We are not going to introduce international organizations, but to present the law of international organizations, on what fundamental legal principles they are based and what is the contribution of these international organizations to international law.
- 1 Definition and role of international organizations
- 1.1 What has been the impact on international law of the birth of the organizations we are considering?
- 1.2 What is the definition of an international organization?
- 1.3 If the United Nations did not have legal personality, what happens and what is the consequence in terms of liability? If an organization X has no personality and an unlawful act is committed against a member or a third State?
- 2 The legal personality of international organizations
- 3 Powers: competences of international organisations
- 4 The United Nations contribution to law-making
- 5 Specificity of treaties establishing international organizations
- 6 Recent developments: the responsibility of international organizations
- 7 Annexes
- 8 References
Definition and role of international organizations[edit | edit source]
International organization is a recent concept, they date from the 20th century, the terminology is typically "20th century", time is definitely imposed after the Second World War, before the term association of States was used instead.
International organizations were born out of a need for cooperation, it is no secret that with social developments, interdependencies are increasing, this is true in domestic society, but also in international society.
These common problems that require common action are first perceived in non-political areas. It is easier to agree on non-political areas than political areas.
That is why the beginning of international organizations was very modest, a very technical beginning. It is true that some thinkers had imagined, as Kant imagined, an international society with a League of Nations.
In reality, it was not through this great door that international organizations began to exist, but through the need to cooperate during the industrial revolution: on the one hand river commissions and on the other administrative unions; river commissions are cooperation between States bordering a river that crosses several territories.
If each state administers a portion of the river in complete autonomy, the overall result is often cacophonic and therefore everyone loses. It was relatively quickly concluded that a good way to administer is to manage in a common way.
The problem is not eminently political, but it is technical because it imposes itself with nature.
Administrative unions are mainly due to technical developments. For example, the telegraph when it was invented, there was a need for an international organization to manage frequencies, because if everyone within its national borders does as it pleases, communications will not arrive at their destination, hence even for the post office, if mail crosses borders, there must be a treaty that organizes all this and it is the treaty on universal postal services that regulates this; rather than having a myriad of unstable multilateral treaties, it is better to cooperate, the problem is "low level" from a political point of view.
Administrative unions were due to technical innovations, hence the need for agreement.
The 20th century saw the explosion of international organizations with the arrival of another type of international organizations, which are international organizations with a political vocation, as they deal with issues of war and peace, human rights and the environment.
These rather intensely political questions become fundamental questions that we only want to confront with a common answer.
Peacekeeping is a function that the entire international community must take together, special alliances are not factors of peace.
There are now political organizations whose prototype is the League of Nations that precedes the United Nations.
There is an explosion of international and intergovernmental organizations, there are now around 400 of them, whereas at the time of the League of Nations they were only about ten; probably we are now reaching a certain saturation point.
What has been the impact on international law of the birth of the organizations we are considering?[edit | edit source]
The impact is significant, because traditional international law is essentially based on the regulation of sovereignties between States so that States can coexist, international law organizes this coexistence without having many ambitions.
Modern international law is based on cooperation between States. To this international cooperation, the organizations have made an absolutely fundamental contribution.
Even if the United Nations General Assembly can only debate, it is very useful because it allows meetings. Even where nothing is decided, meeting brings a new dimension to international relations.
In very short terms, the essential basis of the law of cooperation, which is one of the roots of modern international law, is nourished by the international organizations that provide the necessary infrastructure for cooperation. On any issue, we must consult and cooperate as best we can. In any case, it is a basis for cooperation that we can no longer do without.
International organizations must be distinguished from other phenomena that are more or less similar to a conference, then an international body, then a non-governmental organization and finally a supranational organization, because all these terms have their own meaning and we conscientiously distinguish them.
Conference[edit | edit source]
It is distinguished from an international organization by the fact that the conference is not institutionalized, it has no permanent body, it is only a meeting.
The conference is purely temporary, it has a particular objective such as negotiating a treaty, it is a large "meeting" that can be recurrent. In the case of the 1982 Convention on the Law of the Sea, negotiations began in 1974.
When you have conferences that last, you get closer to the international organization, because there is a minimum of institutionalization. The conference is distinguished from the organization by the fact that it is temporary. An international organization can dissolve, but it is not in its program.
International body[edit | edit source]
The body is not an organization in the sense that there is no representation of Member States in the body. In an international organisation, we have Member States represented in an assembly, a body is a service body, experts are appointed. Thus the International Court of Justice is an international body, it is sometimes said because it is in Article 7 and repeated in Article 92 that the International Court of Justice and the Supreme Court. At the International Court of Justice, there are no representatives of the Member States,
Non-governmental organizations[edit | edit source]
There are a large number of non-governmental organizations, they may be lobbies, pressure groups, but non-governmental organizations have this particularity because they do not represent States, but they involve private persons in the legal sense, they are entities, foundations and sometimes in non-governmental organizations there may be participation with a State, the State is not represented in assemblies and therefore we do not have an international organization; sometimes we speak of international organizations as intergovernmental relations.
