate authority for action to be taken to deal with threats to the peace and to prevent serious breach of international law. The facts that the UN and other similar IGOs are operational and that their decisions affect the lives of millions, have led to greater demands for accountability of IGOs and access to justice for victims when they have caused harm. This chapter looks, in part, at how the primary and secondary rules of international law are upheld in different forms and mechanisms of accountability, including courts. It will be seen that non-judicial forms of accountability, although themselves underdeveloped, are more prominent than judicial forms. There are mechanisms within IGOs that attempt to ensure that IGOs are called to account politically and financially. However, there are even more serious weaknesses in terms of legal and judicial accountability. The inadequacies of the International Court of Justice (ICJ) as a constitutional court have led to victims seeking justice before regional and national courts. This chapter looks more broadly at the practicalities of accountability both at an institutional level and then at a more local level. At the institutional level, accountability is present, but is seen to be unsystematic and often ineffective. However, it is a relatively new way of looking at IGOs and so its prospects for development are assessed. At the level of access to justice the rationale for IGO immunities is critically evaluated but it is clear that immunity does not absolve IGOs from responsibility, it simply gives an organisation protection from local courts and, as a principle, is under increasing pressure to be restricted, as shown by the UN’s poorly received decision to hide behind immunity to prevent it from being sued as a potential source of cholera in Haiti. The chapter concludes with an examination as to how far the UN has evolved in terms of accountability for wrongs committed by those working for it by considering sexual abuse committed by peacekeepers in the Democratic Republic of Congo. A sober assessment of the UN’s responses to Haiti and the DR Congo shows that the organisation has a long way to go in terms of ensuring proper access to justice and remedies for those who have suffered loss at the hands of the UN.

1

Inter-governmental organisations

This chapter explains what an inter-governmental organisation (IGO) is and why the UN is the leading example. A contrast will be made with other forms of organisation, particularly the supranational integration organisation (principally the EU). This chapter also defines the law of international organisations as the law governing, applicable to and produced by such organisations, and explains how this is best studied through a focus on the UN and related IGOs. The method used in the book is explained. This is not over-theorised given the textbook nature of the work, but it attempts to explain how law and politics work within the UN and thereby helps the reader to understand how to identify and apply the law, and to critically evaluate the strengths and weaknesses of the law. A relatively straightforward case study drawn from the practice of the Security Council involving the exercise of the veto is given to distinguish when practice is a valid interpretation or development of the law, and when it is a breach. The chapter starts, however, with an evaluation of international organisations, especially IGOs, through theoretical lenses. Starting with the orthodox legal position, positivism, these approaches help the reader to understand the differing viewpoints on the nature and function of IGOs which, as will be seen, have a profound impact on the way law is understood, interpreted and applied to IGOs.

Inter-governmentalism

The focus of this work is on inter-governmental organisations (IGOs) and it is, therefore, correct to state that such organisations are created by, and consist of, states, though other subjects of international law (including other organisations) and other international actors (individuals, corporations, NGOs) often play a role in such organisations. Furthermore, such organisations are usually created by international agreement, normally, but not exclusively, a multilateral treaty. Organisations based on political declarations or arrangements are present in the international system (for example the G7/8 and G20), although it is doubtful whether they have international legal personality, given that they do not claim to possess powers derived from a legal agreement over and above those powers and rights possessed by their member states. In addition, organisations necessarily have a permanent institutional element distinguishing them from more straightforward multilateral treaties. It has been stated that an organisation must have at least one organ with a will of its own, but this more precise requirement tends to blur the distinction between the existence of an organisation on the international stage, and the existence of one possessing international legal personality.¹ As will be seen in Chapter 4 there is a considerable difference, though both entities are international organisations. Separate ‘will’ is a major, perhaps defining element of international legal personality, but it is not necessary in order to demonstrate that an organisation exists.

The presence of permanent institution(s) set up by a treaty or other agreement is sufficient irrespective of whether those institutions can act separately from, or indeed against, the will of some or all of the members of the organisation. Finally, international organisations covered by this study are, by their very nature, established by public international law (by binding agreement or treaty) to operate within international relations and therefore operate in the realm governed by public international law – that form of law created by states to regulate inter-state behaviour but also increasingly the behaviour of other actors. Of course, organisations must be headquartered in states and have dealings with those states and private actors within states, to contract for services for example, so that IGOs are also subject to municipal laws and have municipal legal personality.²

Other writers give more compact definitions. That proposed by Virally, for instance, is close to encompassing those elements discussed above when he defines an international organisation as:

an association of States, established by agreement among its members and possessing a permanent system or set of organs, whose task it is to pursue objectives of common interest by means of co-operation among its members.³

Such descriptions help to give an understanding of the legal nature and legal functions of an IGO, but they fail to provide either a systemic or contextual understanding of IGOs. These organisations have evolved in terms of their legal powers and functions because they are part of a wider economic and political system. It follows that an IGO can be universal or regional, functional or general, technical or political, and can be part of the UN system of organisations or be outside it, but what distinguishes it from an integration and supranational organisation is that it is based on cooperation, consent and respect for sovereign equality.

