International Institutional Law: Unity Within Diversity Fourth Edition

INTERNATIONAL INSTITUTIONAL LAW

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Henry G. Schermers & Niels M. Blokker

International Institutional Law Unity within diversity

Fourth Revised Edition

MARTINUS NIJHOFF PUBLISHERS BOSTON / LEIDEN

A C.I.P. Catalogue record for this book is available from the Library of Congress.

Layout and camera-ready copy: Anne-Marie Krens, Tekstbeeld – Oegstgeest, The Netherlands Printed on acid-free paper. ISBN 90-04-13828-5 © 2003 Koninklijke Brill NV, Leiden, The Netherlands Brill Academic Publishers incorporates the imprint Martinus Nijhoff Publishers. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change.

Printed and bound in The Netherlands

Preface

We depend for our future on international order. Our destiny is increasingly influenced by the activities – or lack thereof – of international organizations. Consequently, it seems appropriate to analyze more closely the law of international organizations. Obviously, each organization has its own rules and practice, unique and designed for the realization of its objectives. A large number of studies have therefore already been devoted to specific organizations such as the United Nations, the Organization of American States, the European Union, the Organization of the Petroleum Exporting Countries, the European Bank for Reconstruction and Development, and the World Trade Organization. Nevertheless, international organizations also have much in common and are confronted with a large number of similar day-to-day problems. For example, all organizations of which the Soviet Union was once a member needed to respond to its disintegration: should the Russian Federation step into the shoes of the Soviet Union, without being formally admitted as such, or should it be admitted as a new member? Should the chairman of an international organ remain in office when a subject on the agenda directly concerns his country? Should the secretariat of the organization be composed of civil servants selected exclusively on the basis of their professional qualifications, or should it have a certain number of nationals of all member states as staff members? Should specific organs be created to deal with disputes between the organization and its personnel? How can effect be given to the desire of the organization to invite persons to its meetings despite the fact that the host state would normally refuse these persons access to its territory? With respect to voting, should each member state have one vote (reflecting the formal rule of sovereign equality of states) or should members have different voting strength (reflecting factual inequalities between member states)? These examples demonstrate that international organizations, despite their widely diverging objectives, powers, fields of activity and number of member states, share all kinds of problems. The rules for dealing with these problems are often similar. When a new organization is established, a number of its rules are copied – mutatis mutandis – from other organizations. Many writers take the view that in practice, although each organization has its own legal order, common rules or principles have developed. These shared problems, rules and principles of international organizations concern institutional legal matters in particular. Institutional law does not differ dramatically from one organization to the next; each organization needs rules concerning, for example, its

vi

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internal structure, membership, decision-making, financing, relations with the host state, and these rules often bear strong similarities. This book offers a comparative study of the institutional law of international organizations. Although each organization has its own legal order, institutional problems and rules of different organizations are often more or less the same and, in practice, an impressive body of institutional rules has developed. This explains the subtitle of this book: unity within diversity. Much has changed in our field of study since 1972, when the first edition of this book was published. The international political context has changed, and this has affected the functioning of international organizations. The Cold War era and the period following the end of the Cold War passed by. Now, at the beginning of the 21st century, a new situation has emerged in which there is only one superpower, whose dominant position also has its influence on the law of international organizations. Another change since the publication of the first edition is the different attitude of governments towards international organizations. For a considerable number of years following the end of the Second World War an international organization was established almost automatically as soon as an international problem and the need to cooperate were identified. In more recent years however, in particular since the 1990s, the opposite attitude has become predominant: at present, states almost instinctively express their wish not to create a new organizations once a problem presents itself with the need to cooperate. With regard to existing organizations, the responsibility for their own acts as well as larger questions of accountability are now hotly debated in academic writings and in practice. Nevertheless, while much has changed, much also has remained the same. Plus ça change, plus ça reste la même chose. In practice, the creation of larger or smaller organizations such as the Organization for the Prohibition of Chemical Weapons, the International Criminal Court and the Agency for International Trade Information and Cooperation has appeared to be a simple necessity. In addition there continues to be a large amount of – often related – legal questions with which international organizations are confronted regularly. The first author has taught a specialized course on international institutional law since 1963, first at the Law Faculty of the University of Amsterdam and subsequently at the Law Faculty of the University of Leiden. From 1984 to 1993, this course was given jointly with the second author. Following his retirement, the first author has continued to be involved in the teaching and research in this field. The second author in 2000 joined the legal service of the Dutch Foreign Ministry. Needless to say, the views expressed in this work are personal views and are not necessarily the same as those of the Dutch government. Since 2003 the second author has returned on a parttime basis to the Law Faculty of Leiden University where he is teaching a course on international institutional law.

Preface

vii

In the previous editions of this book, published in 1972, 1980 and 1995, acknowledgements were made to many people. For the present, fourth edition we would like to repeat these acknowledgements. Although the text has been updated and revised, the previous editions have been the foundation without which no fourth edition would have been possible. Many people have assisted in the preparations for this fourth edition. We thank our colleagues and friends from the academic world for their stimulating comments and help. In addition, a large number of staff members of Dutch ministries and of the secretariats of many international organizations have provided us with extremely valuable written and unwritten information. The world of the academic is quite different from that of the practitioner, we therefore greatly appreciate this assistance. From the very beginning of work on this 4th edition, we have enjoyed the confidence of Martinus Nijhoff Publishers that has recently become part of Brill Academic Publishers. Annebeth Rosenboom has continuously supported our work in numerous ways. Anne-Marie Krens has prepared the camera-ready text. We would like to thank both of them for outstanding cooperation. Preparations for the fourth edition of this book started in 2000. We have tried as much as possible to cover developments relevant for this book up to the summer of 2003. Our field of study is vast, institutional rules are numerous and sometimes complex, and practical developments have also been legion. In a general comparative study, it is impossible to discuss every aspect in detail, and omissions are unavoidable. Suggestions for improvement are therefore most welcome at the Department of Public International Law of the Leiden Law Faculty, P.O. Box 9520, NL-2300 RA Leiden, The Netherlands.

Leiden, October 2003

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Table of contents

PREFACE LIST

OF ABBREVIATIONS

V XXVII

CHAPTER 1 INTRODUCTION I.

II.

International institutional law A. A classic theme: interdependence and state sovereignty B. Objectives 1. To describe and analyze international institutional law 2. To contribute to improvements in practice 3. To contribute to a better understanding of international institutional law C. Unity within diversity? D. Method

§1 §1 §6 §7 § 12

Definition A. International cooperation, international organizations, (con)federations B. A definition: three elements 1. The first element 2. The second element 3. The third element C. International organizations, international corporations, non-governmental organizations

§ 29

§ 13 § 22 § 26

§ § § § §

29 32 34 44 45

§ 46

III. Classification A. Criteria for classification B. Universal versus closed organizations 1. Universal organizations 2. Closed organizations C. Intergovernmental versus supranational organizations 1. Intergovernmental organizations 2. Supranational organizations D. Special versus general organizations 1. Special organizations 2. General organizations

§ § § § § § § § § § §

48 48 51 51 53 58 58 60 63 63 64

IV. Conclusion

§ 65

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CHAPTER 2 PARTICIPANTS I.

II.

Full members A. Subjects of membership 1. States 2. Territories which are not independent states 3. Groups of states 4. International organizations B. Commencement of membership 1. Establishment of the organization 2. Re-admission of ex-members 3. Admission of new members a. Admission by constitutional amendment b. Conditions imposed by the constitution 4. Acceptance of membership 5. Date of commencement of membership 6. Establishment of new states C. Termination of membership 1. Withdrawal by the member a. Constitutional provisions b. Withdrawal without constitutional provision (i) Interpretative declarations (ii) Practical experience (iii) Legality c. Partial withdrawal 2. Expulsion from the organization a. The notion ‘expulsion’ (i) Expulsion versus suspension (ii) Expulsion as a sanction (iii) Expulsion to protect the organization b. Constitutional provisions c. Expulsion without constitutional provision 3. Disappearance of the member or loss of essential qualifications 4. Dissolution of the organization D. Rights and obligations of full members 1. Individual rights and obligations 2. Collective rights and obligations

§ 71 § 71 § 71 § 75 § 79 § 81 § 85 § 85 § 87 § 88 § 88 § 90 § 100 § 102 § 103 § 118 § 119 § 120 § 123 § 123 § 125 § 134 § 136 § 137 § 138 § 139 § 140 § 141 § 143 § 146

Associate members

§ 166

§ § § § §

149 154 155 156 162

III. Partial members

§ 169

IV. Affiliate members

§ 172

V.

§ § § § §

Observers A. General B. Categories of observers 1. Non-member states 2. National liberation movements

173 173 179 180 182

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3. Public international organizations 4. Private organizations 5. Individuals and private companies VI. Concluding observations CHAPTER 3 RULES

§ 185 § 188 § 196 § 198

FOR INTERNATIONAL ORGANS

I.

Powers A. Attribution of powers 1. General 2. Attribution of powers to the organization 3. The concept of domestic jurisdiction 4. Attribution of powers to organs of the organization B. Delegation of powers C. Sacrifice of powers D. Implied powers

§ § § § § § § § §

206 206 206 209 211 217 224 231 232

II.

Composition of organs A. Size B. Representation of members 1. Representation by a delegation a. Denomination b. Instructions c. Size of delegations d. Composition of delegations (i) Governmental delegates (ii) Delegates representing specific interests (iii) Delegates from national parliaments (iv) Foreign delegates (v) Multinational delegations e. Obligation to send a delegation f. Credentials 2. Representation by proxy C. Use of individual experts D. Use of civil servants E. Equitable representation of interests 1. Equitable geographical representation a. Need for regional representation b. Composition of regions 2. Equitable representation of specific interests 3. Means of strengthening representation F. Election of non-plenary organs 1. Election by the entire organization 2. Election by the region or group concerned 3. Election or rotation? 4. Co-option 5. Term of office 6. Dates of replacement G. Quorum

§ § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § §

237 237 238 239 239 240 242 243 243 250 251 253 254 255 256 264 267 275 276 276 276 277 280 282 285 286 289 295 296 297 299 302

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III. Functioning A. Sessions 1. Characteristics 2. Frequency and duration 3. Specialized sessions 4. Costs 5. Place 6. Public and private meetings, publicity and transparancy 7. Documentation 8. Privileges and immunities at sessions a. Definition b. Why are privileges and immunities granted to international organizations? c. Instruments laying down privileges and immunities d. Subjects of privileges and immunities (i) Individual experts (ii) Delegates of members (iii) Delegates of non-members (iv) Delegates of other public international organizations (v) Delegates of private international organizations and individuals 9. Procedure a. Agenda b. General debate c. Discussion of agenda items d. Statements of delegations e. Limits to freedom of speech f. Procedural motions B. Officers 1. Chairman a. Appointment b. Powers and obligations 2. Vice-presidents and bureau 3. Rapporteurs C. Languages IV. Concluding observations

CHAPTER 4 POLICY-MAKING

§ § § § § § § § § § §

306 306 306 309 312 313 317 321 322 323 323

§ § § § § § §

324 325 326 326 327 332 333

§ § § § § § § § § § § § § § §

334 337 338 340 342 343 346 349 354 354 354 361 365 366 367

§ 376

AND ADMINISTRATIVE ORGANS

I.

Classifying international organs

§ 384

II.

Policy-making organs A. Plenary policy-making organs 1. General congress or council of ministers a. Denomination b. Task 2. Junior congress 3. Specialized congresses

§ § § § § § §

389 390 390 390 391 393 396

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4. Plenary commissions a. Congressional commissions b. Plenary functional commissions B. Non-plenary policy-making organs 1. The need for non-plenary policy-making organs 2. The board a. Executive board (i) Task (ii) Composition b. Governing board (i) Task (ii) Composition 3. Commissions and committees a. Functional commissions b. Consultative commissions of interest groups c. Ad hoc advisory commissions d. Procedural committees e. Regional commissions and regional groups 4. President of the organization

§ § § § § § § § § § § § § § § § § § §

400 401 404 406 406 409 410 410 412 415 415 418 421 422 424 426 427 428 432

III. Secretariat A. Description B. Tasks and influence of the secretariat 1. Functions a. Administrative and clerical functions b. Budget c. Information d. Recording e. Collection of reports from member states f. Collection of information from member states g. Coordination h. Representation of the organization i. Assistance to members j. Observation of elections k. Depositary of treaties l. Executive functions m. Right of initiative n. Good offices, mediation, conciliation, arbitration o. Performance of instructions 2. Powers 3. Delegation of tasks; outside experts C. Seat 1. Requirements 2. Centralization 3. Decentralization: regional offices D. International civil servants 1. Appointment 2. Number of international civil servants 3. Qualifications

§ § § § § § § § § § § § § § § § § § § § § § § § § § § § §

434 434 439 442 442 443 444 445 446 447 448 450 454 456 457 459 461 462 464 465 466 469 469 478 489 491 492 496 498

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4. Geographic distribution 5. Conditions of employment a. Grades b. Remuneration c. Pension and social security d. Obligations e. Permanent or temporary employment f. Internships 6. Independence a. Relation with the national governments b. Privileges (i) Exemption from taxation (ii) Other privileges c. Immunity from jurisdiction (i) Immunity for official acts (ii) Immunity for other acts (iii) Waiver of immunity 7. The safety of personnel 8. Legal position a. Law governing the service b. Legal protection

§ § § § § § § § § § § § § § § § § § § § §

500 506 508 511 515 516 518 523 524 525 529 530 533 534 534 535 536 538 539 539 542

IV. The European Commission A. Task B. Composition

§ 547 § 547 § 550

V.

§ 551

Concluding observations

CHAPTER 5 ADVISORY

AND SUPERVISORY ORGANS

I.

Parliamentary organs A. Need for parliamentary organs B. International organizations with parliamentary organs C. Composition of parliamentary organs 1. Size 2. Election of members 3. Parties D. Tasks of parliamentary organs 1. Control over the executive 2. Control over the budget 3. Advisory functions a. Advising national parliaments b. Advising international organs c. Participation in decision-making E. Functioning of parliamentary organs

§ § § § § § § § § § § § § § §

558 558 564 568 568 570 574 576 576 582 584 585 587 589 594

II.

Judicial organs A. The need for judicial organs 1. Control of the legality of decisions

§ 597 § 597 § 599

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2. Administrative jurisdiction over staff members § 602 3. Control of the application of acts within the national legal orders § 603 4. Private law § 604 B. Existing judicial organs § 605 1. Universal judicial organs § 605 a. The International Court of Justice § 605 b. Ad hoc tribunals on war crimes and the International Criminal Court § 608 c. The Human Rights Committee § 609 d. The Committee on Economic, Social and Cultural Rights § 610 e. The Committee on the Elimination of Racial Discrimination § 611 f. The Committee on the Elimination of Discrimination against Women § 612 g. The Committee against Torture § 613 h. The Committee on the Rights of the Child § 614 i. The Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families § 615 j. The International Tribunal for the Law of the Sea § 616 2. Regional judicial organs § 617 a. The Court of Justice and the Court of First Instance of the European Communities § 618 b. Benelux Court of Justice § 622 c. The EFTA Court of Justice § 623 d. The Andean Court of Justice § 624 e. The European Court of Human Rights § 625 f. American organs for human rights § 629 g. African Commission on Human and People’s Rights and the proposed African Human Rights Court § 630 h. Central Commission for the Navigation of the Rhine § 631 i. Other river commissions § 632 j. European Tribunal on State Immunity § 633 k. Tribunal of the OECD Nuclear Energy Agency § 634 l. Tribunal of WEU § 635 m. Tribunal of International Composition in the Saar § 636 n. Central American Court of Justice § 637 o. Judicial Commission of the OAPEC § 638 p. Common Market Tribunal of the East African Community § 639 q. Court of Appeal for East Africa § 640 r. Court of Justice of the Common Market for Eastern and Southern Africa § 641 s. Tribunal of the South African Development Community § 641A 3. Staff administrative tribunals § 642 a. The UN Administrative Tribunal (UNAT) § 642 b. The ILO Administrative Tribunal (ILOAT) § 643 c. The World Bank Administrative Tribunal § 645 d. The Administrative Tribunal of the International Monetary Fund § 646 e. Regional administrative tribunals § 647

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4. Arbitration, conciliation, mediation and factfinding commissions 5. Other bodies C. Composition of judicial organs 1. Number of members 2. Nationality of the members 3. Qualifications 4. Appointment 5. Independence of judges 6. Advocates-General 7. Registrar’s office D. Procedure before judicial organs 1. Access to the court a. Plaintiff b. Defendant 2. Decision a. Judgment b. Other decisions 3. Separate opinions III. Concluding observations

CHAPTER 6 DECISION-MAKING

§ § § § § § § § § § § § § § § § § §

648 670 672 672 675 679 680 683 684 685 686 687 688 692 693 693 694 695

§ 700

PROCESS

I.

The concept of a decision

§ 706

II.

Legal basis

§ 708

III. Initiative A. Necessity for initiatives B. Initiatives by governments C. Initiatives by organs of the organization 1. Secretariat 2. Organs of independent experts D. Initiatives by other international organizations E. Initiatives by interest groups F. Initiatives by individuals

§ § § § § § § § §

710 710 711 712 712 715 719 720 721

IV. Drafting of the text A. Preparation of proposals 1. Submission 2. The draft 3. Two examples a. Law-making in the UN b. Law-making in the European Community B. Discussion of proposals 1. Date of submission 2. Sponsors 3. Amendments

§ § § § § § § § § § §

725 725 725 727 729 730 739 747 747 750 752

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4. 5. 6. 7. 8. 9. 10. 11. V.

Time-limits, marathon sessions Package deals Informal consultation, pressure Caucuses Negotiating groups Withdrawal of proposals and amendments Financial implications of resolutions Closure of discussions

Decision-making by consensus A. Introduction B. Some examples C. Explaining the decline of majority voting and the rise of consensus

VI. Voting A. Unanimity 1. Organizations requiring unanimity 2. Exceptions to unanimity B. Voting power 1. Equality of voting power 2. Inequality of voting power a. Permanent seats and weighted representation b. Weighted voting (i) Desirability (ii) Some examples c. Veto C. Required majority 1. Kinds of majorities 2. Calculation of majorities a. Majority of membership b. Majority of the votes c. Abstention d. Non-participation in the vote (or in a consensus) e. Absence f. Invalid vote 3. Unqualified majority a. Voting between two alternatives b. Voting between several alternatives c. Multiple elections 4. Qualified majority a. Two-thirds majority b. Other qualified majorities 5. Qualified minorities 6. Factors influencing the majority to be preferred a. The need for a decision b. The effect of the decision c. Structure and procedures of the decision-making organ D. Methods of voting 1. Simultaneous open voting 2. Roll-call or recorded vote

xvii

§ § § § § § § §

753 756 760 763 766 768 769 770

§ § § §

771 771 773 781

§ § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § §

787 787 788 789 791 791 794 794 795 795 799 813 817 817 820 821 823 824 830 831 837 838 838 842 849 851 851 855 856 857 858 861 863 868 869 871

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3. Secret vote 4. Vote by correspondence 5. Alteration of votes cast E. Conditional voting

§ § § §

873 876 882 884

VII. Entry into force of decisions A. Immediate entry into force B. Previous agreement of other organs C. Previous agreement of member states

§ § § §

888 888 889 892

VIII.

§ § § § § § § § § § § §

897 898 898 905 907 908 910 911 912 912 914 915

Termination of decisions A. Amendment and revocation 1. Amendment 2. Revocation 3. Withdrawal B. Termination of membership C. Dissolution of the organization D. Political annulment E. Judicial annulment 1. Possibility of annulment 2. Initiative for judicial annulment 3. Grounds of illegality

IX. Concluding observations

§ 917

CHAPTER 7 FINANCING I.

Expenditure A. Total expenditure B. Classification of costs 1. Methods of classification a. Budgeting according to instrument or to activity b. Administrative or operational expenditure 2. Fields of activity: some examples a. General overview b. Development assistance; “economic and social cohesion” c. Peace-keeping 3. Instruments a. Personnel b. Sessions of the organs of the organization c. Buildings d. Equipment e. General expenses

§ § § § § § § § § § § § § § § §

928 928 931 931 931 938 942 943 945 951 955 956 957 960 963 964

II.

Income A. Contributions 1. Contributors 2. The sharing of expenditure a. Equal contributions

§ § § § §

965 966 966 967 967

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B.

C.

D.

E.

b. Optional classes of contribution c. Scales of assessment (i) Capacity to pay (ii) Interest in the work of the organization and other factors (iii) Flexibility of scales 3. Limits to contributions of members a. Minimum contribution b. Maximum contribution c. Maximum expenditure d. Special rates 4. The organs involved 5. Currencies of contributions 6. Defaults in payment a. Refusal to pay b. Incentives to pay c. Filling the gap: working capital funds 7. Table of contributions Voluntary contributions 1. The principle of voluntary contributions 2. Existing systems of voluntary contributions 3. Trust funds 4. International organizations contributing to voluntary programmes 5. Voluntary contributions from non-members 6. Raising voluntary contributions a. Pledging b. Collection of voluntary contributions Gifts 1. Gifts which benefit the budget of the organization 2. Gifts for specific programmes 3. Acceptance of gifts Self-support 1. Income from services rendered to states a. Retributions b. Requested services c. Cost sharing for specific projects d. Special payment by the states responsible for the expense 2. Income from services rendered to individuals 3. Income from services rendered to other international organizations 4. Income from investments and borrowing 5. Income from staff assessment 6. “Book-keeping” income Taxation 1. Definition of taxation 2. Conditions for international taxation 3. Existing systems of taxation

xix

§ 969 § 974 § 976 § 980 § 986 § 992 § 992 § 993 § 1001 § 1002 § 1005 § 1006 § 1010 § 1010 § 1014 § 1017 § 1021 § 1022 § 1022 § 1026 § 1029 § § § § § § § § § § § § § § § §

1032 1033 1034 1034 1037 1040 1040 1043 1049 1050 1051 1051 1053 1056 1057 1058

§ § § § § § § §

1062 1064 1070 1073 1074 1074 1075 1081

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III. Budget A. Use of the budget 1. Purpose 2. One budget? 3. Structure 4. Explanatory memorandum 5. Budgetary periods 6. Medium-term financial plans B. Preparation 1. Regular estimates 2. Revised estimates C. Adoption and execution 1. The decision establishing the budget 2. Power of the organ adopting the budget 3. Execution and supplementary estimates 4. Budgetary surpluses D. Audit 1. Internal audit 2. External audit

§ § § § § § § § § § § § § § § § § § §

IV. Concluding observations

§ 1131

CHAPTER 8 LEGAL

1091 1091 1091 1094 1097 1100 1101 1103 1105 1105 1108 1109 1109 1111 1121 1122 1123 1123 1125

ORDER

I.

Introduction

§ 1139

II.

Constitution A. Legal force B. Characteristics 1. Creation of a legal person 2. Limitation on reservations 3. Withdrawal 4. Tacit renewal C. Amendment of the constitution 1. Necessity for amendments 2. Constitutional requirements for amendments a. Legal character of constitutional provisions on amendment b. Existing constitutional requirements (i) Temporary exclusion of amendments (ii) Amendment requiring the cooperation of organs in addition to unanimity of the members (iii) Amendment by unanimous approval of the members (iv) Amendment by qualified majority of the members (v) Amendment by decision (vi) Amendments without general application 3. Amendment procedure a. Competent organ b. Right of initiative c. Time limits

§ § § § § § § § § § § § §

1145 1146 1147 1148 1150 1154 1155 1157 1157 1163 1163 1165 1166

§ § § § § § § § §

1168 1169 1173 1178 1187 1189 1189 1190 1191

Table of contents

d. Provisional application e. Amendments creating new obligations f. Entry into force of amendments 4. Revision III. Decisions of the organization A. Internal rules 1. Rules concerning the functioning of the organization 2. Internal rules with external effect a. Possibility of external effect b. Operational activities c. Competence to engage in operational activities B. External rules 1. Recommendations a. The notion “recommendation” b. Factors which strengthen recommendations (i) Constitutional provisions (ii) Structure of the organization (iii) The method of enactment (iv) Formal acceptance (v) The need for a rule (vi) The application by others (vii) The moral or legitimizing effect (viii) Restatement c. Internal effects of recommendations 2. Declarations a. The notion “declaration” b. Legal effect 3. Conventions a. The notion “convention” (i) Denomination (ii) Special forms of conventions (iii) Characteristics b. Competence to make conventions c. Legal force before ratification d. Ratification (i) The requirement of ratification (ii) Pressure to ratify (iii) Negative acceptance (contracting out, tacit acceptance) (iv) Provisional application e. Legal effect after ratification f. Possible parties to conventions (i) Members (ii) Non-members (iii) Other international organizations g. Final clauses h. Amendment 4. Binding rules a. Denomination

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§ § § §

1192 1193 1194 1195

§ § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § §

1196 1196 1201 1206 1206 1208 1210 1216 1217 1217 1220 1221 1223 1224 1231 1233 1237 1238 1240 1241 1244 1244 1248 1262 1262 1262 1263 1266 1271 1276 1281 1281 1282 1288 1295 1297 1298 1298 1300 1305 1306 1311 1318 1322

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b. Types of binding decision (i) Decisions addressed to governments (ii) Decisions addressed to individuals (iii) General regulations

§ § § §

1323 1323 1330 1332

IV. Other elements of the legal order A. International law B. General principles of law C. Customary law

§ § § §

1335 1335 1336 1339

V.

§ 1340

Concluding observations

CHAPTER 9 INTERPRETATION

AND SETTLEMENT OF DISPUTES

I.

Means of interpretation

§ 1346

II.

Authorities charged with interpretation A. Interpretation by the members 1. National executives 2. National courts B. Interpretation by organs of the organization 1. Policy-making organs 2. Judicial organs a. Judgments b. Advisory opinions c. Preliminary rulings

§ § § § § § § § § §

1351 1351 1351 1352 1355 1355 1363 1364 1366 1374

III. Competence to request interpretation A. Organs of the organization B. Members of the organization C. Private persons D. National courts

§ § § § §

1379 1379 1380 1384 1385

IV. Concluding observations

§ 1387

CHAPTER 10

SUPERVISION

AND SANCTIONS

I.

Definitions A. Internal supervision B. External supervision

§ 1392 § 1392 § 1395

II.

Supervision of the implementation of rules A. Supervision by other members acting on their own account B. Supervision by or on behalf of the organization 1. Supervision based on reports of the members 2. Supervision based on information collected by the organization

§ 1399 § § § §

1400 1402 1402 1406

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3. Supervision based on inspection a. Continuing supervision b. Retrospective fact-finding C. Supervision by individuals 1. Petitions 2. Court proceedings 3. National committees 4. Effect

§ § § § § § § §

1414 1415 1424 1428 1429 1435 1436 1437

III. Official recognition of violations

§ 1439

IV. Waiver of obligations

§ 1444

V.

§ § § § § § § § § § § § § § § § §

1445 1449 1450 1450 1455 1461 1463 1466 1470 1475 1476 1478 1487 1513 1518 1521 1522

§ § § § § §

1522 1522 1538 1541 1545 1549

Sanctions A. Sanctions by the other members B. Sanctions (authorized) by the organization 1. The possibility of imposing sanctions 2. Suspension of voting rights 3. Suspension of representation 4. Suspension of services of the organization 5. Suspension of rights and privileges of membership 6. Expulsion from specific organs 7. Expulsion from the organization 8. Sanctions through other organizations 9. Economic sanctions 10. Forces of international organizations and military enforcement 11. Other sanctions C. Enforcement within the national legal order 1. Enforcement through national parliaments 2. Enforcement through national courts a. Should national courts apply rules of international law? (i) Monist and dualist theories (ii) Application of constitutional provisions (iii) Application of international decisions b. Initiative for decisions of national courts D. Sanctions against individuals

VI. Concluding observations

CHAPTER 11 I.

LEGAL

§ 1553

STATUS

Status in international law A. Personality of international organizations in international law B. Application of international law 1. General principles of law 2. Treaty law 3. Customary law 4. Decisions of other international organizations

§ § § § § § §

1562 1562 1572 1575 1577 1579 1580

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C. Responsibility and liability under international law

§ 1582

Status in national law A. Personality of international organizations in domestic law 1. Personality in the law of member states a. Constitutional provisions b. Provisions in national law c. In the absence of express provisions 2. Personality in the law of non-member states B. Application of domestic law 1. Competence to make use of national laws 2. The law to be applied 3. Limits imposed by privileges 4. Limits imposed by immunity from jurisdiction 5. Liability under private law

§ § § § § § § § § § § § §

1591 1591 1591 1591 1592 1594 1598 1599 1599 1601 1606 1610 1613

III. Duration A. Establishment B. Dissolution of the organization 1. Termination or succession 2. Methods of dissolution a. Constitutional provisions b. Provisions in other treaties and implied succession c. Acts of the general congress d. Agreements with other international organizations e. Disuse f. Constitutional amendment g. Changed circumstances h. Conclusion 3. Consequences of dissolution a. Functions of the organization b. Legal acts of the organization (i) Recommendations and declarations (ii) Conventions (iii) Internal rules (iv) General regulations (v) Binding Decisions (vi) Agreements (vii) Contracts c. Personnel of the organization d. Property of the organization 4. Conclusion

§ § § § § § § § § § § § § § § § § § § § § § § § § §

1617 1617 1623 1623 1629 1629 1632 1637 1639 1640 1641 1642 1644 1645 1645 1648 1650 1651 1654 1656 1657 1661 1665 1666 1673 1680

IV. Concluding observations

§ 1681

II.

CHAPTER 12 I.

EXTERNAL

RELATIONS

Partners for external relations A. Relations with states 1. Non-members

§ 1687 § 1687 § 1687

Table of contents

II.

xxv

2. Members 3. Host states B. Relations with other international organizations 1. “Families” of international organizations a. The “UN family” b. The European Union c. Inter-American organizations d. Other families 2. Coordination a. The need for coordination b. Forms of coordination c. Coordination at international level (i) Priority for the acts of one organization (ii) Delimitation of competences (iii) Common organs (iv) Joint sessions and meetings (v) Exchange of observers (vi) Reporting (vii) Organizations and organs responsible for coordination (viii) Planning (ix) Exchanges (x) Training d. Coordination at national level

§ § § § § § § § § § § § § § § § § §

1688 1689 1691 1691 1692 1698 1699 1701 1702 1702 1705 1706 1707 1712 1715 1721 1723 1724

§ § § § §

1726 1732 1733 1738 1739

Instruments of external relations A. Agreements 1. The notion “agreement” 2. Competence to conclude agreements a. The treaty-making capacity of international organizations b. Mixed agreements c. The competent organ 3. The subject matter of agreements a. Agreements on the status of the organization and on relations with others b. Agreements on assistance to members c. Agreements concerning the organization’s field of operation d. Law-making agreements e. Establishment of new international organizations 4. The legal force of agreements a. Legal character b. Validity c. Binding force 5. The conclusion, entry into force and termination of agreements a. Negotiation and signature b. Ratification c. Entry into force d. Reservations

§ § § § § § § §

1742 1743 1744 1748 1748 1756 1763 1769

§ 1770 § 1771 § § § § § § §

1772 1773 1776 1783 1783 1784 1787

§ § § § §

1789 1789 1791 1794 1795

xxvi

Table of contents

B.

C.

D.

E. F. G. H. I. J.

e. Registration f. Termination Diplomatic relations 1. The notion “diplomatic relations” 2. Passive legation 3. Active legation a. The right of active legation b. Permanent missions to members (i) Missions for development (ii) Missions for other purposes (iii) National committees c. Special missions to members d. Missions to non-members e. Missions to other international organizations f. Delegations to international conferences Recognition of other subjects of international law 1. Recognition of states 2. Recognition of governments 3. Recognition of territorial sovereignty 4. The competent organ 5. “Passive” recognition Judicial actions and responsibility under public law 1. Competence to bring and receive international claims 2. The possibility to bring international claims to court Convening international conferences Issuing passports Depositary of treaties Registration of treaties Registration of ships and aircraft Flag, seal and emblem

III. Concluding observations

CONCLUDING

§ § § § § § § § § § § § § § § § § § § § § § § § § § § § § §

1796 1799 1801 1801 1803 1816 1816 1820 1820 1829 1831 1832 1834 1840 1841 1843 1845 1851 1852 1853 1855 1856 1856 1859 1860 1863 1867 1868 1870 1872

§ 1875

REMARKS

I.

Introduction

II.

The relationship between (member) states and international organizations

§ 1884 § 1885

III. Diversity of rules of international institutional law

§ 1889

IV. Unity of rules of international institutional law

§ 1894

V.

§ 1898

Towards more centralized international law?

ANNEX – SELECTED

BIBLIOGRAPHY ON INDIVIDUAL INTERNATIONAL

ORGANIZATIONS

INDEX

p. 1215 p. 1247

List of abbreviations

ACABQ ACC Albany L. Rev. Am. U.J. Int’l L. & Pol’y Am. Rev. Int’l Arb. Annu. Eur. Annu. Eur. d’Adm. Publ. AFDI AJIL AJPS APSR ASEAN AU Aussenpolit. AVR Benelux BIRPI BIS Boston College Third World L.J. Brooklyn J. Int’l L. BYIL CAC Calif. W.Int’l L.J. Caricom Case W. Res. L. Rev. CDE CEB CERN Chr.Pol.ét. Chula. L. Rev. CILSA Comp. L. Yb.

Advisory Committee on Administrative and Budgetary Questions Administrative Committee on Coordination Albany Law Review The American University Journal of International Law and Policy American Review of International Arbitration Annuaire Européen Annuaire Européen d’Administration Publique Annuaire français de droit international American Journal of International Law American Journal of Political Science American Political Science Review Association of South East Asian Nations African Union Aussenpolitik Archiv des Völkerrechts Belgium, the Netherlands and Luxembourg Economic Union Bureaux Internationaux Réunis pour la Protection de la Propriété Intellectuelle Bank for International Settlements Boston College Third World Law Journal Brooklyn Journal of International Law British Year Book of International Law Codex Alimentarius Commission California Western International Law Journal Caribbean Community Case Western Reserve Law Review Cahiers de droit européen United Nations System Chief Executives Board for Coordination European Organization for Nuclear Research Chronique de Politique étrangère Chulalongkorn Law Review The Comparative and International Law Journal of Southern Africa Comparative Law Yearbook

xxviii

CILJ CIM CIV CJTL CMEA CMLR CMLRev. CoE Col.LR Comecon Cornell ILJ CSCE CYIL Dalhousie L.J. Déf. Nat. Denver JILP Dick. J. Int’l L. EA EBRD ECA ECAFE ECE ECLA ECLAC ECMWF ECOSOC ECOWAS ECR ECSC ECWA E(E)C EFAR EFTA EJIL ELR

1.

List of abbreviations

Cornell International Law Journal International Convention Concerning the Carriage of Goods by Rail International Convention Concerning the Carriage of Passengers and Luggage by Rail Columbia Journal of Transnational Law Council for Mutual Economic Assistance Common Market Law Reports Common Market Law Review Council of Europe Columbia Law Review Council for Mutual Economic Assistance Cornell International Law Journal Conference on Security and Cooperation in Europe Canadian Yearbook of International Law Dalhousie Law Journal Défense Nationale Denver Journal of International Law and Policy Dickinson Journal of International Law Europa Archiv European Bank for Reconstruction and Development Economic Commission for Africa Economic Commission for Asia and the Far East Economic Commission for Europe Economic Commission for Latin America Economic Commission for Latin America and the Caribbean European Centre for Medium Range Weather Forecasts Economic and Social Council Economic Community of West African States European Court Reports European Coal and Steel Community Economic Commission for Western Asia European (Economic) Community1 European Foreign Affairs Review European Free Trade Association European Journal of International Law European Law Review

Created in 1957 as the European Economic Community, this name was changed into European Community by the 1992 Treaty on European Union. In case of legal situations dating from before November 1993 (when the Treaty on European Union entered into force), reference will be made to ‘EEC’.

List of abbreviations

Emory J. Int’l Disp. Res. ENEA Envtl. L. EPIL ESA ESA Bull. ESCAP EU EuGRZ Eur.Arch. Euratom Eur.Yb. Eutelsat FAO Fla.Int’l L.J. Fordham Int’l L. J. Foreign Aff. GA GAOR Ga. J. Int’l & Comp. L. GATT GEF Geo. Wash. J. Int’l L. & Econ. GYIL Habitat Hastings L.J. HILJ Harv.L.R. Hous. J. Int’l L. HRLJ Hum. Rts. Q. IAEA IATA IBRD ICAO ICC ICJ ICLQ ICPE ICSID Rev. ICTR

xxix

Emory Journal of International Dispute Resolution European Nuclear Energy Agency Environmental Law Encyclopedia of Public International Law European Space Agency ESA Bulletin Economic and Social Commission for Asia and the Pacific European Union Europäische Grundrechte Zeitschrift Europa Archiv European Atomic Energy Community European Yearbook European Telecommunications Satellite Organization Food and Agriculture Organization Florida International Law Journal Fordham International Law Journal Foreign Affairs General Assembly of the United Nations General Assembly Official Records Georgia Journal of International and Comparative Law General Agreement on Tariffs and Trade Global Environmental Facility The George Washington Journal of International Law and Economics German Yearbook of International Law UN Centre for Human Settlements Hastings Law Journal Harvard International Law Journal Harvard Law Review Houston Journal of International Law Human Rights Law Journal Human Rights Quarterly International Atomic Energy Agency International Air Transport Association International Bank for Reconstruction and Development (World Bank) International Civil Aviation Organization International Criminal Court International Court of Justice International and Comparative Law Quarterly International Centre for the Promotion of Enterprises ICSID Review International Criminal Tribunal for Rwanda

xxx

ICTY IDA IEA IFAD IFC IJIL ILC ILM ILO ILR IMCO IMF IMO INMARSAT INTELSAT Interpol Int.Conc. Int. Geneva Yb Int.Soc.Sci.J. Int’l Tax & Bus. Law. Internat. Stud. Internat. Aff. Internat. Business Lawyer Internat. Rel. Internat. J. Interpol Int.Spect. IOM Ir. Stud. Int’l Aff. ITU It.YIL JAIL JAL JALC JCMS JDI JIU JR JWT JWTL J. Interam. Stud. & Wld. Aff. J. J. J. J.

Media L. & Pract. Mod. Af. Stud. Space L. Internat.Aff.