Non-governmental organizations are not subjects of international law with the exception of the International Committee of the Red Cross, which has a series of international powers that it can exercise as a subject of law, otherwise non-governmental organizations have a status in domestic law and are only relevant to international law in certain cases where they may have observer status or when granted the right to speak.
Supranational organizations[edit | edit source]
There is a distinction with international organizations, a supranational organization is always an international organization, but with a plus, it is a strengthened international organization.
What is more important is that integration, which is more advanced, and the fundamental key from a legal point of view is that the supranational organisation has the power to take decisions and regulations that are directly applicable in the law of the Member States. A decision is directly applicable, there is no screen between supranational organisations and state law. That is why supranational organisations are integration organisations, they are inevitably federations of states, the European Union is an organisation of this type unlike the United Nations. Sometimes it is a mistake to think that they are by mentioning Chapter VII with the Security Council, which can take binding decisions, but the decisions are not directly applicable in the Member States, the Member States must receive them in national law.
With regard to sanctions since Resolution 1267 and 1273, if we look at this type of regime, we have acts of execution by Member States that challenge the measures of execution of such a treaty contrary to other resolutions. It has happened that Security Council decisions have not been implemented as in the case of Libya in the 1980s because there was this power not to be obliged to implement.
What is the definition of an international organization?[edit | edit source]
There are four elements each necessary to have an organization, they are four cumulative elements, the last one rather in modern law and not in the law of 1945.
- 1) The international organization is always based on a treaty
The United Nations from a legal point of view is based on the Charter of the United Nations. There is no organization to date that is not treaty-based.
- 2) The international organization is an association of States
This is the interstate element, the members of the organization are States, this does not mean that organizations cannot open up to other entities.
It is possible that, depending on their status, a particular entity may be a member, but the essential thing is that the organization is an organization of States, the other entities may be national liberation movements. These States are always represented in an assembly, in all international organizations there is a plenary body.
Chapter II of the Charter in Articles 3 and 4 deals with members. Each time it is a question of States. In the United Nations, they are only States, the process of creating a State can be gradual in some cases.
- 3) The international organization has its own organizational structure
From the point of view of its organs, the organization has its own existence, it is organized, which distinguishes it from a conference of States. In an international organization, certain tasks are delegated, which gives it an organizational structure.
- 4) the legal personality
It is now considered that an international organization has its own legal personality, is subject to international law and has rights and duties under international law.
An international organization could not be liable if it was not subject to law.
Without legal personality, one cannot commit an unlawful act.
If the United Nations did not have legal personality, what happens and what is the consequence in terms of liability? If an organization X has no personality and an unlawful act is committed against a member or a third State?[edit | edit source]
The organization cannot as such respond as it does not have legal personality and has not been able to act legally.
What happens if the third State has suffered damage and wants compensation?
From a legal point of view, everyone should be prosecuted.
First, no international organization possesses sovereignty, sovereignty is the prerogative of States only, this means that an organization always has only the competences that are attributed to it or that are willing to be attributed to it, in particular through subsequent practice; in other words, the organization is not in a position to improve its own effectiveness, it can only act within the framework of the powers that have been attributed to it.
When measuring the effectiveness of an international organization, the range of its competencies must be taken into account. Powers are almost never given to him to be formidable. We are aware that the States seized the system early on with possible measures to block the Security Council.
Effectiveness must always be measured by the range of competences and the absence of sovereignty.
The second related remark is that there is always a tension between the institutional and the State level in the law of international organizations; once created, an international organization will always seek efficiency, there will always be a tendency for the organization to integrate new skills and that through subsequent practice it assumes powers.
Member States do not want the organisation to have too many powers and will always insist on limiting the organisation's competences and interpret them strictly.
If we look at the major issues of international organizations, it is always a competition between these two circles, extending the competence of organizations and the concern of States to keep control over organizations. The organization must do what we want it to do and not become a superstate that sometimes goes as far as caricature; the League of Nations did not have a flag, we did not want it to have one to differentiate itself from the States, but we invented a flag of the League of Nations from scratch.
Either the organisation passes and the Member States resign themselves and accept, or the Member States oppose.
The legal personality of international organizations[edit | edit source]
In law, this term refers to the ability of a given entity to have legal rights and obligations, in other words, the question that arises is whether an international organization can be attributed rights and duties in its own name.
Can a particular organization, for example the United Nations, conclude an international treaty with another entity, State or international organization, yes or no?[edit | edit source]
Answering this question first implies answering the question of whether the organization has legal personality, because if it has legal personality and concludes a treaty with an entity that has legal personality, otherwise not.
We see that the question is not completely irrelevant, because depending on the response to give the autonomy of action of the international organization is increasing, without legal personality the organization remains under the control of States, it can only make a simple and vulgar conference, with the personality the organization it equips itself with a force for action and can make relevant acts.
Until now, the answer given to the question of personality has essentially been the will of the Member States, i.e. it has been stated that an organisation will have legal personality only if the Member States have wanted to give it, the organisation is a creation of the Member States, they can give it any legal clothing they wish, they can be perfectly satisfied with a conference.
