Yordan Gunawan

1
Textbook
Michael P. Scharf, The Law of
International Organizations:
Problems and Materials (2d ed.,
Carolina Academic Press 2007).

2
Additional Readings on
International Organizations (1)
 José E. Alvarez, International Organizations as Law-
Makers (Oxford Univ. Press 2005).
 C.F. Amerasignhe, Principles of the Institutional Law
of International Organizations (2d ed., Cambridge
Univ. Press 2005)
 Malcolm N. Shaw, International Law 1282-1331 (6th ed.,
Cambridge Univ. Press 2008) (Chapter 23:
International Institutions)

3
Additional Readings on
International Organizations (2)
 Jan Klabbers, An Introduction to International
Institutional Law (Cambridge Univ. Press 2002).
 Anna-Karin Lindblom, Non-Governmental
Organisations in International Law (Cambridge Univ.
Press 2005).
 August Reinisch, International Organizations Before
National Courts (Cambridge Univ. Press 2000).

4
Background Reading
Michael P. Scharf, The Law of International
Organizations (2d ed., Carolina Academic Press 2007).
 Pages 5-20 [United Nations]
 www.un.org
 www.unog.ch
 Pages 20-50 [Excerpts from the Restatement (Third) of the
Foreign Relations Law of the United States]
 Introductory Note
 Section 102
 Section 111
 Section 114
 Section 115

5
International Organizations
Reader
The reader for this course has been
put online at
http://ssrn.com/abstract=1371039

6
7
Six U.N. Organs
 Security Council  General Assembly
 Trusteeship Council  Secretariat
 Economic and Social  International Court of
Council Justice

8
Voting in the General Assembly
 Article 18
 Each member of the General Assembly shall have one vote.
 Decisions of the General Assembly on important questions shall be made by a
two-thirds majority of the members present and voting. These questions shall
include: recommendations with respect to the maintenance of international
peace and security, the election of the non-permanent members of the Security
Council, the election of the members of the Economic and Social Council, the
election of members of the Trusteeship Council in accordance with paragraph 1
(c) of Article 86, the admission of new Members to the United Nations, the
suspension of the rights and privileges of membership, the expulsion of
Members, questions relating to the operation of the trusteeship system, and
budgetary questions.
 Decisions on other questions, including the determination of additional
categories of questions to be decided by a two-thirds majority, shall be made by
a majority of the members present and voting.

9
If We Were to Create a New
International Organization . . .
Present Voting Rules in the Possible Options for a New
U.N. General Assembly International
 One member, one vote Organization?
 Certain categories require 2/3  Consensus?
vote
 Base votes on population?
 Otherwise simple majority
 Base votes on financial
contributions to the budget?
 Should we create a bicameral
international organization?
10
What else would be different in
a new international
organization?
 Membership in the General Assembly?
 Security Council?
 Trusteeship Council?
 International Court of Justice?

11
12
International Organizations
1. The Legal Personality of International Organizations
2. Constitutions of International Organizations as Treaties
3. Membership
4. Powers of International Organizations
5. Law-Making By International Organizations
6. Applicable Law
7. Responsibilities of International Organizations
8. Member State Liability for Actions of International
Organizations
9. Accountability and Good Governance
10. Privileges and Immunities of International Organizations and
Their Representatives
11. Dissolution
12. Succession
13
14
Legal Personality
 International Law Commission Draft Articles on the
Responsibility of International Organizations, art. 2:
“an organisation established by a treaty or other
instrument governed by international law and
possessing its own legal personality.”

15
Legal Personality
 Personality under international law
 Personality under domestic law

16
Legal Personality
 International Court of Justice decision in Reparations
for Injuries Suffered in the Service of the United
Nations, 1949 I.C.J. 179:
 The U.N. members, “by entrusting certain functions to
[the United Nations], with the attendant duties and
responsibilities, have clothed it with the competence
required to enable those functions to be effectively
discharged.”

17
Legal Personality
 International Court of Justice decision in Reparations
for Injuries Suffered in the Service of the United
Nations, 1949 I.C.J. 185:
 The “fifty states, representing the vast majority of the
members of the international community, had the
power in conformity with international law, to bring into
being an entity possessing objective international
personality, and not merely personality recognised by
them alone.”