The League of Nations, and its successor the UN, were founded on cooperation between sovereign states: they were central to the attempted restoration of international relations based on peace and security after major global conflicts. Sovereign equality is the legal principle that underpins inter-governmentalism; it is presented in the UN Charter of 1945 as the first of the ‘Principles’ of the UN in Article 2(1): ‘The Organization is based on the sovereign equality of all its Members’. Beguilingly, the Covenant of the League of Nations of 1919 was not so express, but sovereign equality was at its core – at least for established states as opposed to that vast swathe of peoples and nations remaining under colonial rule. This was found in the requirement for unanimity of ‘decisions’ of the Council or Assembly of the League embodied in Article 5 of the Covenant; moreover in the fact that the Covenant contained a network of rights and duties for member states rather than creating an organisation with separate powers. Both of these features emphasised the League’s cooperative, consensual and inter-governmental nature.⁴ Violation of the Covenant by one member state resorting to war obliged the other member states to take economic measures against it; while the Council could only recommend to the ‘several governments concerned what effective military, naval or air force the Members of the League shall severally contribute to the armed forces to be used to protect the covenants of the League’.⁵ By becoming members of the League states had consented to being bound inter se by these covenants and processes and, generally, were not subject to decisions, certainly binding ones, made by organs of the League.

The United Nations, in contrast, while explicitly based on sovereign equality, presented states with an enhanced form of cooperation in that by becoming members of the UN they consented to subjecting themselves to decisions of the UN Security Council,⁶ thereby putting greater emphasis on the powers of the organisation, particularly the Security Council, where unanimity was only required amongst the permanent members.⁷ As Brierly stated in 1946, while the League was clearly a cooperative association of states the effectiveness of which depended upon the ‘conduct of the members individually’, the UN was a more institutionalised, ‘organic’ type of organisation whose effectiveness depended upon decisions being made by the organs, with a special status for the five permanent members of the Security Council whose consent was necessary for any decision and against whom UN action would not be possible.⁸ Nonetheless, it was correct to say that despite the clear differences in their constitutions, for instance in the length of the documents, with the Covenant’s simple network of inter-state obligations being embodied in a mere 26 articles whereas the UN, with its combination of inter-state obligations and institutionalisation necessitating detailed exposition of the powers of each organ giving rise to a document of some 111 articles, the League and the UN shared a lineage and, despite different degrees of institutionalisation, both could only function on the basis of cooperation.⁹ This is seen in the practice of the UN, in Chapters 7 and 8 of this book, where coercive measures can be decided upon by the Security Council, and are binding on all 193 member states, but for them to work still requires the cooperation of member states. A decision to take military action against a state can only be implemented with the cooperation of states in contributing troops and military equipment, and a decision to impose economic sanctions against states or NSAs such as armed groups or individuals suspected of terrorism, can only work if states incorporate such measures within their legal orders and, moreover, enforce compliance.

The line between inter-governmentalism and supranationalism is not a clear one but, for the purposes of this book, the focus is on organisations that clearly fall on the former side of the line, specifically the UN. Organisations such as the EU, portrayed in popular culture as being above the member states as opposed to being a form of cooperation between sovereign states are, in fact, a complex mixture of inter-governmental and supranational; the former deriving from the original treaty base of the organisation and by the fact that some functions such as foreign and security activities are much more jealously guarded by member states, and the latter being driven by the different levels of desire by member states to integrate economically and politically. Indeed, whether an integration organisation’s direction is towards greater supranationalism or greater inter-governmentalism depends upon a complex interplay between political, economic and legal factors; with the European Court of Justice (ECJ) having a stronger role in the EU than the ICJ has within the UN. The ECJ has been instrumental in establishing a ‘new legal order’ with direct effect within member states.¹⁰

Schermers and Blokker, in concluding that supranational organisations in the true sense do not exist as yet on the international plane, identify the elements required for supranationality. First, decisions of the organisation must be binding