In determining the will of the Member States there is a legal nuance, sometimes the will is very tangible and clear, sometimes the will is determined through a slightly more articulated legal reasoning so that this will does not appear as clearly as in the first case mentioned.
The two cases mentioned, clearly formulated will, which must be implicitly identified, are two techniques to determine whether States wished to establish a legal personality for the organization.
On the one hand, there is the determination of legal personality according to a subjective reason and the determination of personality according to an objective reason.
The subjective determination is quite simple, we look in the constituent treaty of the organization to see whether the member States have expressly granted the personality to the organization in this or that provision.
Of course, it is also possible to search in other constituent texts or even in the preparatory work, if States have reflected on the issue and taken a position on it without writing an express provision, it would be necessary to check all the texts and the preparatory work, because depending on the case indications may be contained therein.
There are a number of more modern organizations than the United Nations in which there are this type of provision, such as, for example, article 281 of the Elysée Treaty, which stipulated on the legal personality of communities. Objective reasoning is another way to determine whether an organization has legal personality, this objective way is based on implication, so it is an implicit legal personality.
When do we use objective argumentation?[edit | edit source]
Basically, when there is nothing from the point of view of subjective reasoning, if the Member States have made it clear that they have given the organisation a legal personality, it is not necessary to go any further, otherwise the question arises as to whether organisation X, Y, Z has legal personality, because in practice the question can be raised.
The United Nations Charter does not contain any provision expressly stating that the organization has international legal personality, there is none, there are also no other texts that could enlighten it.
From the very first years, the United Nations sent a special envoy, a United Nations agent on mission, Count Bernadotte of the Swedish Royal Family, to Palestine, who was murdered.
The question was whether the United Nations could make a claim for compensation, can the United Nations make a claim because its agent was murdered?
To submit a claim for compensation for damage is to submit this claim in its own name on behalf of the United Nations, and not on behalf of the Member States, which presupposes that the organization has legal personality.
This is a situation where it is necessary to determine whether the United Nations has a legal personality, because on the basis of this it could be decided whether or not the claim can be presented.
The question as explained was raised in the previous context and was referred to the International Court of Justice in the advisory opinion on compensation for damage suffered in the service of the United Nations in 1949.
The Court's reasoning remains to date the most complete reasoning in terms of legal personality.
The Court notes that there is no basis for the Charter, but a whole other series of provisions presupposes the existence of a legal personality.
These other provisions enshrine the competences of the United Nations, in other words these provisions allow, sometimes ask the United Nations as an organization to make certain international legal acts, but to make these international legal acts, it must be assumed that the organization has a legal personality, because if it did not have it it it could not make these acts.
If we have a provision such as Article 43, it says that the United Nations, through the Security Council, enters into agreements with Member States to submit military contingents to carry out military coercive action within the meaning of Article 42.
Concluding agreements that are treaties in this case, the organization concludes agreements with member States, if an organization is given the competence to conclude treaties, it is clearly because implicitly it is given a legal personality, because in the absence of a legal personality, the organization could not conclude under article 43.
We return to the will of the Member States, the reasoning is very simple, the Court may say that, although the Member States wanted the organisation to conclude agreements, they implicitly wanted it to have legal personality, because they cannot ask for something from it without giving it the means to do so; it cannot want the agreement without the condition that makes the agreement possible, namely legal personality.
The two most famous sentences of this Court's opinion can be found on page 179 of the 1949 Reports; in the Court's view, "the organization was intended to exercise functions and enjoy rights - and it has done so - that can only be explained if the Organization has a high degree of international personality and the capacity to act internationally (....) it must be recognized that its Members, by assigning it certain functions, with the duties and responsibilities that accompany them, have given it the necessary competence to enable it to carry out its functions effectively".
The legal personality appears here as a filigree of functions and competences.
The Court says "has a large measure of international personality," this suggests that one may have more or less international legal personality and that therefore the question of legal personality may be gradual.
By this gradual formula, the Court has made it clear that the United Nations has a legal personality based on its competences, but the organisation does not have the same degree of personality as the Member States because the organisation is not sovereign.
The question is sometimes between function and competence, and on the other hand the effect of legal personality.
Powers: competences of international organisations[edit | edit source]
There is a terminological uncertainty in the title, powers and competences of international organisations, there is a uncertainty between powers and competences; some authors make differences between powers and competences, there may be differences between the two depending on the context. We can take these two terms as equivalents. In English, we use the word "power".
What it is about is the functions performed by an international organization, the organization is always created in order to facilitate international cooperation in a field between member States.
It is necessary to determine how, generally speaking, the powers of an international organization are determined? what are these powers granted, how are they determined? what are its limits and how are they granted? They are general, as they apply to each organization.
There are three fundamental principles on the powers of international organizations, they are alternative in the sense that each of them can form the basis for power, a capacity for action.
While each of these principles is alternative in the sense that they underpin the power of action, each has its own specificity and each pulls in its own direction.
- principle of specialisation of competences/principle of allocation of competences
- implicit/involvement powers
- subsequent practice
Competence is a power of action to do something, it is to act which can also be an omission, i.e. not to act, competence is a power to act recognized by law.