List of abbreviations

International Criminal Tribunal for the former Yugoslavia International Development Association International Energy Agency International Fund for Agricultural Development International Finance Corporation Indian Journal of International Law International Law Commission International Legal Materials International Labour Organization International Law Reports Intergovernmental Maritime Consultative Organization International Monetary Fund International Maritime Organization International Maritime Satellite Organization International Telecommunications Satellite Organization International Criminal Police Organization International Conciliation International Geneva Yearbook International Social Science Journal International Tax and Business Lawyer International Studies International Affairs International Business Lawyer International Relations International Journal International Criminal Police Organization Internationale Spectator International Organization for Migration Irish Studies in International Affairs International Telecommunication Union Italian Yearbook of International Law Japanese Annual of International Law Journal of African Law Journal of Air Law and Commerce Journal of Common Market Studies Journal du Droit International Joint Inspection Unit The Juridical Review Journal of World Trade Journal of World Trade Law Journal of Interamerican Studies and World Affairs Journal of Media Law and Practice The Journal of Modern African Studies Journal of Space Law Journal of International Affairs

List of abbreviations

LAFTA LAIA LIEI LJIL LNTS LoN LQR Max Planck UNYB Mercosur MichLR MIGA NAFTA NATO NCJ Int’l L. & Com. Reg. NedTIR Ngo Nigerian J. Int’l Aff. NILR NJB Nord. J. Int’l L. NorTIR Nw. J. Int’l L. & Bus. NYIL NYUJILP NZLJ OAPEC OAS OAU Ocean Yb. ODECA OECD OEEC OJ ONUC OPCW OPEC OR

xxxi

Latin American Free Trade Association Latin American Integration Association Legal Issues of European Integration Leiden Journal of International Law League of Nations Treaty Series League of Nations The Law Quarterly Review Max Planck Yearbook of United Nations Law Mercado Común del Sur (Southern Common Market) Michigan Law Review Multilateral Investment Guarantee Agency North American Free Trade Agreement North Atlantic Treaty Organization North Carolina Journal of International law and Commercial Regulation Nederlands Tijdschrift voor Internationaal Recht Non-governmental organization Nigerian Journal of International Affairs Netherlands International Law Review Nederlands Juristenblad Nordic Journal of International Law Nordisk Tidsskrift for International Ret Northwestern Journal of International Law and Business Netherlands Yearbook of International Law New York University Journal of International Law and Policy The New Zealand Law Journal Organization of Arab Petroleum Exporting Countries Organization of American States Organization of African Unity Ocean Yearbook Organization of Central American States Organization for Economic Cooperation and Development Organization for European Economic Cooperation Official Journal of the European Communities United Nations Operation in the Congo (Opération des Nations Unies au Congo) Organization for the Prohibition of Chemical Weapons Organization of the Petroleum Exporting Countries Official Records

xxxii

OSCE Österr. Z. öffentl. Recht u. Völkerrecht OTIF PCIJ Peaslee

PLO Publication of the Netherlands Ministry of Foreign Affairs

PYIL Pub. Admin. & Dev. Quart. J. Adm. Quest. Int’l L. RBDI RdC RDI REDI Regards sur l’Actual. REIO Rev. Algér. Rel. Internat. Rev. Internat. Aff. Rev. Internat. Stud. Rev. Internat. Sci. Adm. RGDIP RIW/AWD RMC Round Table RTDE RW SADC SAYIL SC SCOR SELA SEW

List of abbreviations

Organization on Security and Cooperation in Europe Österreichische Zeitschrift für öffentliches Recht und Völkerrecht Intergovernmental Organization for International Carriage by Rail Permanent Court of International Justice Amos J. Peaslee, International Governmental Organizations (rev. 3rd ed., five volumes, 1974-1980) Palestine Liberation Organization Series of publications including, inter alia, reports on the annual meetings of the UN General Assembly Polish Yearbook of International Law Public Administration and Development The Quarterly Journal of Administration Questions of International Law Revue belge de droit international Recueil des Cours de l’Académie de droit international Revue de Droit International Revue Egyptienne de Droit International Regards sur l’Actualité Regional Economic Integration Organization Revue Algérienne des Rélations Internationales Review of International Affairs Review of International Studies Revue International des Sciences Administratives Revue Générale de droit international publique Recht der Internationalen Wirtschaft. Aussenwirtschaftsdienst des Betriebsberaters Revue du Marché Commun The Round Table Revue trimestrielle de droit européen Rechtskundig Weekblad Southern African Development Community South African Yearbook of International Law Security Council of the United Nations Security Council Official Records Latin American Economic System Sociaal Economische Wetgeving

List of abbreviations

SJIR

SRIEL Staff Papers Stanford L. Rev. Stud. Diplom. SWAPO Syr. J. Int’l L. & Com. TEU Tex. Int’l L.J. Trb. UAR UK UN UNAT UNCDF UNCIO UNCITRAL UNCTAD UNDP UNEF UNEP UNESCO UNFICYP UNHCR UNICEF UNIDO UNITAR UNJY UNRWA UNTS U. Miami Inter-Am. L. Rev. UNCTAD Rev. UPU US USSR

xxxiii

Schweizerische Jahrbuch für internationales Recht (Annuaire suisse de droit international) Swiss Review of International and European Law Staff Papers of the International Monetary Fund Stanford Law Review Studia Diplomatica South West Africa People’s Organization Syracuse Journal of International Law and Commerce Treaty on European Union Texas International Law Journal Tractatenblad (Netherlands Treaty Series) United Arab Republic United Kingdom United Nations United Nations Administrative Tribunal United Nations Capital Development Fund United Nations Conference on International Organization United Nations Commission on International Trade Law United Nations Conference on Trade and Development United Nations Development Programme United Nations Emergency Force United Nations Environmental Programme United Nations Educational, Scientific and Cultural Organization United Nations Peace-keeping Force in Cyprus United Nations High Commissioner for Refugees United Nations Children’s Fund United Nations Industrial Development Organization United Nations Institute for Training and Research United Nations Juridical Yearbook United Nations Relief and Works Agency for Palestine Refugees in the Near East United Nations Treaty Series University of Miami Inter-American Law Review UNCTAD Review Universal Postal Union United States of America Union of Soviet Socialist Republics

xxxiv

VJIL VJTL VN VRÜ WEU WFP WHA WHO WIPO Wld. Today WLR WMO YEL YbILC YbWA YIO YUN ZaöRV ZLW ZÖR

List of abbreviations

Virginia Journal of International Law Vanderbilt Journal of Transnational Law Vereinte Nationen Verfassung und Recht in Übersee Western European Union World Food Programme World Health Assembly World Health Organization World Intellectual Property Organization The World Today Weekly Law Reports World Meteorological Organization Yearbook of European Law Yearbook of the International Law Commission Yearbook of World Affairs Yearbook of International Organizations Yearbook of the United Nations Zeitschrift für ausländisches öffentliches Recht und Völkerrecht Zeitschrift für Luft- und Weltraumrecht Zeitschrift für öffentliches Recht

Chapter 1

Introduction

I.

International institutional law

A.

A classic theme: interdependence and state sovereignty

§1. As human beings, we are constantly drawn closer to our fellow men and women. Today, the people of Amsterdam see and hear more of the peoples of the United States, Russia and Africa than they did two hundred years ago of the townspeople of The Hague. The world is increasingly being transformed into a ‘global village’. As a consequence of modern means of communication, the world beyond our borders is brought into our living rooms, broadening horizons and heightening awareness of the major problems of our world. Many of these problems have attained a dimension stretching far beyond national boundaries, requiring international solutions. §2. Such international solutions must be developed in a world which is primarily organized in a state centric way. Although in the era of globalization a multitude of players is acting in what is often referred to as global governance,1 the state continues to be the supreme form of political organization in the world. This is reflected in the concept of state sovereignty. However, it cannot be denied that states have become increasingly interdependent. For example, modern weaponry, international terrorism and other security threats have necessitated international cooperation. States alone are no longer in the position to defend or preserve national security, one of the classic functions of the state.. Equally it is in the mutual interest of states that unhampered post, telephone and fax communication between their citizens is guaranteed. Similarly, with regard to international rivers, it is in the common interest of riparian states that freedom of navigation is assured (Rhine, Danube) or that arrangements are made for the development of water resources (Niger river, Mekong basin). Additionally, it has been gradually recognized since 1945 that international cooperation is imperative for the protection of human

1.

See e.g. the Millennium Report by Secretary-General Kofi Annan of the United Nations (UN Sales Publication, 2000, also published at www.un.org/millennium/sg/report/), in particular paras. 1-65.

§3

Chapter 1

2

rights. Human rights conventions and other standards have been drafted and supervisory mechanisms created to ensure their respect. §3. Thus, a tension can be seen to exist between the formal independence (sovereignty) of states and their actual interdependence. This can be identified as a classic theme, since it has frequently emerged in early as well as recent writings. This may be illustrated by the following quotations. I. “The foundation-stone of this work [ -of the United Nations- ] is and must remain the state. Respect for its fundamental sovereignty and integrity are crucial to any common international progress”. II. The “vision of a world divided into isolated compartments is not a true reflection of facts as they exist in a large portion of the earth today. A modern state [...] is not an isolated independent unit [...]. It is in perpetual and intimate and intricate relationship with other states; it cannot carry on the work of internal government, legislative or administrative, which modern conditions of life require, without continual cooperation [...]; complete independence today is merely a legal fiction”.

At first sight, it may be somewhat difficult to believe that the first quotation dates from 1992 (the Agenda for Peace, prepared by the Secretary-General of the United Nations), while the second quotation is taken from L.S. Woolf’s book International Government, published in 1916. This however demonstrates that, even in the beginning of the 20th century, the mutual dependence of states was recognized, and also that, even at the end of that century, the notion of state sovereignty still retained its fundamental importance.2 §4. This classic theme has produced the paradox that, in order to exercise their functions and to remain as independent as possible, states are forced to cooperate due to the unavoidable reality of interdependence and globalization. To a certain extent, international cooperation allows them to control external influences.3 Some specific examples illustrate this paradox. Foreign Secretary Hurd of the United Kingdom stated, in a speech about the Treaty on European Union: “It is against our fundamental interests so to isolate ourselves from the continent of Europe that policies are organized there which deeply affect our security or our prosperity but in which we have no important say. If that were to happen we could keep our sovereignty as a slogan but its substance would have

2.

3.

The quotations are from para. 17 of the Agenda for Peace (UN Doc. A/47/277 and S/24111), and from International Government, at 345-346. Both quotations are taken from parts of these publications, in which attention is also given to the other element, i.e. interdependence in the case of the Agenda for Peace, and state sovereignty in the case of Woolf’s book. See also R.-J. Dupuy, Le dédoublement du monde, 100 RGDIP 313-321 (1996). See also J.-V. Louis, The Community Legal Order 14 (3rd rev. ed., 1995).

3

Introduction

§5

gone”.4 In 1999 Kiribati, Nauru and Tonga became member states of the United Nations. Following the decision of the UN General Assembly to admit these countries, Micronesia addressed the General Assembly as the Chair of the South Pacific Forum and stated, inter alia, the following: “[f]or small island states like Kiribati, Nauru and Tonga, as with most members of the South Pacific Forum, joining the United Nations is indeed a great sacrifice of scarce resources. Yet we have decided that we can no longer be mere bystanders. The smallness of our Pacific Islands and our remoteness and isolation have not insulated us from the impacts of decisions made elsewhere in the world”.5 Another example is Article 1 of the Charter of the Organization of American States, which provides, inter alia: “The American states establish by this Charter the international organization that they have developed to achieve an order of peace and justice, to promote their solidarity, to strengthen their collaboration, and to defend their sovereignty, their territorial integrity, and their independence”. In 1993, the German constitutional court considered in its judgment concerning the Treaty on European Union: “The member states have established the European Union in order to exercise a part of their functions in common and to that extent to exercise their sovereignty in common (‘um [...] ihre Souveränität gemeinsam auszuüben’)”.6

§5. It is not purely accidental that these examples all deal with international organizations. Particularly in the course of this century, international cooperation between states has increasingly been structured within the framework of international organizations, which are created by states to cope with the consequences of increasing interdependence.7 They reconcile the wish of states to remain independent with the reality of a growing list of transboundary problems. The creation and functioning of international organizations on the international stage did not relegate sovereign states to the wings. On the contrary, states remain the leading actors in international relations.8 Nevertheless, international organizations, the subject of our study, perform an important supporting role and indeed, it is impossible to imagine contemporary international life without them. Next to states and other actors in international relations (such as multinational enterprises, non-governmental organizations,

4. 5. 6. 7.

8.

Speech to the European Policy Forum, London, 1 October 1992. The text of this speech has been obtained from the Information Section of the British Embassy in the Netherlands. UN Doc. A/54/PV.1, at 12-13. The judgment has been reproduced in 20 EuGRZ 429-446 (1993); quotation at 439. The English translation has been published in CMLR 57-109 (1994); quotation at 90. See also M. Virally, Panorama du droit international contemporain – Cours général de droit international public, 183 RdC (1983 V), at 251 ff.; K.W. Abbott and D. Snidal, Why States Act Through Formal International Organizations, in P.F. Diehl (ed.), The Politics of Global Governance – International Organizations in an Interdependent World 9-43 (2nd ed. 2001). The observation by the International Court of Justice in the Reparation for Injuries Case that the United Nations is “certainly not” a state, and still less “a super-state” is as much true today as it was in 1949 (ICJ Rep. 1949, at 179). See further C.-A. Morand, La souveraineté, un concept dépassé à l’heure de la mondialisation?, in L. Boisson de Chazournes and V. Gowlland-Debbas (eds.), The International Legal System in Quest of Equity and Universality – Liber Amicorum Georges Abi-Saab (2001) 153-176 .

§6

Chapter 1

4

interest groups), international organizations have become familiar players in global governance.9 The proliferation of international organizations is one of the characteristics of modern society.10 B.

Objectives

§6. This study aims to fulfil three objectives. First, to examine in detail the institutional law of international organizations, to see how different organizations have dealt with similar institutional problems. The second goal is much more practical: to contribute to improvements in the structure and functioning of international organizations. Thirdly, we aim to offer a general framework for a better understanding of the (similarities and differences between) institutional rules of international organizations. 1.

To describe and analyze international institutional law

§7. Our first goal is to examine in detail the institutional law of international organizations, to see how different organizations have dealt with similar institutional problems. The institutional law of international organizations comprises those rules of law which govern their legal status, structure and functioning. Although each organization has its own legal order, institutional problems and rules of different organizations are often more or less the same. In practice, an impressive body of institutional rules has been developed. These rules often bear strong resemblance, or are even identical. This explains the subtitle of this book: unity in diversity. §8. The increased need for international cooperation has changed the substance and structure of international law. The present substance of international law includes a number of issues that previously belonged to the exclusive jurisdiction of states. Trade and monetary policy, social policy, human rights, environmental protection are some striking examples.11 As far as the structure of international law is concerned, the most significant development is the increasing number of international organizations. In particular since 1945, states have sought to structure their cooperation to a large extent in the form of international organizations: from general organizations such as the United Nations to specific organizations like the International Coffee Organization

9.

See particularly with respect to the economic field C. Tietje, Global Governance and InterAgency Cooperation in International Economic Law, 36 JWT 501-515 (2002). 10. See on a number of legal issues involved N.M. Blokker and H.G. Schermers (eds.), Proliferation of International Organizations (2001). 11. Cf. Serbian and Brazilian Loans Case, PCIJ Rep. 1929, Series A Nos. 20/21. At that time, the Permanent Court could still come to the conclusion that “it is a generally accepted principle that a state is entitled to regulate its own currency” (at 44, 122), while nowadays the IMF (created in 1944) imposes a number of limitations upon the freedom of its members “to regulate their own currency”.

5

Introduction

§9

and the World Tourism Organization. International organizations, whether they are large or small, general or specific, provide interstate cooperation with a permanent framework and have given international law a more vertical character. §9. International law has sometimes been qualified as horizontal, in contrast to the vertical nature of modern domestic law, where law-making is centralized, where courts have compulsory jurisdiction and where judgments by courts can be enforced.12 This fundamental difference between domestic and international law can be explained by the notion of state sovereignty. The classic definition of sovereignty was formulated in 1928 by Max Huber in the Palmas Arbitration: “Sovereignty in the relations between states signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other state, the functions of a state”.13 As has become common practice, the notion of “sovereignty” will be given its relative meaning under contemporary international law, and not the traditional, absolute sense dominant in the 19th century. Sovereignty “denotes the basic international legal status of a state that is not subject, within its territorial jurisdiction, to the governmental, executive, legislative or judicial jurisdiction of a foreign state or to foreign law other than public international law”.14 The fact that during the twentieth century public international law has imposed substantial limitations upon the freedom of states does not take away their legal status as sovereign entities, as long as the essence of state functions are retained.15 The notion of state sovereignty as it is used here means that states are internally and externally the supreme form of political organization. Legally, this is reflected (internally) in the basic rule that states are forbidden to intervene in the internal affairs of other states, and (externally) in the basic rule of formal equality of states. More in general, this can be illustrated by what is probably the primary attribute of sovereignty, the monopoly of force. Internally, the state has the exclusive right to legitimate use of force. Externally, at the global level, a monopoly of force is lacking. Instead, Article 2.4 of the UN Charter lays down a general obligation on states to refrain from the threat

12. See for example R. Falk, International Jurisdiction: Horizontal and Vertical Conceptions of Legal Order, 32 Temple Law Quarterly 295-320 (1959); Bin Cheng, Custom: the Future of General State Practice In a Divided World, in: R.St.J. MacDonald and D.M. Johnston (eds.), The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory 513-554 (1983), at 519-522; International Criminal Tribunal for the Former Yugoslavia, Case IT-94-1-AR72 (The Prosecutor v. Duško Tadic´), 2 October 1995, para 11 (reproduced in 35 ILM (1996), at 32, and 105 ILR (1997), at 453. 13. Published in 22 AJIL 867-912 (1928), at 875. 14. H. Steinberger, Sovereignty, in: EPIL Vol. 4(2000), at 511-512. See also Steinberger’s extensive bibliography on the concept of sovereignty (id., at 518-521). Of particular interest for the present study is: D. Nincˇic´, The Problem of Sovereignty in the Charter and in the Practice of the United Nations (1970). 15. Steinberger, op. cit. note 14, in particular at 512-513.

§10

Chapter 1

6

or use of force, as a cornerstone of the UN collective security system, established to maintain international peace and security. Thus, at the same time, state sovereignty ensures and explains the unity of domestic legal orders as well as the looseness, the lack of coherence, of international law.16 §10. However, to some extent, international organizations have narrowed this difference between international and municipal law and have given international law a more vertical character, each within its own field of operation. The lack of a central, supranational authority at the global level and the resulting horizontal nature of international law have partly been compensated for by the creation and functioning of international organizations. International organizations have to some extent remedied what has been called the carence institutionelle of the international legal order.17 Their existence has led Mosler to the conclusion that “they now form a kind of superstructure over and above the society of states”.18 These organizations constitute legal orders in themselves, which are not similar to domestic legal orders, but are instead partial legal orders, concerning only the field of activity of the organization and only those states which choose to participate. The constitutions of these organizations lay down a number of substantive ground rules. Organs are created with their own powers. An institutional framework is established within which the member states can further the objectives of the organization, adapt its substantive rules to changing circumstances, and supervise the implementation of obligations by the members. §11. Most changes in international law since 1945 have occurred within the framework of international organizations. The importance of these organizations for the development of international law, and for international cooperation in general, has been widely recognized.19 To study the institutional law

16. Again, these two offsprings of the notion of state sovereignty should not be regarded as absolute concepts. A growing number of exceptions to these two basic rules have been generally accepted. 17. I.e. the “institutional deficiency” of the international legal order; G. Scelle, Manuel de droit international public 21 (1948). 18. H. Mosler, The International Society as a Legal Community, in: 140 RdC 1-320 (1974 IV), at 189. 19. See for instance J.L. Kunz, General International Law and the Law of International Organizations, 47 AJIL 456-462 (1953), at 462; C. Wilfred Jenks, The Common Law of Mankind (1958), at 175 ff.; R. Ago, Die internationalen Organisationen und ihre Funktionen im inneren Tätigkeitsgebiet der Staaten, in: W. Schätzel and H.J. Schlochauer (eds.), Rechtsfragen der Internationalen Organisationen, Festschrift für Hans Wehberg 20-38 (1956); R. Ago, The State and International Organization, in: International Law In a Changing World 12-21 (1963), at 20-21; M. Lachs, Le role des organisations internationales dans la formation du droit international, in: Mélanges offerts à Henri Rolin 157-170 (1964); W. Friedmann, The Changing Structure of International Law (1964), Part V and at 376-379; J.Abr. Frowein, Der Beitrag der internationalen Organisationen zur Entwicklung des Völkerrechts, in: 36 ZaöRV 147-167 (1976); D. Vignes, The Impact of International Organizations on the Development and Application of Public International Law,

7

Introduction

§12

of international organizations is to discover to what extent these organizations have given international law a more vertical character. Not a more vertical character in general (like domestic law), but only in the specific field within which these organizations are active.20 To some extent, in the horizontally structured international society, international institutional law is what constitutional and administrative law is in the vertically structured domestic society. State sovereignty explains both the unity of the domestic legal order, characterized by one coherent body of constitutional and administrative law, and the disunity of the international society, characterized by a large number of international organizations, each with its own legal order and institutional law. Nevertheless, it is submitted that the creation and functioning of international organizations has partly compensated for the lack of a central, supranational authority. Therefore, there is a need for a systematic mapping of institutional rules of international organizations. 2.

To contribute to improvements in practice

§12. This systematic overview will demonstrate which different or similar institutional rules exist, and how similar institutional problems have been solved by different organizations. It will be assumed that solutions created by one organization might also be useful for others. Comparisons may eventually lead to improvements in the structure and functioning of international organizations, but only where two conditions have been fulfilled. First, of course, ‘copying’ rules from one organization to another, without taking into account differences in objectives and structure between organizations, is simply impossible. Secondly, it should be realized that international institutional law cannot establish an ideal blueprint for all organizations. Institutions are not ends in themselves but necessary instruments largely in the hands of states

in: MacDonald and Johnston (eds.), op. cit. note 12, at 809-855; R.P. Anand, Sovereign Equality of States in International Law 197 RdC (1986 II), at 9-228 (at 33: “[t]he most serious and important inroads into the traditional concept of sovereignty have been made by the creation of international organizations”); G. Abi-Saab, La ‘communauté internationale’ saisie par le droit – essai de radioscopie juridique, in: Boutros Boutros-Ghali Amicorum Discipulorumque Liber – Peace, Development, Democracy 81-108 (1998) (at 94: “l’approche du droit de coopération est foncièrement institutionnel […]. […] les normes issues de l’approche du droit de coopération, aussi ambitieuses soient elles, ne peuvent avoir une emprise sociale réelle sans arrangements institutionnels adéquats pour leur mise en oeuvre”). See also the 1984 UNITAR study on the Legal Aspects of a New International Economic Order (UN Document A/39/504/Add.1), at 70: “...the international law of cooperation is by necessity an institutional law, and has always been intimately associated with international organizations”. 20. Cf. R.-J. Dupuy, Le droit international (4th ed. 1972), at 75-76, 121-125; W. Meng, Das Recht der Internationalen Organisationen – eine Entwicklungsstufe des Völkerrechts 209-212 (1979).

§13

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8

to perform specific functions.21 It is these functions which in the final analysis determine the optimal institutional structure of international organizations.22 3.

To contribute to a better understanding of international institutional law

§13. We are faced with a rapidly growing wealth of institutional law and practice of international organizations. Therefore it was suggested as early as 1968 that scholars in this field should cooperate; no single person would be able to cover the field even if research were limited to the most important organizations.23 Why then should we embark upon this impossible research project? For exactly the same reason: because of the rapidly growing wealth of institutional law and practice of international organizations. If no attempt is made to step back from the mass of rules and reflect, it will be impossible to distinguish the wood from the trees. If no such attempts are made, there is a risk of drowning in an ever increasing flood of rules and facts, with no opportunity to keep our heads above water and have some understanding of this field. Since the establishment of the first international organizations in the 19th century, these organizations and their law have been the subject of legal research, in a wide variety of countries and languages.24 Klabbers has analyzed this research and distinguishes between three stages. In his view, during the first stage (with a peak after the creation of the League of Nations), authors mostly attempted to capture and understand international organizations and their law as new phenomena. The second stage (dominant from 1945 until the early 1970s) was characterized by the solving of practical problems, often following comparative approaches. The third stage takes place since the early 1990s. While, according to Klabbers, earlier works assume that international organizations are “inherently good”, the trend since the early 1990s is not to start from this assumption but to look at international organizations in a more conceptual and critical way. Klabbers is careful not to suggest that this is a linear development in relevant legal research: e.g., critical studies have also been published long before the ‘beginning’ of the third stage. Rather, these stages reflect what he calls the changing image of international organizations and the developing emphasis in research.25

21. Cf. I. Claude, Swords into Plowshares (4th ed. 1971), at 84: “One of the major tasks of twentieth-century statesmanship is to strike a balance between obsessive concern with institutional problems – which makes international organization an end in itself, and exclusive concentration upon substantive issues of current world politics – which neglects the building of an adequate institutional apparatus for international relations”. 22. There seems to be general agreement on this observation; see for example UN Doc. E/ AC.62/9 (A New United Nations Structure for Global Economic Cooperation), at 1-4. 23. L.B. Sohn, The Growth of the Science of International Organizations, in: K. Deutsch and S. Hoffmann (eds.), The Relevance of International Law 328-353 (1968), in particular at 351-353. 24. Sohn, op. cit. note 23 gives an excellent overview of such research until the mid 1960s. 25. J. Klabbers, The Life and Times of the Law of International Organizations, in 70 Nord.J.Int’lL. 287-317 (2001); see also J. Klabbers, The Changing Image of International Organizations, in J.-M.

9

Introduction

§14

In his classic study of the United Nations system, Virally observed that this system is little understood partly because there has not been much theoretical reflection in the field of international organizations. Such reflection would need to depart from a comparative study of all types of contemporary international organizations.26 This book aims to fulfil this role, at least with regard to the institutional law of international organizations. On the basis of a comparative analysis of the existing different parts of international institutional law, an attempt will be made to conclude each chapter with some general reflections, seeking to increase our understanding of the law of international organizations. §14. While, in the land of legal science, there is no strongly established tradition of developing theories on international organizations, this is different for the neighbouring discipline of political science. Within this discipline, there are a respectable number of specific studies of international organizations, as well as works on international relations in general, which pay some attention to international organizations.27 These studies, of course, approach international organizations from a different perspective; they pose different questions and use different methodology. They are more interested in matters of power and influence, while legal studies depart from rules. Naturally there is some degree of overlap,28 not only because questions of law can never be neatly separated from questions of power and influence, but also because widely diverging views can be distinguished within both disciplines. While some political scientists pay little attention to institutional rules (because they are considered less relevant), others take the view that rules are important for understanding and explaining practice (e.g. institutionalists and regime theorists).29 While some lawyers, in their study of international organizations, are well-known

26. 27.

28.

29.

Coicaud and V. Heiskanen (eds.), The Legitimacy of International Organizations 221-255 (2001). M. Virally, l’Organisation mondiale 25 (1972). Cf. the overview given by J.M. Rochester, The Rise and Fall of International Organization as a Field of Study, 40 International Organization 777-813 (1986), and the “state of the art” of the field of international organization, presented by F. Kratochwil and J.G. Ruggie, International Organization: a State of the Art or an Art of the State, 40 International Organization 753-775 (1986). Not many studies have been carried out on the borderline between the two disciplines. Probably the most classical exception is L. Henkin, How Nations Behave: Law and Foreign Policy (2nd ed. 1979). See for an overview of the interdisciplinary landscape: A.-M. Slaughter Burley, International Law and International Relations Theory: a Dual Agenda, in: 87 AJIL 205-239 (1993). Institutionalists and regime theorists have sought explanations, inter alia, for the persistence of the sovereign state, notwithstanding increasing interdependence. There is a wealth of literature in this area. To mention just a few studies: R.O. Keohane, International Institutions and State Power (1989); S.D. Krasner (ed.), International Regimes (1983); S.D. Krasner, Sovereignty (An Institutional Perspective), 21 Comparative Political Studies (April 1988), at 66-94.

§15

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10

for their view that legal science should be pure, and free of non-legal elements,30 others focus so much on the role of law in practice that it is sometimes difficult to distinguish their work from studies by political scientists (McDougal and Lasswell, Falk). Nevertheless, all legal studies of international organizations share the assumption that the rules of these organizations are more or less relevant. This is also the starting-point for the present study, which does not answer questions like: what roles and functions are performed by international organizations in international relations? Do international organizations contribute to international stability or international peace, and in what ways?31 It is for the purposes of this book assumed that international organizations have a role to play in reality. §15. In this attempt to understand international institutional law better, benefit can be had from pioneering work by Virally, which is hardly known outside the French-speaking part of the world.32 It suffices here to indicate briefly the gist of his ideas. In his view, the general theory of international organizations has two “poles”: state sovereignty and the concept of “function”. “Function” is a core notion, intended to provide theory in this field with the necessary coherence and unity.33 The notion of function comprises, inter alia, one very important element for the analysis of international organizations: the finality of the function, or the objective(s) of the organization. This element gives the notion of function its dynamic character and deserves special attention.

30. See e.g. H. Kelsen’s voluminous study: The Law of the United Nations (1951). 31. Questions like these are addressed in international relations studies. See for example R.O. Keohane, J.S. Nye, S. Hoffmann (eds.), After the Cold War, International Institutions and State Strategies in Europe, 1989-1991 (1993). Another example is C. Archer, International Organizations (3rd ed. 2001), with many further references. Chapter 4 of Archer’s book gives a survey of the literature on international organizations, distinguishing between three divisions of writings: writings representing the more traditional ‘realist’ view of international organizations (based primarily on the state-centric model of international affairs), reformist views and the radicals. The first edition of the present book is classified as “traditionalist”, like all other international law studies. (at 128-129). 32. M. Virally, La notion de fonction dans la théorie de l’organisation internationale, in: Mélanges offerts à Charles Rousseau – La communauté internationale 277-300 (1974). This article is reproduced in M. Virally, Le droit international en devenir – Essais écrits au fil des ans 271-288 (1990). The importance of this work has mainly been recognized by French and Italian authorities; see for example R. Monaco, Les principes régissant la structure et le fonctionnement des organisations internationales, in: 156 RdC 79-225 (1977 III), in particular at 96-97. Monaco, correctly in our view, implicitly rejects Virally’s opinion that the law of organizations aiming at integration cannot be compared to the law of organizations aiming at cooperation; in fact, his study is to a considerable extent based on a comparison between EC and UN practice. 33. Virally, La notion de fonction, at 278, 296. Virally’s ideas concerning the other “pole”, state sovereignty, have been elaborated in Une pierre d’angle qui résiste au temps: avatars et pérennité de l’idée de souveraineté, in: Les relations internationales dans un monde en mutation, a collection of essays on the occasion of the 50th anniversary of the Institut Universitaire de Hautes Études Internationales (1977), at 179-195.

11

Introduction

§16

§16. International organizations never come into being spontaneously, without reason. Their creation is the result of the need felt by states to cooperate within an institutional framework. This need arises, because states no longer consider themselves capable of performing a given task independently. However, there is an important difference between the tasks or functions of international organizations, and those of the state (the common good, the general interest, the security and prosperity of the nation, etc.). The latter tasks, of course, confer on the state its raison d’être, but in practice states, sovereign as they are, do not necessarily have to justify their existence time and again by referring to these tasks, in contrast to international organizations, the existence of which is entirely instrumental, directly related to the performance of certain functions. In other words: the finality of the state is integral (finalité intégrée), whereas the finality of international organizations is functional (finalité fonctionnelle).34 Therefore decisions taken by organs of international organizations often refer to provisions in the constitution attributing the power to these organs to take the decision in question. In the UN such references are often lacking, although since 1990 they have been included in a large number of Security Council resolutions. Within the EC, the decision making organs are obliged to refer to the legal basis of the decision; according to the Court of Justice, “the choice of the legal basis for a measure may not depend simply on an institution’s conviction as to the objective pursued but must be based on objective factors which are amenable to judicial review”.35

§17. From a strictly legal point of view, functional finality embodies three normative aspects. First, the authorization aspect (habilitation). Functions authorize international organizations to have a structure, competences and instruments of substantive law, which do not operate aimless, within a vacuum, but are geared towards realizing the objectives of the organization. The second aspect, moderation (or limitation; in French mesure or limite), is complementary to the first, and contains the limits to this authorization. In other words, the objectives of an organization determine what it may do and what it may not do. An example related to the structure of organizations is laid down in Article 22 of the UN Charter: “The General Assembly may

34. Cf. also C. Rousseau, L’indépendance de l’Etat dans l’ordre international, in: 73 RdC 167-254 (1948 II), at 248: “...la compétence de l’Etat est par définition une compétence plénière. Alors que les compétences des autres collectivités publiques sont des compétences d’attribution, nécessairement limitées quant à leur object, la compétence étatique reste indéterminée ratione materiae – ou plutôt l’Etat est entièrement libre de déterminer l’étendue de sa compétence ratione materiae ...”. See also the WHO Nuclear Weapons Advisory Opinion of the International Court of Justice, ICJ Rep. 1996, at 78 (para. 25): “The Court need hardly point out that international organizations are subjects of international law which do not, unlike states, possess a general competence. International organizations are governed by the ‘principle of speciality’, that is to say, they 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”. 35. Case 45/86, Commission v. Council, ECR 1987, at 1520.

§18

Chapter 1

12

establish such subsidiary organs as it deems necessary for the performance of its functions”. The General Assembly is thus authorized to create subsidiary organs, but this authorization is limited: the creation of such organs must be deemed necessary for the performance of the Assembly’s functions. An example related to the competence of international organizations is Article 2.7 of the UN Charter: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state [...] ”. This is a clear limitation of what the UN is authorized to, but the limitation itself is restricted to matters which are essentially within the domestic jurisdiction. The scope of this restriction is not the same now as it was in 1945, and can be determined by an interpretation of the functions of the UN. The third normative aspect of the functional finality of international organizations is the obligation aspect (obligation): the organs of the organization are obliged to perform the functions entrusted to them by the members. In other words, the obligation aspect determines what the organization must do. An example can be found in Article 308 of the EC Treaty: “If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the Assembly, take the appropriate measures” (emphasis added). §18. It is clear that, in practice, a tension is perceptible between Virally’s two poles of state sovereignty and the function of international organizations, in relation to all three normative aspects. The member states of an international organization frequently question the competence of the organization to deal with a specific matter.36 Similarly, although the organization is sometimes obliged to act, disagreement among members often prevents the organs of the organization, in which those members are represented, from functioning. For example, although the original Article 75 of the EEC Treaty (now, as amended, Article 71 EC) obliged the Council to enact a number of rules to create a common transport policy before 1970, disagreement among the member states prevented the Council from carrying out this obligation; it took a judgment by the Court of Justice in 1985 to prompt cooperation in this field.37

36. See for example, with respect to the UN Security Council: report of the meeting of 29 November 1990, S/PV.2963, at 58 (Cuba); report of the meeting of 3 April 1991, S/PV.2981, at 21-35 (Iraq); report of the meeting of 5 April 1991, S/PV.2982, at 17 (Iraq), 27-30 (Yemen), 31 (Zimbabwe), 44-52 (Cuba). A well-known earlier denial of the competence of the UN General Assembly was put forward by the USSR with regard to the creation of the first United Nations Emergency Force by the Assembly in 1956 (see GAOR, PV + Annexes, 1st Emergency Special Session, 1956, at 127-128). 37. Case 13/83, European Parliament v. Council, ECR 1985, at 1556.

13

Introduction

§19

The decision of states to create an international organization does not alter the fact that the same states are regularly the organization’s most important opponents.38 In practice member states regularly frustrate the operation of “their” organizations. A number of writers have even argued that the existence of organizations has sometimes been used by states as an excuse for doing little or nothing to achieve the goals of the organization.39 This can be explained by the horizontal structure of international law and the still predominant role played by state sovereignty; more generally, the observation that “international organization reflects the view that world order is not more important than national interests, but that it is important to national interests” seems to encapsulate the position precisely.40 §19. Virally was of course aware of this situation, and criticized it by concluding the article in which he developed his theory of functionality with the following rhetorical question: “from the moment when states have acknowledged the existence of common interests, justifying the establishment of an international organization and the attribution to this organization of functions destined to be of service to them, are they still allowed to consider their sovereignty as an unlimited power to dissociate themselves and to pursue dysfunctional activities, no matter what damage might result from this for the international community to which they have adhered?”41 §20. Fortunately, not only academics are aware of this danger. When creating international organizations, states also display some degree of self-knowledge, and many constitutions contain general obligations for the member states to cooperate, or to act in good faith. These obligations generally boil down to a prohibition for the member states to act against the goals of the organization, and if necessary to subordinate their own interests to those of the organiza-

38. Cf. P. Reuter, Institutions internationales 213 (7th ed. 1972). 39. G. Myrdal, The Challenge of World Poverty 308 (1970). S. Strange distinguishes three purposes of international organizations: strategic, adaptive and symbolic purposes. She defines the latter as “allowing everybody to declare themselves in favour of truth, beauty, goodness, and world community, while leaving governments free to pursue national self interests and to do exactly as they wish”; in: Cave! hic dragones: a critique of regime analysis, in: 36 International Organization, 479-496 (1982), at 484. See also the 1982 Annual Report of the UN Secretary General: “There is a tendency in the United Nations for governments to act as though the passage of a resolution absolved them from further responsibility for the subject in question” (UN Doc. A/37/1, at 3). See furthermore the appeal to the member states, in the introduction to the 2003 Annual Report by the UN Secretary-General, “that they should be ready to use the Organization to achieve mutual objectives and to accommodate different national interests. In calculating their national interests, they should give due weight to the value and importance of a just and stable world order” (UN Doc. A/58/1, at 2). 40. I. Claude in: The International Encyclopedia of the Social Sciences, Vol. 8 (1968), at 35. 41. Virally, op. cit. note 32, at 300 (our translation).

§21

Chapter 1

14

tion.42 Article 2.2 of the UN Charter stipulates: “All members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter”.43 This provision demonstrates that UN members have to fulfil their Charter obligations for reasons of reciprocity: the obligation of one member is the right or benefit of another; the notion of good faith is meant as a guide for the execution of Charter obligations.44 Another example is Article 10 of the EC Treaty: “Member states shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty”. In this provision, a clear distinction is made between a (positive) obligation for member states to cooperate and a (negative) obligation to refrain from obstructive activities. The effect of such general obligations to cooperate varies. Within the European Communities, the Court of Justice has used it as a basis for further development of the obligations of the member states.45 Other organizations lack judicial organs with powers similar to those of the EC Court, in which situation the application of these obligations to cooperate usually remains a plaything in the arena of politics. Only exceptionally has the International Court of Justice referred to the obligation in Article 2.2 of the Charter.46 §21. It is clear that these general good faith obligations can never completely remove the basic tension which exists between the two poles of state sovereignty and the function of international organizations, even if these organizations have judicial organs. This tension can in fact never be removed ‘from above’, by political decisions or rules of law, but only ‘from below’, by a process of social integration.47 Only then will states increasingly recognize that “world order is more important than national interests” and that they can no longer “consider their sovereignty as an unlimited power to dissociate themselves

42. E. Zoller, La bonne foi en droit international public 157 (1977). See also the review essay of Zoller’s book by M. Virally in 77 AJIL 130-134 (1983). 43. It has been argued that the words “good faith” in this provision are superfluous, “for it is impossible to “fulfil” an obligation in bad faith” (Kelsen, op. cit. note 30, at 89). 44. Zoller, op. cit. note 42, at 158. See also Virally, op. cit. note 7, at 271. 45. H.G. Schermers and P.J. Pearson, Some Comments on Article 5 of the EEC Treaty, in: J.F. Baur, K.J. Hopt, K.P. Mailänder (eds.), Festschrift für Ernst Steindorff 1359-1378 (1990); M. Blanquet, L’article 5 du Traité CEE, Recherche sur les obligations de fidélité des États membres de la Communauté (1994). 46. See in particular Conditions of Admission of a State to Membership in the United Nations, Advisory Opinion, ICJ Rep. 1948, at 63. 47. Cf. C. de Visscher, Theory and Reality in Public International Law (1957) (translation from the original French edition), at 88-100; M. Bourquin, L’Etat souverain et l’organisation internationale 4-5 (1959).