18
Legal Personality - Domestic
 Many constitutions of international organizations
provide that the organization should have personality
in domestic law to enable it to (for example):
 Contract for goods or services
 Acquire or dispose of property
 Institute legal proceedings in local courts
 Have the legal capacity to exercise its functions

19
Legal Personality - Domestic
 U.N. Charter art. 104:
 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 fulfillment of its
purposes.

20
Legal Personality
 To say that an international organization has legal
personality does not in itself determine the full scope
of what that personality entails.
 “The subjects of international law in any legal system
are not necessarily identical in nature or in the extent
of their rights, and their nature depends on the needs
of the community.” 1949 I.C.J. at 330

21
Legal Personality
 Legal personality should be recognized by members of
the organization (and host nations), but must it also
be recognized by non-members?

22
23
Constitutions
 Constituent instruments of international
organizations have a dual nature:
 They set forth the structure
 They are treaties between members

24
ICJ Advisory Opinion
 “The constituent instruments of international
organisations are also treaties of a particular type; their
object is to create new subjects of international law
endowed with a certain autonomy, to which the parties
entrust the task of realising common goals. Such treaties
can raise specific problems of interpretation owing, inter
alia, to their character which is conventional and at the
same time institutional; the very nature of the organisation
created, the objectives which have been assigned to it by its
founder, the imperatives associated with the effective
performance of its functions, as well as its own practice, are
all elements which may deserve special attention when the
time comes to interpret these constituent treaties.”
Legality of the Use of Nuclear Weapons, 1996 I.C.J. at 74-75.

25
Interpreting the Constitution
(the treaty establishing the
organization)
 The character of the constitution/treaty (which is
conventional and at the same time institutional)
 The nature of the organization created
 The objectives assigned to the organization
 The importance of effective performance of the
functions of the organization
 The organization’s own practice

26
27
Membership
 (1) The membership of an international organization
consists of the states (and other entities) that become
members in accordance with provisions of the
organization’s constitution.
 (2) The organization itself decides questions as to
representation of a member state (or entity).
 (3) The organization itself decides questions as to
succession of a state’s membership.

28
29
Powers of International
Organizations
 International organizations cannot exercise general
powers (as can sovereign nations).
 International organizations are governed by the
principle of speciality.

30
Powers of International
Organizations
 International organizations “are invested by the states
which create them with powers, the limits of which are
a function of the common interests whose promotion
those states entrust to them.” Advisory Opinion on
the Legality of the Use by a State of Nuclear Weapons
in Armed Conflict, 1996 I.C.J. 66, 78-79.

31
Powers of International
Organizations
 Powers may be express (in the constituent
instruments)
 Powers may be implied (by the purpose for which the
organization was established, and by state practice)

32
Powers of International
Organizations
 “Under international law the organization must be
deemed to have those powers which, though not
expressly provided in the charter, are conferred upon it
by necessary implication as being essential to the
performance of its duties.” Advisory Opinion on the
Legality of the Use by a State of Nuclear Weapons in
Armed Conflict, 1996 I.C.J. 66, 78-79.

33
Powers of International
Organizations
 Example: ICJ held that the General Assembly could
validly establish an administrative tribunal even
without express power to do so in the U.N. Charter.
Effect of Awards of Compensation Made by the U.N.
Administrative Tribunal, 1954 I.C.J. 47.
 But note that any attempts to exercise powers in
contravention of the U.N. Charter would be
prohibited.

34
Powers of International
Organizations
 Is the action one expressly authorized by the
constituent instrument?
 Is the action inconsistent with an express power?
 Is the action one “necessarily intended” by the
member states when they established the
organization?

35
36
Law-Making
 Treaty Negotiations
 For the organization
 For the members
 For non-members
 Dispute Settlement by Judicial (and Quasi-Judicial)
Bodies
 Resolutions
 Binding?
 Non-binding?

37
Law-making (Treaties)
 Can international organizations conclude treaties?
 Article 6 of the Vienna Convention on the Law of
Treaties between States and International
Organizations: “The capacity of an international
organization to conclude treaties is governed by the
rules of that organisation.”