There are skills that are simple faculties, in law we speak of a faculty when it is optional to act, it is an option, a possibility, but we do not oblige. There may be competences in the sense of an obligation, in some cases the administration must do X, Y, Z without having a discretionary margin.
The difference between jurisdiction and subjective right is that we are talking about jurisdiction when it comes to public bodies, a private person acting in a private capacity has no jurisdiction, but rights, duties and obligations, we distinguish between the public sphere on the one hand and the private sphere on the other.
This does not mean that an international organization cannot also have rights by analogy to a private person, an international organization has the right to take countermeasures outside the idea of a service rendered by an administration.
Principle of the specialty[edit | edit source]
The principle of specialization simply means that the international organization possesses only the powers or competences conferred on it by member States in principle in the constituent instrument. In other words, the organization has no original powers that it would hold by itself under its own law.
The organization is a "Spanish inn", there is nothing in it except what is brought in by the member states, the international organization does not have sovereignty.
Sovereignty is what allows the state to be a "super subject" that allows it to always act without being told that it has the power to do so, the organization has none, it must wait for powers to be granted. It is clear where the real power resides, it remains among the Member States.
The principle of speciality is a principle to which the Member States are committed, because it ensures that the organisation will remain controllable. States are susceptible in this regard.
The League of Nations did not even have a flag - states were afraid to mention a state anywhere.
The principle of speciality is recognised in practice, but also in case law.
In 1996, the United Nations General Assembly on the one hand and the World Health Organization on the other requested two separate advisory opinions from the International Court of Justice on an identical subject formulated very slightly differently, namely whether the use of nuclear weapons or the threat of their use is in all circumstances contrary to international law?
The Court has responded on the merits to the General Assembly's request, the Court has declined to respond on the merits to the almost identical request as the World Health Organization's; reason is basically a reason that refers to the principle of speciality that the Court mentions in this Advisory Opinion in Volume II of 1996.
The Court reasoned as follows: the World Health Organization has jurisdiction in health matters, it may be interested in the effects of nuclear weapons on health, but the World Health Organization has no political jurisdiction to deal with the legality or non-legality of the use of its weapons because its constituent instrument does not have any assigned jurisdiction in this area.
What is the legal consequence of this observation?
Quite simply, if the World Health Organization does not have jurisdiction over the lawfulness of the threat of the use of nuclear weapons, then it does not have the ability to put this question to the Court.
However, if the World Health Organisation does not have the competence to ask the question, then the Court does not have the competence to answer it, hence the refusal to answer this opinion based on the principle of speciality.
Implied/involvement power[edit | edit source]
Implicit or additional implied power can be used to achieve a competency.
This principle draws in the opposite direction that the previous argument, the principle of specialization restricts the competence of the international organization, which benefits member States, because any power that has not been attributed to the organization remains within the competence of member States. Sometimes, we try to establish additional skills through involvement.
This means that the powers involved are often used by the organs of the organization themselves when they wish to broaden their competences or act in a field where the organs think that there is an urgent need for action, but at the same time there is no explicit competence so we try to "tinker" with implicit competences, in the absence of an express provision we try to apply a competence, the tendency is therefore here to widen the powers of the organization.
With the principle of speciality alone, the situation would be unbalanced, the organisation would be excessively corseted and could not act, in particular in the face of new challenges.
It is important to have this principle and to have implicit powers, because:
- one cannot describe all the powers of the organization in the constitution, if endless lists are drawn up, the constitution becomes unreadable.
- flexibility is required for the organization to act in the current necessity, a margin of flexibility is required for the organization to respond adequately to a new situation, implicit authorities allow for a certain amount of time to be overcome and give the organization some flexibility to carry out its functions.
- the instruments of international organizations are living instruments, they are instruments that look a little bit like constitutions, so they must be interpreted with a certain flexibility because they affect political phenomena.
In the strictest sense of the term, and this is where implicit or applied power comes from, it is a principle applied by the Supreme Court of the United States of America in the delimitation of competences on the one hand by the confederation and on the other by the States; the principle of involvement is based on the idea that a power or the idea that a competence X has been conferred on an organisation in the constituent instrument and that in order to exercise this power expressly conferred on X it is necessary that the organisation also has another power Y which is precisely not conferred in the constituent charter.
So there is a power conferred that must be or can be exercised, now to exercise it he has another power, without the other power we cannot exercise the first either.
The same reasoning can be applied as for the legal personality involved, since it is necessary to possess the power involved in order to exercise the express power provided for, they have implicitly conferred by way of requiring the other implicit power.
The United Nations Charter provides in Articles 100 - 101 that the United Nations may engage civil servants.
The Charter therefore states that the organization will have public servants, but it does not say that there will be a regulation of public servants, but of course to hire public servants you need regulations, procedures.
If we take the principle of speciality in the most literal sense of the term, this competence is not attributed and therefore the organization cannot adopt regulations, it is obviously an absurd argument.
The basis of the principle of implicit powers is quite solid.
The problem is that this kind of involvement, which is undisputed, can sometimes be broadened and has been broadened in the jurisprudence moving towards increasingly strong implicit powers or the organisation claims to have certain powers in order to see how the Member States react.