15

Introduction

§22

and to perform dysfunctional activities”.48 As long as this process of social integration has not advanced sufficiently far, sovereign states and international organizations will continue to exist, as will the tension mentioned above which is so characteristic of the functioning of international organizations. This tension is of fundamental importance for most of the issues of institutional law discussed in the following chapters. It will therefore be the central theme in the concluding paragraphs of these chapters. C.

Unity within diversity?

§22. Having presented our objectives, it is clear that the most basic assumption underlying the present study is that there is something like international institutional law, that there is some unity within diversity. However, is this assumption justified? International organizations differ widely in a number of respects. Some have only a few members (for example the Benelux, NAFTA, or the Economic Community of the Great Lakes Countries, having Burundi, Rwanda and Zaire as its members), whereas others include nearly all existing states (for instance the United Nations). Some organizations have very limited powers (e.g. to function only as a forum for consultations – the International Tin Study Group), while others can take majority decisions binding the member states and even individuals within the jurisdiction of the member states (the European Union). Each organization has its own constitution and makes its own rules. There is little coordination of the activities of international organizations. Thus, international organizations vary greatly.49 §23. Nevertheless, international organizations also have much in common. They are influenced by the same political factors of present-day international relations. In the Cold War era, many international organizations were affected in one way or another by the tensions between the two opposite blocs. The end of the Cold War resulted in a re-orientation or a new spirit of cooperation within existing organizations (e.g. NATO), or even in the birth or the decease of international organizations (e.g. the European Bank for Reconstruction and Development, the Warsaw Treaty Organization respectively). At the beginning of the 21st century a new situation has emerged in which there is only one superpower, the hegemony of which is so substantial that it often can impose its will on other states, even if this will is against existing rules of international law.50 This dominant position of the US also has its influence on the law of international organizations. The participation of the US in these organizations

48. Cf. the quotations above from the studies by Claude (§18) and Virally (§19). 49. It has correctly been observed that the same is true for states, while respecting the principle of sovereign equality. See F. Morgenstern, Legal Problems of International Organizations 1 (1986); see also Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droit international public 577 (7th ed. 2002). 50. See further M. Byers and G. Nolte (eds.), United States Hegemony and the Foundations of International Law (2003).

§23

Chapter 1

16

often plays a crucial role. On the one hand it may provide the necessary leadership, while on the other hand this may also lead to decisions or policies that are or may become a source of tension amongst the members. It is within this general political context that all international organizations have to perform their functions. International organizations are all formed by sovereign states – some more powerful than othes – that bring their own national interests to each of them. Basically, they all reconcile the wish of the member states to remain as independent as possible with the reality of interdependence and the need to cooperate in a certain area. In this respect, there is unity. Having this common background, international organizations are confronted with a large number of similar day-to-day problems. All organizations of which the Soviet Union was a member needed to respond to the disintegration of this state: should the Russian Federation step into the shoes of the Soviet Union, without being formally admitted as such, or should it be admitted as a new member? Should the Russian Federation become a permanent member of all organs of which the Soviet Union was a permanent member? Many other examples can be given. Under what conditions and procedures may states become, or cease to be a member? Can the European Community or the European Union become a member of another international organization, even though the constitution of the latter only allows states to become a member? Should the chairman of an international organ remain in office when a subject matter on the agenda directly concerns his country? Should the secretariat of the organization be composed of civil servants selected exclusively on the basis of their professional qualifications, or should it have a certain number of nationals of all member states as staff members? Should specific organs be created to deal with disputes between the organization and its personnel? Is it lawful to remove from office the Director-General of an international organization even though the constitution of that organization only provides for the power to appoint him? How can effect be given to the desire of the organization to invite persons to its meetings despite the fact that the host state would normally refuse these persons access to its territory? With respect to voting, should each member state have one vote (reflecting the formal rule of sovereign equality of states) or should members have different voting strength (reflecting factual inequalities between member states)? Should the organization’s activities be financed by compulsory or voluntary contributions from the member states, or should it have own resources? If governments of member states decide to limit their expenses, and those of international organizations, would it be possible to discuss certain agenda items, or to have meetings of the supreme organ of the organization on a bi-annual instead of on an annual basis? May the organ, adopting the budget of the organization, refuse to allocate finances for activities, initiated by another organ which is exclusively competent to decide upon such activities? These examples demonstrate that international organizations, despite their widely diverging objectives, powers, field of activity and number of member states, have all kinds of similar problems with legal aspects.

17

Introduction

§24

§24. However, to conclude that international organizations have similar problems with legal aspects, is not the same as concluding that there are any common rules for dealing with such problems. Nevertheless, most writers take the view that, although each organization has its own legal order, they often benefit from each other’s rules and practical experience, and they do have common rules or principles.51 This view is supported by legal practice, as may be illustrated by a few examples. In 1949 a special arbitral tribunal was set up by UNESCO to answer a question concerning the eligibility for re-election for a second term of members of the Executive Board. The tribunal reached its conclusion mainly by following a textual interpretation. However, this interpretation was confirmed, as the Tribunal put it, “by scrutiny of the provisions regarding eligibility for reelection in the Charter of the United Nations and the Statute of the International Court of Justice”.52 Another example is offered by the case law of the Andean Court of Justice. In its first preliminary rulings, this Court has found that Andean community law takes precedence over national law, and has referred to the Costa-ENEL ruling of the Court of Justice of the European Communities (EC Court).53 Further examples may be found in the case law of international administrative tribunals. In 1993 the Administrative Tribunal of the International Labour Organization referred to rulings of the EC Court and stated that, although it is not bound by these rulings, they “do carry persuasive authority”.54 The same Tribunal referred to “the established case law of all international administrative tribunals” in its 2003 judgment in the Bustani case (see below, §544).55 Likewise, the European Court of Human Rights and the EC Court, as well as the parties appearing before these courts, occasionally have referred to judgments of other international courts.56 The European Court of Human Rights has repeatedly held more in general that the European Convention on Human Rights57 or the principles underlying

51. M. Virally, L’ONU devant le droit, 99 JDI 247 (1972); E. Lauterpacht, The Development of the Law of International Organization by the Decisions of International Tribunals, 152 RdC (1976 IV), in particular at 396-402; Monaco, op. cit. note 32, at 92-93; P. Reuter, Sur quelques limites du droit des organisations internationales, in: E. Diez et al. (eds.), Festschrift Bindschedler 491507 (1980); C.F. Amerasinghe, Principles of the Institutional Law of International Organizations (1996), in particular at 16-19 and 397-402; Nguyen Quoc Dinh, Daillier and Pellet, op. cit note 49, at 571; P. Sands and P. Klein, Bowett’s Law of International Institutions (5th ed. 2001), at 17. 52. Quoted in Lauterpacht, op. cit. note 51, at 401. 53. J. Polakiewicz, Andean Common Market, Court of Justice, EPIL Vol. 1 (1992), at 163-164. 54. Judgment 1296 (Cook). 55. Judgment 2232 (Bustani). 56. E.g. European Court of Human Rights: Lawless Case, Judgment of 14 November 1960, Publ. ECHR, Series A, 1960-1961, at 14-15; Marckx Case, Judgment of 13 June 1979, Publ. ECHR, Series A No. 31, at 26; cf. also Sigurjónsson Case, Judgment of 30 June 1993, Publ. ECHR, Series A No. 264, para. 35; Case of Cyprus v. Turkey, Judgment of 10 May 2001, 35 EHRR 30, paras. 85-97. E.g. Court of Justice of the European Communities: Case C-432/92 (Anastasiou), Judgment of 5 July 1994, ECR 1994, at I-3087, paras. 35, 49. 57. E.g. Al-Adsani Case, Judgment of 21 November 2001, 34 EHRR 11, para. 55.

§25

Chapter 1

18

this Convention,58 “cannot be interpreted and applied in a vacuum”. Furthermore, the Human Rights Committee, established by the International Covenant on Civil and Political Rights, has clearly been inspired by the case law of the European Commission and Court of Human Rights.59 The above mentioned examples concern (organs of) international organizations that face a particular problem and benefit from the rules and practice of other organizations in finding solutions. But there are also examples of the existence of common rules or principles for international organizations. The practice of granting privileges and immunities to international organizations is so general, that national courts have occasionally decided that every organization enjoys such privileges and immunities in its member states or in its host state under general customary international law.60 Another example is offered by the existence of general rules concerning treaties to which international organizations are parties: the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations.61 §25. These shared problems and rules of international organizations concern institutional legal matters in particular. Institutional law does not differ dramatically from one organization to the next; each organization needs rules on issues of, for example, its internal structure, membership, decision-making, financing, relations with the host state, and these rules often bear strong similarities.62 The situation is different for the substantive law of international organizations, which mainly consists of the rules made by the organization to regulate the conduct of (individuals, enterprises within) the member states, such as the EC’s agricultural regulations, monetary rules of the IMF, labour conventions of the ILO and prohibitions or catch limits for commercial whaling of the International Whaling Commission. Unlike institutional law, the content of these substantive rules differs between organizations, because it directly

58. E.g. Loizidou Case, Judgment of 18 December 1996, Reports 1996-VI, para. 43; Bankovic´ Case, Judgment of 12 December 2001, para. 57 (reproduced in 41 ILM 517 (2002)). 59. See D. McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (1991), at 158-160; T. Zwart, The Admissibility of Human Rights Petitions, The Case Law of the European Commission of Human Rights and the Human Rights Committee (1994), at 98, 123, 130, 215. 60. An example is the judgment of 20 December 1985 of the Dutch supreme court in Iran – United States Claims Tribunal v. A.S., reproduced in ILR Vol. 94, at 329 (also in 18 NYIL 357 (1987)). See also I. Seidl-Hohenveldern, Failure of Controls in the Sixth International Tin Agreement, in N. Blokker and S. Muller, Towards More Effective Supervision by International Organizations – Essays in Honour of Henry G. Schermers (1994), Vol. I, at 271; R. Higgins, Problems & Process – International Law and How We Use it (1994), at 90-91. 61. Text published in UN Doc. A/CONF.129/15. This convention has not yet entered into force. As of August 2003, it was ratified by 26 states and 11 international organizations (see below, §1743 and §1773). 62. Monaco even observes that “les organisations internationales possèdent, en principe, une structure de base qui devient de plus en plus semblable” (op. cit. note 32, at 122).

19

Introduction

§26

reflects the divergent tasks and fields of competence of international organizations. D.

Method

§26. There are basically two methods to study the law of international organizations. Firstly, the law of one single international organization can be analyzed, in whole or in part. Secondly, a comparative method can be employed. In view of our objectives, the comparative method would appear to be the most appropriate. The institutional structure of one or a few specific international organization(s) does not form the focus of this work. Rather, it is hoped that a cross section of institutional law of international organizations in general can be given. A distinction has been drawn between eleven areas of institutional law; these are covered in the following eleven chapters of this book. In these chapters, a systematic overview of the respective institutional rules of international organizations will be presented. In principle, all existing public international organizations are included in this overview, as well as the few organizations which no longer exist (e.g. League of Nations, Comecon). For practical purposes however, attention will focus primarily on the United Nations and its related organizations, the European Union and the most important other regional organizations. §27. While there is general agreement that, in principle, the comparative method is useful,63 there is a difference of opinion as to the scope of this method. Is it possible and useful to compare the law of all international organizations, or do some organizations differ so much from others that a comparison is no longer meaningful? In particular, some writers question whether the law of the European Union can still be compared to the law of organizations like the United Nations, the International Telecommunications Union and the Organization of American States.64 In their view, this is to compare apples and oranges.

63. According to W.E. Butler “it is natural that they [international organizations] should invite comparative analysis on a variety of levels”, in view of the large number of organizations now in existence; in: Comparative approaches to international law, 190 RdC 9-90 (1985 I), at 38. According to M. Sørensen, “it is clear that a rich field has opened here for the comparative lawyer, not only inasmuch as organizational problems relating to national and international constitutions may be compared, but also owing to the fact that the legal structures and functions of individual international organizations are sufficiently similar and at the same time sufficiently diverse to permit profitable comparative studies”, in: Autonomous Legal Orders: Some Considerations Relating to a Systems Analysis of International Organizations in the World Legal Order, 32 ICLQ 559-576 (1983), at 563. 64. See for example P.J.G. Kapteyn in a review of the Dutch version of the previous edition of this book; 33 SEW 537-538 (1985).

§28

Chapter 1

20

The most profound defence of this view is given by Virally,65 who considers that a distinction should be made between two sorts of international organizations: those having international cooperation as their function, and those aiming at integration. Virally argues that “organizations whose function is cooperation consequently leave intact the basic structure of the present-day international community, composed of sovereign states”, whereas “organizations whose function is integration are responsible for bringing their member states closer together by taking over certain of their functions, to the extent of merging them together in a composite whole, in the sector in which they exercise their activity, that is, in their field of competence ... Concomitantly, certain essential functions of states (legislation, statutory regulations) will be exercised by the organs of the organization for and on behalf of the organs of states”.66 Those who take the opposite point of view hold that organizations like the European Union can be compared to organizations like the United Nations as long as the member states remain sovereign and, thus, their relations within the framework of the organization are based on treaties, as opposed to the relations between states within a federal state, which are founded on a constitution.67 §28. The latter view is the point of departure in this study. It will be demonstrated that, although the European Union imposes much stronger constraints on domestic policies of the member states than other international organizations, their institutional law can be compared to that of other organizations. It is clear that in this comparison, the more far-reaching objectives of the Union need to be taken into account. In some respects, it is precisely these objectives that explain institutional differences. Of course, some aspects of EU law can be compared more easily to the law of organizations like the UN than other aspects, where EU law is closer to municipal law. Nevertheless, even with regard to the latter, a comparison is useful. It may contain lessons for other organizations, or it could indicate possible directions for the future development of the law of these organizations.68 This study is therefore based on the presumption that all international organizations, including those which

65. M. Virally, Definition and classification of international organizations: a legal approach, in: 29 Int. Soc. Sci. 58-72 (1977), in particular at 61-63. (This article has also been published as Chapter 2 of: G. Abi-Saab (ed.), The Concept of International Organization 50-66 (1981)). 66. Id., at 62. 67. E.g. I. Seidl-Hohenveldern and G. Loibl, Das Recht der Internationalen Organisationen, einschließlich der Supranationalen Gemeinschaften (7., überarbeitete Auflage, 2000), at 8; W. Meng, op. cit. note 20, at 52; P. VerLoren van Themaat, Restructuring the International Economic Order – Some Keynotes, in: P. van Dijk, F. van Hoof, A. Koers, K. Mortelmans (eds.), Restructuring the International Economic Order: The Role of Law and Lawyers 1-8 (1987), at 1. Cf. also D. Simon, L’interprétation judiciaire des traités d’organisations internationales (1981), in particular at 469, footnote 200. 68. Cf. the authoritative study by M. Bertrand of the Joint Inspection Unit, Some Reflections on Reform of the United Nations, UN Doc. JIU/REP/85/9 or A/40/988 (1985), at 61-62,

21

Introduction

§29

according to Virally aim at cooperation rather than integration, affect the basic structure of the present-day international community and more specifically, as elaborated above, give international law a more vertical character.

II.

Definition

A.

International cooperation, international organizations, (con)federations

§29. While the term “international organization” was probably used for the first time in the 19th century,69 it is only since the Second World War that the terms “intergovernmental organization” and “(public) international organization” have received wide acceptance for the phenomenon discussed in this study.70 In the following, the terms “international organization”, or “organization” will mainly be used. Other terms are occasionally used, in particular the French notion “institution internationale” – based on the concept of “institution” introduced by Maurice Hauriou.71 This is sometimes used as a synonym for international organizations, sometimes also for states or organs of international organizations, or even for international law in general.72

§29A. The International Law Commission (ILC) long preferred the term “intergovernmental organization” and decided, on a number of occasions, not to elaborate a precise definition.73 The ILC approach has been followed in the Vienna Convention on the Law of Treaties (1969), the Vienna Convention on the Representation of States in their Relations with International Organizations

69. 70.

71. 72.

73.

where the suggestion is made to transpose the Council-Commission structure of the EC to the level of the UN. By the Scottish jurist James Lorimer. See P.B. Potter, Origin of the term international organization, 39 AJIL 803-806 (1945). “Public international organization” is used, inter alia, in: ICJ Statute, Art. 34; ILO Constitution, Art. 12. “Intergovernmental organization” is used, inter alia, in: OAS Constitution, Art. 124; the 2002 Agreement Establishing the Agency for International Trade Information and Cooperation as an Intergovernmental Organization, Art. 1. “International organization” is used, e.g., in the 1995 Agreement Establishing the International Institute for Democracy and Electoral Assistance (Trb. 1995, 257), Art. I.1. See S. Bastid, Place de la notion d’institution dans une théorie générale des organisations internationales, in: L’évolution du droit public, études offertes à Achille Mestre 43-51 (1956). For example, the principal EC organs are called “institutions”. Reuter’s well known book “Institutions internationales” (1st ed. 1955) refers to states as the principal international institutions. It is used as a synonym for international organizations in Bowett’s book on the law of international organizations, bearing the title “Law of International Institutions” (1st ed. 1964; 5th ed. by P. Sands and P. Klein (2001)). A very broad definition is given by J. Charpentier: “ Les institutions internationales[…] sont à la fois: – les organismes – Etats et organisations internationales – qui composent la société internationale, et les règles de droit qui régissent leurs rapports”, in: Institutions internationales 2 (13th ed., 1997). See in particular Yearbook of the ILC 1985, Vol. II, Part One, at 105-107.

§29A

Chapter 1

22

of a Universal Character (1975), and in the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986), which in their provision on the use of terms stipulate: “ ‘international organization’ means an intergovernmental organization”. The purpose of this stipulation is indicated in Paragraph (14) of the ILC commentary to Article 2 of the draft articles on the law of treaties (subsequently the 1969 Vienna Convention): “...in order to make it clear that the rules of non-governmental organizations are excluded”.74 In 2003 the ILC decided to follow a different approach, within the context of its work on the responsibility of international organizations. Within this context – as opposed to its previous approach – it agreed upon the following definition: “the term ‘international organization’ refers to an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to states, other entities”.75 This definition is largely similar to the one used in this book (see further §32-45 below). One small difference is the ILC requirement of international legal personality. This excludes organizations such as Benelux or the Organization for Security and Cooperation in Europe from the scope of the ILC work. This difference may be explained by the fact that the ILC definition is given for the purpose of the articles on responsibility of international organizations: if an international organization has no legal personality, it is not the organization but only the members that can be held responsible.76 The change of approach by the ILC was triggered by Gaja, the ILC’s Special Rapporteur on responsibility of international organizations, in his first report.77 Gaja convincingly demonstrated that the traditional ILC approach could not be followed in the articles on responsibility of international organizations, which required a more precise definition. Gaja suggested to use the term ‘international organization’ for “an organization which includes states among its members insofar it exercises in its own capacity certain governmental functions”.78 This definition was extensively discussed within the ILC. An open-ended working group was established. The outcome of these 2003 ILC dis-

74. Yearbook of the ILC 1966, Vol. II, at 190. 75. Report of the ILC, 55th session (2003), UN Doc. A/58/10, at 38 (at 39, the ILC indicates the shortcomings of the approach followed previously). The ILC does not define ‘members’. Such a definition is of some importance as it is recognized that under certain circumstances members of an organization may be held responsible for wrongful acts by ‘their’ organization. It could be assumed that ‘members’ refers to full members (see below, §69 ff.), since only full members may participate with full rights in all activities of the organization and determine its acts and policies. However, the ILC also refers to the associate members and the affiliate members (see below, §166 ff.) of the World Tourism Organization as examples of private entity members, while these categories have only limited rights (e.g. no voting rights). 76. See also the first report on responsibility of international organizations by ILC Special Rapporteur Gaja, UN Doc. A/CN.4/532, at 15. 77. Id. 78. Id., at 18.

23

Introduction

§30

cussion was the definition mentioned above, which is somewhat different from Gaja’s proposal. Whereas Gaja’s proposed definition focuses on the members (not only states) and functions (governmental) of the organization, the somewhat more classical ILC definition concentrates on the way in which an organization is created (by a treaty or other instrument governed by international law) and on the requirement of legal personality. A final difference is the absence in the ILC definition of a reference to the “governmental functions” included in the definition proposed by Special Rapporteur Gaja.

§30. It is not the purpose of this book to cover forms of international cooperation occurring outside the framework of international organizations. Therefore it is necessary to define international organizations. This is easier said than done, however. In practice, the boundary between international organizations and less structured forms of international cooperation is less clear-cut than any definition of these organizations would suggest. For example, when the Conference on Security and Cooperation in Europe (CSCE) was concluded in 1975, and the participating states decided to have follow-up meetings at regular intervals, it was explicitly agreed that the CSCE would not be established as an international organization. Nevertheless, in practice, the CSCE has increasingly been given a formal structure; the Charter of Paris for a New Europe, adopted on 21 November 1990, created inter alia a Council of Ministers for Foreign Affairs, a Committee of Senior Officials and a Secretariat; it also provided for the creation of a CSCE parliamentary assembly at a later date.79 Finally, in December 1994, it was officially decided to change the name of the Conference to ‘Organization for Security and Cooperation in Europe’ (OCSE).80 Earlier, the General Agreement on Tariffs and Trade (GATT) had undergone a similar development. Created in 1947 as an executive agreement, it was gradually transformed into an international organization.81

79. The text of the Charter of Paris is reproduced in Europe Documents No. 1672 (1990). See on this process of institutionalization of the CSCE, E.B. Schlager, The Procedural Framework of the CSCE: from the Helsinki consultations to the Paris Charter, 1972-1990, in: 12 HRLJ 221-237 (1991). In 1991 the CSCE Parliamentary Assembly was established through a resolution adopted by delegations of the parliaments of countries participating in the CSCE (meeting in Madrid in April 1991). See for the text of this resolution: 30 ILM 1344-1347 (1991). See also R. Szafarz, CSCE: an International Organization in Statu Nascendi?, in A. Bloed and W. de Jonge (eds.), Legal Aspects of a New European Infrastructure 15-21 (1992); I. SeidlHohenveldern, Internationale Organisationen aufgrund von soft law, in: U. Beyerlin et al. (eds.), Recht zwischen Umbruch und Bewahrung – Festschrift für Rudolf Bernhardt 229-239 (1995); M. Sapiro, Changing the CSCE into the OSCE: legal aspects of a political transformation, 89 AJIL 631-637 (1995); J. Bortloff, Die Organisation für Sicherheit und Zusammenarbeit in Europa: eine völkerrechtliche Bestandsaufnahme (1996); C. Bertrand, La nature juridique de l’Organisation pour la Sécurité et la Coopération en Europe (OSCE), 102 RGDIP 365-406 (1998). 80. See Europe No. 6371 (1994). 81. J.H. Jackson, World Trade and the Law of GATT 119-122 (1969); W. Benedek, Die Rechtsordnung des GATT aus völkerrechtlicher Sicht (1990), in particular at 248-280; see further below, §44.

§30

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24

Another example is the 1957 Antarctic Treaty that originally did not establish an international organization. However, a gradual process of institutionalization has taken place and, following years of discussions, in 2001 a permanent Secretariat was created.82 In 2003 it was agreed that the plenary organ (the Antarctic Treaty Consultative Meeting) has the capacity to conclude a headquarters agreement with host state Argentina. So far, similar developments have not occurred with respect to a treaty regime for the other part of the globe, the Arctic Council, that has been described as a “forum without legal personality”.83 In 1996, at the G-7 Summit in Lyon (France), US President Clinton announced the creation of the International Commission on Missing Persons for the former Yugoslavia (ICMP). The ICMP estimates that there could be some 40,000 persons still missing as a result of the armed conflict. Its task is to assist families in locating and identifying these persons.84 The ICMP was not created as an international organization at the time. However, in practice a gradual process of institutionalization is taking place. In 1998 the ICMP concluded a headquarters agreement with Bosnia and Herzegovina, which refers to the Commission as something “comparable to an international organization”. In recent years the question has been discussed whether the ICMP – benefitting from its experience in the former Yugoslavia – should also carry out its activities in other regions of the world. This is one of the reasons why suggestions have been made to transforming this Commission into a formal organization having legal personality (even though such personality could be implied from the existence of a headquarters agreement). This would give the Commission the necessary status to operate in countries, to conclude agreements with states and other international organizations and with private entities. As a final example we refer to the multilateral agreements in the environmental field that create some institutional framework. Although these framework are in practice often not considered to be international organizations, this is in fact what they often are or have become. Usually these multilateral environmental agreements create a ‘conference’ or ‘meeting’ of the parties (in which all parties to the agreement are represented) and a secretariat.85 Examples are the 1992 UN Framework Convention on Climate Change and the 1992 Convention on Biological Diversity. One study has analyzed these agreement, applying the definition of international organizations used in this book. It came to the conclusion that “these self-governing, treaty-based [arrangements] may be considered to be intergovernmental organizations, albeit of a less formal, more ad hoc nature than traditional intergovernmental organizations”.86 Numerous studies have indicated the need to make these arrangements in the environmental field more formal, and it has even been suggested to create a new global environmental

82. 83. 84. 85.

K. Scott, Institutional Developments within the Antarctic Treaty System, 52 ICLQ 473-487 (2003). E.T. Bloom, Establishment of the Arctic Council, 93 AJIL 712-722 (1999), at 721. See www.ic-mp.org and YIO 2003-2004, at 1466. See on the question of legal personality of the Secretariat created under the 1992 UN Framework Convention on Climate Change: UNJY 1995, at 452-453. 86. R.R. Churchill and G. Ulfstein, Autonomous Institutional Arrangements in Multilateral Environmental Agreements: a little-noticed phenomenon in international law, 94 AJIL 623659 (2000), quotation at 658.

25

Introduction

§31

organization,87 or to give the UN Trusteeship Council the task of overall supervision of global environmental protection.88

§31. On the other hand, it is possible that states gradually attribute so many powers to an international organization that this organization comes to resemble a confederation or a federation. This is illustrated by the development of the European Communities and the European Union, which are generally considered to be international organizations,89 but are often called “supranational organizations” in view of their special characteristics (see below, Section III).90 In this respect, it is clear that the discussions on a reference in the 1992 Treaty on European Union to a federal goal are not purely of semantic significance.91 In the distant past other examples can be found of cooperation between autonomous political entities which gradually developed into one new single sovereign entity: the Swiss Confederation, the Dutch Republic, the American Confederation and the German Confederation.92 In other words, there is a smooth transition from loose cooperation between states to structured cooperation within an international organization, just as there is a smooth transition between some international organizations and sovereign states. Thus, a sliding scale of institutionalization of international cooperation

87. K.T. Farr, A New Global Environmental Organization, 28 Ga.J.Int’l&Comp.L. 493-525 (2000). 88. Suggested in 1997 by the UN Secretary-General (UN Doc. A/51/950, at 27); see also B.H. Desai, Revitalizing International Environmental Institutions: the UN Task Force Report and Beyond, 40 IJIL 455-504 (2000). 89. See e.g. P. Fischer, Is the European Community an International Organization?, in: K. Ginther et al. (eds.), Völkerrecht zwischen normativem Anspruch und politischer Realität – Festschrift für Karl Zemanek zum 65. Geburtstag 179-202 (1994); R. Bernhardt, Europäisches Gemeinschaftsrecht und das Recht internationaler Organisationen: Gemeinsamkeiten und Unterschiede, in: G. Hafner et al. (eds.), Liber Amicorum Professor Ignaz Seidl-Hohenveldern – in honour of his 80th birthday 25-35 (1998). 90. Cf. the working paper by A. El-Erian, Special Rapporteur of the International Law Commission, in: Yearbook of the ILC 1963, Vol. II, at 169: “Supranational organizations lie on the outer limit of international organizations and on the border of federalism. They are hybrids which draw both on international law and municipal public law in their functioning techniques. As such, they are subject to the law of international organizations, but not in an exclusive way”. 91. Cf. Article A of the Treaty on Political Union in the version proposed by the Dutch Presidency, and in the revised version approved by the Heads of State and Government at the Maastricht European Council – after firm opposition by the United Kingdom against a reference in this Treaty to the so-called F-word. The version as proposed by the Dutch Presidency: “This Treaty marks a new stage in the process leading gradually to a Union with a federal goal”. The revised version: “This Treaty marks a new stage in the process creating an ever closer Union among the peoples of Europe ...”. Europe Documents No. 1750/1751 (1991). 92. See on the process of decision-making in these early confederations A.J.P. Tammes, Hoofdstukken van Internationale Organisatie, eerste stuk 18-38 (1951). It should be noted that the direction of change is not necessarily one of integration: while the examples given above all concern processes of integration, more recent developments in Central and Eastern Europe and in former Yugoslavia show that developments in the opposite direction are far from impossible.

§32

Chapter 1

26

can be identified. Hence, a definition of international organizations is necessary to indicate the limits of this book and to provide an answer to the question of precisely when interstate cooperation is to be regarded as having the form of an international organization. B.

A definition: three elements

§32. Occasionally the constitution of an international organization explicitly states that the entity created will be an international organization.93 What exactly does this mean? There is no universally accepted definition of what constitutes an international organization.94 Nevertheless, most studies on international organizations are limited to public international organizations, and exclude non-governmental organizations (ngo’s). General agreement seems to exist regarding most of the defining elements of public international organizations. The qualification of an organization as a (public) international organization is important, not merely to indicate the scope of the present study, but also for practical reasons: it affects the legal status of the organization (see below, Chapter Eleven) and, more specifically, its capacity to act under international law (see below, Chapter Twelve). §33. In this study, international organizations are defined as forms of cooperation founded on an international agreement usually creating a new legal person having at least one organ with a will of its own, established under international law. The elements of this definition will now be discussed in more detail. It is difficult to indicate how many international organizations there are today. It appears that their number has increased over the last decades. According to the best available estimates there are probably more than 500 and less than 700 public international organizations.95

93. According to Art. 3.1 of the constitution of the Southern African Development Community (SADC): “SADC shall be an international organization […]”. (The Treaty establishing the Southern African Development Community was signed in 1992 and is reproduced in 32 ILM (1993), at 116ff.) See also Art. I.1 of the 1995 Agreement Establishing the International Institute for Democracy and Electoral Assistance (Trb. 1993, 257). 94. M. Virally, Definition and classification: a legal approach, 29 Int. Soc. Sci. 58-72 (1977), at 59; for further literature, see id., at 71. The fact that there is no such definition also explains why the International Law Commission, dealing with the topic “Relations between states and international organizations”, decided to adopt a pragmatic approach in this respect, and did not try to elaborate a precise definition of international organizations (see Yearbook of the ILC 1985, Vol. II, at 105). 95. Amerasinghe, op. cit. note 51, at 6 (footnote 10); Virally, op. cit. note 7, at 252 (footnote 86). See further N.M. Blokker, Proliferation of International Organizations: an Exploratory Introduction, in N.M. Blokker and H.G. Schermers (eds.), Proliferation of International Organizations – Legal Issues 1-49 (2001), at 2-4.

27

1.

Introduction

§34

The first element

§34. The first element relates to the way in which international organizations come into being: by an international agreement. The most usual form of the agreement creating an organization is a treaty; the vast majority of international organizations are based on a multilateral treaty. But these agreements can also be expressed in other ways.96 Government representatives, assembled in a conference, may decide to establish an international organization without using a treaty and without the usual proviso for subsequent ratification. This is how, inter alia, the Asian-African Legal Consultative Committee,97 the InterAmerican Defense Board,98 and the International Wool Study Group99 were established. Also the Council for Mutual Economic Assistance worked for ten years on the basis of an informal agreement between the participating states before its statute was laid down in the form of a treaty.100 Another example is the Parliamentary Forum of the Southern African Development Community (SADC Parliamentary Forum, or SADCPF). Members of parliaments of the member states of SADC drew up the constitution of SADCPF. National parliaments of SADC member states are members of SADCPF. They accepted this constitution in May 1995. This constitution entered into force not by subsequent ratification but “upon the approval of the creation of the SADC Parliamentary Forum by the summit of Heads of State or Government” of SADC.101 This approval was given on 8 September 1997.102 A final example is the Organization of the Petroleum Exporting Countries (OPEC). OPEC was created at a conference of representatives of the governments of Iran, Iraq Kuwait, Saudi Arabia and Venezuela that took place in Baghdad, September 1960.103 The Statutes of OPEC were adopted by the second OPEC Conference (Caracas, January 1961).104

§35. Even without an express decision of government representatives, an agreement on the creation of an organization may emerge. The Commonwealth Agricultural Bureau became an international organization by development over many years. It had its roots in the Imperial Agricultural Research

96.

97. 98. 99. 100. 101. 102. 103. 104.

See also I. Brownlie, Principles of Public International Law 680-681 (5th ed. 1998); SeidlHohenveldern, op. cit. note 79; Seidl-Hohenveldern and Loibl, op. cit. note 67, at 5; UN Doc. A/58/10, at 39-40. Peaslee, I(1), at 79. As of 2001, the name of this organization is the Asian-African Legal Consultative Organization. Id. I(2), at 805. Id. II, at 533. Id. I(1), at 326. Constitution of the SADCPF, Art. 1. See www.sadcpf.org for futher details. Res. I.2 adopted by this conference, para. 1 (see OPEC publication Official Resolutions and Press Releases 1960-1983 (1984), at 1-2). Res. II.6 (see id., at 4-8). See further I.F.I. Shihata and A.R. Parra, Organization of the Petroleum Exporting Countries, 3 EPIL 828-832 (1997).

§36

Chapter 1

28

Conference of 1927.105 At that time it could be seen as a purely British affair. The international agreement gradually emerged when the members of the British Commonwealth became independent, their continued membership of the organization being taken as proof of their agreement. Different views have been defended on whether the Commonwealth (the former British Commonwealth of Nations) as such is an international organization. Writers taking the more formal position support the view that it is not an organization.106 In their view, the Commonwealth is an informal grouping of states with some common historical and cultural ties, primarily used for consultation among the members. It has no written constitution and, moreover, a memorandum agreed at the 1965 meeting of the Prime Ministers of Commonwealth countries explicitly states that “the Commonwealth is not a formal organization”, and that it does not “require its members to seek to reach collective decisions or to take united action”.107 Others take the view (which is also supported in this book) that a written constitution is not a necessary requirement and that the agreement to establish an organization may also be expressed in other ways, such as, in the case of the Commonwealth, the Declaration of Commonwealth Principles (Singapore, 1971).108 The Nordic Council was established by parallel decisions of the parliaments of Denmark, Iceland, Norway and Sweden. The governments of these states demonstrate their approval by cooperating in the organization. In these cases there is also an agreement between states, although it may be more difficult to prove its existence. The borderline may be vague. Government participation in the Nordic Council has been so active that this Council can be classified as an intergovernmental organization. The Inter-Parliamentary Union, on the other hand, was also created by national parliaments, but its purpose is strictly limited to parliamentary cooperation. Governments do not take part and have in no way indicated that they consider this Union an intergovernmental organization. The Inter-Parliamentary Union is therefore generally classified as a non-governmental organization; it also has this status with the United Nations (see below, §189-194).

§36. The agreement will be concluded between at least two states. Most organizations have three or more members, but there are some examples of organizations with two member states.109 The agreement will usually be concluded between states, but increasingly international organizations or other entities are also parties to agreements by

105. 106. 107. 108. 109.

Id. II, at 55. E.g. I.A. Shearer, Starke’s International Law 105-106 (11th ed. 1994). The Memorandum is reproduced in Peaslee I(1), at 290. See further W. Dale, Is the Commonwealth an International Organization?, 31 ICLQ 451-473 (1982); YIO 2003-2004, Vol. 1, at 494-498. The Belgium-Luxembourg Economic Union and the Nederlandse Taalunie (“Dutch language union”). The latter organization is based on a treaty concluded in 1980 between The Netherlands and Belgium. Another example is the Czech-Slovak Customs Union; see M. Bogdan, The Czech-Slovak Customs Union, in O. Bring and S. Mahmoudi (eds.), Current International Law Issues, Nordic Perspectives (Essays in Honour of Jerzy Sztucki, 1994), at 11-23.

29

Introduction

§36

virtue of which new organizations are set up.110 For example, among the parties to the agreement establishing the European Bank for Reconstruction and Development are the EEC (now EC) and the European Investment Bank. The European Centre for Social Welfare Policy and Research was established in 1974 on the basis of an agreement between the UN and Austria.111 Another example is the Centro Internacional de Mejoramiento de Maiz y Trigo (CIMMYT), created in the May 1988 Agreement between the World Bank and the United Nations Development Programme; according to this agreement, CIMMYT “is hereby established as an international organization possessing full juridical personality […]”.112 (See further below, §81-84 and §1776-1782.) On the other hand, agreements between branches of different governments or between particular public authorities do not normally create international organizations.113 This distinction may not however always be entirely clear. For example, there is difference of opinion as to the status of the International Criminal Police Organization (Interpol).114 Formally, Interpol is not based on an agreement between states. However, such an agreement may in fact be deduced from a number of factors. Although any official police bodies whose functions come within the framework of activities of the organization may be members of Interpol (Article 4), these members are instructed by their governments. Furthermore, requests for membership have to be submitted “by the appropriate governmental authority” (Article 4). Finally, the financial contributions from members come from the national budgets. For a number of years Interpol had ngo status with the UN. However, in 1975 it was designated as an intergovernmental organization to participate in the work of ECOSOC on a continuing basis, in accordance with Rule 79 of ECOSOC’s rules of procedure.115 Further proof of its inter-

110.

111. 112. 113.

114.

115.

Even though their capacity or power to do so has sometimes been questioned, in particular in the more distant past. See for a somewhat restrictive view expressed in the early 1990s by the Office of Legal Affairs of the UN Secretariat: UNJY 1991, at 296-301 (in particular para. 4). YIO 2003-2004, Vol. I, at 786. See P. Szasz, The Complexification of the United Nations System, 3 Max Planck UNYB 1999, at 1-57 (this example is mentioned at 46). E.g. the International Union of Local Authorities (IULA), founded in 1913 under Belgian law and having local governments (such as the Amsterdam municipality, the Dubai municipality, Lomé city) and associations of local governments as members (see www.iula. org). A. Gallas, Interpol, in: EPIL Vol. 2 (1995), at 1414: “Interpol is not an international organization” (it is noted, at 1415, that “the Legal Counsel of the United Nations considers Interpol to be an intergovernmental organization for the purpose of its relations with the United Nations”). The Yearbook of International Organizations, however, states: “Interpol currently functions as an intergovernmental organization” (YIO 2003-2004, Vol. I, at 1528). ECOSOC Decision 109 (LIX). See also YUN 1975, at 742. In 1982, the Office of Legal Affairs of the UN carried out an analysis of the status of Interpol. It concluded that “the present constitutional provisions of Interpol fully justify the decisions of the Economic and Social Council to consider Interpol as an intergovernmental, rather than a non-governmental, organization (published in UNJY 1982, at 179-180).