38
Law-making (Treaties)
 According to the International Law Commission the
“rules of the organization” include
 Constituent instruments (treaty);
 Relevant decisions;
 Relevant resolutions; and
 Established practices of the organization.

39
Law-Making
 Dispute Settlement by Judicial (and Quasi-Judicial)
Bodies
 Examples
 International Court of Justice
 International Criminal Court
 International Criminal Tribunal for the Former Yugoslavia
(ICTY)
 International Criminal Tribunal for Rwanda (ICTR)
 International Tribunal for the Law of the Sea (ITLOS)
 World Trade Organization Dispute Settlement Panel Decision

40
Law-Making
 What is the effect of an international judicial decision?
 Does it bind the states?
 Does it bind the organization?
 Does it bind other member states?
 Does it bind non-member states?
 Does it bind individuals?

41
Law-Making
 Resolutions
 Binding?
 On members?
 On non-members?
 Non-binding?
 Do non-binding resolutions have any legal effect?
 If not, why do countries and organizations make these non-
binding resolutions?

42
43
Applicable Law - International
 The constituent instruments of international
organizations are generally interpreted by
“international law”
 If the international organization entered into a treaty
relationship with a particular state (such as a
headquarters agreement), that agreement would also
generally be interpreted by international law.
 Possible issues: existence, constitution, status,
membership, representation

44
Applicable Law - Domestic
 Some issues may be governed by domestic (national)
law
 Examples
 Purchase of property
 Equipment lease
 Employment law?

45
International Organizations
1. The Legal Personality of International Organizations
2. Constitutions of International Organizations as Treaties
3. Membership
4. Powers of International Organizations
5. Law-Making By International Organizations
6. Applicable Law
7. Responsibilities of International Organizations
8. Member State Liability for Actions of International
Organizations
9. Accountability and Good Governance
10. Privileges and Immunities of International Organizations and
Their Representatives
11. Dissolution
12. Succession
46
47
Responsibilities
 If you create a new organization with legal personality,
the actions of that organization may carry
responsibilities.
 If the organization harms a member state, the
organization should be called upon to remedy that
harm.
 If a member state harms the organization, the
member state should be called upon to remedy that
harm.

48
Responsibilities
 ICJ: There is an “undeniable right of the organization
to demand that its members shall fulfill the
obligations entered into by them in the interest of the
good working of the organization.” 1949 I.C.J. at 184.

49
Responsibilities
 “Responsibility is a necessary consequence of
international personality and the resulting possession
of international rights and duties.” (Shaw, p. 1311).
 The “precise nature” of responsibility will depend
upon the circumstances and analogies to the law of
state responsibility.
 “The basis of international responsibility is the breach
of an international obligation and such obligations
will depend on the situation.” (Shaw, p. 1311).

50
Responsibilities
 Direct breach of an obligation
 Other direct harm
 Indirect harm
 Assisting another state (or another international
organization) in a wrongful act (where the
organization knows that the circumstances of the act
would be wrongful if done directly by the international
organization itself)

51
52
Liability of Member States
 For injuries or debts of the international organization
 To other member states
 To non-member states
 To other international organizations

53
Liability of Member States
 Starting point in analyzing liability is considering the
legal personality of the organization
 If an international organization does not possess an
independent legal personality, liability falls upon the
member states
 If the organization has legal personality, that implies
liability for activities entered into by the organization

54
Liability of Member States
 What kind of liability?
 Joint and several liability?
 Was the action under the control of a particular state (or
group of states)?
 Did the organization act as an agent of a particular
state?

55
Liability of Member States
 What kind of liability?
 Joint and several liability?
 Was the action under the control of a particular state (or
group of states)?
 Did the organization act as an agent of a particular
state?