If we consider all the possibilities of involvement that there are, we arrive at four mechanisms of possible involvement:
- It is concluded from a power 1 to a power 2, the mechanism of implication is the necessity it is necessary to have the power 2 to exercise the power 1. "Necessarily" is a legal concept, is necessary what appears reasonable in a vacuum. To say that we have civil servants rationally implies a power to adopt a regulation, but it remains a legal construct.
- one always concludes from a power 1 to a power 2, power 1 is expressly conferred, power 2 is involved, it is no longer necessity, but appropriateness. If the organization has power 1 and therefore power 2, the test of appropriation is much looser, the involvement is broader
- To conclude from a goal to a power is even broader, so we are gaining in scope, by this we can increasingly conclude that there are implicit and ever wider powers depending on whether we want to go down from the involvement of 1 to 4. From goal to power, it is fundamentally necessary for the organization to have the power "such" in order to achieve goal X, Y; it is necessary to achieve the goal of having this power. The United Nations aims to keep the peace, everything that leads to peacekeeping is in the power of the organization.
- one can imply from a goal to a power through the appropriate. The power X allows the organization to achieve in a more appropriate way, therefore to facilitate the achievement of goal Y which is in its constitutive instrument, but without there being a need.
Practice shows that depending on the contexts, issues and organizations involved, each of the implications is sometimes attempted. The first one is undisputed, the other three are discussed.
As for the involvement of powers first of all, a relatively strict version of the application of powers can be found in the 1949 advisory opinion.
The Court examines to what extent the United Nations can make a claim and therefore exercise power while the Charter does not explain whether the United Nations can make a claim.
The Court concluded that "under international law, the International Organization must be considered to possess powers which are not expressly stated in the Charter and which are, on the other hand, necessary and conferred on the organization as essential to the performance of its functions".
"(...) by a necessary consequence conferred on the organization as essential", without this one cannot.
It is an argument based on the argument of necessity, in reality there is power to power.
If we compare this state of affairs with the 1962 advisory opinion on certain expenses, which are peacekeeping operations, and if we look at the Charter, we find no provision devoted to peace keeping operation, the reason is that in 1945 we did not envisage that the organization should be reduced to peace keeping, we imagined an organization that would do peacekeeping and peacemaking by authority.
The problem remains that it is not provided for in the Charter that if the rules on competences are followed, the United Nations cannot establish peacekeeping operations. This does not have the problem of the fate of international organizations, a basis of competence is needed, but for peacekeeping operations, there is no and moreover there is no possibility of arguing from power to power with necessity.
We had to try something broader, what we tried, we are in the second part, is to go through the goals of the United Nations by saying that the main goal of the United Nations is peacekeeping.
Why the "only way"? The means provided for in the Charter are seized and blocked in the inability to act. The only way to take action is through peacekeeping operations.
On the question of whether there is a competence of the United Nations, to establish involvement it was necessary to start from a goal by playing on the necessary and appropriate.
The Court examines the issue in a very articulated way, not only on the basis of implicit powers, but on a whole other set of aspects of the Charter.
On page 168 it shows the implicit powers in a more generous light: "When the Organization takes measures which can rightly be said to be appropriate for the fulfilment of the purposes of the United Nations as set out in Article 1 of the Charter, it is presumed that such action does not exceed the powers of the Organization".
It is a far-reaching sentence, it tells us that when we imply power from a purpose that we can rightly say is appropriate, we assume that it does not exceed the powers of the organization.
We have competence when we imply power from another power by necessity because there is an implicit will on the part of the Member States to confer that power.
It is to be assumed that this action does not exceed the powers of the organisation, it is not certain that at this stage it is assumed that the actions are correct, but the Member States must react; either the Member States endorse, or the Member States refuse because it exceeds their competences, at which point, either the competence exists or it does not exist.
With regard to peacekeeping operations, the question was very controversial, because the whole socialist bloc was against it, and there were also Western states that were against it because of their sovereignism. There was a significant part of the United Nations that was very reserved, to say the least, with regard to peacekeeping operations.
Subsequent practice[edit | edit source]
Subsequent practice is the last means by which the power of an international organization can be consolidated, this subsequent practice is often concomitant with the power involved.
We try to "tinker" with something and then we have to see what the member states will do, if the member states accept the competence is to whom we will legally say that the organization has acquired additional competence through the subsequent practice of the member states which is based on a customary process within the organization, it is customary law within the organization.
There is a custom within the organization through widespread practice and opinio iuris, if member States endorse either by voting for the texts providing for this custom or by abstaining from protesting, by those means of no protest or direct endorsement, in this case if there is a generalized practice the competence is acquired and on the contrary the competence will not be acquired if this is not the case.
Not only can skills be acquired through subsequent practice, the provisions of the United Nations Charter or other instruments constituting international organizations can be modified through subsequent practice.
The most famous example is Article 27.3 of the Charter, namely that according to the text of the Charter, voting in the Security Council on matters that are not procedural is done with the 5 affirmative votes of the permanent members, whereas according to the subsequent practice started from the crisis in Persia in the late 1940s, abstention is no longer counted as preventing the resolution from passing.