§37

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30

governmental status is the 1982 headquarters agreement concluded between Interpol and France.116

§37. Since it is still difficult to obtain general recognition of the status and the rights of international organizations under national and international law, it seems advisable to define the notion “international organization” rather narrowly. Organizations which are not created by a treaty will have to prove the existence of an interstate agreement when they claim a public, intergovernmental status. The interstate agreement is a clear indication of this status in most cases. It has also been accepted by the UN as the main criterion for distinguishing these organizations from non-governmental organizations.117 §38. A second reason why an international agreement is needed is to establish the separate legal personality of the new organization,118 and thus distinguish it from mere organs of organizations. This separate legal identity generally gives organizations a degree of independence that organs usually lack. Nevertheless, practice demonstrates that a certain measure of independence is sometimes provided for when organs are created, or is acquired by these organs in practice. In 1966, Resolution 2152 (XXI) of the UN General Assembly, originally setting up the United Nations Industrial Development Organization (UNIDO), provided that UNIDO, “established as an organ of the General Assembly, shall function as an autonomous organization within the United Nations”. In 1986 UNIDO became a separate international organization, the 16th specialized agency within the UN family. Even prior to 1986, UNIDO membership did not coincide with that of the UN. Still an organ of the General Assembly, UNIDO already had its seat elsewhere (in Vienna). A provision similar to that quoted above in the resolution creating UNIDO, was included in Resolution 2186 (XXI) establishing the United Nations Capital Development Fund (UNCDF). UNCDF has an operational budget of its own, as did UNIDO until 1986. Resolution 1995 (XIX) of the General Assembly established the United Nations Conference on Trade and Development (UNCTAD) as an organ of the Assembly. The resolution is less outspoken on the autonomous character of this organ than the UNIDO and UNCDF resolutions. In practice, however, this organ also quickly developed into an autonomous body within the UN. Although UNCTAD’s Secretariat is an integral part of the UN Secretariat, it was removed from New York at the insistence of the developing countries and placed “in a milieu more conducive for independent action and growth” (following bitter negotiations, Geneva was chosen).119 Similarly, although

116.

117. 118. 119.

For the text of this agreement, see www.interpol.int/public/ICPO/LegalMaterials. Interpol has also concluded headquarter agreements with other countries, in which its offices or bureaux are located. ECOSOC Resolutions 288 B(X), 1296 (XLIV) and 1996/31. In exceptional cases no separate legal personality is given; see below, §44 and Chapter Eleven. B. Gosovic, UNCTAD – Conflict and Compromise 180 (1972).

31

Introduction

§38

its budget is part of the UN budget, UNCTAD has a certain amount of autonomy in budgetary matters.120 Another example is the Global Environmental Facility. Created in 1991 as a World Bank organ,121 it was restructured in 1994 and may now be characterized as an international organization.122 In 1994, the 73 countries participating in the GEF agreed to transform it into a permanent financial mechanism. The restructured GEF was not created by a World Bank resolution, mainly to meet concerns of the developing countries that the GEF was too closely associated with the World Bank, but by the ‘Instrument for the Establishment of the Restructured Global Environmental Facility’, accepted by representatives of the 73 participating states123 and adopted subsequently by the three agencies charged with the implementation of the activities to be financed under the GEF (UNEP, UNDP, and the World Bank).124 The new GEF has an Assembly (consisting of representatives of all participants), a Council (composed of 32 members, representing constituency groupings), and a Secretariat.125 This shows that the formal distinction between organizations and organs is far from clear-cut in practice. Nevertheless, the value of this distinction is not merely theoretical but also has practical significance, as was demonstrated by the conversion of UNIDO from an organ of the General Assembly into an independent organization. This conver-

120. 121.

122.

123.

124. 125.

Id., at 183-185. The GEF was created in 1991 as a three-year pilot program under which grants or concessional loans were provided to developing countries to help them implement programs that protect the global environment. It was established by Res. 91-5 of the Executive Board of the World Bank. Procedural arrangements were made with UNEP and UNDP for operational cooperation under the GEF. The GEF was administered by the Bank, and the Bank’s internal rules were applicable to it. See 30 ILM (1991), at 1758 ff. Although it was attempted to avoid the creation of a new bureaucracy (see 33 ILM (1994), at 1273). In 1993, the GEF was evaluated, and one of the findings was that the program suffered from a number of organizational shortcomings. Opinions seem to differ on the precise legal status of the GEF. While the World Bank takes the view that it is not any more an organ without, for example, the competence to conclude agreements, the UN Secretariat takes a more restrictive position, defending the view that GEF is a joint subsidiary body of the World Bank and the UN, acting through UNEP and UNDP (information obtained from the GEF Secretariat, January 1995). The GEF Secretariat itself has indicated that it “is functionally independent of the implementing agencies but is supported administratively by the World Bank” (YIO 2003-2004, at 1157). On the GEF, see M. Ehrmann, Die Globale Umweltfazilität (GEF), 57 ZaöRV 565-614 (1997); L. Boisson de Chazournes, The Global Environmental Facility Galaxy: On Linkages among Institutions, 3 Max Planck UNYB 1999, at 243-285; Szasz, op. cit. note 112, in particular at 44-45; I.F.I. Shihata, Techniques to avoid proliferation of international organizations – the experience of the World Bank, in: Blokker and Schermers (eds.), op. cit. note 10, 111-134 (in particular at 125-127). Not in a treaty but by approval of this ‘Instrument’ during an international meeting that took place in Geneva, 14-16 March 1994. As indicated in §34 above, according to our definition it is not strictly required that an international organization is treaty-based, although this is usually the case. 33 ILM (1994), at 1283 ff. Id., at 1287-1289.

§39

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32

sion took place on the initiative of developing countries, to increase and further develop the autonomy and powers of UNIDO.126

§39. Some international organizations are closely interrelated because a ‘mother organization’ determines how they are established and what their constitutions contain; but they may nevertheless ultimately be based on separate international agreements. The action committees of the Latin American Economic System (SELA) may be established by the SELA Council or by SELA member states which are interested in particular projects. They are financed by the participating members and operate as separate organizations, but in close connection with SELA. Other members are always free to join them.127

§40. In several cases it was only a matter of chance that a new institution was established as an organization based on a treaty rather than as an organ based on a resolution by another organization. The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) was established by resolution, probably because the urgency of the situation did not allow the use of the slow treaty making procedure. The comparable United Nations Relief and Rehabilitation Administration (UNRRA) was a treaty creation. The International Refugee Organization (IRO) had its constitution approved by Resolution 62 (I) of the General Assembly of the UN; it was subsequently signed and ratified by the participating states.128

§41. The existence of intermediate forms between independent organizations and organs of organizations is not objectionable. On the contrary, it reflects practical needs. No sharp theoretical distinction should present obstacles to the effective organization of governmental functions at the international level. In some cases, however, it will be necessary to determine whether an institution constitutes an individual organization or an organ of an organization. These cases will be encountered when discussing issues like withdrawal and expulsion from organizations, and privileges and immunities. The existence of an international agreement creating an institution is the best possible criterion for distinguishing between organs and organizations. §42. An international agreement is important for a third reason: it contains a mutual commitment by the participating states, requiring a certain amount of cooperation within, and with the organization. This commitment may be

126. 127. 128.

P. Bretton, La transformation de l’ONUDI en institution spécialisée, in: 25 AFDI 567-578 (1979), at 568. SELA, Arts. 20-26 (15 ILM 1092-1093 (1976)); Rule 11 of SELA action committees (15 ILM 1121 (1976)). W. Dale, UNRWA – A Subsidiary Organ of the United Nations, in: 23 ICLQ 581 (1974).

33

Introduction

§43

weaker than a normal treaty obligation, since it is often possible to end it unilaterally by withdrawing from the organization. If no previous notice is required for withdrawal, it could even be claimed that there is no real legal commitment for the states concerned.129 Even in these extreme cases, however, states remain legally bound until they have withdrawn. They cannot legally withdraw from certain obligations only. Usually the international agreement binds all members to all other members. The Agreement establishing the World Trade Organization is an exception to this general rule. Most parts of this Agreement do not apply between a member and a new member in case the former does not consent to such application vis-à-vis the new member.130 §43. Finally, there is a fourth, ‘democratic’ reason why an international agreement is needed. In most states, a treaty needs approval by parliament before it may be ratified. For democratic reasons, it would be objectionable if states could establish a new organization and attribute powers to it, without involving their national parliaments. This involvement may result in the withholding of approval and consequently, the state in question will be unable to ratify the agreement establishing the organization. In practice, if the participation of this state is a conditio sine qua non for an effective functioning of the organization, other states may also decide not to participate, and the organization may never commence operating. This happened when, in December 1950, US President Truman decided not to submit the Havana Charter to Congress.131 Other states decided not to ratify the Charter, and the International Trade Organization never came into operation. The same effect occurs, if an agreement requires ratification by all signatory states before it can enter into force. Thus, when the Dutch Upper Chamber decided to withhold approval of the Agreement establishing the European Foundation, the Netherlands could not ratify, and the Agreement did not enter into force. (Approval was withheld because, inter alia, there would be too much overlap with the activities of other European organizations in the field of culture (particularly the Council of Europe), and because there was no direct democratic control over the activities of the Foundation, which would have been created outside the framework of the European Communities.132)

129. 130. 131. 132.

So Seyersted (quoting Castberg), 34 NorTIR 50 (1964), and 4 IJIL 44 (1964). Art. XIII of this Agreement; cf. also Art. XXXV GATT. See for an overview of invocations of Art. XXXV: GATT, Analytical Index: Guide to GATT Law and Practice 958-960 (1994). See W. Diebold, The End of the ITO (Princeton Essays in International Finance No. 16, 1952). See the Reports of the meetings of the Upper Chamber: Eerste Kamer, 12 November 1985, at 72-93, and 19 May 1987, 30-1309/1310.

§44

2.

Chapter 1

34

The second element

§44. The second element in our definition of an international organization is the requirement that the organization should in principle be a new legal person having at least one organ with a will of its own. When an international organization is created, it is usually created as a legal person. This means that it has the capacity to bear rights and obligations. Only in exceptional cases have international organizations been created without such capacity.133 An example is the Benelux. With regard to some other organizations, there is (e.g. Organization on Security and Cooperation in Europe) or has been (e.g. European Union) considerable debate concerning their legal personality. The Statutes for the Global Water Partnership Network and the Global Water Partnership Organization even explicitly provide that “[t]he Network does not have legal personality”.134 It may therefore in exceptional cases happen that international organizations are no legal persons. There is also an example of the reverse (legal person, no organization): an organization that may be dissolved while its legal personality continues for the purpose of winding up the organization.135 The issue of legal personality of international organizations will be further discussed in Chapter Eleven. This requirement of legal personality serves to distinguish international organizations from so-called treaty organs. Most organs are created by the agreement establishing an international organization or subsequently by organs of the organization, whereas treaty organs are generally created by treaties separate from the constituent instrument of the organization. Examples of such organs are the Human Rights Committee, the European Court of Human Rights, meetings of the parties to multilateral arms control treaties such as the 1972 Biological Weapons Convention, the International Narcotics Control Board and the Conferences of the Parties (COPs) of environmental conventions such as the Framework Convention on Climate Change. Treaty organs usually have a will of their own, but lack legal personality. They are usually more or less loosely embedded in the structure of a pre-existing international organization, and may benefit from the latter’s administrative services and from its political and other forms of support.136 Various problems may arise when

133. 134. 135. 136.

See also Amerasinghe, op. cit. note 51, at 10; Brownlie, op. cit. note 96, at 680. Art. I.2 (Trb. 2002, 93). See the 1997 Eurocontrol Revised Convention, Art. 38.5; see also below, §1629. According to Szasz, they are therefore “isolated organs that in effect operate under the care of the sponsoring [intergovernmental organization]” (op. cit. note 112, at 17). See also B. Simma (ed.), The Charter of the United Nations – a commentary (2nd ed. 2002), at 228-229. The Yearbook of the United Nations 1998 (at 1445) refers to treaty organs as bodies “not subsidiary to any principal organ of the United Nations but […] established by an international treaty instrument or arrangement sponsored by the United Nations and […] thus related to the Organization and its work. These bodies […] are serviced by the United Nations Secretariat and may be financed in part or wholly from the Organization’s regular budget, as authorized by the General Assembly, to which most of them report annually”. Cf. also Sands and Klein, op. cit. note 51, who in their Chapter

35

Introduction

§44A

membership of the treaty organ is not identical to membership of the ‘sponsoring’ organization. Treaty organs will be discussed somewhat further in Chapter Four (§386-387). §44A. The “organ with a will of its own” should be formed by delegates of two or more members of the organization and should e.g. not be dependent on any particular state.137 Merely by allocating tasks to a national organ, an international agreement will not transform that organ into an international organization. An organization fully dependent on one national government will not be an international organization even if a lower organ is partly formed by officials from other states. The requirement that the organ in question have a will of its own (volonté distincte) distinguishes organizations from bilateral or multilateral treaties, whereby parties lay down a common will, which remains their own, however, and is not entrusted to a newly created body.138 Nevertheless it should be realized that even when from a formal legal point of view it is clear that an organization has a will of its own, in practice it is often difficult for organizations to develop and maintain an identity of their own.139 The GATT was originally only an agreement between states. It had no real organs, although Article XXV referred to the possibility of joint action being taken by the participating states. For that reason, for a number of years the status of international organization was denied to the GATT. Gradually,

137. 138.

139.

4 (entitled: “Other autonomous organizations”) refer to “treaty organizations” (in particular at 115). In this Chapter 4 both treaty organs (such as the examples given above) and full-fledged international organizations (such as the OPCW and the International Coffee Organization) are discussed. Seyersted in 34 NorTIR 47 (1964); 4 IJIL 40-41 (1964). See also G. Abi-Saab, The Concept and Evolution of International Organization: a Synthesis, in: M.A. Boisard and E.M. Chossudovsky (eds.), Multilateral Diplomacy – The United Nations Sustem at Geneva, A working guide 3-14 (2nd rev. ed. by J. Lemoine, 1998), at 5; Higgins, op. cit. note 60, at 46; Sands and Klein, op. cit. note 51, at 16; Seidl-Hohenveldern and Loibl, op. cit. note 67, at 5. The International Court of Justice referred to international organizations as “subjects of law endowed with a certain autonomy” (WHO Nuclear Weapons Advisory Opinion, ICJ Rep. 1996, at 75 (para. 19)). Cf. also Bastid, op. cit. note 71, at 46, referring to Georges Renard, who compared the notion of institution with a contract; the latter “n’est que la rencontre de deux volontés qui suivent chacune leur idée”. See also P. Reuter, Institutions internationales (7th ed. 1972), at 192-193, 200-201. The discrepancy which sometimes exists between the legal and factual situation has also been well analyzed by R.-J. Dupuy, op. cit. note 20, at 121, who refers to the ‘transparency’ of international organizations (“En dépit de son autonomie juridique, elle laisse voir les Etats toujours présents derrière ses structures”). See further C. Brölmann, A Flat Earth? International Organizations in the System of International Law, 70 Nord.J.Int’lL. 319-340 (2001), who demonstrates how the law of treaties and the law of international responsibility have difficulties in dealing with such ‘transparant’ actors. Also: C. Brölmann, The Legal Nature of International Organizations and the Law of Treaties, in 4 Austrian Review of International & European Law 85-125 (1999).

§45

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36

however, organs were established, in such a way that GATT was increasingly recognized as an international organization. According to Benedek, GATT has had the status of international organization since 1960, when the Council of Representatives was created, composed of all contracting parties willing to accept the responsibilities of membership therein.140 A former Director of the Legal Affairs Division of the GATT Secretariat has observed that “jurists may differ on the question of whether the GATT is also an international organization in a formal legal sense. The administrators of that institution are as fascinated by that issue as birds are by ornithology. The fact that counts for them is that the GATT has been acting consistently as an entity legally separate from its contracting parties and has been treated as having legal capacity”.141

3.

The third element

§45. The third element in our definition of an international organization is that the organization be established under international law. An agreement between governments to erect a power station under the national legal system of one of them does not create a public international organization. Even if there were an organ responsible only to both states collectively, this would not endow the organization with public international status. Thus the Donaukraftwerk-Jochenstein A.G., established in 1952 by agreement between the Federal Republic of Germany, the Free State of Bavaria and Austria is not a public international organization.142 Another example is the agreement between France and Switzerland concerning the Bâle-Mulhouse airport, which declares that, as a rule, French law shall apply to the enterprise.143 A final example is the Institut du Monde Arabe, established as a foundation under French law by twenty states.144 For international organizations that perform their tasks mostly in one country it may be of special importance that they are not created under the national law of that country, in order to be able to perform their international role. An example is the Commission for Real Property Claims of Displaced Persons and Refugees, which has to receive and decide claims for real property in Bosnia and Herzegovina. As indicated by a member of this Commission, “legislative and political developments should not jeopardize the independence and efficiency of such body”.145 This Commission has

140. 141.

142. 143. 144. 145.

Benedek, op. cit. note 81, at 262. F. Roessler, The Agreement establishing the World Trade Organization, in J.H.J. Bourgeois, F. Berrod & E. Gippini Fournier (eds.), The Uruguay Round Results – A European Lawyers’ Perspective 67-85 (1995), at 69. The example is taken from I. Seidl-Hohenveldern, Das Recht der Internationalen Organisationen, einschließlich der Supranationalen Gemeinschaften (1st ed., 1966), para. 118. See I. Seidl-Hohenveldern, Corporations in and under International Law 115 (1987). Mentioned in UN Doc. A/58/10, at 41. H. van Houtte, Mass Property Claim Resolution in a Post-War Society: the Commission for Real Property Claims in Bosnia and Herzegovina, 48 ICLQ 625-638 (1999), at 628.

37

Introduction

§46

therefore been established under international law. Created in Annex 7 to the Dayton Peace Agreement, its international character was also recognized in the 1996 headquarters agreement concluded with Bosnia and Herzegovina, which explicitly confirms that it is “an international independent body”.146

International agreements are normally concluded under international law. It can therefore be assumed that this requirement is fulfilled whenever there is an international agreement. Only when an international agreement clearly indicates that the organization is not established under international law, will it not be considered as an international organization.147 C.

International organizations, international corporations, non-governmental organizations

§46. Having clarified our definition of international organizations, these organizations can now be distinguished from other types of organizations. It is usually not difficult to distinguish between international organizations and international corporations (for example, IBM and Unilever), since the latter are generally not based on treaties. However, some international corporations have been created in this way, or by a decision of an international organization. These so-called public international companies are different from international organizations because they are not established under international law. For example, Air Afrique was established by a treaty in 1961 as a limited liability company.148 The Organization of Arab Petroleum Exporting Countries (OAPEC) has created four international companies, based on treaties, three of them concerning petroleum and one concerning ship-building.149 Euratom has established a number of joint undertakings (see Articles 45-51 of the Euratom Treaty).150

On the other hand, some organizations might resemble international corporations because they operate to some extent on a commercial basis. However, since they are established under international law and also fulfil the other two requirements indicated above, they are considered as international organizations.

146. 147.

148. 149. 150.

Id., at 629. The distinction is not always sharp. See I. Seidl-Hohenveldern, Gemeinsame zwischenstaatliche Unternehmen, in: F.-W. Baer-Kaupert, G. Leistner, H. Schwaiger (eds.), Liber Amicorum B.C.H. Aubin 193-216 (1979); H.T. Adam, Les organismes internationaux spécialisés, 5 Vols. (e.g. Tome V, published in 1992, covering not only organizations such as MIGA and EBRD, but also Eurotunnel and Scandinavian Airlines (SAS)). See also Seidl-Hohenveldern and Loibl, op. cit. note 67, at 56-59. See YIO 2003-2004, Vol. I, at 71. M. Al Saqqaf, Les entreprises communes créées au sein de l’OPAEP, in: 23 AFDI 709-729 (1977). P.J.G. Kapteyn and P. VerLoren van Themaat, Introduction to the Law of the European Communities (3rd ed., edited by L.W. Gormley, 1998), at 1225-1226.

§47

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38

The International Bank for Reconstruction and Development (the World Bank), like regional development banks (e.g. the Inter-American Development Bank) borrows in international financial markets and makes long-term loans at near-market interest rates. The International Telecommunications Satellite Organization (INTELSAT) and the International Maritime Satellite Organization (INMARSAT) own satellites and operate them as commercial enterprises.151

§47. Nor is it usually difficult to distinguish between (public) international organizations and international non-governmental organizations (ngo’s). The notion “non-governmental” refers to the function of these organizations: they are not endowed with governmental tasks. Ngo’s are not created by treaty; nor are they established under international law. Apart from these characteristics, ngo’s have little in common. The observation in one of the earlier editions of the Yearbook of International Organizations that “a clear and unambiguous theoretically acceptable definition of international ngo’s remains to be formulated” still seems appropriate.152 The Union of International Associations, itself an ngo, has recognized 4928 international ngo’s as such (using a rather narrow definition).153 They vary from large and influential organizations such as Amnesty International, the International Chamber of Commerce, the International Committee of the Red Cross and the Roman Catholic Church to smaller organizations like the Commonwealth Legal Education Association, the International Diabetes Federation, the International Federation of Bodybuilders, the International Skeletal Society and the United Elvis Presley Society. Many ngo’s have obtained some sort of official recognition by the United Nations (see below, §189-194), by other intergovernmental organizations (see below, §195) or in treaties concluded between states. One example is the International Committee of the Red Cross, a private association composed of a maximum of 25 members of Swiss nationality, which was established not under international law, but under Swiss law. This Committee was officially recognized in the four 1949 Geneva Conventions and the 1977 Additional Protocols in the field of international humanitarian law, which have given it a number of tasks. It has concluded a number of agreements, for example headquarters agreements. It is widely recognized that the Committee is not a public international organization, but has international legal personality.154

151.

152. 153. 154.

INTELSAT: 10 ILM 909-945 (1971). INMARSAT: 15 ILM 1052-1075 (1976). Art. IV(a) of the INTELSAT Constitution and Art. 5(3) of the INMARSAT Constitution refer to the commercial nature of the activities of these organizations. Art. 5(3) of the INMARSAT Constitution stipulates, inter alia, that this organization operates “on a sound economic and financial basis having regard to accepted commercial principles”. YIO 1992/93, Vol. I, at 1650. Cf. also M. Bettati and P.-M. Dupuy, Les ONG et le Droit International (1986), in particular at 1-21. YIO 1994/95, Vol. I, at 1624. The criteria used in this Yearbook to classify an organization as an (international) ngo are mentioned at 1617-1618. D. Bindschedler-Robert, Red Cross, in: EPIL Vol. 4 (2000), at 56-63; C. Dominicé, La personnalité juridique internationale du CICR, in C. Swinarski (ed.), Studies and essays on international humanitarian law and Red Cross principles in honour of Jean Pictet 663-673 (1984); P. Reuter, La personnnalité juridique internationale du Comité international de la CroixRouge, in id., at 783-791; Seidl-Hohenveldern and Loibl, op. cit. note 67, at 5. Cf. also

39

Introduction

§48

A number of organizations have been transformed from private into public international organizations, well-known examples being the World Meteorological Organization and the World Tourism Organization. Less well-known examples are the International Civil Defence Organization,155 the International Development Law Institute156 and the Agency for International Trade Information and Cooperation.157

III.

Classification

A.

Criteria for classification

§48. International organizations can be classified in many different ways, depending on the purpose of the study for which the classification is used. For example, it could be useful to classify all organizations in the field of environmental protection in one group and distinguish them from organizations in the field of nuclear energy, agriculture or health, or any other field in which international organizations are active. From the institutional perspective chosen in this study, such a distinction is less relevant. What criterion should be used to classify international organizations? A number of authors have suggested and applied different criteria for such a classification.158 The most fundamental criterion and, moreover, the criterion which seems to be most useful in a comparative study of the institutional law of international organizations, seems to be suggested by Virally. Not surprisingly, his criterion is related to the notion of function discussed above (§1517). “...it is an organization’s function that constitutes its true raison d’être. And it is in order that it may perform this function that its member states have established it and take part in its operation, bearing the costs and accepting the constraints that inevitably derive from it. Moreover, the organization’s structure is directly determined by this function or purpose. The structure is designed to enable the organization to fulfil the

155. 156.

157.

158.

Brownlie, op. cit. note 96, at 683. Established in 1958 as an ngo, and transformed into a public international organization in 1966. See YIO 2003-2004, Vol. 1, at 1455. Established in 1983 as an ngo, and transformed into a public international organization in 1989, when the “Agreement of Internationalization of the Institute” came into force. See YIO 2003-2004, Vol. I, at 1534. Established in 1998 as an association under Swiss law (as an initiative of, and exclusively financed by the Swiss government), a number of countries soon decided that this Agency should be transformed into a public international organization, in view of “[t]he increasing difficulties of poor countries in participating in WTO negotiations […]” and the need to respond more effectively to the demand for AITIC’s services, “[b]y broadening AITIC’s funding base and putting in place an inclusive governance structure”. On 9 December 2002 the Agreement Establishing the Agency for International Trade Information and Cooperation as an Intergovernmental Organization was signed. See www.aitic.org. See for example El-Erian in: Yearbook of the ILC 1963, Vol. II, at 167-169, and the literature mentioned there.

§49

Chapter 1

40

purpose assigned to it as efficiently as possible having regard to the conditions and limitations that the founding states have deemed it necessary to impose, so that it may be achieved in accordance with their interests, as defined by them. In other words, the organization’s structure is itself subordinate to the requirements of its function. Experience also shows that in many cases modifications occur in the structure as and when these requirements change, and in accordance with them”.159

§49. In Virally’s view, the function of international organizations, as a criterion for classification, can be considered principally from three points of view: “The first question concerns the extent of the cooperation that it is the organization’s mission to bring about: is it open to the international community as a whole, or reserved for certain of its members only? Second, what is the range covered by this cooperation? Can it extend to all the sectors in which a need for it may be felt, or is it confined to a clearly delimited field of action? Lastly, what are the means used to effect such cooperation, and what type of relations does it institute between the organization and its members (and between the members themselves in their relations with one another)?”160

In this study we will also use the first and second sub-criteria suggested by Virally, but the third will be adapted somewhat. The third sub-criterion, focusing on the means used to cooperate within the international organization, permits the drawing of a distinction – according to Virally – between standardsetting and operational organizations. In our view, however, the distinction between supranational and intergovernmental organizations is the most significant (this distinction will be explained below). Supranational organizations are in fact more independent of the member states than Virally’s operational organizations. They are not included in Virally’s scheme because – as was indicated in §27-28 – Virally excludes supranational organizations (in his words: “organizations whose function is integration”) from his definition of international organizations. Therefore, although Virally’s distinction between organizations aiming at integration and international organizations proper, aiming at cooperation (in our words: supranational v. intergovernmental organizations) is followed, it is suggested that this distinction is a matter of degree; the view that it is so fundamental as to exclude supranational organizations from the study of international organizations must be rejected. §50. Therefore, using the notion of function as a fundamental criterion and the three derived, more specific criteria mentioned above, three distinctions between international organizations will be elaborated. First, greater harmony and cohesion within a group of states appears to offer institutional opportunities to closed organizations (for example, regional organizations) which are beyond reach of organizations with a universal vocation. Secondly, supranational

159. 160.

M. Virally, op. cit. note 94, at 66. Id., at 66-67.

41

Introduction

§51

organizations create relations between different authorities and subjects of their member states, whereas in other, intergovernmental organizations only national governments cooperate. Thirdly, their specialized knowledge and limited purpose may give powers to special or technical organizations which general organizations lack. It should be realized, of course, that practice is more multifarious than these distinctions may suggest. For example, for many years GATT has been somewhere between a closed and a universal organization. The borders between supranational and intergovernmental organizations and between technical and general organizations are just as vague. B.

Universal versus closed organizations

1.

Universal organizations

§51. The 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character describes international organizations of a universal character as “the United Nations, its specialized agencies, the International Atomic Energy Agency and any similar organization whose membership and responsibilities are on a worldwide scale”. Thus, to be covered by this description an organization does not have to be truly universal in membership and responsibilities. In fact, with the exception of the UN, no organization exists which would fully fulfil such a condition. ‘Universal organization’ covers organizations with a universal vocation, thus aiming to have all states as members. This aim is a first characteristic shared by all universal organizations. It is usually implicitly referred to in the constitution of these organizations. For example Article 1 of the constitution of the World Health Organization: “The objective of the World Health Organization ... shall be the attainment by all peoples of the highest possible level of health”.

This goal of universal membership has a number of institutional consequences. For example, if the organization is entitled to impose conditions on admission, these conditions – if applied at all – need to be balanced against the universal vocation of the organization. Also, organizations with the power to expel members would in fact undermine their own goal, if they were to use this power in practice. To this extent, the power to expel members from a universal organization is an empty shell. §52. A second characteristic shared by universal organizations is their heterogeneous membership. Each universal organization has to cope with the reality of large political, socio-economic and cultural differences among its members. These differences limit the confidence of the members in the organization and their willingness to attribute powers to it. This common problem of universal organizations also has a number of institutional consequences, for example,

§53

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42

the need to recruit staff for the secretariat of an organization “on as wide a geographical basis as possible”, despite the fact that international secretariats need to be independent from the member states (see below, §500-505). Because of this second characteristic and the related institutional consequences, universal organizations have more features in common than regional organizations, which are widely divergent in objectives, powers and structure. Partly for this reason, the International Law Commission has limited the scope of the draft of the 1975 Convention to universal organizations.161 2.

Closed organizations

§53. In contrast to universal organizations, some organizations seek only membership from a closed group of states and no members from outside the group will be admitted.162 These organizations will be described as closed organizations, to emphasize the closed circle from which this membership is drawn.163 There are three types of closed organizations: regional organizations, organizations of states with a common background (e.g. language or a political system), and closed special organizations. §54. Regional organizations are the most common kind of closed organizations. Examples are the European Union, the Organization of American States, the Caribbean Community (Caricom), and the Cooperation Council of the Arab Gulf States. In fact, the notion ‘regional’ is often not appropriate, since there are few organizations the membership of which entirely depends on geographical factors. Generally, political factors play at least an equally important role.164 Still, organizations such as the Council of Europe, the African Union

161. 162.

163.

164.

Yearbook of the ILC 1967, Vol. II, at 148. See for example the answer of the EC Council to written question 454/85 (“Integration of Morocco into the EEC”), OJ 1985, C 208/34: “... it will be remembered that under the terms of the Treaty only European states can apply for membership of the Communities.” A similar reaction was given when in 1987 Morocco officially applied for membership (see Europe No. 4594 (1987)). Similarly Virally, op. cit. note 94, at 60-61. Schwarzenberger’s designation “sectional organizations” is less appropriate as it suggests that these organizations would cover only specific sections, and that this group would not include general organizations. See his International Law as applied by International Courts and Tribunals, Vol. III (1976), at 6. Cf. the discussions on the enlargement of the Council of Europe. In January 1994, an initial report was presented to the Parliamentary Assembly (Doc. 6975), which ruled out the possibility of the three Transcaucasian republics (Armenia, Azerbaijan and Georgia) becoming full members of the Council. It was suggested that the Caucasus is part of Asia. However, many members of the Assembly disagreed with this position and, in its second report on the issue (Doc. 7103), the Political Affairs Committee stated that “in view of their cultural links with Europe, Armenia, Azerbaijan and Georgia would have the possibility of applying for membership provided they clearly indicate their will to be considered as part of Europe” (see also Doc. 7148). Georgia became a member in 1999; Armenia and Azerbaijan in 2001.

43

Introduction

§55

(previously the Organization of African Unity) and the Arab League may well be called regional despite the fact that not all states of the region were or are entitled to participate. For organizations such as the Organization for Economic Cooperation and Development and the European Bank for Reconstruction and Development, which recruit most of their members from a particular region, but have also admitted members from elsewhere, the denomination becomes more difficult. Regional organizations were rare before the Second World War. Since then, their number and importance have increased. Nowadays many issues transcending national boundaries are dealt with by regional organizations; in addition, within their framework the members’ policies are sometimes coordinated to present one regional standpoint in universal organizations. §55. Organizations of states which share a common background are, for example, the Organization for Economic Cooperation and Development and the Council for Mutual Economic Assistance (the latter was dissolved in 1991). These organizations are, strictly speaking, not regional organizations. Their members share(d) rather a particular economic system and a particular level of economic development. Other examples are the Organization of the Islamic Conference (established in 1971, inter alia to promote Islamic solidarity among its members),165 the Commonwealth (see above, §35), and the Agence intergouvernementale de la Francophonie (Intergovernmental Agency for the FrenchSpeaking Community, orginally named Agency for Cultural and Technical Cooperation), established in 1970, inter alia to bring together countries linked by their common usage of the French language.166 In fact, all regional organizations also fit into this category. Therefore, the only difference between these categories is that the ‘common background’ organizations include organizations the membership of which is not limited to states of a particular region. §56. Closed special organizations have been established to perform specific functions (see below, §63) for a limited group of states. Several special organizations are closed because not all states perform the relevant function, for example, the production of bauxite. Others have closed their membership by a narrow description of their tasks and by laying down certain criteria for membership. For example, Article 7 of the Statute of the Organization of the Petroleum Exporting Countries (OPEC) provides that membership is open to “any ... country with a substantial net export of crude petroleum ... [and] fundamentally similar interests to those of member countries” (emphasis added).

165. 166.

YIO 2003-2004, Vol. I, at 2153-2154; M. Shihab, Organization of the Islamic Conference, EPIL Vol. 3 (1997), at 824-828. YIO 2003-2004, Vol. I, at 59-60.

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44

As a result of the latter (emphasized) criterion, industrialized developed countries will not be eligible for OPEC membership.167 §57. Closed organizations have a number of characteristics in common. (a) In many cases, cooperation between the members has been stimulated by the wish to resist external influence or even to collaborate against a common enemy. Western European cooperation was partly provoked by fear of the USSR; the Organization of African Unity was to some extent a response to the (perceived) threat of neo-colonialism. (b) Membership of closed organizations is more homogeneous than membership of universal organizations. A more or less similar political, socio-economic and cultural background of the members and, consequently, closer ties between the peoples within the member states facilitate the attribution of powers to the organization concerned. Only in closed special organizations will such cohesion be less prominent. For example, commodity organizations (such as the organization set up by the International Natural Rubber Agreement) usually have a limited number of exporting less-developed members and a limited number of importing developed members; cooperation in the specific fields of these organizations thus takes place despite the very different backgrounds of members. The relatively large degree of homogeneity within closed organizations finds its counterpart in a great heterogeneity between these organizations. This heterogeneity is a result of large differences in the tasks and membership of these organizations.168 (c) Membership of closed organizations is divergent, depending on the function of the organization. The limited objectives of the Benelux result in the participation of only three states. The objectives of the European Communities and the European Union have permitted a gradual increase in membership (currently fifteen members; it is expected that this number will rise to twentyfive by mid 2004). Neutral states do not wish to participate in the North Atlantic Treaty Organization, while non-democratic and non-European states are excluded from membership of the Council of Europe. The membership of organizations uniting states which share particular interests necessarily varies with those interests.

167. 168.

See I.F.I. Shihata and A.R. Parra, Organization of Petroleum Exporting Countries, in: EPIL Vol. 3 (1997), at 828-832. Similarly: A. El-Erian in his second report on the relations between states and intergovernmental organizations, Yearbook of the ILC 1967, Vol. II, at 148.

45

Introduction

C.

Intergovernmental versus supranational organizations

1.

Intergovernmental organizations

§58

§58. A few words are necessary to explain the term ‘intergovernmental organization’. The word ‘government’ has different meanings. Many (particularly American) authors use it in a wide sense, covering all organs which participate in governing the nation, that is to say, the executive as well as the legislative and judicial branches. Others (mainly in Europe) use the word in a more restrictive sense, covering only the executive branch of the government. They may speak of a conflict between government and parliament, which would be impossible in the former, wider sense of the word. As a rule, we will use ‘government’ in the narrow sense, indicating only the executive. This makes the term ‘intergovernmental organizations’ appropriate for most organizations discussed here, since they are in fact concerned with cooperation between the executive branches of the governments of the member states.169 Only a very limited number of organizations covered by this book, in particular the European Union, embody more far-reaching forms of cooperation: the Union has its own parliament and judiciary. For these forms of cooperation, the term supranational organization seems more appropriate. Capotorti has accurately observed that “the criterion for distinguishing such a category is essentially functional: that is to say, it is on the basis of the principal functions with which the ECSC is entrusted (the exercise of powers withdrawn from the sovereignty of the member states) that it was defined as supranational rather than international”.170 §59. The most fundamental characteristics of intergovernmental organizations are: (1) The decision-making powers are in fact exercised by representatives of governments. Organs composed of persons independent of the member states, committees of experts or parliamentary assemblies may play an advisory role, but they will generally not have the power to take final decisions. (2) In important matters, governments cannot be bound against their will. Intergovernmental organizations seek collaboration among governments, and are in no way superior to them. Although intergovernmental organizations can sometimes take binding decisions, this is only possible where the decision in question enjoys the unanimous approval of all members. By voting against a draft decision a government can thus prevent its adoption.

169.

170.

In the Second Amendment to the Articles of Agreement of the IMF, the references to “government” were replaced by references to “country”, to reflect that countries and not governments are members. Although formally more correct, this did not change the situation that in fact only governments collaborate in the organization. F. Capotorti, Supranational organizations, in: EPIL Vol. 4 (2000), at 738-739.

§60

2.

Chapter 1

46

Supranational organizations

§60. In 1951 the European Coal and Steel Community was established as an organization with a number of supranational features. Since then, many authors have discussed the concept of the ‘supranational organization’,171 reaching different conclusions, as a result of the fact that the term ‘supranational’ does not have any clear meaning. To date, the term has been used only descriptively and has not acquired a distinct legal meaning.172 The term “supranational” is used in one provision of the original ECSC Treaty. Article 9.5 provided, inter alia, that the members of the High Authority “shall refrain from any action incompatible with the supra-national character of their functions” (repealed by the 1965 Merger Treaty). In Wagner’s view, the term ‘supranational’ was used in the ECSC Treaty in order to avoid a controversial expression like ‘federal’. Disagreement between the founders of the Community would thus have been hidden by the use of an obscure expression.173

§61. The most fundamental characteristics of supranational organizations are the following: (1) The organization should have the power to take decisions binding the member states. (2) The organs taking the decisions should not be entirely dependent on the cooperation of all the member states. Some independence may be obtained in two ways. First, by allowing binding decisions to be adopted by majority vote, so that the member states can be bound against their will. Second, by composing the decision-making organ of independent individuals. (3) The organization should be empowered to make rules which directly bind the inhabitants of the member states. This power enables the organization to perform governmental functions without the need or the possibility for national governments to transform the rules of the organization into domestic law. (4) The organization should have the power to enforce its decisions. Enforcement should be possible even without the cooperation of the governments of the states concerned. It may well be possible that other organs of the mem-

171.

172. 173.

See e.g. A.J.P. Tammes, Wat is “supranationaal”?, NJB 477 (1953); P. Hay, Federalism and supranational organizations (1966); K. von Lindeiner-Wildau, La supranationalité en tant que principe de droit (1970); P. Pescatore, Le droit de l’integration 49-55 (1972); H.-P. Ipsen, Über Supranationalität, in: H. Ehmke et al. (eds.), Festschrift Scheuner 211-225 (1973); L.-J. Constantinesco, Das Recht der Europäischen Gemeinschaften I (Das institutionelle Recht) 309-350 (1977); Capotorti, op. cit. note 170, at 737-744; K. Lenaerts and P. van Nuffel, Constitutional Law of the European Union 16-22 (1999). Cf. Bernard Shaw’s introduction to L.S. Woolf, International Government xv (1916): “Unless and until Europe is provided with a new organ for supernational action, provided with an effective police, all talk of making an end of war is mere waste of breath” (emphasis added). Capotorti, op. cit. note 170, at 737. H. Wagner, Grundbegriffe des Beschlußrechts der Europäischen Gemeinschaften 81-82 (1965).