 If member states act together with an international

organization in the commission of a wrongful act, then
it will also be liable.
56
57
Additional Reading
 Scharf, Chapter 23 – Financial Issues and Institutions

58
Accountability and Good
Governance
 Following Basic Principles of Good Governance
 Acting Only in Good Faith
 Acting Only within the Constitutional Powers of the
Organization

59
Accountability and Good
Governance
 Transparent Conduct of the Organization, Its
Subsidiary Organs, and Its Agents
 Effective Organizational Monitoring
 Principle of Due Diligence
 Investigation and Disclosure When Things Go Wrong
 Safeguards

60
Accountability and Good
Governance
 State reasons for decisions
 Follow procedures and rules (among other things, to
prevent abuse of discretionary powers and errors of
fact or law)
 Follow principle of objectivity and impartiality

61
62
Privileges and Immunities
 States and their representatives enjoy a variety of
privileges and immunities
 International organizations and their representatives
enjoy them as well

 Usually sovereigns recognize equality and sovereignty

of other nations
 International organizations are unable to grant (or
withdraw) sovereign immunity as a reciprocal gesture

63
Privileges and Immunities
 “The true bases for the immunities accorded to
international organizations is that they are
necessitated by the effective exercise of their
functions.”

 Question as to how you measure the level of

immunities in the light of such functional necessity

64
Privileges and Immunities
 U.N. Charter art. 105:
 (1) The Organization shall enjoy in the territory of each
of its members such privileges and immunities as are
necessary for the fulfillment of its purposes
 (2) Representatives of the members of the United
Nations and officials of the Organization shall similarly
enjoy such privileges and immunities as are necessary
for the independent exercise of their functions in
connection with the Organization.

65
Privileges and Immunities
 The general provisions of U.N. Charter art. 105 is
supplemented by the General Convention on the
Privileges and Immunities of the Specialized Agencies
 That General Convention is also supplemented by
bilateral agreements (particularly host country
agreements)

66
Privileges and Immunities
 ICJ: Treaty provisions will generally prevail over
domestic law of a state party to the treaty. 1988 I.C.J.
33-34.

67
Privileges and Immunities
 Functional approach to recognizing privileges and
immunities
 Reason for granting immunities to international
organizations was to enable them to pursue their
functions more effectively and to permit organizations
to operate free from unilateral control over the
organization by the host country.
 See, e.g., Mendaro v. World Bank, 717 F.2d 610, 615-17
(D.C. Cir. 1983).

68
Privileges and Immunities
 Immunity from personal  Right to use codes
arrest or detention  Right to receive papers
 Immunity from seizure and documents by
of baggage courier or in sealed bags
 No liability for words  Exemption from
spoken or written in immigration restrictions,
their official capacities alien registration,
 Security for papers and national service
documents obligations
 Exemptions extended to
spouses and family
69
Privileges and Immunities
 Ability to exchange  Generally all other
currency (similar to what privileges and
is allowed for immunities similar to
representatives of diplomatic envoys
foreign governments on
temporary official
missions)
 Immunities for personal
baggage (similar to
diplomatic envoys)

70
Privileges and Immunities
 Representatives (addressed in headquarters
agreements)
 Officials of the international organization
 Experts performing missions for the international
organization

71
Privileges and Immunities
 May sometimes be waived if it would serve the interest
of justice

72
73
Dissolution
 Once you create an international organization, how do
you get rid of it?

74
Dissolution
 Dissolution may be covered in the constituent
instrument
 E.g., World Bank may be dissolved by a vote of the
majority of governors
 European Bank for Reconstruction and Development
may be dissolved by two-thirds of the members and
three-fourths of the voting power
 International Monetary Fund may be dissolved by a
simple majority

75
Dissolution
 If dissolution is not covered in the constituent
instrument, then the organization might be dissolved
by a decision of its highest representative body.

 Example: The League of Nations was dissolved by a

decision taken by the Assembly without the need for
individual assent by each member nation.

76
Dissolution
 Open questions:
 Is unanimity required to dissolve an organization?
 What happens to the assets?
 What pays the debts?
 Who keeps the archives?

77
78
Succession
 Succession of International Organizations
 Succession of Member States
 Scharf, pages 92-126 and pages 138-145

79
Succession
 Functions, rights, and obligations of one international
organization are transferred to another
 Could happen by:
 Straightforward replacement
 Absorption
 Merger
 Transfer of functions from one organization to another
 Could be:
 Express
 Implied
80
Succession
 In general, the assets (and archives) of the predecessor
organization will go to the successor organization.
(Shaw, p. 1331)
 Whether the debts also transfer is unsettled.

81