What is necessary is not a negative vote, the "affirmative" has been changed to "no negative vote", by abstention nothing is blocked. This was endorsed in the 1971 Advisory Opinion on Namibia at page 11 paragraph 22.
The United Nations contribution to law-making[edit | edit source]
It was important to show that international organizations do many things, but they also do one interesting thing, which is that there is a contribution of international organizations to international law, international organizations deal with international law.
Taking the United Nations as the main organization at the global level, we can distinguish three aspects:
- the contribution of the United Nations to the codification of international law.
- the contribution of the United Nations to international development through resolutions.
- the contribution of the United Nations in the creation of binding standards for States.
- codification of international law
Codification is an old term loaded and heavy with legal connotations, it comes from the movement of codifications in the Enlightenment which is basically the question of the most important legal policy of the Enlightenment to move from an encroached right to a single codification in a civil code.
In international law the same argument was made at the time of the creation of the League of Nations, conventions are conventions issued in addition to these conventions dealing with practical issues of such an exchange of territory, such constitutions of a common project, but not with underlying issues such as, for example, the elaboration of a treaty convention.
Adding customary law to it has a very uncertain component, it does not ensure a great transparency of this law, hence the idea of codification, i. e. that certain parts important to international legal life can be brought closer together by providing for general regulations for the texts provided for in it.
This task was taken seriously, particularly by the United Nations, and this competence is expressly conferred in the Charter in Article 13.1.a.
At the beginning, there was no question in Article 13 of exercising this competence by itself, first of all the Assembly does not have the political expertise, there is no codification of the law in a plenary body, so that a smaller body with more expertise is needed.
It is a body created in the 1940s, a subsidiary body of the General Assembly, which assists it in exercising its status as the International Law Commission.
It is a body on which the greatest eminent legal internationalists have sat and which has made a very considerable treaty for years, because a whole series of conventions have passed through the hands of the Commission. The major treaties with which we work, such as the Vienna Convention, have been concluded by the International Law Commission.
There are four 1958 Geneva Conventions on the Law of the Sea. The four 1949 conventions on humanitarian law were not adopted by the International Law Commission because it did not yet exist and then the specialised body in this field was the International Committee of the Red Cross. The 1961 Convention on Diplomatic Relations, the 1963 Vienna Convention on Consular Law, they still determine diplomatic and consular law to this day.
Another example is the two Vienna Conventions on the Law of Treaties in 1969 and 1986. Among others, there are two Vienna Conventions on State succession, one of 1978 on State succession in treaty matters, and one of 1983 on State succession in debt, archives and property.
A State succession takes place each time a territory passes from one State to another, when a territory passes from State A to State B a whole series of legal questions must be resolved, in particular whether the treaties applicable before continue to be applicable, also in respect of property, archives, etc. There is also the 1961 New York Convention on the Elimination and Reduction of Statelessness.
Currently, the Commission prepares fewer treaties, makes documents in which it proposes articles on State responsibility as in 2001 or on the responsibility of international organizations; the reason is that States are much less willing to adopt conventions than before. We leave it in soft law.
It should not be ignored that international organizations through their various bodies where States are represented adopt resolutions; the term resolution is neutral; it can be recommendations or decisions.
The term resolution is therefore a generic term.
The recommendation consists in developing any principles, rules, guidelines or solutions, there are no legal obligations, but simply a presentation of some elements of a solution that are conjured up as favourable by suggesting that States follow and apply them.
The decision is based on a specific purpose and takes binding measures, it is decided to set up a budget, a peacekeeping operation, etc.
This explains why the vast majority of resolutions are not of international importance, but each one raises an international problem, because each one is based on the constituent instrument of an organization, each act that an organization takes must be based on an attribution of power, there is always a legal question.
However, there are a very limited number of resolutions which are fundamentally normative and which concern the public international law that it strives to develop in a given field or sets standards.
First of all, there is a famous resolution, it is precisely famous, namely the Universal Declaration of Human Rights; This universal declaration of human rights, which is the first international text in this field, is a resolution of the United Nations General Assembly of 1948, Resolution 217 of the United Nations General Assembly, it is a recommendation, it is a text that initially lacked binding legal force, the General Assembly took the liberty of reminding States of the principles post-World War II in order to moralize international relations and concerned the way in which a State treats its own nationals on its own territory and foreign nationals.
It should not be denied that this resolution has had a significant impact on international law both from a conventional and customary point of view; from a conventional point of view, the 1966 covenants develop the 1948 resolution and, just as important from a customary law point of view, this resolution has not been crucial, since the principles set out in resolution 217 now reflect customary international law in the field of human rights.
In 1948, it was only a simple recommendation, but now these principles have been adopted and are considered customary.
Resolution 1514 of 1960, which must be read in conjunction with resolution 1541 of the same year, deals with decolonization, if we look in the United Nations Charter we find nothing on decolonization since in 1945 the time was not right for decolonization, not that not all States were in favour of it, but powerful States were against it, such as France and the United Kingdom, so that if we look in the Charter we find a chapter on non-self-governing territories for the colonies of the time.