47

Introduction

§62

ber states are used to aid the organization in this field. Thus, a national parliament and the national judiciary may coerce their government to fulfil its obligations to the organization. (5) The organization should have some financial autonomy. The financing of organizations from funds entirely subscribed by the member states leads to a dependence extending beyond the purely financial field. By refusing to provide the organization with sufficient income to appoint qualified staff members or necessary equipment, governments could hamper the functioning of the organization. The UN is not a supranational organization but it has the supranational characteristic of taking decisions by majority vote. Although the UN can take decisions on peacekeeping against the wishes of some members, it has encountered difficulties when these members refused to pay the expenses related to these decisions (see below, §1212-1215).

(6) Unilateral withdrawal should not be possible. In a supranational organization, the members should not even have the power collectively to dissolve the organization or to amend its powers without the collaboration of the supranational organs. The organization cannot rank above its members while it depends on their agreement for its continued existence. §62. To be completely supranational, an organization should fulfil all the above-mentioned conditions. No such supranational organization currently exists. Even the organization with most supranational features, the European Union, depends to a considerable extent on intergovernmental cooperation. The most important decisions of the Union are made by compromises between the participating governments. Since there is no organization which is fully supranational, we shall use the term ‘supranational’ in a relative, not absolute sense. The closer the above-mentioned conditions are to being fulfilled, the more supranational the organization will be. All intergovernmental organizations have some supranational aspects. Binding decisions are taken by majority vote in most organizations (although often on procedural issues only). In many technical organizations, independent committees of experts take decisions which are decisive in practice. Even non-binding recommendations contain supranational aspects. Membership of the organization encourages states to make at least some effort to comply with the organization’s wishes. Overt noncompliance will be resented. Several organizations enjoy financial autonomy which is a significant aid to independence (see below, §1051, 1081-1090). By using the word ‘supranational’ in a relative sense, the distinction between supranational and intergovernmental organizations becomes blurred. This vagueness has led some authors to reject the notion ‘supranational organi-

§63

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zation’,174 but it is submitted that this notion can be used in this relative sense, to indicate that the supranational elements prevail. D.

Special versus general organizations

1.

Special organizations

§63. Most organizations are established to perform a specific function. For instance, the Universal Postal Union was founded for the development of postal communications, the World Health Organization for improving health. Such special organizations are often called functional or technical organizations. Sometimes it is even explicitly indicated that an organization is to limit its work to a specific technical area and may not get involved in political issues. For example, the activities of the International Hydrographic Organization “are of a scientific or technical nature and shall not include matters involving questions of international policy”.175 The main characteristics of special or technical organizations are the limited scope and technical nature of their tasks. Therefore members will usually delegate experts instead of diplomats to the meetings of these organizations. These experts know the needs and the potential for international cooperation in their particular field. They receive instructions on general political problems, but will spend less time and effort on these problems than diplomats. Technical organizations are therefore, as a rule, less hampered by political controversies which often enhances their success. If, however, this success will be important for international political relations in general, the participating states may issue more extensive instructions or even add political advisers to their delegations and the main political issues will receive more attention. On a number of occasions, technical organizations have spent considerable time discussing political issues, such as the representation of China and the position of South Africa. At its sixteenth session, the Universal Postal Union (UPU), decided to exclude practically all questions of a political nature from its debates.176 However, this decision proved fruitless and the UPU has spent many hours discussing political matters, such as the representation of South Africa.

174. 175. 176.

M.S. Korowicz, Organisations internationales et souverainité des états membres 283-286 (1961). For a list of authors sharing this opinion, see Hay, op. cit. note 171, at 76 ff. Art.2 of the General Regulations of the International Hydrographic Organization. UPU Res. C 4 (1969), UNJY 1969, at 119-120.

49

2.

Introduction

§64

General organizations

§64. Some organizations may discuss any subject matter they see fit or any topic not belonging to some specifically excluded field. Such organizations are called general or political organizations. The main characteristics of these organizations are the vastness of the fields they may cover and the presence of diplomats or politicians in the delegations of the members. These representatives will strive to attain general political goals and are usually not experts on particular issues. The most important general organizations are the United Nations, which is concerned with universal cooperation, and a number of organizations dealing with regional cooperation: the European Union, the Council of Europe, the Organization of American States, and the African Union. It is not possible to draw a sharp distinction between special and general organizations. If large fields are excluded from the scope of a general organization, it will become more specific. If a special organization is charged with a very important general task (e.g. economic cooperation) it will become more general.

IV. Conclusion §65. Having brought some order to our vast field of study, the time for exploration has now come. In the following chapters, the main institutional characteristics of international organizations will be closely examined. In the concluding sections of each chapter the issues discussed in this introductory chapter will be touched upon again, in the hope that they will provide some guidance on the wealth of institutional rules and practices of international organizations.

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Chapter 2

Participants

§66. One element which all international organizations have in common is that they have member states.1 These member states play two roles in relation to ‘their’ organizations: an internal and an external role.2 In the former, states are the constituent parts of organs of the organization and in pursuing their objectives, these organs are dependent upon the member states’ will to cooperate. For many years, the UN Security Council was unable to perform the task for which it was created, mainly because of fundamental disagreement among the permanent members. This internal capacity can easily be recognized in the composition and functioning of nonplenary, executive organs of international organizations. Members of these organs are often expected to act on behalf of all members of the organization.3 For this reason, the constitutions of most universal organizations contain provisions requiring that all geographic areas of the world are represented in these non-plenary organs.4 In practice non-permanent

1. Increasingly, international organizations not only have states as members but also international organizations (such as the EC and other entities). For reasons of brevity we will usually refer to member states. See below, §81-84. 2. See A.J.P. Tammes, Decisions of International Organs as a Source of International Law, 94 RdC (1958 II), at 353-359; L.-J. Constantinesco, Das Recht der Europäischen Gemeinschaften – Das institutionelle Recht (1977), at 286-287; R. Higgins, Problems and Process – International Law and how we use it (1994), at 93-94; R. Higgins, The legal consequences for member states of the non-fulfilment by international organizations of their obligations toward third parties, Annuaire de l’Institut de Droit International, Session de Lisbonne, Vol. 66-I (1995), at 260-261, 388; R.A. Lawson, Het EVRM en de Europese Gemeenschappen – Bouwstenen voor een aansprakelijkheidsregime voor het optreden van internationale organisaties (1999), at 465 ff. 3. For example, Art. 24.1 of the UN Charter (“...the Security Council acts on their [-all UN members’-] behalf”). Cf. also H. Kelsen, The Law of the United Nations 280 (1951); J. Delbrück in B. Simma (ed.), The Charter of the United Nations 448-449 (2nd ed. 2002). Sometimes members of the Security Council explicitly state that they take into account interests or concerns of other countries of their region, or even of all UN members, when they have to determine their position in the Council (see e.g. UN Doc. S/PV.2977 (Part II)(closed resumption 3), at 322; UN Doc. S/PV.3413, at 9). 4. For example, ICAO, Art. 50(b); IMO, Art. 18(c); UNESCO, Art. V.A.2; WHO, Art. 24.

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52

members of the Security Council sometimes explicitly referred to their duty to take into account not only their own interests but also the concerns or interests of their regions.5

In their external role, states are the counterparts of the organization. Organizations are created to influence the policies of the member states and in pursuing its objectives, the organization takes decisions directed at an environment outside the organization itself. In their external role, members are confronted with these decisions which they must respect in a degree commensurate to the legal effect of the decision in question. The position of members in this external role concerns the external relations of the organization and will therefore be discussed in Chapter Twelve. §67. The distinction between the internal and external role of the member states is not always easy to draw. This is “inherent in most situations where international organs have to deal with conflicts of interests between states and, at the same time, are composed of representatives of states”.6 However, the distinction is fundamental and may have important legal consequences. Only in the former case do members cooperate within the framework of the organ and must they respect the internal rules of the organization. For example, a decision was adopted in a meeting of the EC Council to provide special aid to Bangladesh after it had been devastated by a cyclone in April 1991. The Commission prepared a plan which was examined during a meeting of the Council, although it did not appear on the formal agenda of that meeting. On 14 May the decision was taken to provide special aid of ECU 60 million to Bangladesh in accordance with the Commission’s plan. The decision was the subject of a press release under the heading ‘conclusions of the Council’. The European Parliament sought the annulment of this decision, claiming before the Court of Justice that it was a Council decision. It argued that the decision had budgetary implications and should have been adopted in accordance with the procedure provided for in Article 203 (now Article 272) of the EC Treaty. By failing to adopt the decision under this article the Council had infringed the Parliament’s prerogatives. The Council challenged the admissibility of the action on the ground that the contested act was adopted not by the Council but by the member states and that it could not therefore be the subject of annulment proceedings before the Court under Article 173 (now Article 230) of the Treaty.7 The Court followed a broad interpretation based on substantive

5. E.g. UN Docs. S/PV.2977 (Part II), at 311 (India) and 322 (Cuba); S/PV.3413, at 9 (Brazil). 6. Tammes, op. cit. note 2, at 354. 7. See more extensively the opinion of the Advocate General in this case (joined cases C-181/91, EP v. Council, and C-248/91, EP v. Commission, ECR 1993, at I-3685).

53

Participants

§68

and not formal considerations. It stressed that the nature of a given act is not determined by its form but by its content and effects. Applying these criteria, the Court concluded that the decision should be characterized as an act of the member states and not of the Council, and declared the application inadmissible. §68. Although this distinction between the internal and external role of members vis-à-vis the organization helps to explain their position, it should not lead to the conclusion that they are Janus-faced. If they agree as members of an organ to a certain decision, it would amount to lack of good faith were they subsequently to refuse to follow it to the extent of its legal force. This can be illustrated by case-law of the Court of Justice with regard to EC directives. These directives have to be implemented by the member states within time limits, indicated in each specific directive. The Court has frequently criticized members for not having implemented directives in time, using the argument that members “participate in the preparatory work for directives and must therefore be in a position to prepare within the period prescribed the legislative provisions necessary for their implementation”.8 Such a lifting of the veil helps members to comply with their obligations and to consider organizations as bodies to which they belong rather than distant and hostile aliens. §69. We will distinguish four sorts of members: full members, which may participate with full rights in all activities of the organization, associate and affiliate members, which may participate but have no voting rights in the principal organs, and partial members, which participate in some activities only. Those types of members, however, are not the only participants in international organizations. Often non-members or other entities may be admitted to meetings of international organizations to which they may contribute as observers. Within each group of participants there are large differences in power and influence. Some full members contribute more to the expenses of the organization than others. Some may have privileged positions such as the right of permanent membership in subsidiary organs or the right of veto. Some observers are very passive, others may decisively influence the discussions by their expert knowledge.

8. For example, case 301/81, Commission v. Belgium, ECR 1983, at 478; case 364/85, Commission v. Italy, ECR 1987, at 487.

§70

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54

§70. When discussing membership of international organizations it should be borne in mind that member states are ‘collectivities’, entities which represent individuals and which cannot act by themselves (the same is true for many observers). They must be represented by individuals. The representation of members will be discussed when dealing with the composition of organs in Chapter Three. Here it is sufficient to note that it is not the governments which are members of international organizations. Membership will therefore not come to an end when a change of government takes place. The organization will only have to decide whether it accepts the delegates of the new government as representatives of the member. One important category of persons participating in the work of international organizations will be discussed in a later chapter: international civil servants. They devote much time and effort to the organization and may greatly influence its success.

I.

Full members

A.

Subjects of membership

1.

States

§71. The most important members of international organizations are states. Indeed, many constitutions of organizations expressly require statehood as a condition for membership.9 There is usually no difference of opinion whether candidate members fulfil this requirement. §72. From the 1960s to the mid 1970s, the problem of ‘micro-states’ or ‘ministates’ and their membership of international organizations was the subject of much discussion in practice and in theory.10 There is no generally agreed

9.

10.

E.g. UN Charter, Arts. 3, 4; CoE, Art. 4; OAS, Art. 4; OAU, Art. IV. Probably because of the colonial history, Art. IV of the OAU over-stresses the requirement that members have to be independent: “Each independent sovereign African state shall be entitled to become a member of the organization”. When in 2001 the OAU was transformed into the African Union, this emphasis was removed. According to Art. 29 of the AU constitution, “any African State” may become a member of the organization. See the literature mentioned in the previous edition, at 35 (footnote 4), and, more recently, J. Duursma, Fragmentation and the international relations of micro-states: self-determination and statehood (1996). The Secretary-General of the UN has drawn attention to the problem of mini-states a number of times: see e.g. GAOR 22 Suppl. No. 1A (A/6701/Add.1), at 20, paras. 167-169; GAOR 23 Suppl. No. 1A (A/7201/Add.1), at 20,

55

Participants

§73

definition of these states, partly because they do not form a separate category of subjects in international law, a sub-category of ‘states’ as subjects of international law, enjoying different or special rights and obligations. In practice, mini-states are, as their name suggests, characterized by their very small size and for this reason, the utility of their participation in organizations was sometimes questioned. Moreover, one study from 1971 demonstrates that, because of the one-state-one-vote principle, a group of mini-members, representing less than 0.2 per cent of the world’s population, could hold more than one-third of the votes in the UN.11 Nevertheless, full membership of international organizations (in particular the UN) is important for mini-states for a number of reasons, inter alia because it is seen as a proof of sometimes hard-won independence, because mini-states usually have scant representation in other countries and therefore need the organization as a meeting place, and because the organization is considered as an instrument to guarantee independence against external aggression. The latter reason was emphasized by many mini-members of the UN following the invasion of Kuwait by Iraq in 1990. §73. In 1969, the UN Security Council established a Committee of Experts (the so-called Ministate Committee) to study the problem of mini-members of the UN. No agreement could be reached in this committee. Although it still formally exists, it has not been active since April 1971. While functioning, two substantive proposals were discussed: an American proposal for the establishment of a category of associate membership, and a British proposal for the voluntary renunciation of certain rights and obligations upon admission as a full member. Both proposals lacked sufficient support in the Committee, for two reasons. First, most members of the Committee doubted whether the proposals could be implemented without the UN Charter being amended, which was generally considered undesirable. Secondly, most of the (potential) mini-states were developing countries, and opposition to full membership by mini-states was seen as neo-imperialism. From a legal point of view, the most fundamental rule at stake in these discussions was Article 2.1 of the Charter, laying down the principle of sovereign equality of all UN members, which would be violated were rules to be laid down limiting the rights of minimembers in one way or another.12 On the other hand, some members ques-

11. 12.

para. 172; GAOR 26 Suppl. No. 1A (A/8401/Add.1), at 13, para. 105. J. Chappez, Les micro-Etats et les Nations Unies, 17 AFDI 541-551 (1971). See for an overview of these discussions: M.M. Gunter, What happened to the United Nations ministate problem?, 71 AJIL 110-124 (1977). Gunter concludes “that the issue, if not the problem, is dead” (at 123).

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tioned whether candidate mini-members would be able to carry out their Charter obligations, one of the conditions for membership laid down in Article 4.1 of the Charter.13 (This is similar to one of the reasons why the League of Nations had refused to admit Liechtenstein as a member in 1920.14) §74. Following the impasse in these discussions, the problem remains and has even become more serious by the admittance of some twenty very small states to UN membership, such as Seychelles (1976; population: 81,000), St. Vincent and the Grenadines (1980; population: 114,000), Liechtenstein (1990; population: 33,000), San Marino (1992; population: 27,000), Monaco (1993; population 34,000), Andorra (1993; population: 90,000) and Tuvalu (2000; population: 10,000).15 However, these new admissions have not led to a resumption of the discussion of the issue of mini-members. Consequently, international organizations with mini-members need to find other solutions to the problem of the discrepancy between, on the one hand, the formal principle of sovereign equality of members with the derived one-state-one-vote principle, and, on the other hand, the factual inequality between members. In the Council of Europe, for example, no general discussion took place on mini-members. However, the issue was raised following the applications for membership by Liechtenstein and San Marino, both having approximately 24.000 inhabitants (when they applied).16 In the admissions procedure, Liechtenstein explained that it would cooperate actively in the Council of Europe’s statutory organs and their working committees. At the same time, it declared: “The Government of Liechtenstein, aware of the size of the country’s population, limits its sphere of action with the sentence: ‘In all international organizations and conferences, the Principality of Liechtenstein has always acted in a manner appropriate to its size’. This basic rule of Liechtenstein’s foreign policy would also be followed in the Council of Europe”.17

2.

Territories which are not independent states

§75. There are some international organizations in which not only states, but also dependent territories are (or have been) full members.

13. 14. 15.

16. 17.

For example, the US: SCOR, 1243d meeting, para. 89 (1965). W. Schücking and H. Wehberg, Die Satzung des Völkerbundes (3d ed. 1931), at 271-273 and 368-369. See also Duursma, op. cit. note 10, at 173-176. See T.D. Grant, States Newly Admitted to the United Nations: Some Implications, 39 CJTL 177-192 (2000). Population data are for the year 2001 and have been taken from the UN publication World Statistics Pocketbook (2001) Liechtenstein: Council of Europe, Parliamentary Assembly, Doc. 4193 (1978). San Marino: Council of Europe, Parliamentary Assembly, Doc. 5938 (1988). Council of Europe, Parliamentary Assembly, Doc. 4193 (1978), at 19.

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In order to satisfy the desire of the USSR for more voting power in the UN, the Byelorussian SSR and the Ukrainian SSR were admitted as independent members of the UN in addition to the Soviet Union, despite the fact that the UN Charter (Articles 3 and 4) only mentions states as members.18 Likewise, India and the Philippines became members of the UN in 1945, before they obtained their independence (India on 14 August 1947 and the Philippines on 4 July 1946). However, these should be considered as special cases of UN membership, not as an official recognition by the UN of these territories as states.19 Namibia was not an independent state when it was admitted as a full member of a number of international organizations, despite the fact that the constitutions of some of these organizations only envisage membership by states. The UN General Assembly recommended admitting Namibia as a full member.20 For example, Namibia was admitted as a full member of the FAO (1977) and of the ILO (1978).21 It was only in 1990 that Namibia achieved independence and was subsequently admitted to the UN. Again, this should not be considered as recognition that at the time Namibia fulfilled all the criteria for statehood, but rather as a case sui generis, which can only be understood within the context of its specific history of UN involvement.22 Only independent Arab states can become members of the League of Arab States.23 Nevertheless, in 1976 Palestine became a full member (represented by the PLO), necessitating the adoption of an Annex to the constitution which stipulates, inter alia, that the existence and independence of Palestine can not

18.

19. 20. 21.

22. 23.

UNCIO Documents, at 344. (The UNCIO said little on this question, as the Principal Powers had decided it at the Yalta Conference of February 1945.) Cf. also the legal opinion given by the UN Legal Counsel at the 38th meeting of the 5th Committee of the General Assembly of the UN on 8 December 1992 (published in UNJY 1992, at 435-438). In this legal opinion, the Legal Counsel concluded that Belarus and Ukraine “are, and remain, ‘original members’ of the United Nations”. “The recent constitutional changes , the change in the relationship between them and the former USSR or changes in their official designations did not and could not somehow transform them automatically into new members of the Organization. There is no procedure for that […]”(at 435). For a similar point of view, see R. Higgins, The development of international law through the political organs of the United Nations 16-17 (1963). See, inter alia, Res. 31/149, para. 3, and Res. 32/9E. Despite an opinion by the ILO Legal Adviser, concluding that Namibia “has not yet attained independent statehood. (...) It “cannot be admitted as a member of the ILO until it attains independence, and becomes able to exercise all the rights and discharge all the obligations of membership in the organization”. International Labor Conference, 64th Session, Provisional Record of Proceedings No. 24, at 20-22; quoted in: E. Osieke, Admission to membership in international organizations: the case of Namibia, 51 BYbIL 1980, at 213. See Osieke, op. cit. note 21. Constitution of the League of Arab States, Art. 1.

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be questioned de jure, “even though the outward signs of this independence have remained veiled as a result of force majeure, it is not fitting that this should be an obstacle to the participation of Palestine in the work of the League”.24 Palestine (represented by the PLO) is also a full member of the Organization of the Islamic Conference and of some Arab organizations.25 Following the 1988 declaration of the establishment of the state of Palestine by the Palestine National Council, the PLO has also sought, unsuccessfully, full membership of other international organizations (WHO, FAO, ILO, ITU, UNESCO).26 §76. The constitutions of other organizations explicitly distinguish membership from statehood and provide an opportunity for the admission of non-autonomous territories as members.27 The following organizations have or used to have non-sovereign members (apart from the cases mentioned in the previous paragraph): 1. Among the members of the UPU are two (groups of) non-autonomous territories which are full members of the organization (the Netherlands Antilles and Aruba, the UK Overseas Territories).28 2. Until 1975, the ITU included six groups of non-autonomous territories as separate members (Southern Rhodesia and the overseas territories of France, Portugal, Spain, the

24. 25.

26.

27.

28.

See P.J.G. Kapteyn, P.H. Kooijmans, R.H. Lauwaars, M. van Leeuwen Boomkamp, H.G. Schermers (eds.), International Organization and Integration (2nd ed. 1983), Vol. II.G.1.a. E.g. the Arab League Educational Cultural and Scientific Organization and the Arab Organization for Standardization and Metrology, specialized agencies of the League of Arab States. See F.L. Kirgis, Jr., Admission of “Palestine” as a Member of a Specialized Agency and Withholding the Payment of Assessments in Response, 84 AJIL 218-230 (1990). See also the study by the Director-General of the WHO on the application of Palestine for membership in WHO, WHO Doc. A43/3 (1990). In this study, the Director-General could not arrive at definitive conclusions. One of the findings is that, “from a legal point of view, certain constituent elements of a state that are considered by a number of members of the international community as inexistent or embryonic at the present time may later appear or grow stronger” (id., at 17). See for documents prepared by the PLO in support of its application for membership of UNESCO: the Palestine Yearbook of International Law 1989, at 290-317. See R. Kovar, La participation des territoires non autonomes aux organisations internationales, 15 AFDI 522-549 (1969). On the impossibility of the Free city of Dantzig becoming a member of the ILO, see the advisory opinion of the PCIJ of 26 August 1930, PCIJ Rep. Series B, No. 18. UPU, Art. 2; YIO 2002/2003, Vol. 1, at 2492. On UPU membership see J.D. Codreau, Historical Development of the Universal Postal Union and the Question of Membership, thesis Fribourg (1975).

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UK and the US). In the convention entering into force in 1975, membership is limited to sovereign countries.29 The same is true for the 1992 Constitution (Article 2). 3. Any territory or group of territories, maintaining its own meteorological service can be admitted to the WMO as a member (WMO, Article 3). On some specially mentioned questions they do not however have the right to vote (see below, §78). The following six territories are members of the WMO: British Caribbean Territories, French Polynesia, Hong Kong, Macau, Netherlands Antilles, New Caledonia.30 4. Not only states but also separate customs territories possessing full autonomy in the conduct of their external commercial relations may become members of the WTO, in accordance with Article XII.1 of the Marrakesh Agreement establishing the WTO. At present Hong Kong and Macau are members on the basis op this provision.31 Previously, such territories have become members of the GATT, in accordance with Article XXVI.5(c).32 5. The constitution of the European and Mediterranean Plant Protection Organization holds membership open to territories whose external relations are governed by a member. There are no other restrictions on this membership other than that it must be proposed by the member responsible for the external relations of the territories. Guernsey and Jersey are such territories, which are full members of this organization.33 6. In some development banks non-sovereign territories may become separate members.34 For example, Hong Kong is a member of the Asian Development Bank.35 The British Virgin Islands are a member of the Caribbean Development Bank.36 7. Overseas territories of members may acquire separate membership of the International Institute of Refrigeration (Article 3).37 8. Net coffee importing members of the International Coffee Organization may declare that they are participating in the organization separately with respect to any of the territories for whose international relations they are responsible, which are net exporters of coffee and which they designate. These designated territories will have separate membership (Article 5 of the 1976, the 1983, and the 2001 International Coffee Agreements). There are currently no such members.38

29. 30. 31. 32.

33. 34. 35. 36. 37. 38.

YUN 1973, at 594; YUN 1975, at 1068. YIO 2002/2003, Vol. 1, at 2615. YIO 2002/2003, Vol. 1, at 2635. See on the application of this provision: GATT, Analytical Index: Guide to GATT Law and Practice (6th ed. 1994), at 850-856 and 1052-1053. Examples of such territories are Hong Kong and Macau. YIO 2002/2003, Vol. 1, at 886. Caribbean Development Bank, Art. 3; Asian Development Bank, Art. 3(3). YIO 2002/2003, Vol. 1, at 156. YIO 2002/2003, Vol. 1, at 335. This Bank may have, inter alia, “states and territories of the region” as its members (Art. 3.1 of the Constitution). At present this organization has only independent members. See YIO 2002/2003, Vol. 1, at 1594. YIO 2002/2003, Vol. 1, at 1418.

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§77. In principle, parts of states cannot be independent parties to the treaty embodying the constitution. Is it then justified to accept them nevertheless as full members of international organizations? Separate membership of non-autonomous territories in UPU and ITU was originally meant to give the mother-countries – which completely determined the vote of their colonies – more voting power. In order to restrict the number of votes in the hands of the small colonial powers, their colonies were grouped together. Thus, the Portuguese territories in East-Africa, Asia and Oceania used to share one membership in the UPU, although their postal services did not have much in common. Gradually, the ground has shifted so that independent membership can be granted to non-autonomous territories with independent postal services. At present, independent membership for non-autonomous territories is valuable for territories which are independent with regard to certain specific public functions, but which are not responsible for the conduct of their general international relations. It is the independence of the function which is relevant, not the independence of the territory. Territories with an independent postal service can participate in the UPU on the same basis as states, even if they are not responsible for their own external relations (and thus cannot be party to a treaty), as long as the UPU limits itself to postal affairs and does not deal with general problems of foreign policy. This last condition can sometimes create difficulties. For example, the specialized agencies have often been confronted with general foreign policy questions such as the admission of the former German Democratic Republic or the recognition of a communist Chinese delegation as the lawful representative of China. In addition, the expulsions of South Africa and Portugal were discussed in many international organizations. It seems objectionable to allow non-autonomous territories to vote on such questions, which is why the UPU and the ITU have not accepted any new non-autonomous territories as members for some time and why the ITU finally abolished this kind of membership altogether. Over time, the number of non-autonomous members of international organizations has gradually decreased as more territories have gained their independence. §78. The WMO limits the rights of non-autonomous members to meteorological questions. Accordingly, they may not vote on amendment or interpretation of the constitution or proposals for a new constitution, applications for membership, relations with other international organizations and election of

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the president and vice-presidents of the organization or the members of the Executive Council.39 This system does seem to be the most appropriate one. The non-autonomous territories are given full powers only in those fields where they are selfgoverning. However, it scarcely seems possible to consider such membership as full membership. 3.

Groups of states

§79. In the International Coffee Organization two or more contracting parties which are net exporters of coffee may join as a member group. The member group constitutes a single member for most purposes, but for some issues, such as the (vice-) chairmanship of the Council, the quorum and the undertaking of some substantive obligations, each group member is counted individually. To become a member group, the parties have to fulfil a number of conditions; inter alia, they must have a common or coordinated commercial and economic policy in relation to coffee and a coordinated monetary and financial policy, as well as the organs necessary to implement such policies.40 In practice, this will usually mean that the member group is itself an international organization, such as the Organisation Africaine et Malgache du Café. However, a looser relationship between the partners of a member group is possible. In fact, member groups also exist(ed) in the UPU and the ITU, where several non-autonomous territories share or used to share the same membership. The Netherlands Antilles and Surinam, for example, shared UPU membership before Surinam’s independence in 1975. In practice, they appointed a head of delegation and his substitute to attend UPU meetings alternately. The delegation then promoted the interests of both territories. This system appears to have worked satisfactorily. In the Caribbean Development Bank, five members (Anguilla, Montserrat, British Virgin Islands, Cayman Islands, and Turks and Caicos Islands) are considered a single member of the Bank for the purposes of Articles 26, 32, and 65 of the Constitution (dealing with the appointment of a Governor and with voting).41

§80. The component elements of a member group, collectively, constitute one member. Member groups must therefore be distinguished from the collective representation of several members in an organ of the organization (see below, §254).

39. 40. 41.

WMO, Art. 11(a). Art. 6 of the 1976, the 1983, the 1994 and the 2001 International Coffee Agreements. See Art. 3.4 of the Constitution.

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The recognition of member groups as members may fulfil a function between membership of individual states and that of other international organizations. Member groups may be useful, in particular for small states wanting to be involved in technical organizations, but unable to send delegations to each of the increasing number of existing organizations, or unable to master alone all the requirements connected to full membership. In general the forming of member groups may be one solution to the problem of mini-states (see above, §72-74). 4.

International organizations

§81. Many international organizations take part in the work of other international organizations, but not often as full members,42 the more usual course of affairs being for them to have observer status, and a purely advisory role. However, there are exceptions, one being formed by the European Investment Bank which is a member of the European Bank for Reconstruction and Development.43 Another example is the Common Fund for Commodities of which not only states but also some international organizations (e.g. the African Union/African Economic Community, the Common Market for Eastern and Southern Africa) are full members. Furthermore reference can be made to the Joint Vienna Institute, which five international organizations agreed to establish as a new international organization to carry out training programmes directed at officials of the countries of Central and Eastern Europe; these five organizations are full members of the Institute.44 However, the main exception is the European Community, which is a full member of a number of other international organizations. As of 1 February 2003, the following international organizations are the main organizations of which the EC is a full member:45

42.

43. 44.

45.

See in general H.G. Schermers, International Organizations as Members of Other International Organizations, in R. Bernhardt, W.K. Geck, G. Jaenicke, H. Steinberger (eds.), Völkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte – Festschrift für Hermann Mosler 823-837 (1983). Cf. D.R.R. Dunnett, The European Investment Bank: Autonomous Instrument of Common Policy?, 31 CMLRev. 721-763 (1994), in particular at 732. The five organizations are the Bank for International Settlements, EBRD, IMF, OECD, and the World Bank. See UN Doc. E/1994/115. The Agreement came into force 19 August 1994, upon signature by four of the five above mentioned organizations. See www.europa.eu.int/eur-lex/en/lif/ind, Directory of Community legislation in force. See on EC membership of international organizations I. Pernice, Die EG als Mitglied der Organisationen im System der Vereinten Nationen: Konsequenzen für die Politik von Mitgliedstaaten und Drittstaaten, in: 26 Europarecht 273-281 (1991); I. MacLeod, I.D. Hendry and

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FAO WTO European Economic Area European Bank for Reconstruction and Development International Tropical Timber Organization International Olive Oil Organization International Cocoa Organization International Sugar Organization International Jute Organization International Coffee Organization International Wheat Council Common Fund for Commodities International Tin Study Group International Copper Study Group International Nickel Study Group International Rubber Study Group Northwest Atlantic Fisheries Organization Commission for the Conservation of Antarctic Marine Living Resources Northeast Atlantic Fisheries Commission North Atlantic Salmon Conservation Organization International Baltic Sea Fishery Commission International Commission for the Conservation of Atlantic Tunas International Commission for the Protection of the Elbe International Commission for the Protection of the Oder International Commission for the Protection of the Rhine United Nations Convention on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof Eurocontrol46 In addition, the EC is a party to a number of association and cooperation agreements which establish separate international organizations (despite their rather ‘thin’ institutional framework). Examples are the 1963 association agreement with Turkey47 and the 1988 cooperation agreement with the states party to the Charter of the Cooperation Council for the Arab States of the Gulf.48

46. 47. 48.

S. Hyett, The External Relations of the European Communities 165-207 (1996). See the Eurocontrol publication Skyway (Winter 2002), at 6-8 (the EC acceded on 8 October 2002). OJ 1973, C 113. OJ 1989, L 54/1.

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In the case of many other international organizations, the EC is not a full member; in most cases, it has observer status (see below, §185-187), without the right to vote.49

§82. As soon as powers are attributed to international organizations, and the organization’s member states are no longer competent to act, the organization should not only exercise its exclusive competence internally, but also externally since the internal and external powers of international organizations cannot be separated. This will be further discussed in Chapter Twelve (see in particular §1753-1755). Logically, it should be possible for an international organization with such exclusive competence to become a party to relevant treaties and to be admitted as a full member to relevant organizations. However, this not only depends on the internal transfer of powers to the organization, but also on the recognition of the organization by the parties to these relevant treaties and organizations.50 Increasingly, it is being accepted in practice that international organizations may participate in treaties and organizations alongside states. At present, many treaties provide for this possibility.51 In addition, if a new organization is established, the constitution sometimes explicitly refers to the possibility for international organizations to become full members. One example is the 1994 constitution of the World Trade Organization, which provides that it is open for acceptance by the European Communities.52 However, most international organizations only refer to states as possible members and their constitutions usually need to be amended to allow membership by international organizations. An exception is the Bank for International Settlements. According to Article 56(d) of its constitution, “country means a sovereign state, a monetary zone within a sovereign state

49.

50.

51.

52.

See for an overview of the position of the Community within other organizations (situation on 1 September 1989): Commission of the European Communities, Relations between the European Community and International Organizations (1989). As far as the position of the Community in UN organizations and organs is concerned, see Commission Doc. (SEC (93) 361); UNJY 1995, at 437-438. On membership/participation of the EC in the Codex Alimentarius Commission (a joint FAO/WHO body), see UNJY 1991, at 346-347; UNJY 1995, at 491-492. E.g. in some fisheries organizations, the Community’s desire to become a full member met with opposition from Eastern European countries. In the end, these problems were solved. See A.W. Koers, The European Economic Community and International Fisheries Organizations, LIEI 113-131 (1984). E.g. “regional economic integration organizations” may become parties to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Art. 23), and to the 1992 UN Framework Convention on Climate Change (Art. 22). Art. XIV.1.

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or a monetary zone extending over more than one sovereign state”. The IMF constitution does not contain a similar provision. However, the view has nevertheless been defended that Article II, section 2 of the IMF constitution – stating that membership shall be open to “countries” – may be interpreted to include the European Community, in the light of the purposes of the IMF.53 So far this has remained a minority view. The usual interpretation in such cases is that only states can become members, and that amendment of the constitution is necessary to permit accession by the EC. This was the solution adopted by the FAO prior to the EC’s admittance as a full member in 1991. It raised a number of interesting points which will be touched upon briefly below. §83. First of all, the amendments to the FAO Constitution are not limited to offering the possibility of full membership only to the European Community. Instead, this possibility is created for any Regional Economic Integration Organization (REIO). A REIO which has been admitted as a member does become a full member in many but not in all respects.54 In particular, REIOs may not participate in a number of non-plenary commissions,55 nor do they pay full contributions to the budget but only have to cover the administrative costs incurred as a consequence of their membership. Although this can be explained by the fact that REIO membership is only possible if the majority of the REIO members are FAO members (which already pay contributions), it results in the REIO member playing a less prominent role in FAO, since budget discussions are policy discussions at the same time.56 Secondly, REIOs may become members only when three conditions are fulfilled. The majority of the members of the REIO must be FAO members, the REIO must have powers in the FAO fields of activity, and the REIO must have the power to take binding decisions in these fields. The first condition

53. 54.

55.

56.

E. Denters, Representation of the EC in the IMF, in M. Giovanoli (ed.), International Monetary Law – Issues for the New Millennium 211-224 (2000). For example, the FAO Legal Counsel indicated that membership of the FAO by a REIO would entitle that REIO also to participate in joint subsidiary bodies of FAO, such as the Codex Alimentarius (a joint FAO/WHO body) and the World Food Programme Committee on Food Aid Policies and Programmes (a joint UN/FAO subsidiary body); see UNJY 1991, at 346-347. In practice however, the EC did not become a member of these joint organizations. See R. Frid, The European Economic Community – A Member of a Specialized Agency of the United Nations, 4 EJIL 239-255 (1993), at 253-254; Pernice, op. cit. note 45, at 279; J. Schwob, L’amendement de l’acte constitutif de la FAO visant à permettre l’admission en qualité de membre d’organisations d’intégration économique régionale et la Communauté économique européenne, 29 RTDE 1-16 (1993), at 10-11. Frid, op. cit. note 55, at 252-253; Pernice, op. cit. note 45, at 279-280.

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can be explained by the fear of third parties that REIO members could obtain rights through REIO membership without being FAO members. Nevertheless, it is difficult to justify this condition from a strictly legal point of view: if all REIO members are FAO members (as is the case for the EC), and if the REIO is exclusively competent in all FAO fields of activity, there is no reason why REIO members should remain individual FAO members.57 Thirdly, on its accession the REIO member of the FAO has to supply a list of powers transferred to it by its member states. Any powers which are not on this list are assumed to belong to the individual REIO members.58 Rather complicated procedures have been introduced, pursuant to which prior to each FAO session, the division of powers in relation to all questions on the agenda, as well as the division of voting rights have to be indicated.59 Fourthly, the REIO members and the REIO may not both vote. Either the member states or the REIO vote. If the REIO is voting, it casts all the votes of its members. In practice, this is of little significance, because decisions are usually taken by consensus and not by voting (see below, §771-786).60 Essentially, these problems are not specific for the FAO. Sooner or later, these and other membership problems will also emerge when the ‘upgrading’ of the position of the European Community in other organizations is discussed. §84. In the past, the Community has become a full member of a number of fisheries organizations. In some of these organizations, the EC was involved in the discussions preceding the establishment of the organization and was able to acquire a position equal to that of state participants (for example, the Northwest Atlantic Fisheries Organization). In another case (the International Baltic Sea Fishery Commission), the organization’s constitution had to be amended to allow for full EC membership. In general, by contrast to the situation in the FAO, the EC is in precisely the same position as other members within these fisheries organizations: it has the same rights, one vote, and its contribution to the budget is calculated on the basis of the same formula as

57.

58.

59. 60.

Frid, op. cit. note 55, at 248-250; A. Tavares de Pinho, L’admission de la Communauté économique européenne comme membre de l’organisation des Nations Unies pour l’Alimentation et l’Agriculture (FAO), RMC 656-673 (No. 370, 1993), at 665. The submission of a ‘declaration of competence’ was also required from the UN when it wanted to accede to the 1986 Convention on Early Notification of a Nuclear Accident and the 1986 Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency. See UNJY 1987, at 173-174. Frid, op. cit. note 55, at 250-251; Tavares de Pinho, op. cit. note 57, at 662-665. Frid, op. cit. note 55, at 251-252; Tavares de Pinho, op. cit. note 57, at 669-670; Schwob, op. cit. note 55, at 12-14.

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is used for the other parties. Additionally, the members of the European Union are not separate members of these organizations.61 B.

Commencement of membership

1.

Establishment of the organization

§85. A state62 can become a member of an international organization through its participation in its creation or through subsequent admission. Some constitutions draw a distinction between “original” members and “additional” or “other” members,63 although this distinction is rarely significant from a legal point of view since the rights and obligations of the original members are usually the same as those of the members admitted later.64 A rare exception is the Asian-African Legal Consultative Committee where new members are admitted by a decision supported by a two-thirds majority, including two-thirds of the original members (Article 4 of the Statutory Rules). Similarly, the OPEC Statutes require a majority of three-quarters of the existing members, including the concurrent vote of all founder members (Article 7C and D) to support the admission of a new member. This provision allows the original members to retain an additional influence on the composition of the organization,65 a position which was reinforced by the provision which originally provided that new OPEC members could only nominate one governor collectively, whilst each of the original members was entitled to nominate its own governor. The latter discrimination was corrected by constitutional amendment in 1965.66

§86. The constitutions of many international organizations entered into force only once a certain proportion of the founding states had ratified it (see below, §1622). Here the question arises as to the position of the other founding states. The Agreement establishing the European Molecular Biology Laboratory (Article VI.6.a.) provides that states which have signed but not yet ratified

61. 62. 63. 64.

65.

66.

Koers, op. cit. note 50. Or parts of states, groups of states or international organizations, as discussed in the previous paragraphs. For reasons of brevity we will only refer to states. See e.g. UN, Arts. 3-4; FAO, Art. 2; IMF, Art. II; World Bank, Art. II; IAEA, Art. 4; AsianAfrican Legal Consultative Committee, Art. 1 Statutes and Art. 2(d) Statutory Rules. From a political point of view however, the distinction is sometimes considered important. For example, China tried hard to become one of the original members of the World Trade Organization, but was unsuccessful in the end. The failure of Trinidad and Tobago’s attempt to join OPEC was due to the exercise of this veto power, see I.F.I. Shihata and A.R. Parra, Organization of the Petroleum Exporting Countries, in: R. Bernhardt (ed.), EPIL Vol. III (1997), at 829-830. F. Rouhani, A History of OPEC 80 (1971).

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the agreement may be represented at the sessions of the general congress of the organization and may take part in its work for two years, but do not have the right to vote. In the World Tourism Organization (Article 42), the states whose national tourism organizations were members of the previous nongovernmental organization had full rights of participation for one year following its entry into force. These arrangements provide useful methods of keeping the signatory states involved in the work of the organization until they have had a reasonable period within which to adhere to the agreement. A related question is whether founding states, which were not members when the constitution of the organization entered into force, may adhere to it at any time, or whether express admittance should be required. Some organizations allow for subsequent adherence by such states for an indefinite period of time,67 while others do so only for a limited period.68 The latter rule seems preferable because an organization does not remain the same. Thus, a state may have participated in drafting a constitution but, having remained aloof from the functioning of the organization for a number of years, places itself in a position similar to that of other non-members. This justifies admitting such a state by the same procedure as any other candidate member. 2.

Re-admission of ex-members

§87. Sometimes members withdraw from international organizations, which they subsequently wish to rejoin.69 Do these ex-members have to be admitted by the same procedure as any other non-member? It is beyond doubt, from a strictly legal point of view, that this is the case. There are no special rules on this issue in constitutions of international organizations. Admission rules are written for non-members in general, including ex-members. Practice generally reflects this rule. Some Eastern European members had withdrawn from the FAO in 1949 and 1950.70 When they returned (Poland in 1957, Romania in 1961 and Czechoslovakia in 1969) they were, correctly, re-admitted following the normal admissions procedures. However, when China returned to the FAO in 1971, a simple declaration was accepted as

67.

68. 69. 70.

E.g. UN Charter, Art. 110.4 (“The states signatory to the present Charter which ratify it after it has come into force will become original members of the United Nations on the date of the deposit of their respective ratifications”); FAO, Art. 2.1; ICAO, Art. 91; CoE, Art. 42; OAS, Art. 140. See, with regard to the ICAO, T. Buergenthal, Law-Making in the International Civil Aviation Organization 14-18 (1969). WHO, Art. 5 ; IMF, Art. II; World Tourism Organization, Arts. 41, 42; IAEA, Art. 4A; EBRD, Art. 61.2. See below (§119-136) on withdrawal by members of international organizations. See YUN 1948-1949, at 1010; YUN 1950, at 908.

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sufficient on the basis of its original membership, and as recognition of China’s claim that the 1951 “withdrawal” from the FAO by the Chiang Kai-shek government had been illegal.71 In 1986, China informed the GATT that it wanted to “resume” membership of this organization.72 China was one of the original contracting parties when the General Agreement was concluded in 1947. In 1950, after Mao’s accession to power, China, still represented in GATT by the Chiang Kai-shek government, withdrew. In 1986, China (the People’s Republic) took the view that the 1950 withdrawal had been illegal, because the Chiang Kai-shek government had not been the legitimate representative of China as a contracting party to the GATT. Accordingly China claimed that its membership had continued, despite the fact that it had been entirely passive; it had not sent delegations to the GATT and, until 1984, it had never become a party to any of the agreements concluded within the GATT framework.73 The question whether China had to apply for new membership or could resume its old membership was far from merely procedural. Normally, candidates for GATT membership have to negotiate a “ticket of admission”, containing tariff and other trade concessions. Strictly speaking, this procedure would not be applicable if China had remained a GATT member. From a legal point of view, China’s claim was far from unsound. It was clear however that in practice, a simple return to the GATT was impossible. China has a centrally planned economy and trade policies which are in a number of respects contrary to basic GATT rules. In 1987, the GATT Council established a working party to consider China’s request and a number of consultations took place. However, while this resumption of membership as such was already a difficult matter, it was further complicated by the violent repression of the student demonstration in Bejing (June 1989), and by the application for membership by Taiwan, one of the largest trading nations in the world (January 1990). Accession negotiations continued when the GATT was transformed into the WTO in 1995. China finally became member of the WTO on 11 December 2001 (Taiwan on 1 January 2002). It can be concluded that the Chinese claim for resumption of GATT membership was treated in fact as a “normal” membership application. The long period of absence and the substantial discrepancies between GATT obligations and Chinese trade conduct made any other solution unrealistic.

71. 72.

73.

See YUN 1971, at 133-134. See R.E. Herzstein, China and the GATT: Legal and policy issues raised by China’s participation in the GATT, 18 Law and Policy in International Business 371-415 (1986); J.E.D. McDonnel, China’s move to rejoin the GATT system: an epic transition, The World Economy 331-351 (1987); Chung-chou Li, Resumption of China’s GATT Membership, 21 JWTL (August 1987), at 25-48; Ya Qin, China and GATT, 27 JWT 77-98 (April 1993); G. Wang, China’s Return to GATT, 28 JWT 51-66 (June 1994). In 1984 China became a party to the Multifibre Arrangement.

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Admission of new members

a.

Admission by constitutional amendment

70

§88. Admission of members other than those provided for at the time of the establishment of the organization means a modification of the organization’s structure. When membership is extended to more states, several obligations of the members become more onerous. On the other hand, the members’ rights are also extended because the new members assume obligations with regard to them. The costs of the organization will increase, as will its income; unanimous decisions will become more difficult, meetings will last longer. Admission of new members thus involves a structural change in the organization and therefore often requires that the constitution undergo some form of amendment. Even in an organization which makes constitutional provision for the admission of new members, amendment may still be necessary to adapt, for example, the provisions concerning the composition of an organ to allow for the inclusion of the new members. When a new member is admitted to the Council of Europe, Article 26 of the Council’s constitution (laying down the composition of the Parliamentary Assembly in which each member has a specific number of seats) must be amended. In the commodity organizations (e.g. the International Coffee Organization) the balance of votes between producers and consumers must be maintained. In organizations whose constitutions attribute wide powers, such as the European Union, many amendments are necessary when new members are admitted.74

§89. Constitutions which require unanimity for modifications usually also require this for the admission of new members.75 Organizations which require the support of specific members for the amendment of the constitution require the same degree of support for the admission of new members. In the UN, the five permanent members of the Security Council have to approve any amendment of the UN Charter. Their approval (or abstention from voting) is also required for the admission of new members.76

74.

75. 76.

When Spain and Portugal acceded to the European Communities a number of agreements were concluded, among which was an Act of Accession containing 403 articles, 36 Annexes, 25 Protocols and a large number of (Joint) Declarations. See OJ 1985, L 302 (497 pages). See for the documents concerning the accession of Austria, Finland and Sweden to the European Union, OJ 1994, C 241. E.g. EFTA, Art. 41; OECD, Art. 16. Art. 4.2 jo. Art. 27.3 of the UN Charter.

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The relationship which exists between the amendment of the constitution and the admission of new members suggests that admission by constitutional amendment would be quite proper for organizations which lack the constitutional provisions to allow the admission of new members,77 or which restrict membership to the founding states.78 When membership is restricted to a particular group of states, constitutional amendment may be needed to extend the circle of potential members. The Council for Mutual Economic Assistance (CMEA, now dissolved) had to amend Article II of its constitution which required that members be European states, before Mongolia could be admitted in 1962. According to the CMEA constitution, amendments required ratification by all members. From 1961 however, Albania did not participate (and did not ratify any amendment), but formally remained a member. Although therefore the amendment never formally entered into force, it was accepted in practice.79

b.

Conditions imposed by the constitution

§90. (i) A few constitutions provide that states can join an organization merely by unilateral notification of this intention, with no approval from the organization being required.80 This is clearly the easiest route for states to become members of an international organization. It is premised on the assumption that the adherence of any interested state will help the organization to pursue its objectives. Admission by unilateral notification may lead to difficulties when entities notify their adherence whilst they are not generally recognized as states (see above, §75). §91. (ii) Some constitutions neither freely admit states to the organization nor impose conditions. They grant membership to all states which are admitted by a decision of the organization.81 It is thus presumed that accessions do not

77. 78.

79. 80.

81.

E.g. the Benelux. E.g. International Pacific Salmon Fisheries Commission (184 LNTS 306); North Pacific Fur Seal Commission (314 UNTS 106) and International North Pacific Fisheries Commission (205 UNTS 80). N.W. Faddejew, Der Rat für Gegenseitige Wirtschaftshilfe 47 (1965); R. Szawlowski, The System of International Organizations of the Communist Countries 49-52 (1976). Convention Respecting Weights and Measures of 1875 as revised in 1921 (by which the International Bureau of Weights and Measures was created), Art. 11; according to this provision, states could accede by a (unilateral) notification to the French government. A similar provision can be found in Art. X of the constitution of the International Whaling Commission. E.g. ILO, Art. 1.4; WHO, Art. 6; FAO, Art. 2.2; ESA, Art. XXII.

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automatically help the organization pursue its objectives; if this is deemed the case, the application will be approved by the organization. Since the organization has to give its approval of any given accession, the competent organ may have to decide whether a certain entity can be qualified as a state. There is a growing practice among international organizations of following the lead of the General Assembly of the UN when deciding to recognize an entity as a state.82 If constitutions do not impose conditions, does this mean that members of the organ taking decisions on membership applications have a ‘free vote’? Yes, in the sense that they have a free vote in their capacity as members of the organ in question, not as sovereign states (see above, §66). In voting, they should use as a theoretical ideal the “rule of essentiality”83 or, in our words, the rule of functionality. This provides that the yardstick by which to decide whether candidate members should be admitted or not, should be: to what extent is the participation of the applicant essential for the organization? In other words: to what extent could the applicant contribute to the realization of the functions of organization? Applying this criterion, the denial of membership of organizations such as the World Meteorological Organization for many years to the German Democratic Republic and the People’s Republics of Korea and Vietnam must be rejected. Even if those countries were not states, they did have their own meteorological services and could therefore contribute to the work of the organization. In political organizations it seems reasonable that political factors should be assessed, but in technical organizations the general system of government of an applicant state should not play a decisive role in determining its eligibility for membership. It is clear, of course, that the rule of functionality in this context is a theoretical standard. In practice, states often do not act in accordance with this ideal, and often act as sovereign states rather than as members of organs. §92. (iii) Several constitutions provide that only states belonging to a particular group can become members of the organization. This condition can usually be explained by the specific objectives of the organization. For example, one of the conditions laid down in Article 49 of the Treaty on European Union

82.

83.

See e.g. UN Doc. E/5513, para. 11. See also below, §1853; the same practice has been developed as for adherence to conventions of international organizations by non-members, see below, §1300-1304. I.L. Claude, Swords into plowshares 85-86 (4th ed., 1971). Claude continues: “According to this concept, membership policy should be rationally adapted to the functional purposes of each specific institution. States should be accepted or excluded (...) on the basis of judgment as to whether their participation is essential to, or incompatible with, the realization of the aims of the organization” (our emphasis).

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(only European states may apply for membership of the Union) corresponds to one of the Union’s objectives formulated in the Preamble: “... resolved to continue the process of creating an ever closer union among the peoples of Europe ...”.84 Membership of a regional organization is open to all states of the region concerned.85 States invited to a constitutional conference may usually adhere to the organization in question within a specific period of time, sometimes without a time limit. The members of the UN may freely enter into a number of specialized agencies.86 Members of the Arab League may freely join the Arab Common Market.87 Membership of the Caribbean Community (CARICOM) is open to nine expressly designated states, although other states can be admitted as well.88 Some regional development banks are open exclusively to members of certain other organizations.89

§93. The requirement that states have to belong to a particular group to qualify for membership of an organization is usually a question of fact and can thus be settled by the secretariat of the organization. When further conditions are imposed, however, the problem arises as to who should verify that such conditions have been fulfilled. The 1948 Charter of the OAS required the members to apply measures and procedures established in special treaties.90 Would this mean that new members had to ratify those treaties? The question created problems when Trinidad-Tobago and Jamaica were to be admitted.91 No OAS organ was charged by the Charter with questions concerning admis-

84.

85. 86. 87.

88. 89.

90. 91.

The EU has not defined what states are considered to be European states. The European Commission in 1992 observed that this requirement “combines geographical, historical and cultural elements which all contribute to the European identity ”; therefore “it is neither possible nor opportune to establish now the frontiers of the European Union whose contours will be shaped over many years to come” (Commission of the European Communities, Europe and the challenge of enlargement, Bull. EC, Suppl. 3/92, at 11). OAS Charter of 1948, Art. 2 (Art. 4 of the 1993 Charter); AU, Art. 29.1; TEU, Art. 49. ILO, Art. 1.3; WHO, Art. 4; UNESCO, Art. II; WMO, Art. 3(b); UPU, Art. 11.1; ITU Constitution, Art. 2(b); IMO, Art. 6; UNIDO, Art. 3. Agreement for Economic Unity among Arab League States, Arts. 17-18. The text has been published by M.S. Wionczek, Economic Cooperation in Latin America, Africa and Asia 293 (1969). Art. 2 of the Constitution. With the exception of Canada, regional members of the Inter-American Development Bank must be members of the OAS; regional members of the Asian Development Bank must be members or associate members of ESCAP; membership of the EBRD is open, inter alia, to non-European countries which are members of the IMF (Art. 3). OAS (1948), Art. 25 (Art. 29 in the 1993 OAS Charter). L.R. Scheman, Admission of states to the Organization of American States, 58 AJIL 968-974 (1964).

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sion. When the OAS Charter was amended in 1967, an article was added charging the General Assembly, on recommendation by the Permanent Council, with determining (by two-thirds majority) “whether it is appropriate that the Secretary-General be authorized to permit the applicant state to sign the Charter”.92 Thus, an admission procedure was introduced by which the question as to whether all conditions for admission had been fulfilled could be settled. Another reason for introducing this provision was that the rule by which all American states were expected to be OAS members, had been abandoned on the suspension of Cuba (see below, §147).93

§94. In the ICAO, admittance of states which were enemies of the nations united in the Second World War is subject to a four-fifths majority vote, which must include all states invaded or attacked by the state seeking admission.94 This requirement is not applicable to the admittance of other states: the organization is open to “members of the United Nations and states associated with them, and states which remained neutral during the present world conflict”.95 The words “United Nations” in this provision refer to the nations united in the Second World War, not to the UN which did not yet exist when the ICAO was founded (1944). Nonetheless some former enemy states were admitted without such a special vote in their capacity as members of the UN (Romania in 1965, Bulgaria in 1967 and Hungary in 1969).96 §95. (iv) In other constitutions, general conditions are laid down, applicable to all candidates for membership. The substance of these general conditions is linked to the objectives of the organization. For example, one of the conditions for membership of the UN is that the candidate member is “peaceloving” (Article 4.1 UN Charter); this is related to one of the purposes of the UN, the maintenance of international peace and security (Article 1.1 UN Charter). The UN demands that the candidate member be peace-loving and able and willing to carry out the obligations contained in the Charter.97 This is of par-

92. 93. 94. 95. 96.

97.

OAS, Art. 7. By an act of the First Special Inter-American Conference (1964) this rule had already been introduced before the OAS Charter was amended (see below, §1181). G. Kutzner, Die Organisation der Amerikanischen Staaten 161-162 (1970). ICAO, Art. 93. Art. 92. On the (non-)application of Art. 93 ICAO, see R.H. Mankiewicz, Adhésion de la Roumanie à la Convention de Chicago, 11 AFDI 630-635 (1965), in particular the survey in note (1) at 631-632; also Buergenthal, op. cit. note 67, at 18-24. UN Charter, Art. 4.

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ticular importance for neutral states like Austria98 and Switzerland.99 In practice, only during the early years of the UN was the extent to which these conditions were satisfied verified. Since the second half of the 1950s, these conditions have played a diminishing role in evaluating membership applications; they have been invoked only incidentally by individual members. It is therefore correct to conclude that in UN practice the conception of membership has evolved from conditional to unconditional universality.100 This conclusion can also be inferred from the fact that the right to veto draft resolutions involving membership applications, used frequently during the early years of the UN, has been used only a few times since 1962, and never since 1977. Since 1962, the overwhelming majority of decisions on such applications have been adopted unanimously or by consensus by the Security Council and by the General Assembly. The Council of Europe only opens membership to European states which, in addition, must be able and willing to accept the principles of the rule of law and of the enjoyment by all persons within their jurisdictions of human rights and fundamental freedoms, and must also be able and willing to collaborate sincerely and effectively in the realization of the aim of the Council (Article 4). A thorough examination of whether the applicant satisfies these conditions takes place in respect of every application.101 In practice, candi-

98.

99.

100.

101.

A. Verdroß, Austria’s permanent neutrality and the United Nations Organization, in 50 AJIL 61-68 (1956); K. Zemanek, Neutral Austria in the United Nations, 15 International Organization 408-422 (1961); K. Zemanek, The changing international system: a new look at collective security and permanent neutrality, 42 Austrian Journal of Public and International Law 277-294 (1991), with references to further literature. H. Langenbacher, Soll die Schweiz der UNO beitreten?, Europa No. 12, at 2-7 (1968); H. Haug, Das Verhältnis der Schweiz zu den Vereinten Nationen (1972); M.M. Gunter, Switzerland and the United Nations, 30 International Organization 129-152 (1976). Switzerland became a member of the UN on 10 September 2002. K. Ginther in Simma, op. cit. note 3, at 178. During the first years of existence of the UN, the Security Council Committee on the admission of new members has sent questionnaires to collect the information needed to verify whether the conditions were fulfilled, see UN Repertory of Practice, Vol. 1, at 183. Since the 1950s, this practice was discontinued. See on the application of Art. 4: G. Feuer in J.P. Cot and A. Pellet (eds.), La Charte des Nations Unies 165-178 (2nd ed. 1991); K. Ginther in Simma, op. cit. note 3, at 178-187. See for example the reports on the application of Czechoslovakia for membership: Parliamentary Assembly, 42d ordinary session, Documents 6346, 6361 and 6380. These reports not always favour immediate admission, see for example the report by the Assembly’s Committee on Legal Affairs and Human Rights on the application of Poland for membership, Doc. 6307 of the Assembly. According to this report, the Committee “considered the debate on Poland’s admission untimely” (at 3). Other examples are Armenia and Azerbaijan. These countries applied for membership in 1996 and became members only in 2001 following negotiations with the Council of Europe as a result of which Armenia and Azerbaijan entered into a number of commitments and obligations.

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date members are now required, inter alia, to become parties to the European Convention on Human Rights. In 1995, the procedure on Russia’s request for membership of the Council of Europe was suspended because of Russia’s military action in Chechnya. After some months the procedure was resumed and in 1996 Russia became a member of the Council of Europe.102 In April 1996, the Parliamentary Assembly of the Council of Europe adopted a decision in favour of the accession by Croatia. However when immediately after the adoption of this decision the Croatian President Tudjman took certain decisions against Council of Europe principles (e.g. judicial action against independent press bodies and the dissolution of the municipal council in Zagreb where democratic elections had voted the opposition in) the Committee of Ministers decided to put off Croatia’s admission indefinitely. In November 1996 Croatia became a member after it was decided that conditions for membership were fulfilled.103 The application for membership by Belarus in 1993 has so far been rejected.104 The WMO requires that candidates for membership have their own meteorological service (Article 3). States may accede to the NATO if they are “in a position to further the principles of this treaty and to contribute to the security of the North Atlantic area” (Article 10).

§96. In all cases where such conditions are imposed, admission is by decision of the organization or of its collective members (see below §163, §391). To what extent may the members vote freely in taking this decision? May they base their votes on factors other than the fulfilment of the conditions? For example, may they subject their affirmative vote to the additional condition (not mentioned in the constitution) that other states be admitted at the same time (as was done during the early years of the UN)? If members may decide freely whether they will vote for or against admission, there may be little sense in setting conditions. It is therefore more appropriate to assume that members may only judge whether, in their opinion, the candidate fulfils the conditions. If they come to the conclusion that this is the case, they should be obliged to

102.

103. 104.

See the following reports of the Parliamentary Assembly: Docs. 8747 and 8756 (Armenia) and Docs. 8748 and 8757 revisited. See further J.-F. Flauss, Les conditions d’admission des pays d’Europe centrale et orientale au sein du Conseil de l’Europe, 5 EJIL 401-422 (1994); V. Djeric´, Admission to Membership of the Council of Europe and Legal Significance of Commitments Entered into by New Member States, 60 ZaöRV 605-629 (2000); J. Kleijssen, The Monitoring Procedure of the Council of Europe’s Parliamentary Assembly, in G. Alfredsson et al. (eds.), International Human Rights Monitoring Mechanisms (2001), at 623-626. See Parliamentary Assembly report Doc. 7443 and Opinion 193 (1996). See further E. Gelin, L’adhésion de la Russie au Conseil de l’Europe à la lumière de la crise tchétchéne, 99 RGDIP 623-638 (1995). Europe No. 6729, at 3. See e.g. Res. 1102 (1996) of the Parliamentary Assembly in which the Assembly criticized proposals by the President of Belarus to revise the constitution and specifically referred to “the principle of the separation of powers, and in particular respect by the executive of a free and independent parliament and an independent judiciary”.

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vote in favour of admission, even where they may, for other reasons, prefer that it be refused. This position was adopted by the General Assembly of the UN,105 and supported by the International Court of Justice (voting by a majority of nine to six), in a case involving the admission of members to the UN. According to the Court “a member of the United Nations which is called upon, in virtue of Article 4 of the Charter, to pronounce itself by its vote, either in the Security Council or in the General Assembly, on the admission of a state to membership in the United Nations, is not juridically entitled to make its consent to the admission dependent on conditions not expressly provided by paragraph 1 of the said Article; (...) in particular, a member of the organization cannot, while it recognizes the conditions set forth in that provision to be fulfilled by the state concerned, subject its affirmative vote to the additional condition that other states be admitted to membership in the United Nations together with that state”.106

The major powers in the Security Council did not however accept this view. The Soviet Union has always rejected it; the United States implicitly rejected it in 1975 when it blocked the admission of the Democratic Republic of Vietnam and the Republic of South Vietnam for reasons other than those mentioned in Article 4 of the Charter.107 Thus, the Advisory Opinion of the International Court of Justice was not followed by the members in question. It remains to be seen whether in comparable cases in the future judicial organs of international organizations will be more successful in bringing about observance in good faith of the criteria for membership.

105. 106.

107.

Res. 506 A (VI). Admission of a state to the United Nations (Charter, Art. 4), Advisory Opinion, ICJ Rep. 1948, at 65. Cf. also the opinion of the Office of Legal Affairs of the UN Secretariat published in UNJY 1992, at 464-465. According to this opinion, Art. 53 of the 1986 International Agreement on Olive Oil and Table Oil (containing conditions for accession to this agreement) “cannot be invoked in order to reject the candidacy of states members of the United Nations that wish to accede to the Agreement”. Conditions established by the International Olive Oil Council can only be “technical in nature”. In particular, disputes concerning geographic boundaries or territorial disputes in general may not affect such decisions on requests for accession; such disputes and discussions concerning membership status are two distinct and separate issues. This opinion did not explicitly refer to the 1948 Admission Advisory Opinion. S. Jacobs and M. Poirier, The right to veto United Nations membership applications: The United States veto of the Viet-Nams, 17 Harv.ILJ 581-607 (1976). In February 2000, China abstained from voting when the Security Council decided to approve Tuvalu’s application for UN membership. China abstained in view of Tuvalu’s close cooperation with Taiwan.

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Writing in 1958, Mosler considered that it would have been possible for the Court of Justice of the European Communities to find France in default when it barred the United Kingdom and other European states from the Communities for political reasons foreign to the Community treaties.108

§97. (v) The constitutions of some organizations impose no general conditions, but stipulate that specific conditions can be imposed in each specific case. The substance of these specific conditions will also relate to the objectives of the organization, but cannot be formulated in general terms. As a result, conditions may diverge from one candidate to the other. Such ad hoc decisions, geared to each individual application, are needed in organizations where there is such strong interference with the domestic policies of the members that it is impossible to predetermine, in general terms, the demands which must be made on the applicant. Examples are the IMF (Article II, Section 2), the WTO (Article XII), the European Union (Article 49) and the EFTA (Article 41).109 §98. The majorities required to decide on admission in the cases mentioned under (ii), (iii), (iv) and (v) may differ. Organizations will take their decisions to admit new members by simple majority when there is a desire that membership be expanded easily.110 Most universal organizations require the support of two-thirds of the existing members, or of two-thirds of the votes in their general congress for the admission of members.

108. 109.

110.

H. Mosler, Die Aufnahme in internationale Organisationen, 19 ZaöRV 275-317 (1958), at 291292. See for example the Opinion by the EC Commission following Sweden’s application for membership, EC Commission document SEC(92) 1582 def. (1992). More in general: the EC Commission’s report on the criteria and conditions for accession of new members to the Community (prepared at the request of the European Council and presented to the June 1992 European Council meeting in Lisbon); reproduced in Europe Documents No. 1790 (1992). See for a general overview, W. Meng, in: H. von der Groeben, J. Thiesing, C.-D. Ehlermann, Kommentar zum EU-/EG-Vertrag, Band 5 (1997), at 5/1138-5/1180. The Court of Justice has refused to further interpret the conditions for accession; “the legal conditions for such accession remain to be defined in the context of that procedure without its being possible to determine the content judicially in advance” (Case 93/78, Mattheus/Doego, ECR 1978, at 2211). See also D. Booß and J. Forman, Enlargement: Legal and Procedural Aspects, 32 CMLRev. 95-130 (1995); M. Maresceau, On Association, Partnership, Pre-accession and Accession, in M. Maresceau (ed.), Enlarging the European Union – Relations between the EU and Central and Eastern Europe (1997), at 3-22. On the accession negotiations with Austria, Sweden, Finland and Norway, see M. Jorna, The Accession Negotiations with Austria, Sweden, Finland and Norway: A Guided Tour, 20 ELR 131-158 (1995). WHO, Art. 6 (majority of the general congress); AU, Art. 29.2 (majority of the members).

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Following the proclamation of a Palestinian state the PLO decided to apply for full membership of a number of international organizations. The WHO was chosen as the first organization of the UN family for this purpose. In the view of the Western states, the WHO was selected by the PLO since ‘only’ a simple majority of the votes is required to approve applications for membership, while in other UN organizations a two-thirds majority is prescribed.111

§99. Whether conditions for membership are imposed or not, whether general or specific conditions are imposed, whether membership is restricted to states of a particular group, the nature of the admission requirements can usually be explained by examining the objectives of the organization in question. This is hardly surprising: conditions, of whatever nature, serve to guarantee that the organization benefits from an increase in membership. 4.

Acceptance of membership

§100. Establishing membership in an international organization is usually a bilateral act.112 Not only must the organization agree to grant membership, but the approval of the state itself is also necessary. National constitutional law provides for the manner in which such national approval should be given. International organizations do not interfere with this process; for their purposes, it is sufficient when a competent person finally announces that the state has accepted the constitution of the organization. Under international law, such an announcement may be made by any duly-authorized person or by the head of the state, the head of the government, the minister for foreign affairs or the diplomatic representative accredited with the organization or with the state charged with receiving the ratifications.113

National and international actions are however related. The risk of refusal by the organization may prevent a state from initiating the domestic procedure for approval of membership; the existence of strong national opposition to membership may influence the admission procedure in the organization. A careful interaction between the national and international spheres was used when the US was admitted to the ILO in 1934. President Roosevelt first obtained authorization from

111. 112. 113.

NRC-Handelsblad, 13 mei 1989. Exceptions are those organizations which allow states to become members by unilateral notification (see above, §90). Vienna Convention on the Law of Treaties (1969), Art. 7; see also Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986) (hereafter: Vienna II), Art. 7.

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the US Congress to accept membership of the ILO. Subsequently, the ILO invited the US to become a member. This invitation was accepted and the US joined the ILO.114

§101. Many constitutions provide that candidates for membership shall accept the constitution according to their national constitutional processes.115 Is this a condition for the validity of membership? May the membership of a state be challenged when its representative has ratified the constitution of the organization before the national constitutional procedures have been completed? There seems to be no reason to depart here from the general rule of the law of treaties, as codified in the 1969 Vienna Convention on the Law of Treaties: “A state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance”.116

If a state has been a member for a reasonable period of time, it will no longer be allowed to escape the obligations of the constitution on the ground that its acceptance had not complied with the provisions of its internal law. If the state has not yet actually functioned as a member, it can avoid its obligations only if non-compliance with the national constitution was well-known to the other members of the organization (e.g. because it had been indicated during the admission procedure). In such cases however, a state would never be bound, regardless of the specific formulation used in the constitution of individual organizations. The requirement that the constitution ‘has to be accepted according to the national constitutional procedure’, is therefore more or less superfluous. The only real meaning which this requirement may have concerns the mode of acceptance. It could mean that each state is free to become a member, either by accepting the constitution, by accession, by ratification, or by another procedure. In this sense too, the passage contains no more than a restatement of a generally recognized rule of international law.117

114. 115. 116.

117.

G.A. Johnston, The International Labour Organisation 19 (1970). UN Charter, Art. 110; WHO, Arts. 4, 5; IAEA, Art. 21; OECD, Art. 14; EU, Art. 49.; OAS, Art. 139; AU, Art. 27.1. Art. 46; see also the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, Art. 46.2: “An international organization may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of the rules of the organization regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance”. See on this point C. Vedder in Simma, op. cit. note 3, at 1374.

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§102

Date of commencement of membership

§102. Two conditions have to be fulfilled before the membership takes effect: the organization must have admitted the member and the member must have ratified the constitution. An international organization should clearly determine when – after the two conditions have been fulfilled – membership becomes effective. The provisions of most international organizations are sufficiently clear.118 Originally the provisions of the FAO did not have any express regulation in this respect. Most original members considered themselves members from their signature of the constitution, even if their ratification was later. The organization considered the signatories, as far as they participated in its activities, to be members from the time of its establishment. In this regard, it followed the practice of the UPU and the ITU. In those organizations, the constitution had frequently been replaced by a completely new text. The members then used to abide by the new text from its entry into force, even where they had not yet ratified it. Their signature was accepted as sufficient basis for the creation of rights and obligations, including the obligation to pay their share of the expenditure. Yemin considers that the principle of estoppel would have prevented them from contesting their obligations.119 In the FAO, however, Colombia, Nicaragua, Panama, Uruguay and Peru considered themselves as members only from the date of their ratification, notwithstanding the fact that they functioned like members and were treated as such before that date. Accordingly, they refused to pay their contributions for the period prior to their ratification (a total sum of $ 285.750.-, which was never collected).120 In order to remove any doubts, during its sixth session, the general congress of the FAO modified the constitutional provision in question which now expressly gives effect to membership on the day on which the general congress approves the application.121

6.

Establishment of new states122

§103. Particular questions relating to admission may arise when new states are formed. Does a single federation comprised of two states automatically succeed the two states in their membership of international organizations? May parts of a disintegrating state continue the membership of that state in

118. 119. 120. 121. 122.

See e.g. UN Charter, Art. 110. E. Yemin, Legislative Powers in the United Nations and Specialized Agencies 76 (1969). Cf. YUN 1952, at 837, footnote 6. FAO, Art. 2. See also J. Gold, Membership and Nonmembership in the International Monetary Fund (1974), at 283-308. For many practical examples concerning the ITU, see YbILC 1970 II, at 63-101.

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international organizations? What is the position of newly independent states? A few examples are available of each of these cases. §104. The mergers of Egypt and Syria,123 into the United Arab Republic in February 1958, and of Tanganyika and Zanzibar124 into the United Republic of Tanzania in April 1964, led to the creation of new states.125 A more recent example is the merger of North and South Yemen in 1990. In these cases, the new state replaced the old ones as a member of the international organizations in which they had participated.126 No new admission was required, not even where one of the constituent parts of the federation had not previously been a member of the organization. A similar procedure was followed in the case of German unification, although strictly seen, this is not an example of the establishment of a new state, but of the enlargement of an existing state (since East Germany acceded to the Federal Republic of Germany). No new admission to international organizations took place,127 not even in the case of the European Communities.128

123.

124. 125. 126.

127.

128.

On this merger see E. Cotran, Some legal aspects of the formation of the United Arab Republic and the United Arab States, 8 ICLQ 346-390 (1959), containing relevant documents; M.F. Anabtawi, Arab Unity in Terms of Law (thesis Groningen, 1962), at 173-181; Buergenthal, op. cit. note 67, at 31-32; K.G. Bühler, State Succession and Membership in International Organizations – Legal Theories versus Political Pragmatism (2001), at 50-61. See Bühler, op. cit. note 123, at 62-68. On their membership of FAO, see YbILC 1969 II, at 37-39; on the IMF membership, see Gold, op. cit. note 122, at 295-306. This is explicitly provided for in Art. 5 of the OAS Charter: “Any new political entity that arises from the union of several Member States and that, as such, ratifies the present Charter, shall become a Member of the Organization. The entry of the new political entity into the Organization shall result in the loss of membership of each one of the States which constitute it”. For the UN, see UN Doc. A/45/557. This document reproduces a letter from the German Democratic Republic, informing the UN of “the accession, as at 3 October 1990, of the German Democratic Republic to the scope of the Basic Law of the Federal Republic of Germany in accordance with Article 23 of the Basic Law [...]. With this accession the prerequisites under international law for continued membership of the German Democratic Republic in the United Nations and in other intergovernmental organizations cease to apply”. UN Doc. A/45/45/567 contains a letter from the Federal Republic of Germany with essentially the same content. Cf. also UNJY 1991, at 315-317. C. Tomuschat, A United Germany within the European Community, 27 CMLRev. 415-436 (1990); C.W.A. Timmermans, German Unification and Community Law, 27 CMLRev. 437-449 (1990); P.J. Kuyper, The Community and State Succession in Respect of Treaties, in D. Curtin and T. Heukels (eds.), Institutional Dynamics of European Integration, Essays in Honour of Henry G. Schermers Vol. II (1994), at 619-640; Bühler, op. cit. note 123, at 127-151. See for the Commission’s main document (“The Community and German Unification”) EC Bull. Suppl. 4-1990, at 27 ff., which takes the principle of moveable treaty

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The United Arab Republic succeeded Egypt as a member of the IAEA and of the IFC, notwithstanding the fact that Syria had not previously been a member of those organizations.129 The United Arab Republic succeeded Syria and Egypt as a member of several UN organs in which only one had been a member. The International Law Commission (ILC) had both a Syrian and an Egyptian national as members. Since no two members of the ILC may be nationals of the same state,130 one member withdrew (the Egyptian member El-Erian). The United Republic of Tanzania succeeded Tanganyika and Zanzibar as a member of some UN organs of which one of them had been a member (e.g. the Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples131 of the General Assembly, and the Committee on Housing, Building and Planning of the Economic and Social Council).132

In the ILO questions could arise as to which labour conventions were binding on the newly formed states. The Government of the United Republic of Tanzania announced that it considered the Republic bound by the labour conventions to which both territories were parties. As regards the other conventions, it would be bound only for the territory of Tanganyika or Zanzibar if it had already been thus bound.133 The constitution of the United Arab Republic contained provisions to the same effect.134 The same question arose as to ILO conventions to which East Germany was a party, and West Germany not. Germany has taken the position that such multilateral conventions cease to apply to Germany, since with the extinction of East Germany, the respective contracting party has vanished.135 §105. When a state is split into two or more parts, the principal part is generally recognized as the successor of the larger state. Thus, in 1947, the present India replaced the former India when it was divided into India and Pakistan. In September 1961, Egypt (still bearing the name “United Arab

129. 130. 131. 132. 133. 134. 135.

boundaries as its point of departure. See also 51 ZaöRV 384-450 (1991); at 504-512 some relevant EC legislation is reproduced (in English). See also the Presidency Conclusions of the Special Meeting of the European Council, Dublin (1990), published in Europe No. 5245 (1990). YUN 1957, at 502. ILC Statute, Art. 2.2. YUN 1964, at 603. YUN 1964, at 617. ILO Official Bulletin 324 (1964). Provisional constitution of the UAR, Art. 69 (8 ICLQ (1959), at 380). See S. Oeter, German Unification and State Succession, in: 51 ZaöRV 349-383 (1991), at 369370. Cf. also UNJY 1990, at 313-315, concerning the legal obligation of the unified Germany to take over financial obligations of the former German Democratic Republic vis-àvis UNIDO.

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Republic”) succeeded the United Arab Republic when Syria seceded. In August 1969, the present Malaysia was recognized as the successor of the former Malaysia when Singapore seceded and became a separate state. In 1971, Pakistan continued its membership of international organizations when Bangladesh became independent. The mother countries succeeded the colonial empires when the latter disintegrated. §106. More recently, the Russian Federation continued the membership of the Soviet Union in international organizations, when the USSR ceased to exist in 1991.136 In most cases, Russia simply informed the organization in question of its intention to follow this course and its continuation of former USSR membership was implicitly accepted. Within the ILO however, an explicit decision was taken on this matter. The USSR, as one of the ten members of chief industrial importance, was entitled to appoint a member to the Governing Body (the ILO’s board).137 Did Russia also belong to the ten most industrialized member states? At the request of the Director-General, the Governing Body responded positively to this question.138 §107. By contrast, the Federal Republic of Yugoslavia (FRY, or Serbia and Montenegro) claimed to be but was not recognized as the successor of the former Socialist Federal Republic of Yugoslavia, perhaps because it was not considered the principal part of the former Republic of Yugoslavia, but more probably because it was considered the main party responsible for the outbreak of war on the territory of former Yugoslavia. On two occasions, the Security Council considered “that the state formerly known as the Socialist Federal Republic of Yugoslavia has ceased to exist”, and recalled an earlier resolution, in which it had noted that “the claim by the Federal Republic of Yugoslavia (Serbia and Montenegro) to continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations has not been generally accepted”. It first recommended that the General Assembly

136.

137. 138.