The Charter, in essence, in its provisions, organizes colonialism, it establishes certain obligations of the colonial powers, but "soft"; based on the practice of the United Nations, it has transformed the scope of these provisions, in resolution 1514 we have the full right to decolonization, the United Nations Organization sets itself the objective of organizing decolonization.
This is a very considerable innovation and contrary to the letter of the Charter, but it is the evolution of the Charter through a resolution on international law because affirming that there is the right to independence and including secession concerns the territorial basis, which is a political issue, but also the law.
Resolution 2625 of 1970 is a kind of work product of the 1960s on peaceful coexistence, in 1962 following a rapprochement between the USSR and the United Nations there was a thaw in international relations.
This resolution is a result of this work, it is in fact an authentic interpretation of Article 2 of the United Nations Charter, which is a fundamental provision since it lays down the principles of the Charter, but also of modern international law.
When you read section 2 of the Charter, you can see very quickly that the formulas and statements are necessarily very good, when you status on principles, you set out guidelines. However, a whole series of questions of interpretation arise.
It is a question, for example, of knowing exactly what "force" means, of the non-use of force, which may involve questions of borders, armistice lines, etc. Resolution 2625 sheds light on and interprets these principles in greater detail so that they can be more easily interpreted in order to determine their normative meaning, and it also develops important principles that have been developed since 1945, such as, for example, the self-determination of peoples or the right of peoples to self-determination.
The 1963 resolution numbered 1962 is the resolution setting out the principles relating to outer space. In 1957, there was the Sputnik shock, then space became accessible to humanity.
As soon as we were able to go there, legal questions arose, could we appropriate space, could we arm space, could we place weapons of mass destruction, could we appropriate the moon, etc. Principles had to be laid down, as the Assembly did in this resolution leading to the 1967 Outer Space Treaty, we see the normative impact of this resolution very easily.
Resolution 3314 of 1974 is still the United Nations General Assembly, which aims to determine what aggression is, the Charter itself refers to armed aggression, for example in Articles 51 and 39 of the Charter. The 1974 definition is the culmination of the work begun in the 1920s by the League of Nations, a very difficult question to answer.
Resolution 2749 is a 1970 resolution on the deep seabed; there is the soil and subsoil of the high seas, the soil and subsoil of the high seas contain important resources, the soil contains bed-fishing resources and the subsoil contains a whole series of metals.
There were economic interests that could attract States, the fear was that more technologically advanced States would appropriate the land of the high seas through extensive interpretations.
The question was how far the continental shelf goes, if the continental shelf was pushed ever further, the fear was that technologically advanced states would encroach on their particular advantage.
Resolution 2749 claims that the soil and subsoil of the high seas are a heritage of humanity and cannot be appropriated.
These are normative resolutions of great importance that set the law and contributed to the development of the law in their respective fields.
The third law-making function is the normative function of the Security Council; the Security Council can adopt binding resolutions, i.e. decisions under Chapter VII of the United Nations Charter.
When the Security Council was created, it was not intended that the Security Council should legislate, but rather that it should take police action.
It has happened that in recent years, particularly in the 2000s, the Security Council began to adopt regulations such as, for example, anti-terrorism regulations that incorporate conventional regimes.
For example, Security Council Resolution 1373 contains a whole series of rules that the Security Council enjoins States to adopt and apply in order to combat terrorism, and in particular these rules concern financial flows, the aim being to ensure that terrorist organisations can no longer finance their activities.
This resolution largely reflects the content of the 1999 Convention to Combat the Financing of Terrorism. This resolution reiterates what is in the 1999 Convention.
This is interesting from a legal point of view because it means that what was in a convention has now been taken up by the Security Council in a Chapter VII resolution of the Charter and becomes binding on all UN Member States.
We do not see an organ less well armed than the Security Council, we wanted the power to be represented so that it can act with credibility, whereas when we legislate we need everyone to be consulted, but the Security Council can adopt effective resolutions.
The Security Council has more than once in the last decade crossed the line towards international legislation, so far it has done so in an area where Member States have followed it, there have been no objections in principle to such resolutions, objections have come to sanctions, but not against the very principle that the Security Council should elaborate such rules.
There are normative functions in the international organization, when the Council adopts them and makes them binding, the impact on the international system is significant because in principle they have priority over the rules contained in other conventions.
Specificity of treaties establishing international organizations[edit | edit source]
There are some specificities of institutional treaties, three of which can be identified:
- the modification
- the hierarchy.
Interpretation[edit | edit source]
We will relatively often say that institutional treaties are interpreted according to particular methods, and part of the doctrine will explain that these institutional treaties are species of constitutions and that therefore the interpretation is oriented towards constitutional methods.
Looking to practice, we realize that institutional treaties are subject to the same rules of interpretation as any other treaty.
These rules are flexible rules, the rules on interrelation contained in articles 31, 32 and 33 of the 1969 Vienna Convention are rules that agree on a certain weighting, we were not moving towards different rules, we cannot say that there are treaties interpreted as constitutions if this could be taken to mean particular rules.
On the other hand, the weights are sometimes different depending on the nature of the treaty.