In December 1991, Boris Yeltsin, the President of the Russian Federation, informed the UN Secretary-General that “the membership of the Union of Soviet Socialist Republics in the United Nations, including the Security Council and all other organs and organizations of the United Nations system, is being continued by the Russian Federation (RSFSR) with the support of the countries of the Commonwealth of Independent States”. See 31 ILM 138, 151 (1992). See also Y.Z. Blum, Russia Takes Over the Soviet Union’s Seat at the United Nations, 3 EJIL 354-361 (1992); M.P. Scharf, Musical Chairs: The Dissolution of States and Membership in the United Nations, 28 Cornell ILJ 29-70 (1995); Bühler, op. cit. note 123, at 151-170. Cf. Art. 7 of the ILO Constitution. Information obtained from the International Labour Office.

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decide that Serbia and Montenegro “should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly” and subsequently that “it shall not participate in the work of the Economic and Social Council”.139 The General Assembly agreed to these recommendations.140 Thus, on the one hand, it was established that the former state Yugoslavia had ceased to exist. On the other hand, it was not concluded that the UN membership of former Yugoslavia was terminated, merely that the FRY was prohibited from participating in the work of the General Assembly and the ECOSOC. §108. This ambiguous situation was not resolved when the UN Legal Counsel – subsequent to the adoption of Security Council Resolution 777, but prior to the adoption of General Assembly Resolution 47/1 – presented a memorandum in which he recommended that the resolutions be interpreted restrictively “as all decisions limiting membership rights shall, in case of doubt, be so interpreted”. The Legal Counsel thus advised that the resolutions would not affect membership rights other than participation in the General Assembly, such as participation in other UN bodies, the right to circulate documents and to maintain missions at the UN. Even the nameplate of Yugoslavia could remain.141 In this way the former Yugoslavia remained a UN member, until this ambiguous situation came to an end in 2000. Following elections in the FRY President Milosovic – indicted by the Yugoslavia Tribunal – had to transfer power to President Kostunica. In a letter dated 27 October 2000 the FRY formally applied for membership of the UN, five days later it was admitted.142 This application for membership was fully treated as an application for admission as a new member (not implying in some way the continuation of membership of the former Yugoslavia). No explicit decision has been taken on the termination of membership of the former Yugoslavia. Nevertheless such

139. 140.

141. 142.

SC Resolutions 777 (1992) and 821 (1993). GA Resolutions 47/1 (1992) and 47/229 (1993). See for widely diverging interpretations of the meaning of these Resolutions of the Security Council and the General Assembly: Y.Z. Blum, UN Membership of the “New” Yugoslavia: Continuity or Break?, 86 AJIL 830-833 (1992); Correspondents’ Agora: UN Membership of the Former Yugoslavia, 87 AJIL 240-251 (1993); Scharf, op. cit. note 136; D. Shraga, La qualité de membre non representé: le cas du siège vacant, 45 AFDI 1999, at 649-664 (in particular at 656-661); Bühler, op. cit. note 123, at 180-273. Obtained from the UN Secretariat. See also the Annex to UN Doc. A/47/485 and UNJY 1992, at 428-429. UN Doc. A/55/528-S/2000/1043; SC Res. 1326; GA Res. 55/12. Following admission to the UN, the FRY applied for membership of a large number of other organizations and was admitted.

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termination of membership may be implied from the decision to admit the FRY to the UN.143 Admission of the FRY to the UN implied the recognition by the UN of the completion of the process of dissolution of the former Yugoslavia. In practice it was clear that the admission of the FRY implied the termination of membership of the former Yugoslavia. From a strictly legal point of view this was less clear however: until the admission of the FRY, the former Yugoslavia was formally treated as a UN member and no decision has been taken to terminate this membership. The view may be taken that admission of the FRY completed the process of dissolution of the former Yugoslavia. But this view disregards the above mentioned explicit conclusion by the Security Council (in 1992 and in 1993) “that the state formally known as the Socialist Federal Republic of Yugoslavia has ceased to exist”. §109. The UN Charter does not address these situations of state disintegration. Not surprisingly therefore, the relevant resolutions do not refer to any Charter provision. In this situation, it seems correct that the same procedure has been followed as that prescribed in the ‘membership’ Articles 4, 5 and 6 of the Charter (a recommendation by the Security Council and a resolution by the General Assembly). §110. Finally, leaving aside the numerous uncertainties created by the resolutions, one advantage of the action undertaken is that at least some guidance was provided for the UN and for organs and organizations of the UN family. The situation was unprecedented and no easy-to-apply Charter rules were available. Unlike the Russian claim to take over SU membership, the claim by Serbia and Montenegro was not approved by the other former republics of Yugoslavia, nor by the international community. The guidance provided by the Security Council and the General Assembly has been accepted by other UN organizations, in accordance with Resolution 396 (1950) of the General Assembly (see below, §260). Thus, most specialized agencies have adopted resolutions in which Yugoslavia was not expelled, but only prevented from participating in the plenary organ. One exception to this general pattern is formed by the IMF and the World Bank, which decided that the former Republic of Yugoslavia ceased to exist and ceased to be a member

143.

An explicit decision to terminate membership of the former Yugoslavia would have been preferable because – as indicated in the above mentioned memorandum of the UN Legal Counsel – all decisions limiting membership rights must be interpreted restrictively.

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of the organizations. At the same time, they decided that the newly established states, including Serbia and Montenegro, were the successors to the assets and liabilities of the former member Yugoslavia, and subject to special conditions, could succeed to membership in the Fund and in the Bank.144 The Director-General of the ILO found another solution to this dilemma. He simply did not invite Serbia and Montenegro to the annual meeting of the International Labour Conference.145

§111. Czechoslovakia was a member of a number of international organizations, including the UN. On 31 December 1992, Czechoslovakia ceased to exist and the Czech and Slovak Republics applied for membership of the organizations. They were admitted as new members of the UN on 19 January 1993.146 Some problems arose in other organizations however. In some organizations, for example ILO and ICAO, Czechoslovakia used to be an elected member of the (non-plenary) board. Considering the case of USSR-Russia as a precedent, the Czech and Slovak Republics had agreed among themselves that one would succeed this position in some organizations, whereas the other would take over the position of Czechoslovakia in others. This was not accepted by the ILO and ICAO (nor by other organizations of the UN family).147 The Czech and Slovak Republics were both admitted to the ILO and ICAO as “member states of the UN” (as of 19 January 1993).148 Consequently, it was impossible to consider either one as having succeeded Czechoslovakia, as of 1 January 1993, prior to obtaining UN membership. (In the ILO, the Czech Republic was finally elected in the Governing Body through the procedure applicable for dealing with vacancies.)149

§112. For smaller seceding parts the position depends on whether they are considered as entirely new states or as reviving old states. The latter may normally resume their membership of international organizations without any further requirements being made, provided their merger with another state had only lasted for a short period.

144.

145. 146. 147.

148. 149.

IMF, Annual Report 1993, at 59-60, 181; World Bank, Annual Report 1993, at 16. See P.R. Williams, State Succession and the International Financial Institutions: Political Criteria v. Protection of Outstanding Financial Obligations, 43 ICLQ 776-808 (1994). This proved to be an effective solution: Serbia and Montenegro did not attend the meeting (information obtained from the International Labour Office). See Scharf, op. cit. note 136; Bühler, op. cit. note 123, at 273-283. Following consultations between the Secretariats of these organizations, in particular among their legal advisors; frequently reference was made to GA Res. 396 (1950), in order to guarantee uniform treatment of the case. In both the ILO (Art. 1.3) and ICAO (Art. 92), the procedure for becoming a member is easier if a state is a UN member as compared to states which are not a UN member. Information obtained from the International Labour Office.

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Thus, in 1961, Syria was not re-admitted to any international organization when it seceded from the United Arab Republic; it just reverted to its pre-1958 status;150 it also continued its membership of the organizations of which only Egypt had been a member before the merger (IAEA, IFC).151 This has been criticized by some authors,152 on the basis that since the existence of Syria as a member of international organizations had been officially terminated, it would have been more logical to re-admit the new state of Syria. In 1938 Austria was incorporated into the German Reich. After the collapse of that Reich, Austria was “re-established” as a sovereign state.153 Nonetheless, it could not resume its seat in the ILO but was re-admitted as a member in 1947.154 Nor was the claim of the Baltic states accepted that they could resume their membership of the ILO; in 1991 and 1992 they were admitted as new members of the ILO.155

§113. The main argument in favour of allowing formerly independent states to resume their membership of international organizations without new admission, as soon as they regain independence, is the general desire that they resume all former treaty obligations. As for their position under international law, an automatic resumption of all rights and obligations is much easier than their formal renewal. This argument loses much of its force however as the period of dependence becomes longer. From a legal point of view, there are objections to a state reappearing after it has officially disappeared by merger with another state. But these objections seem somewhat too formal when the territory, the people, the culture and the national identity of a state have not disappeared. During a long period of federation with other states, those national characteristics may gradually diminish,156 and it is only after a considerable length of time that a former state will lose its national identity and be unable to resume its former membership of international organizations without re-admission. Some new states which have come into being after secession from existing states have never, or not recently been independent entities. They cannot

150. 151. 152. 153. 154. 155. 156.

See R. Young, The State of Syria: Old or New?, 56 AJIL 482-488 (1962). YUN 1961, at 597. C. Rousseau, Chronique des faits internationaux, 66 RGDIP 413-417 (1962). See also Young, op. cit. note 150, and Anabtawi, op. cit. note 123, at 182-189. The Austrian State Treaty of 1955 expressly recognizes Austria as being re-established. Conférence International du Travail, trentième session (1947), Compte Rendu des Travaux, at 562-563. Lithuania on 4 October 1991, Latvia on 3 December 1991, and Estonia on 12 January 1992. Information obtained from the International Labour Office. See also G. Cansacchi, Identité et continuité des sujets internationaux, 130 RdC (1970 II), at 7-90.

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therefore succeed their predecessors, and have to be admitted formally to international organizations.157 Thus, Pakistan was admitted as a new member of the UN on 30 September 1947, although its submission that it partly continued the membership of the former India was not expressly rejected.158 On that occasion the Sixth Committee of the General Assembly agreed on the principle “that when a new state is created, whatever may be the territory and the populations which it comprises and whether or not they formed part of a state member of the United Nations, it cannot under the system of the Charter claim the status of a member of the United Nations unless it has been formally admitted as such in conformity with the provisions of the Charter”.159 In accordance with this precedent, both Singapore160 and Bangladesh had to be admitted as new states to all international organizations after they had seceded respectively from Malaysia in 1965 and from Pakistan in 1971. More recent examples are Croatia, Slovenia, Bosnia Herzegovina, and most of the former republics of the USSR which became members of the UN in 1991 and 1992.

§114. In the 1978 UN Convention on Succession of States in Respect of Treaties, the principle of clean slate (tabula rasa) has been followed with respect to former colonies that have become independent.161 This principle was not applied to new states which arose from separation rather than decolonization.162 In accordance with the clean slate principle, a newly independent state can decide to be bound only by those treaty obligations of its predecessor by which it wishes to be bound. One exception to this principle, however, concerns the constituent instruments of international organizations. As regards

157.

158. 159. 160. 161.

162.

Following this rule, Happold argues that if Scotland were to become an independent state, it would have to apply for membership of international organizations including the European Union. M. Happold, Independence: in or out of Europe? An independent Scotland and the European Union, 49 ICLQ 15-34 (2000). See K.P. Misha, Succession of States: Pakistan’s Membership of the United Nations, 3 CYIL 281-289 (1965); Bühler, op. cit. note 123, at 42-50. GAOR, Second Session, First Committee, Doc. A/C.1/212, at 582-583 (Annex 14g), reproduced in: YbILC 1962 II, at 103. S. Jayakumar, Singapore and State Succession: International Relations and International Law, 19 ICLQ 398-423 (1970). 17 ILM 1488-1517 (1978). This Convention entered into force on 6 November 1996. See H.D. Treviranus, Die Konvention der Vereinten Nationen über Staatensukzession bei Verträge, 39 ZaöRV 259-279 (1979). For a critical analysis: D.P. O’Connell, Reflections on the State Succession Convention, 39 ZaöRV 725-739 (1979). On this Convention in the light of the disintegration of the USSR and Yugoslavia, see the reports of a symposium on state succession in the former Soviet Union and in Eastern Europe, 33 VJIL (No. 2, 1993). Art. 34 of the 1978 Vienna Convention; as a rule, in these cases the states in question are presumed to succeed to the treaty obligations and rights of the predecessor state. See O. Schachter, State Succession: The Once and Future Law, 23 VJIL 253-260 (1993), at 256-257.

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international organizations with a formal process of admission, newly independent states can only become members by admission, and not by succession.163 To become a member, newly independent states must be admitted to all organizations of the UN family. This is also true for the WHO and for the IMO, to which all members of the UN may adhere simply by acceptance of their constitutions. These organizations do not accept “notifications of succession” as a basis for membership, not even for members of the UN which were subject to the regime of the organization prior to independence.164 Nigeria, which was both a member of the UN and an associate member of IMCO (the predecessor of IMO), still had to follow the normal proceedings for admission of new members.165

§115. When a multilateral treaty creates an international organization with no formal process of admission, the general rule prevails and newly independent states may become members by transmitting a notification of accession to the depository.166 Thus the Swiss government, as depository, has accepted notifications of succession from newly independent states in regard of the International Union for the Protection of Literary and Artistic Works and in regard of the International Union for the Protection of Industrial Property. This practice appears to have met with the approval of the states then members of those organizations.167

§116. In many commodity councils, newly independent states are deemed to be contracting governments if they were individually participating in the commodity council before independence.168 Such newly independent states do not have to succeed their ‘mother’ country as members of international organizations since they already had separate membership of the organization before their independence (see above, §76-78). Whenever the rules of an international organization have been applied in a colony before its independence, it may be in the interests of the organization that membership be continued. The GATT therefore originally recommended that its members continue to apply de facto the General Agreement in their relations with such territories for a period

163. 164. 165. 166. 167. 168.

Art. 4(a). YbILC 1962 II, at 124, para. 145; Report of the ILC 1974 (GA OR 29 Suppl. 10), at 19 (Commentary on draft Art. 4 on succession of states in respect to treaties). Id. Report of the ILC (1974), at 20. Id. Id. at 35, para. 4.

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of two years after the date at which they acquired full autonomy, provided that the territories in question continued to apply de facto the Agreement to trade with the contracting parties.169 During those two years the new states had to decide whether or not to join the organization. However, in practice prolongations of the de facto regime were frequently requested and were always granted. Therefore, in 1967 this time limit was removed.170 In 1994, 13 countries applied the General Agreement on this de facto basis.171 Legal aspects of this form of participation in the GATT have been analyzed in a Note by the GATT Secretariat (1984). This Note indicates that, although the precise meaning of de facto application has never been defined, some practices have evolved. These include the practice that the countries in question “are expected to observe the substantive provisions of the General Agreement. However, they do not apply the procedural provisions of the General Agreement”. In addition, these countries are treated as non-members for organizational purposes: they attend meetings of GATT’s general congress as observers, and do not contribute to the GATT budget.172 Since the Agreement establishing the WTO entered into force (1995), most of the 13 countries applying the General Agreement on a de facto basis became observers to the WTO, and two (Papua New Guinea and Solomon Islands) became full WTO members.

§117. As a rule, the organizations which have admitted non-autonomous territories as associate members (see below, §166-168) grant those territories the advantages of associate membership even after they have become independent, until they are admitted as full members.173 C.

Termination of membership174

§118. Membership of international organizations may end in four ways: the member may terminate it by withdrawing from the organization; the organization may terminate membership by expelling the member; finally, the member or the organization may cease to exist. 1.

Withdrawal by the member

§119. Withdrawal by a member from a universal organization can generally be regarded as disadvantageous from the perspective of the aim of universal

169. 170. 171. 172. 173. 174.

GATT, Basic Instruments and Selected Documents (BISD), 9th Suppl. 1961, at 16-17. GATT, BISD 15th Suppl. (1967), at 64. See GATT, Analytical Index: Guide to GATT Law and Practice 1047 (6th ed. 1994). GATT, Analytical Index XXVI-10-11 (4th ed. 1985). Kovar, op. cit. note 27, at 546-547. See in general N. Singh, Termination of membership of international organizations (1958); F. Zeidler, Der Austritt und Ausschluß von Mitgliedern aus den Sonderorganisationen der Vereinten Nationen (1990).

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membership. Withdrawal by a member from a closed organization will weaken the organization as a unit embracing a specific group, unless the state in question ceases to belong to the group. The withdrawals of the US (1984) and of the UK (1985) from UNESCO weakened the organization. These withdrawals took place following years of increasing criticism of UNESCO programmes and management. They resulted in a 30 per cent reduction in the organization’s budget.175 The UK returned as a member in 1997; in 2002 the US expressed its intention to rejoin. The withdrawal of Greece from the Council of Europe in 1969176 did not weaken the organization since the participation by a totalitarian member is at odds with the aims of an organization of democratic states.

Withdrawal will be particularly harmful to an organization with a supranational character, since the members of such an organization are more closely linked than is the case for other organizations. Withdrawal by one member may have serious consequences for the entire organization. The transfer of sovereign powers to the organization by all members should not be rendered meaningless by the unilateral act of one member, neglecting the interests of the others and of the organization as a whole. a.

Constitutional provisions

§120. Most constitutions of international organizations expressly provide that membership may be brought to an end by (unilateral) withdrawal. Prior notice is usually required, and after a certain period the withdrawal takes effect. This period is often one year,177 though it is sometimes longer,178 sometimes

175. 176.

177.

178.

See Y. Beigbeder, Management Problems in United Nations Organizations – Reform or Decline? (1987), in particular Chapter Two (The Unesco crisis: the end of universality?). Note Verbal of 12 December 1969. For the points of view of the Greek government and the Council of Europe, see 9 ILM 396-416 (1970). See also A. Manin, La Grèce et le Conseil de l’Europe du 12 décembre 1969 au 28 novembre 1974, 20 AFDI 875-885 (1974); K.D. Magliveras, Exclusion from Participation in International Organizations – The Law and Practice behind Member States’ Expulsion and Suspension of Membership (1999), at 80-83. FAO, Art. 19; ICAO, Art. 95; WMO, Art. 30(a); ITU, Art. 57.2; UPU, Art. 12; IMO, Art. 73(a); World Tourism Organization, Art. 35; NATO, Art. 13; OECD, Art. 17; EFTA, Art. 42; AU, Art. 31.1; LAIA, Art. 63; ECOWAS, Art. 64; EEA, Art. 127. In the CoE this period can vary between 9 and 15 months (Art. 7). Two years in the ILO (Art. 1.5) and in the OAS (Art. 148). Between one and two years in UNESCO (Art. II.6). Between one and two years in UNIDO (the UNIDO Constitution (Art. 6.2) provides that withdrawals take effect on the last day of the fiscal year following that during which an instrument of denunciation was deposited).

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shorter.179 One year’s notice is also required by the 1969 and the 1986 Vienna Conventions on the Law of Treaties for treaties which contain no provision on withdrawal.180 During the period between the notification and the actual withdrawal, the withdrawal may be revoked,181 and indeed pressure may be exerted to that end.182 This period is also useful for the organization since it enables it to adapt itself to the loss of the member. The budget may have to be revised, certain projects of the organization may have to be cancelled or changed, civil servants will leave the organization,183 and have to be replaced, etc.184 The organization, of course, needs time for this. In addition, the other members of the organization may have to revise their relations with the outgoing member which, by its withdrawal, is discharged from certain obligations it had undertaken by virtue of its membership (exchange of data, etc.). In view of all these adaptations, the position has sometimes been defended that two year’s notice of withdrawal would be preferable.185 However, any extension of this period beyond the bare minimum increases the danger

179.

180.

181. 182. 183.

184.

185.

Withdrawal from the commodity organizations often becomes effective after 90 days: Olive Oil 1986 (Art. 57.2); Jute 1989 (Art. 43.2); Cocoa 2001 (Art. 60.2); Coffee 2001 (Art. 49); Tropical Timber 1994 (Art. 43.2); sometimes even after 30 days: Sugar 1992 (Art. 42.2). Withdrawal from Eutelsat takes effect three months after the date of receipt of written notice by a party (Art. XIIIa). OPCW: 90 days (Art. XVI.2). Withdrawal from the EBRD becomes effective on the date specified in the notice of withdrawal, but at least 6 months after such notice is received by the Bank (Art. 37.2). Withdrawal from the WTO takes effect upon the expiration of 6 months from the date on which written notice of withdrawal is received by the Director-General of the WTO (Art. XV.1). Withdrawal from the Organization of Black Sea Economic Cooperation becomes effective “on the date specified in the notification. As far as the financial obligations are concerned, such withdrawal shall take effect at the end of the financial year in which it is notified” (Art. 7). Art. 56.2 of both the 1969 Convention on the Law of Treaties and the 1986 Convention on the Law of Treaties between States and International Organizations or between International Organizations. Buergenthal, op. cit. note 67, at 35. Gold, op. cit. note 122, at 333. This would usually not be the case for officials of the Secretariat, not even when they are normally recruited from the members as in case of the IMF; see Gold, op. cit. note 122, at 397. Elected officers, such as chairmen and rapporteurs will normally leave. See with regard to UNESCO: UNJY 1985, at 162-163. Many more problems may arise. See for example E. Stein and D. Carreau, Law and Peaceful Change in a Subsystem: “Withdrawal” of France from the North Atlantic Treaty Organization, in: 62 AJIL 577-640 (1968). See also, with regard to the US withdrawal from UNESCO: Report by the UNESCO Director-General, Consequences of the withdrawal of a member state, UNESCO Doc. 4 X/EX/2 of 28 January 1985 and Corr. 1, 2 and 4; reproduced in UNJY 1985, at 156-183. C. Wilfred Jenks, Some Constitutional Problems of International Organizations, in: 22 BYbIL 23 (1945).

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that the outgoing member might not be willing to cooperate with the organization after the announcement of its withdrawal. §121. A notice of withdrawal can always be retracted. This possibility may however be detrimental to a proper use of the period of denunciation where retraction is expected. When the US withdrew from the ILO in 1975, the Secretary of State expressed the hope that the situation in the ILO would change sufficiently to enable the US to retract its letter of withdrawal. Many members expected such a retraction; as a result, the organization was insufficiently prepared when the American withdrawal became effective on 5 November 1977.186 It was 1980 before the US returned to the ILO. On the other hand, on 17 November 1984 Poland gave notice of withdrawal from the ILO and finally (in 1987) retracted this notice.187

§122. Denunciation takes effect immediately in relation to the IMF and the World Bank.188 This was considered necessary to safeguard the economic independence of the participating states.189 On the four occasions when states withdrew from the IMF, agreements were reached for the settlement of all accounts.190 In the League of Arab States, a year’s notice is normally required, unless it concerns constitutional amendment, when immediate withdrawal is permitted.191 Some constitutions prohibit withdrawal for a certain initial period,192 to prevent members from withdrawing before the organization is running effectively.

186.

187.

188. 189. 190. 191. 192.

On the US withdrawal from the ILO, see W.P. Alford, The Prospective Withdrawal of the United States from the International Labor Organization, in: 17 Harv.ILJ 623-638 (1976). Also Zeidler, op. cit. note 174, at 75-76 (with references to further literature). For the text of the US letter of withdrawal, see 14 ILM 1582 (1975). V.-Y. Ghebali, The International Labour Organization 112-113 (1989). On 13 November 1986, Poland informed the ILO that it had decided to extend its notice of withdrawal by one year; on 17 November 1987 the notice was withdrawn. (The unilateral extension by one year was in fact illegal, but nevertheless accepted by the organization.) Articles XXVI.1 and VI.1 respectively. Gold, op. cit. note 122, at 333-334. Gold, op. cit. note 122, at 386. Information obtained from the IMF Secretariat (Oct. 1994). Arts. 18-19 of the constitution. See B. Boutros-Ghali, La Ligue des Etats Arabes, 137 RdC (1972 III), at 37. European Molecular Biology Laboratory, Art. 16 (6 years); ESA, Art. 24 (6 years); IAEA, Art. 18D (5 years); FAO, Art. 19 (4 years); ICAO, Art. 95 (3 years); IEA, Art. 69(2) (3 years); IMO, Art. 73(a) (1 year); NATO, Art. 13 (20 years); MIGA, Art. 51 (3 years).

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A written notification of the intention to withdraw is generally required, and must usually be sent to the Secretary-General of the organization or to the state depository of the constitution. In some organizations, non-payment of the financial contribution is, or used to be considered as withdrawal.193 In some cases, withdrawal from one organization will result in implicit withdrawal from others where membership of the one is a prerequisite for membership of the other (see below, §153). b.

Withdrawal without constitutional provision

(i)

Interpretative declarations

§123. Some constitutions do not contain any provisions for withdrawal.194 When the UN was established, the possibility of withdrawal was discussed extensively. Most delegations took the view that an express stipulation would weaken the UN by encouraging withdrawal. This argument must be seen against the background of the experience gained with the League of Nations: the Covenant of the League contained a withdrawal clause, which in practice was often used (sixteen members withdrew from the League). Other delegations claimed that it might be difficult, if not impossible, to obtain ratification of the Charter in their countries, if membership was to be regarded as permanent. More particularly, it was pointed out that it would be impossible, for domestic constitutional reasons, to accept such membership if it implied

193.

194.

International Organization of Legal Metrology, Art. 29. Until 1985, non-payment of contribution was considered as withdrawal from the Intergovernmental Organization for International Carriage by Rail; see Regulations concerning the Central Office for International Railway Transport, Art. 2.2 (242 UNTS, at 325; Peaslee V, at 236). In 1985, the 1980 Convention concerning International Carriage by Rail entered into force. Art. 11.2 of this Convention provides that, following a period of at least 4 years of nonpayment of contribution, the General Assembly shall consider whether the attitude of that state should be regarded as a tacit denunciation of the Convention. UN, WHO, European Union, originally also UNESCO. According to Widdows, less than one-fifth of the constitutions of international organizations do not provide a right of withdrawal. This figure is based on the constitutions collected by Peaslee. K. Widdows, The unilateral denunciation of treaties containing no denunciation clause, in: 53 BYbIL 83-114 (1982), at 98. For withdrawal from the UN see G. Ohse, Austritt, Ausschluss und Suspension der Mitgliedschaft in den Vereinten Nationen, mit Rückblick auf die Zeit des Völkerbundes, diss. Bonn 1973, at 1-80. For withdrawal from the European Communities/Union, see P. Dagtoglou, Recht auf Rückritt von den römischen Verträgen?, in: R. Schnur (ed.), Festschrift für Ernst Forsthoff 77-102 (1972); G. Meier, Die Beendigung der Mitgliedschaft in der Europäischen Gemeinschaften, 27 NJW 391-394 (1974). See in general on the possibility to withdraw from the European Union: M. Hilf, in: Von der Groeben et al., Kommentar zum EU-/EG-Vertrag (5th ed. 1997), at 5/782-791.

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that they would be bound by amendments which they had voted against and had refused to ratify. The result of the discussion was the adoption of a declaration of interpretation.195 This declaration disapproved of withdrawal and stated that: “If (...) a member because of exceptional circumstances feels constrained to withdraw, and leave the burden of maintaining international peace and security on the other members, it is not the purpose of the Organization to compel that member to continue its cooperation in the Organization. It is obvious, however, that withdrawal or some other forms of dissolution of the Organization would become inevitable if, deceiving the hopes of humanity, the Organization was revealed to be unable to maintain peace or could do so only at the expense of law and justice. Nor would it be the purpose of the Organization to compel a member to remain in the Organization if its rights and obligations as such were changed by Charter amendment in which it has not concurred and which it finds itself unable to accept, or if an amendment duly accepted by the necessary majority in the Assembly or in a general conference fails to secure the ratification necessary to bring such amendment into effect”.196

The last phrase illustrates the living character of the Charter. The non-entry into force of an amendment considered by the organization as necessary is given the same legal effect as far as the right to withdraw is concerned as a constitutional amendment. §124. The conference establishing the WHO recognized, in the following declaration, the possibility of denunciation when the constitution was amended: “A member is not bound to remain in the Organization, if its rights and obligations as such are changed by an amendment of the constitution in which it has not concurred and which it finds itself unable to accept”.197

This declaration was not sufficient for the US. In ratifying the WHO constitution, it announced that its ratification was subject to the understanding that the US reserved the right to withdraw with one-year’s notice. The First World Health Assembly unanimously recognized the validity of this reservation. The significance of this event is that it reveals that the US considered this reservation necessary and feared that in its absence withdrawal would prove impossible.

195. 196. 197.

L.M. Goodrich, E. Hambro and A.P. Simons, The Charter of the United Nations 74-76 (3rd ed. 1969). For the text see Goodrich et al., op. cit. note 195, or 7 UNCIO, at 267. Proceedings of the International Health Conference, 1946 (Official Records WHO, No.2), at 26 and 74.

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When the UNESCO was set up, the inclusion of a provision for withdrawal was also considered;198 in the end however, it was not adopted because it was considered undesirable to mention the possibility of denunciation. Both the WHO and the UNESCO were undoubtedly influenced by the discussion which had taken place shortly before in San Francisco, when the UN Charter was drafted. (ii)

Practical experience

§125. In practice, on a number of occasions states have withdrawn from international organizations, the constitutions of which do not contain provisions on withdrawal. As far as the sixteen specialized agencies of the UN are concerned, only the WHO does not have a provision on withdrawal; UNESCO did not have such a provision until 1954. One study has shown that prior to 1987 there were 46 withdrawals from these specialized agencies. The WHO faced most withdrawals (ten); three members withdrew from UNESCO (prior to 1954).199 These figures cast doubt on the validity of at least one argument used against the inclusion of a withdrawal clause in a constitution: the argument that failure to provide a clause would prevent withdrawals. In fact, withdrawals occurred relatively less frequently in the specialized agencies for which withdrawal is expressly provided. §126. In 1949 and 1950 the Eastern European states200 informed the Secretariat of the WHO that they were withdrawing from the organization,201 and on 6 May 1950, China followed suit (as from 7 May 1950).202 Since the

198.

199. 200.

201.

202.

Such provision was included in Art. 3.2 of the draft constitution drawn up by the Allied Ministers of Education. See Conference for the Establishment of the United Nations Educational, Scientific and Cultural Organization, Doc. ECO/CONF./29, Preparatory Commission, UNESCO (1946), at 1 and 109. The present Art. 2.6 of the UNESCO constitution (on withdrawal) was added in 1954 (see below, §128). On the basis of that provision Portugal was able to withdraw in 1972 (it re-entered as a member in 1974, see YUN 1974, at 963). Other countries withdrew in 1984 (US) and 1985 (UK) (the UK returned in 1997, and in 2002 the US expressed the intention to do so). F. Zeidler, op. cit. note 174, at 128-129. USSR 12 February 1949; Ukrainian SSR 14 February 1949; Byelorussian SSR 19 February 1949, Bulgaria 29 November 1949; Romania 20 February 1950; Albania 25 February 1950; Czechoslovakia 14 April 1950; Hungary 19 May 1950; Poland 15 August 1950. For the text of the declaration, see the report of the third session of the Council (Official Records WHO No. 17) Annex 22 and the report of the third session of the WHO conference (Official Records WHO No. 28), Annex 13. Official Records WHO, No. 28, Annex 13.

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constitution did not contain any stipulation on denunciation, it was possible for them to declare that the withdrawal took effect almost immediately.203 At the end of 1952 and early in 1953, Czechoslovakia, Poland and Hungary announced that they considered their membership of UNESCO terminated. §127. Neither the WHO nor the UNESCO recognized these withdrawals. Both organizations took the view that withdrawal was impossible as long as the constitution did not expressly provide for it and consequently that the membership continued. This view inevitably led to difficulties since the organizations did not possess any means of compelling these states to cooperate. Until a solution was found, the financial contributions due from these ‘inactive’ members would rise indefinitely and it would be increasingly difficult to find a way out of the deadlock. §128. UNESCO finally decided to include a provision in its constitution by which withdrawal would be made possible. It added a sixth paragraph to Article 2, which also regulates the method of withdrawal. However before this stipulation was adopted,204 Hungary (1 June 1954), Poland (18 June 1954) and Czechoslovakia (9 September 1954) had already announced that they had revoked their denunciation and that they would again take an active part in the organization. UNESCO demanded – and obtained – part of the contributions which were in arrears.205 §129. The WHO did not go so far as to amend its constitution in order to allow withdrawal. However, the need was recognized for some arrangement for countries which had ended their cooperation. In this organization also, the states concerned wished to re-establish their membership after a few years. Thus, in May 1952 the (Nationalist) Chinese government sent a telegram to the WHO in which it informed the organization of its wish to resume its active participation in the organization.206 The WHO accepted the Chinese wish

203.

204. 205.

206.

Since the entry into force of the 1969 Vienna Convention on the Law of Treaties (27 January 1980), this will no longer be possible. Art. 56.2 of this Convention provides for a twelve months’ notice in case of withdrawals which are not foreseen in the text of a treaty. UNESCO Res. II. 1.1, adopted at the eighth session of the General Conference of UNESCO, 8 December 1954. UNESCO Res. V.1.5, of 24 November 1954. See also UNESCO Documents 8C/ADM/30 and Add.1; J.G. Stoessinger, Financing the United Nations System 230 (1964), at 230; UNJY 1969, at 267-269. Report of the Fifth Session of the WHO Congress (Official Records, WHO, No. 42), Annex 7.

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Participants

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and granted almost all financial facilities requested by China. Nevertheless it did not formally annul the contributions for the years in which China had not participated in the activities of the organization.207 In the WHO, the question arose whether the ‘inactive’ states, upon resumption of active membership, should be considered bound by the (binding) Sanitary Regulations which had been adopted during these countries’ absence. These Regulations became binding upon the member states unless they notified that they did not wish to become bound within three months of their adoption (‘opting out’, or the negative ratification procedure; see below, §1288-1294). Should these countries be considered bound, on the basis that they had never ceased to be members, or should they be considered bound only three months after resuming active membership? The first solution was chosen.208 §130. In the summer of 1955 the Soviet Union expressed its intention in the Economic and Social Council of the UN to resume an active role in the activities of the WHO. The board of WHO opened negotiations with the Soviet government and proposed that the World Health Assembly (the general congress of WHO) grant payment facilities.209 On this basis, at its ninth session (May 1956) the World Health Assembly adopted a resolution laying down the conditions under which inactive members could resume their participation in the organization.210 They had to pay 5 % of their contributions for the years during which they did not participate in the activities of the organization. On the basis of this resolution, most Eastern European states resumed their WHO membership.211 §131. In all these cases both sides made concessions. The organizations did so by not demanding the full contributions for the years of inactivity, while

207. 208. 209. 210. 211.

Res. No. 6 of the Sixth Session of the General Congress of WHO (Official Records WHO, No. 48), at 18. C.-H. Vignes, Le Règlement sanitaire international, AFDI 649-667 (1965), in particular at 655. Minutes of the Seventeenth Session of the Executive Board, Geneva (1956), at 222, 223; 318 and 319. Res. WHA 9.9, of 11 May 1956, Official records WHO, No. 71, at 19; see also at 111 and 153-164. All except the Byelorussion and Ukrainian SSR. Hungary only returned in 1963. See United Nations Review, Feb. 1957, at 5; Official Records WHO, No. 76, at 25 and for a more detailed survey P. Bertrand, La Situation des “Membres inactifs” de l’Organisation Mondiale de la Santé, 2 AFDI 602-615 (1956). See also C. Osakwe, The Participation of the Soviet Union in Universal International Organizations, A Political and Legal Analysis of Soviet Strategies and Aspirations inside ILO, UNESCO and WHO (1972). On the return of Hungary, see C.-H. Vignes, Organisation mondiale de la Santé, 9 AFDI 532-634 (1963).

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the states concerned did so by revoking their denunciation instead of reapplying for membership. As members of the UN, they could have re-acceded to either organization by a unilateral act, and indeed on their interpretation of withdrawal this would have been the only logical step to take. §132. On 20 January 1965, the Deputy Prime Minister and Minister for Foreign Affairs of Indonesia formally notified the Secretary-General of the UN by letter that “Indonesia had decided at this stage and under present circumstances to withdraw from the United Nations”.212 The actual withdrawal had already been carried out as of 1 January 1965. The Secretary-General of the UN acknowledged the receipt of the note and cooperated in the termination of Indonesia’s membership. The government of the United Kingdom notified the Secretary-General that they considered the reason given by Indonesia (the election of Malaysia to the Security Council) to be insufficient to justify its withdrawal from the organization.213 The Italian government urged formal regulation of withdrawal because the declaration of San Francisco did not appear to be entirely adequate since it contained neither any definition of the circumstances justifying withdrawal, nor any procedure for determining such circumstances for the future.214 On 19 September 1966, the Ambassador of Indonesia in Washington transmitted a message215 from his government to the Secretary-General, stating that it had decided “to resume full cooperation with the UN and to resume participation in its activities starting with the twenty-first session of the General Assembly”. The President of the General Assembly stated at the 1420th plenary meeting: “It would (...) appear that the Government of Indonesia considers that its recent absence from the Organization was based not upon a withdrawal from the United Nations but upon a cessation of cooperation. The action so far taken by the United Nations on this matter would not appear to preclude this view. If this is also the general view of the membership, the Secretary-General would give instructions for the necessary administrative actions to be taken for Indonesia to participate again in the proceedings of the Organization. It may be assumed that, from the time that Indonesia resumes participation, it will

212.

213. 214. 215.

On the “withdrawal” of Indonesia, see F. Dehousse, Le droit de retrait aux Nations Unies, 1 RBDI (1965), at 39-48 and (1966), at 8-27; A.C.C. Unni, Indonesia’s withdrawal from the United Nations, 5 IJIL 128 (1965); E. Schwelb, Withdrawal from the United Nations, the Indonesian Intermezzo, 61 AJIL 661-672 (1967); Y.Z. Blum, Indonesia’s return to the UN, 16 ICLQ 1967, at 522-531. For Indonesia’s withdrawal and re-entry in an organization providing for withdrawal see Gold, op. cit. note 122, at 212- 213. YUN 1965, at 189-192. YUN 1965, at 237. UN Doc. A/6419.

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Participants

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meet in full its budgetary obligations. If it is the general view that the bond of membership has continued throughout the period of non-participation, it would be the intention of the Secretary-General to negotiate an appropriate payment with the representatives of Indonesia for that period and to report the outcome of his negotiations to the Fifth Committee for its consideration”.216

No objections were raised to this statement. It therefore can be taken to reflect a consensus that Indonesia’s membership had continued during its period of non-participation. Indonesia agreed to pay 10 % of the amounts for which it would have been assessed for the regular budget and for the Special Account for the UN Emergency Force for the period of its non-participation.217 §133. The fact that the unilateral denunciation of membership was finally not recognized was due more to a change in the Indonesian position than to any position defended by the organization. Indeed, during the crisis, the UN Secretariat took a far weaker stand than the Secretariats of the WHO and the UNESCO had previously done. The denunciation had already been generally accepted in 1965. The Indonesian flag and nameplate had been removed, and the UN Yearbook 1965 did not mention Indonesia as a UN member.218 Nor did the General Assembly list Indonesia in its 1965 resolution on the assessment of contributions,219 while the Economic and Social Council elected successors to Indonesia in several of its functional commissions.220 (iii)

Legality221

§134. The states which have withdrawn from international organizations in the absence of any appropriate constitutional provision, have in so acting contended that such a withdrawal is permissible. However, the validity of this contention can be challenged both on the basis of the organizations’ reactions to the withdrawal and the subsequent resumption of membership by the states in question. The 1969 Vienna Convention on the Law of Treaties and the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations, in their common Article 56, lay

216. 217. 218. 219. 220. 221.