For example, it is not uncommon to emphasize teleological interpretation for institutional conventions because international organizations are fundamentally finalist companies, one seeks to cooperate on a finalized object, when seeking a common goal, this common goal is a slightly higher weight in an interpretation. The same applies to the charters of associations in private law.
Often there are functional interpretations within the framework of institutional treaties, this argument is an argument that is found with particular frequency in institutional treaties, it is not so strongly represented in other contexts.
Dynamic interpretation is more often adopted in institutional treaties than in other treaties such as bilateral treaties.
Dynamic interpretation means that we are trying to read the terms not in the sense that they might have been at the time the treaty was adopted for the Charter, for example in 1945 when the legislator wrote the text, but we are trying to see what meaning the words can have in today's society, it is an evolving or dynamic interpretation.
In institutional treaties, it is understood that dynamic interpretation is often preferred, because the organization must work today. This is why preparatory work is also more often marginalized than elsewhere.
In a bilateral treaty, it will not be uncommon for the operation to use preparatory work to discover what the parties wanted, when interpreting the institutional treaties, a certain distance is regained, according to Judge Alvarez, the institutional treaty is like a ship.
Finally, there is a marked tendency to take into account the practice of the organs in interpreting the texts. This is not very specific to these treaties, subsequent practice always counts, but what is interesting in institutional treaties is that there is not only the subsequent practice of Member States, but also the subsequent practice of the organs of the organizations.
It is also necessary to consider Article 27.3 of the Charter regarding the affirmative vote and veto, a subsequent practice of the Security Council and its members. The practice of this body had weight in determining what is meant by "affirmative vote" in Article 27.3.
In the interpretation there are different methods, there is the case of the 1960 IMCO Committee where the Court interprets restrictively, but rather the use of these previously stated methods is noted, it is a distinctive feature in the interpretation.
We have discussed interpretation, but a few words must be said about amending the Treaties.
Modification[edit | edit source]
General rules on treaty modification are strict and difficult to implement, the reason being that a treaty concluded between X States can only be modified by agreement between the X States, a treaty grants rights and imposes obligations, when a State or a subject is granted rights one cannot unilaterally remove them otherwise they would no longer be rights.
The treaty is very rigid, we can explore changes, but if one does not agree there are problems.
The alternative in general international law is to conclude a limited treaty, it is possible to do so if it is not contrary to the object and purpose of the treaty to conclude a treaty without certain parties, but vis-à-vis the others one is bound by the whole, the only result is to fragment the treaty regime.
It is sometimes laborious, so for institutional treaties even if you want to have such a regime, it does not work because you cannot have the functioning of an international organization with a variable geometry.
This is why all these international organizations have special rules on the modification of institutional treaties, it is a matter that has a special lex rule.
The amendment of the Charter is provided for in Articles 108 and 109 of this instrument, the difference between these two provisions is no longer significant today. 108 are the amendments to the Charter and 109 the overall revision of the Charter.
Article 108 is the one-off amendments, there have been three amendments to the Charter on the basis of Article 108. Both of them concerned the modification of the number of States sitting in certain bodies.
If we look at the rules for these amendments, they are the same in articles 108 and 109, except that in 109 there is a constituent assembly, the amendment, whatever it is, must be voted on in the General Assembly by two thirds of the members and subsequently ratified by two thirds of the members of the organization; two thirds must vote on the amendment and then two thirds ratify the amendment.
There is the rule that in the two-thirds who vote and ratify the amendment there must be the five permanent members.
Obviously, it is very difficult to achieve these conditions, not only because two thirds and relatively massive and it takes a lot of time to get X States to ratify this.
For reforms other than purely digital ones, this would be more difficult to achieve.
These rules facilitate modification because under general international law all States would have needed to modify the treaties and in the Charter only two thirds of States are required; when the modification is thus adopted by two thirds including all five. When this amendment is passed, it applies to all members of the United Nations, including those who voted against it, precisely because institutional functioning requires single rules.
It was agreed at the San Francisco conference that trapped states would have the option of leaving the organization so that they would not be subject to the amendment they disapprove of.
Formal amendments are facilitated in the instruments of international organizations in relation to general international law, only a certain number of States are needed in order to have an amendment that is binding on all, whereas in general international law in order to have an amendment that is binding on all, all States are required.
There are not only formal changes, the institutional charters of international organizations are living instruments because they must adapt to the life of organizations, the instruments of international organizations often evolve through informal instruments.
Both from the point of view of formal changes there are particular rules and there is a tendency for informal changes, institutional treaties look like constitutions here.
Hierarchy[edit | edit source]
Finally, the treaties of international organizations and more generally international organizations are based on a hierarchy of sources; the constitutive treaty of organizations is at the top of the sources within organizations, it is the founding legal text and superior to the other sources of the organization.
Superior means that a resolution is adopted under the constitutive treaty, so it must comply with the constitutive treaty.
The Treaty is at the top because it is the expression of the will of the Member States who are the supreme legislator; the constitutive treaty by which the States express their will is the supreme rule.
Treaties and custom are generally placed on an equal footing, neither the treaty nor custom is superior to either.