UN Repertory of the Practice of United Nations Organs, Suppl. No. 3 (1972), at 190. UN Doc. A/C.5/1097; YUN 1966, at 207-210. YUN 1965, at 798, 802. See also Blum, op. cit. note 212, at 527, 428. GA Res. 2118 (XX). See Schwelb, op. cit. note 212, at 667. See also N. Feinberg, Unilateral withdrawal from an international organization, 39 BYIL 189219 (1963); K. Widdows, op. cit. note 194.

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down as a basic rule that “a treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal”. However, the same Article 56 also formulates two exceptions to this rule. Denunciation or withdrawal from such a treaty is still possible if “it is established that the parties intended to admit the possibility of denunciation or withdrawal”, or if “a right of denunciation or withdrawal may be implied by the nature of the treaty”. Usually it will not be too difficult to see whether the first exception applies. For example, the declaration discussed above suggests for the UN that, under certain circumstances, the parties intended to admit the possibility of withdrawal. The second exception leaves much more room for opposite points of view. Although there is nothing to support the submission that constitutions would generally be covered by these exceptions,222 members will usually be able, if they intend to withdraw, to find arguments that a right of denunciation or withdrawal is implied by the nature of the constitution. Since most organizations do not have judicial organs competent to judge whether the argument is well-founded, the organization and its other members are in fact powerless to prevent these exceptions from being interpreted very widely. The following arguments are used to support a right to withdraw from organizations the constitutions of which do not recognize this right. §135. (1) State sovereignty.223 According to this argument, only the sovereign state itself can decide how long it wishes to participate in an international organization. Others have neither the right nor the competence to judge. In fact, this argument is based upon the nineteenth century absolute concept of state sovereignty. If this argument were to be accepted, international law would have no role at all. What would be the use of making rules if no one is obliged to comply with these rules, if pacta non sunt servanda? For a considerable period, therefore, a more limited concept of state sovereignty has been accepted. To put it differently: if sovereign states draw up the constitution of an international organization and decide not to include a withdrawal clause, it would amount to disrespect of this agreement among sovereigns if states were subsequently able to withdraw. Therefore, if states draw up the constitution of an international organization and prefer to have the possibility to

222.

223.

See Commentary of the ILC to draft Art. 53 (GAOR 21 Suppl. 9 (A/6309/Rev.1), at 79-80); UN Conference on the Law of Treaties, OR first session (A/CONF.39/11, at 336-343, 477); id., 2nd session (A/CONF.39/11/Add.1, at 108-110). Gromyko (USSR) in 1 UNCIO, at 619; the delegate of the US in 7 UNCIO, at 265. For further literature, see Feinberg, op. cit. note 221, at 212, note 2.

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withdraw, they should incorporate a withdrawal clause in this constitution. Then it is their sovereign right to take recourse to such a provision, in accordance with the more limited concept of state sovereignty mentioned above.224 (2) Equity. Most international organizations are not universal; only a limited number of states participate, with other states remaining free to stay outside. This argument suggests that it is inequitable for members not to be free to leave, while non-members are not obliged to enter. This does appear to be a strong argument in favour of including a withdrawal clause in a constitution. It is, however, not persuasive as a legal basis for withdrawal when no such clause is included. By binding itself to such a constitution, a state can be seen voluntarily to have sacrificed part of its freedom of action. There is no reason to assume that the powers thus transferred can be withdrawn unilaterally. (3) Another argument is that there is no sense in prohibiting withdrawal if such a prohibition cannot be enforced. A reluctant member cannot be obliged to participate. If withdrawal were not to be recognized by the organization, an undesirable situation would arise in which the member would cease to participate, while the organization has to continue sending it all documentation and rendering other services. Membership would become completely passive. This is a pragmatic, not legal, argument, closely related to argument (1). It is again an argument in favour of the inclusion of a withdrawal clause in the constitution. If such a clause is omitted, the founding fathers of the organization can be said to have accepted this inexpediency. (4) A general principle of law. In national law, it is generally recognized that membership of private organizations may be cancelled unilaterally. In some (con)federations, the members have the right to secede.225 From these principles a general principle of law can be deduced, which recognizes the right of secession from international organizations. This argument is not however very strong, since associations in private law are of a quite different character to international organizations. The right of federated states to secede from a federation does not exist in the majority of federations, and even where it does exist, it cannot always be realized. Therefore there seems to be an insufficient basis for a general principle of law.

224.

225.

Cf. OPCW, Art. XVI.2: “Each state party shall, in exercising its national sovereignty, have the right to withdraw from this Convention if it decides that extraordinary events, related to the subject matter of this Convention, have jeopardized the supreme interests of its country”. E.g. the 1977 Constitution of the USSR (Art. 72). See also C.J. Antieau, States’ Rights under Federal Constitutions 154 (1984). The 1993 constitution of the Russian Federation does not contain a right to secede for republics of the federation.

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(5) Fundamental change of circumstances (clausula rebus sic stantibus). If the purposes of the organization are not attained, disappointed members may claim the right to withdraw. Particularly where an organization decides, against the wish of the member concerned, to perform functions other than those originally foreseen, or not to perform tasks provided for, this argument can be seen to find a legal basis in Articles 62 of the 1969 and 1986 Vienna Conventions on the Law of Treaties. Under certain conditions these articles provide for a right of unilateral withdrawal in the case of a fundamental change of circumstances. However, it is generally recognized that this provision should be interpreted restrictively; otherwise it will remove the minimum of legal certainty necessary for proper treaty implementation. This is even more compelling for constitutions of international organizations. By contrast with other treaties, the constitutions of international organizations establish organs, with the precise objective of allowing the organization to respond effectively to practical needs and developments. Constitutions are by definition dynamic instruments. It could well be argued that the world situation or the state of affairs in European integration have changed fundamentally since the creation of the WHO or the European Union. It might even be argued that these organizations have not always responded effectively to these changes and challenges. Does this mean that members have the right to withdraw unilaterally from these organizations? Rather, it appears that members are estopped from claiming such a right, since they are in a position, in their capacity as members of these organizations, to influence the operation of the organization. c.

Partial withdrawal

§136. In 1966, France withdrew from the military cooperation of NATO, without however withdrawing from the organization. This raised the question whether partial withdrawal from an international organization is possible if not expressly provided for in the constitution. France invoked the principle that whoever can do more, can also do less; if it can entirely withdraw from the organization it should also be entitled to withdraw partially. As a general rule, this seems incorrect. An international organization balances many rights and duties of many members; the other members need not accept that one member is not bound by all obligations and is in fact having dinner à la carte. However, in NATO the other members unanimously accepted France’s partial withdrawal, at least tacitly, to prevent its complete withdrawal, although they should have been entitled to refuse such unilaterally introduced partial mem-

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bership.226 They could also have refused the same sort of partial withdrawals by Greece in 1974 and by Spain in 1986; the partial withdrawal of Greece was revoked in 1980.227 A different sort of partial withdrawal was the ‘withdrawal’ of Greenland, part of Denmark, from the European Communities in 1985.228 In 1982 the Greenlanders had decided by referendum to leave the EC. Greenland’s right to leave has not been seriously contested.229 2.

Expulsion from the organization

§137. A second way in which membership of an international organization may come to an end is through expulsion. In practice, expulsions have been less frequent than withdrawals. Prior to 1987, only four cases of expulsion (Czechoslovakia from the IMF and the World Bank, and South Africa from the UPU and from the ITU) can be identified as far as the specialized agencies of the UN are concerned, as compared with 46 withdrawals.230 However, in reality this difference is less marked than these figures suggest: in a number of cases, international organizations have exerted pressure on a member to withdraw, e.g. by adopting an amendment to the constitution introducing the possibility of expulsion (see below, §146). This vague border between expulsion and withdrawal is explicitly recognized in Article 8 of the Statute of the Council of Europe: “Any member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw under Article 7. If such member does not comply with this request, the Committee may decide that it has ceased to be a member of the Council as from such date as the Committee may determine”.

226.

227. 228.

229. 230.

L. Schaus, Le Conseil de l’Atlantique Nord, son fondement et ses structures, ses compétences et ses missions, Chr. Pol. ét 367-370 (1971). On France and NATO, see also Stein and Carreau, op. cit. note 184. See NATO, Facts and Figures (11th ed. 1989), at 146-147, 507. See OJ 1985, L 29. The EC Treaties were amended so that they ceased to apply to Greenland, following a proposal to the Council of Ministers by Denmark. The membership regime for Greenland was replaced by arrangements applicable to overseas countries and territories set out in Part Four of the EC Treaty. See F. Harhoff, Greenland’s Withdrawal from the European Communities, in: 20 CMLRev. 13-33 (1983); F. Weiss, Greenland’s withdrawal from the European Communities, 10 ELRev. 173-185 (1985). See in general on the possibility to withdraw from the European Union: M. Hilf, op. cit. note 194. Harhoff, op. cit. note 228, at 27. Zeidler, op. cit. note 174, at 128, 290.

§138

a.

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The notion ‘expulsion’

§138. Three aspects of the notion ‘expulsion’ merit attention: (i) to what extent does ‘expulsion’ differ from ‘suspension’, (ii) expulsion as a sanction, and (iii) expulsion as a defensive measure against members obstructing the organization. (i)

Expulsion versus suspension

§139. Several constitutions distinguish between the expulsion of a member and ‘mere’ suspension of (some of) its rights and privileges.231 Expulsion is a definitive action which terminates membership, while suspension will last until a particular situation has changed or particular conditions have been fulfilled. In addition, often the obligations of a member, while they cease to exist in cases of expulsion, are not affected by ‘mere’ suspension.232 Otherwise, the distinction has little practical significance. Ending a suspension will usually not be much easier than re-admission after expulsion.233 Since membership is not terminated on suspension, the rules on suspension are not discussed here, but in Chapter Ten (see below, §1455-1469). (ii)

Expulsion as a sanction

§140. In his History of English Law, Maitland observed accurately: “A ready recourse to outlawry is, we are told, one of the tests by which the relative barbarousness of various bodies of ancient law may be measured”.234 Indeed, expulsion is a token of impotence, and the more primitive the legal system, the more evident this lack of power will be. The member that cannot be controlled is expelled from the community. Nevertheless, in practice all expulsions were, at least partly, intended as a sanction. This purpose of expulsions is demonstrated clearly by the constitution of the International Maritime Satellite Organization, which subjects ex-

231. 232. 233.

234.

E.g. Arts. 6 and 5 of the UN Charter. See H.-J. Schütz in Simma, op. cit. note 3, at 201, with references to further literature. See for a somewhat different point of view J. Makarczyk, Legal Basis for Suspension and Expulsion of a State from an International Organization, in: 25 GYIL 476-489 (1982), in particular at 482-483. F. Pollock and F. William Maitland, History of English Law (2nd ed. 1899), Vol. II, at 450; C. Wilfred Jenks, Expulsion from the League of Nations, in: 16 BYIL 155-157 (1935). See also C. Wilfred Jenks, Due Process of Law in International Organizations, 19 International Organization 163-176 (1965).

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pulsion to the condition that at least one year must have passed since the relevant failure to comply with an obligation under the constitution.235 The expediency of expulsion as a sanction is questionable.236 For one thing, it may harm the organization as much as it harms the expelled member. The member may suffer from losing its rights of membership, but will also be discharged of its obligations vis-à-vis the organization. For universal organizations, expulsion will be a retrograde step on the path to universality. Additionally, the influence potentially exerted on a state by an organization may be greater when the state’s representatives can be pressured at meetings of the organization than where those representatives are never seen.237 The debate on apartheid in the Special Political Committee of the UN General Assembly in 1965 demonstrates the desirability of the attendance at meetings of delegations of an accused state. No South African delegation attended that debate. The Committee regretted this so much that it sent a letter to the South African delegation, requesting its presence.238 To exert pressure on a state, the presence of its delegation is vital; in its absence, the accusations will be meaningless.

The sanction of expulsion should be used in the interests of the organization, and in accordance with its rules. The suitability and legality of the expulsion may be doubted when arguments are used which fall outside the scope of the objectives of the organization. Such arguments should therefore not be used by members, in their capacity as constituent elements of organs of the organization. In technical organizations, the same arguments plead against the expulsion of politically undesirable states as plead against their non-admission (see above, §91).239

235.

236.

237. 238. 239.

INMARSAT, Art. 30(1), in: 15 ILM 1067 (1976). This constitution has been amended and the name of the organization has now changed into International Mobile Satellite Organization (IMSO, or Inmarsat Mobile). Cf. T. Oppermann in: K. Ginther and T. Oppermann, Grundfragen der Mitgliedschaft in Internationalen Organisationen 86-90 (1975); in the English summary, at 98, Oppermann concludes that “the expulsion from an international organization becomes very questionable if not senseless where the organization seeks to achieve universal or regional recognition of its principles”. Cf. C. Wilfred Jenks, op. cit. note 234 [1965], at 171: “The objective in the handling of acute political problems should therefore be to compel rather than to expel ...”. See YUN 1965, at 109. Cf. C. Wilfred Jenks, op. cit. note 234 [1965]. L. Gross, On the degradation of the constitutional environment of the United Nations, 77 AJIL 569-584 (1983).

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Expulsion to protect the organization

§141. Besides its utility as a sanction, expulsion may also form a defensive measure for the benefit of the organization. Such a measure may be necessary to defend the organization against an obstructive member or against a member which no longer satisfies the conditions for membership. If a member no longer participates in the activities of the organization while continuing to accept its services, or if as a consequence of a completely negative attitude it blocks all decisions requiring unanimity, expulsion may be the only means of safeguarding the proper functioning of the organization. Jenks240 concludes from a British delegation note published by Hunter Miller241 that the possibility of expulsion, which was originally not envisaged for the League of Nations, was finally included242 to protect the organization rather than to provide for a means of sanction. Since in the majority of cases the League of Nations could only take decisions unanimously, each member which had strained relations with the League (e.g. because it was denounced as an aggressor) would be able completely to paralyze the organization by sending a delegation with the instruction to vote against all decisions. In the UN, only the five permanent members of the Security Council can obstruct decision making by using their veto for each draft decision. If this were to occur, it might be considered a violation of the principles of the Charter and, thus, as a basis for expulsion (Article 6). However, in practice, expulsion would be difficult to realize, because the permanent member in question would probably prevent the Security Council from adopting a recommendation on expulsion, by using its veto again. Albania never withdrew from the CMEA, but from 1961 did not participate in any of its meetings, nor did it pay any contributions. There was however no constitutional provision on expulsion from the organization. Caillot therefore concluded that Albania remained a member, and no legal solution was available for the problem.243 Szawlowski took the view that later decisions of the CMEA for which unanimity was required – such as the admission of Mongolia, Cuba and Vietnam – were illegal as a consequence of the absence of Albanian approval.244 This would, of course, lead to the complete paralysis of the organization.

240. 241. 242. 243. 244.

Jenks, op. cit. note 234 [1935], at 156. D. Hunter Miller, The Drafting of the Covenant, Vol. 1 (1928), at 417. Art. 16.4 of the Covenant. See further on the drafting of this provision Magliveras, op. cit. note 176, at 7-11. J. Caillot, Le C.A.E.M. Aspects juridiques et formes de coopération économique entre les pays socialistes 36 (1971). R. Szawlowski, op. cit. note 79, at 52, 150-151.

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§142. Many organizations strive towards cooperation between a limited group of states (e.g. African states in the African Union, developed states in the OECD). Even if such groups are described by their geographical frontiers, they are usually also based on their common political identity. If there is then a fundamental change in the political system of a member, expulsion may be in the interests of the organization, despite all the disadvantages mentioned in the previous paragraph, because the member in question is not longer considered to be a member of the group. Expulsion may be considered as an implied power of every international organization to enable it to defend itself against a situation which would prevent it from functioning.245 On that basis, expulsion should be considered possible whenever it is essential to protect the organization. b.

Constitutional provisions

§143. Only a limited number of constitutions expressly mention the possibility of expulsion.246 Examples are the UN Charter (Article 6), IMF (Article XXVI, Section 2, juncto Section 22 of the By-Laws), the World Bank (Article VI, Section 2, juncto Section 21 of the By-Laws), the IFC (Article V, Section 2(a), juncto Article 18 of the By-Laws), the IDA (Article VII, Section 2(a)), the Council of Europe (Article 8), the League of Arab States (Article 18), Eutelsat (Article XIIIb). In addition, most commodity agreements (but not all: Tin 1981; Sugar 1992) include an expulsion clause: Sugar 1984 (Article 41), Olive Oil 1986 (Article 58), Jute 1989 (Article 44); Cocoa 2001 (Article 61), Coffee 2001 (Article 50); Tropical Timber 1994 (Article 44). Expulsion was also foreseen in the constitutions of the League of Nations (Article 16.4) and the OEEC (Article 26).

§144. The voting requirements for expulsion are usually the same as for other important decisions, and where unanimity is required, the state concerned is not allowed to vote. In the IMF, the World Bank, the IFC, the IDA and the MIGA the decision on expulsion must be taken by a majority of the Governors

245.

246.

R. Khan, Implied Powers of the United Nations 124 (1970). See also below, §232-236. This view is rejected by Magliveras, op. cit. note 176, at 254-257. In his view, international organizations that want to expel one of their members in the absence of an explicit power to do so “are left with three options: either amend the constitution (i.e. request from members to endow it with relevant powers) or apply Article 60 of the Vienna Convention on the Law of Treaties or invoke the rules on permitted countermeasures” (id., at 257). The expulsion clauses of the specialized agencies of the UN are analyzed in detail by Zeidler, op. cit. note 174 (in particular at 142-150).

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exercising a majority of the total voting power.247 These organizations use a system of weighted voting (see below, §795-812) for decisions in the fields in which they operate. Since expulsion also has general political aspects, it seems correct that not only a majority of the voting power but also a majority of the Governors (the representatives of the members) is required. §145. A state which ceases to belong to the group of states from which the organization is comprised could be expelled on the basis of a constitutional provision of the Council of Europe, the League of Arab States, and formerly the OEEC. The Committee of Ministers of the Council of Europe may expel a member from the organization by a qualified majority vote if it seriously violates Article 3 of the Statute.248 Article 3 provides that every member must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms. Furthermore it must collaborate sincerely and effectively in the realization of the aim of the Council as specified in Chapter I of the Statute. This does not explicitly allow expulsion on the basis that a state no longer belongs to the group of European democracies. In practice, however, the transfer to another system of government will often be accompanied by a violation of Article 3 (as was the case with Greece in 1969; Greece was not expelled from the Council, but withdrew when the Committee of Ministers was about to suspend its membership; see above, §119). Expulsion from the League of Arab States, when the member in question has placed itself outside the sphere of the organization, could be based on a violation of the general obligations arising from the constitution (Article 18). In 1979 Egypt’s membership of the League was suspended as a sanction for signing a peace agreement with Israel. The legality of this decision has been questioned, inter alia because the constitution of the League does only provides for expulsion, not for the suspension of membership. In 1989, the League decided to allow Egypt to return.249

c.

Expulsion without constitutional provision

§146. In practice, difficulties arose in particular when organizations wanted to expel a member without the constitution making any provision on expulsion. In such cases, organizations have sometimes exerted pressure to force

247.

248. 249.

In the Inter-American and the Asian Development Banks a qualified majority is required. In the African Development Bank the expulsion of members is somewhat easier: the Board can expel a member (by simple majority) unless a majority of the total voting power disagrees. Statute, Art. 8. M. Shihab, Arab States, League of, in: EPIL Vol. I (1992), at 202-206; Magliveras, op. cit. note 176, at 96-100.

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the member concerned to withdraw ‘voluntarily’. An international organization has many means of pressure at its disposal. The ‘voluntary’ withdrawal of a member after pressure can be seen closely to resemble expulsion.250 When political pressure did not prove sufficient, organizations have also used the threat of amendment of the constitution (introducing an expulsion clause) as a means of pressure. An amendment of the constitution usually has to be ratified by all or by a certain number of members, which may prove to be time-consuming. However, the adoption of a proposal for amendment of the constitution by the general congress has usually proved adequate to induce the withdrawal of the member in question. On 27 May 1947 the ICAO decided to amend its constitution, which did not contain a provision on expulsion, solely to create the possibility of expelling Spain.251 When the amendment was adopted, Spain withdrew from the organization, even though the amendment could only take effect after its ratification by 28 members. The amendment came into force in 1961. In 1964 the general congress of the ILO adopted an amendment to its constitution authorizing it to expel, by a two-thirds majority of the votes, any ILO member which had been expelled from the UN252 or which had been found guilty by the UN of pursuing a policy of racial discrimination253. Here again, the state against which the amendment of the constitution was directed did not await its entry into force. On 11 March 1964, South Africa withdrew from the ILO. According to the ILO constitution, this withdrawal became effective on 11 March 1966.254. The amendment to the ILO constitution has not yet entered into force. During its seventeenth session (1964) the World Health Assembly (the general congress of the WHO) considered “that apartheid officially raised to the status of a political system by a government represents an exceptional circumstance of failure to adhere to the humanitarian principles governing the World Health Organization, and therefore makes such a government liable to the penalties provided for in Article 7”. The general congress decided “to apply to the Representatives of South Africa the provisions of Article 7 of the Constitution relating to voting privileges” and to “request the Executive Board and Director-General to submit to the 18th World Health Assembly formal proposals with a view to the suspension or exclusion from the organization of any member violating its principles and whose official policy is based on racial discrimination”.255 After the adoption of this proposal, the South African delegation withdrew from the session of the

250. 251. 252. 253. 254. 255.

Cf. L.B. Sohn, Expulsion or forced withdrawal from an international organization, in: 77 Harv.L.Rev. 1416 (1964). Art. 93 bis. See Buergenthal, op. cit. note 67, at 38-46. ILO Official Bulletin (1964), Suppl. 1 to No. 3, at 10-12. Id., at 8-9. YUN 1966, at 977. WHO Official Records, No. 135, at 23.

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World Health Assembly. In 1965 the World Health Assembly adopted the following amendment to Article 7 of the WHO constitution: “(b) If a member ignores the humanitarian principles and objectives laid down in the Constitution, by deliberately practising a policy of racial discrimination, the Health Assembly may suspend it or exclude it from the World Health Organization. Nevertheless its rights and privileges, as well as its membership, may be restored by the Health Assembly on the proposal of the Executive Board following a detailed report proving that the state in question had renounced the policy of discrimination which gave rise to its suspension or exclusion.”256 South Africa could not officially withdraw from the organization since there is no appropriate constitutional provision enabling it to do so. It did, however, terminate all cooperation with the WHO. In June 1966, South Africa was informed by letter from the Director General that it was in arrears, having failed to pay its contributions for the fiscal year 1966. In reply South Africa contended that it was not possible to pay while the country was precluded from exercising its full rights as a member.257 By Resolution No. 20.8, the World Health Assembly placed the amount of the annually assessed contribution of South Africa in the section “Undistributed Reserve” of the budget.258 In 1973 the governments of South Africa and Portugal were excluded from all conferences and meetings of the Intergovernmental Maritime Consultative Organization.259 In fact, this meant exclusion from the organization, but it was not officially presented as expulsion. In 1976, Portugal resumed its membership without official readmission. In other organizations efforts have also been made to deprive South Africa and Portugal of their membership or to exclude them from the meetings of certain organs.260 These efforts have not yet led to withdrawals and in some international organizations efforts to expel South Africa failed.261.

§147. If the state does not yield to pressure from the organization and its members, can it then be expelled without waiting for the entry into force of an amendment allowing expulsion? In some organizations, this question has been widely discussed, and different answers have been given.

256. 257. 258.

259. 260. 261.

WHO Official Records, No. 143, at 32ff. For the text see also YUN 1965, at 725. This amendment has not yet entered into force. Letter dated 27 July 1966, WHO Official Records, No. 157, at 45 ff. WHO Official Records, No. 160, at 4. The budget section “Undistributed Reserve” is used for recording assessments on members from which the organization does not expect to receive payment. As no programmes are financed against this appropriation section, WHO has thereby been able to avoid budgetary deficits (UN Doc. A/8031, para. 53). IMCO Res. A.310(VIII). See Sohn, op. cit. note 250; Zeidler, op. cit. note 174. See D. Ruzié, Organisations internationales et sanctions internationales 41-49 (1971).

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The ILO, for example, initially requested that South Africa withdraw from the organization.262 When South Africa did not comply with this request, the ILO proceeded to amendment its constitution (see previous paragraph). In September 1979, a proposal to exclude South Africa from the World Intellectual Property Organization was defeated by a narrow margin.263 In the same month, on the other hand, the UPU expelled South Africa, despite the absence of a constitutional provision on expulsion. Many members of the UPU declared that they considered the expulsion to be illegal and would, therefore, continue to deal with the South African Postal Administration in the same way as with the administrations of other members. This expulsion of South Africa was confirmed in 1984.264 South Africa was re-admitted to the UPU in 1994.265 The OAS constitution does not contain an expulsion clause. Nonetheless, the organization declared, in a resolution adopted in Punta del Este in January 1962, “that the present government of Cuba, as a consequence of its repeated acts, has voluntarily placed itself outside the Inter-American system”; and it resolved “that the present Government of Cuba is incompatible with the principles and purposes of the Inter-American system”; and that this incompatibility “excludes the present government of Cuba from participation in the Inter-American system”. The most important reasons were “adherence to Marxism-Leninism” and “the alignment with the communist bloc”. This would have broken the unity and solidarity of the hemisphere and would therefore be incompatible with the principles and objectives of the Inter-American system.266 Except for Cuba, no state voted against the resolution. Six states267 abstained from voting mainly for legal reasons. They doubted whether such measures were possible since they were not provided for in the OAS constitution.268 Formally the resolution does not stipulate expulsion of Cuba as a member of the organization, but merely excludes the present government of Cuba. If the government were to change its policy, it could again cooperate within the organization. The organization continues to list Cuba as one of its members. For all practical purposes however, the result is the same as an expulsion, and the vote demonstrates that despite legal objections, the OAS has taken the view that a state which no longer satisfies the criteria on which the regional cooperation is based, may be suspended from the organiza-

262.

263. 264.

265. 266.

267. 268.

ILO Res. of 29 June 1961, Record of Proceedings, 45th Session, Appendix XVI, No. 5, at 891. For ILO actions against South Africa, see also 19 International Organization 133-137 (1965), and Jenks, op. cit. note 234 [1965], at 173-176. U. Wassermann, WIPO: The Exclusion of South Africa?, 14 JWTL 78-80 (1980). Zeidler, op. cit. note 174, at 263-268. Zeidler concludes that the expulsion of South Africa from the UPU in the absence of an expulsion clause was unconstitutional (at 268). See also Magliveras, op. cit. note 176, at 69-75. Magliveras, op. cit. note 176, at 75. Final Act of the eighth session of the Ministers of Foreign Affairs of the OAS; UN Doc. S/5075, SCOR 17th year, at 74. See also Sohn, op. cit. note 250, at 1417-1420; A. van Wijnen Thomas & A.J. Thomas Jr., The Organization of American States 58-60 (1963); Kutzner, op. cit. note 93, at 171-176. Argentina, Bolivia, Brazil, Chile, Ecuador and Mexico. For an extract of their arguments see the speech delivered by the Cuban delegate in the Security Council of the UN on 14 March 1962, Official Records, 992nd meeting, at 17-21.

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tion without express constitutional provision. This conclusion is the more striking as in the universal organizations the American states have always aligned themselves with the opponents of expulsion without constitutional provision. In the Council for Mutual Economic Assistance the position of Albania was unclear. It has never been expelled, although protection of the interests of the organization would seem to provide ample justification for such a course of action (see above, §141-142).

§148. From a legal perspective, international organizations in general do not have the right to expel members when their constitutions do not contain an expulsion clause. Such a general right does not exist in international law.269 Additionally, in view of the fact that many constitutions contain expulsion clauses, it seems difficult to accept that organizations, the constitutions of which lack such clauses (or declarations to the same effect), have been attributed with such a competence.270 Furthermore, if it was so clear that these organizations have such competence, why did some of them adopt amendments to their constitution, introducing expulsion clauses? It has nevertheless been accepted in doctrine that in exceptional cases these organizations may expel a member. Mainly three legal arguments have been used to justify such exceptions. First, to protect itself, an organization has the implied power to expel a member whose obstructive behaviour is preventing the organization from performing its functions.271 Secondly, Article 60.2 of the 1969 and the 1986 Vienna Conventions on the Law of Treaties provides that a material breach of a multilateral treaty by one of the parties entitles the other parties to suspend or to terminate by unanimous agreement the operation of the treaty with regard to the defaulting state. For this purpose, a material breach consists of the violation of a provision essential to the realization of the object or purpose of the treaty (Article 60.3b). Since complete non-participation in an organization which requires the participation of all members (e.g.,

269.

270. 271.

See extensively, with references to further literature, Zeidler, op. cit. note 174, at 152-170. See also the discussion which took place in the ITU in 1982, when a draft resolution was submitted seeking to suspend Israel from the exercise of its rights and privileges of membership. Although this is strictly seen not a case of possible expulsion (therefore, it is discussed in Chapter 10, §1467), the basic questions involved are the same. A legal opinion was given by the ITU’s legal advisor, who rightly concluded, inter alia, that the absence of the possibility of such a suspension meant that the founding fathers did not want to create such a possibility. It did not mean that the Convention “remained deliberately silent, because it was intended to leave free way for the imposition upon a member of the Union of any other, further sanctions”. Published in UNJY 1982, at 214-217 (quotation at 216). For a somewhat different point of view, Zeidler, op. cit. note 174, at 161. E.g. Khan, op. cit. note 245, at 4. This would seem to have justified expulsion of Albania from the CMEA (see above, §141).

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because most decisions can only be taken by unanimity) is a violation of an essential provision, it seems that the Council for Mutual Economic Assistance could have expelled Albania.272 A third argument is derived from Article 62 of the Vienna Conventions (fundamental change of circumstances, or clausula rebus sic stantibus). It could be argued, that members do not have to foresee at the time of the conclusion of the constitution, that one of them would entirely paralyze the organization to prevent it from performing its functions.273 Needless to say, in practice opinions diverge as to when these three arguments apply. As with the arguments used in favour of a right to withdraw from an organization the constitution of which does not recognize a right to withdraw, these three arguments should be used with great caution. 3.

Disappearance of the member or loss of essential qualifications

§149. In all international organizations it should be possible to declare that membership is terminated if a state has ceased to fulfil the conditions for the existence of membership. These need not be the same as the conditions for admission to membership. Membership will end ipso iure if the member entirely ceases to exist or changes in such a way that it loses essential qualifications for membership. If a state disappears, it will cease to be a member of international organizations. The disappearance of a state should not be easily assumed. A state does not vanish because its constitution or its frontiers have been changed. In 1963 the Federation of Malaya was changed into Malaysia. The constitutional changes were accompanied by the addition of Singapore, Sabah and Serawak to the Federation of Malaya. Notwithstanding this fundamental change, membership of international organizations was not affected.274

§150. The extinction of a state as a legal person must be shown before its rights and obligations can be considered to have ceased to exist.275 If there is dissent as to the continued existence of a state, a judgment by the UN as

272.

273. 274. 275.

Ustor therefore seems right in accepting the 1969 Vienna Convention as a basis for the organization severing its relations with Albania. Unanimity can then be obtained without Albanian approval. E. Ustor, Decision-making in the Council for Mutual Economic Assistance, in: 134 RdC (1971 III), at 187. This third legal argument is for example used by Oppermann, op. cit. note 236, at 87; J. Makarczyk, op. cit. note 233, at 476-489, in particular at 488-489. UNJY 1963, at 161-164. UN Documents A/C.6/162 and A/C.1/212 of October 1947, GAOR 2nd session, First Committee, Annex 14g (at 582).

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the universal political organization would be useful for all international organizations. The General Assembly of the UN has no power to take binding decisions, but it will consider questions of representation of members and it has recommended to the other organs of the UN and to the specialized agencies to take the attitude adopted by the General Assembly in such cases into account.276 §151. Members of international organizations do not often lose their identity as legal persons. A number of examples date from before or during the Second World War.277 When Syria associated itself with Egypt in the United Arab Republic in 1958, the governments in question asked all the relevant international organizations to replace their two separate memberships with one new membership. In 1964 a similar course was followed when Tanganyika and Zanzibar were united in the United Republic of Tanzania (see above, §104). Similarly, North and South Yemen were united in 1990, and informed all international organizations of which they were members that they were continuing their membership as a single entity.278 The German Democratic Republic ceased to exist when it acceded to the Federal Republic of Germany (see above, §104). In 1992 and 1993, the UN Security Council considered “that the state formerly known as the Socialist Federal Republic of Yugoslavia has ceased to exist”.279 Nevertheless, this did not result in a termination of membership. Subsequent to the Security Council resolutions, the General Assembly merely decided that the Federal Republic of Yugoslavia (Serbia and Montenegro) would not participate in the work of the General Assembly and ECOSOC (see further above, §107).280 The IMF and the World Bank went further in deciding that the former Socialist Federal Republic of Yugoslavia ceased to exist and to be a member of the organizations.281 The Federation of Mali was dissolved before it had been admitted to any international organization. The Security Council had recommended its admission to the UN on 28 June 1960. Subsequently Senegal seceded from the Federation. In September 1960 the General

276. 277. 278. 279. 280. 281.

GA Res. 396(V). See the 2nd edition of this book, at 84 (Ethiopia, Austria, Czechoslovakia, Albania and the three Baltic Republics). See UN Doc. A/44/946 (containing a letter from the Ministers of Foreign Affairs of North and South Yemen). Resolutions 777 (1992) and 821 (1993). GA Resolutions 47/1 (1992) and 47/485 (1993). IMF, Annual Report 1993, at 181; World Bank, Annual Report 1993, at 16. See Williams, op. cit. note 144.

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Assembly declined to act on the pending application and referred the matter back to the Security Council. By then the states of Senegal and Mali had separately applied for membership.282 In 1954 Indochina, a member of the WMO, ceased to exist. When in November 1954 France informed the WMO of the termination of Indochina’s membership, Indochina had a credit of $735 in the Working Capital Fund (see below, §1018). The question arose as to whom this money was to be given. During its second session, the general congress of the WMO accepted the French offer to donate this sum to the organization.283

§152. In most international organizations the only condition essential for the existence of membership is that the member is a state. If the organization is based on cooperation between certain services, such as the WMO which regulates the cooperation between meteorological services of the members, it will be a condition of membership that the member possesses such a service. If the organization unites a well defined group of states such as oil exporting (OPEC) or bauxite exporting states (the International Bauxite Organization) a state will no longer qualify for membership when it ceases to export such products. §153. Some international organizations restrict their membership to members of specific organizations. States will then no longer qualify for membership when they lose their membership of these specific organizations. Thus, the loss of membership of the World Bank means a loss of membership of the IFC and the IDA.284 The loss of membership of the FAO leads to a loss of membership in some international fisheries commissions, such as the Indo-Pacific Fisheries Commission.285 Normally membership of the IMF is a condition for membership of the World Bank;286 but the World Bank may decide to retain the membership of a particular state which has ceased to be a member of the IMF.287

282. 283. 284. 285. 286. 287.

See R. Cohen, Legal problems arising from the dissolution of the Mali Federation, in: 36 BYIL 375-384 (1960). Second Congress of the WMO, Final Report, Vol. I, Geneva 1955 (WMO Doc. No. 48, R.C.9), at 37. IFC, Arts. II.1 and V.3; IDA, Arts. II.1 and VII.3. A.W. Koers, International Regulations of Marine Fisheries 123 (1973); Indo-Pacific Fisheries Commission, Art. 12.3. Art. II(1) of the Statute of the World Bank. World Bank Statute, Art. VI(3). On this provision, see Gold, op. cit. note 122, at 397-399.

§154

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Dissolution of the organization

§154. A final way in which membership of an international organization will come to an end is by dissolution of the organization. Examples of such dissolved organizations are the League of Nations (1946), the International Refugee Organization (1952), the Central Treaty Organization (1979), the International Tin Council (1990) and the Warsaw Pact (1991)(see further below, §1629-1644). D.

Rights and obligations of full members

§155. In the present sub-chapter the rights and obligations of members will be discussed, in their internal capacity, as constituent elements of organs of the organization. The position of members in their external capacity, as counterparts of the organization, will be discussed in Chapter Twelve. A distinction can be drawn between individual and collective rights and obligations of members as elements of the organization. 1.

Individual rights and obligations

§156. There are some rights and obligations which each individual member has as a consequence of its membership of an organization. Members have to behave as good members, a duty which can be seen as part of a modern general principle of law: the duty to cooperate.288 This obligation is sometimes explicitly mentioned in constitutions; for example, Article 2.2 of the UN Charter stipulates: “All members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter”.289 Continuous absence from all meetings, like the absence of Argentina from the League of Nations’ sessions between 1921 and 1933, is a violation of a duty inherent in membership. It has also been argued that the absence of the Soviet Union from the UN Security Council during the first part of 1950 (because of the alleged mis-representation of China in the UN, see below, §260) was a violation of

288.

289.

K. Ginther, in Ginther and Oppermann, op. cit. note 236, at 13, 21. See also UNGA Res. 2625(XXV), Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations; Unitar analytical study on the progressive development of the principles and norms of international law relating to the new international economic order (1984), in: UN Doc. A/39/504/Add.1. See also IAEA, Art. IV.C; EC, Art. 10; CoE, Art. 3; OECD, Art. 3.

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Article 28 of the Charter, under which all members of the Security Council are obliged to be present at the meetings.290 Systematic blocking, regardless of the subject matter, of all decisions which have to be taken unanimously would equally form a violation of this general duty. Members are under a general obligation to pay their share of the expenditure of the organization. In addition, they must grant the necessary privileges and immunities to the organization and its staff. §157. Obligations are an intrinsic part of membership. This raises the question whether the organization can waive, or dispense with them. Gold concluded that international organizations normally do have the power to waive the obligations of members (see also below, §1444).291 He cited a number of examples, although they all relate to obligations of members in their external capacity. With the exception of the obligation to pay a share of the expenditure, which has sometimes been waived on the ground of special circumstances (see above, §128-130), there appear to be no examples of purely institutional obligations being waived. For reasons of principle, the waiver of such obligations should not be excluded. Such a waiver could make the machinery of the organization more flexible, although it may be presumed that no obligations will be waived which are essential for the functioning of the organization. §158. A waiver of obligations should be expressly granted by the organization. When members unilaterally violate their obligations they act in violation of the constitution even if other members do the same and if the organization tolerates the violations. The toleration of violations should not be interpreted as a waiver of obligations. When continuous or repeated, however, such tolerance may in fact come close to this. When a rule has been violated and the organization has tolerated the violation, it may have created the expectation that further, similar violations will also be tolerated. After some time and after many tolerated violations such expectation may become legitimate and the organization will have to tolerate similar violations by other members unless it can demonstrate why it should not treat all members equally. In fact, the

290. 291.

J.L. Kunz, Legality of the Security Council Resolutions of June 25 and 27, 1950, 44 AJIL 137-142 (1950), at 141. J. Gold, The “dispensing” and “suspensing” powers of international organizations, 19 NedTIR 169-200 (1972)( reproduced in J. Gold, Legal and Institutional Aspects of the International Monetary System: Selected Essays 352-389 (1979)).

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toleration of too many violations may lead to a tacit revision of the constitution.292 §159. Apart from the obligations which all members share, obligations may be imposed on certain individual members only. For example, by definition, only a limited number of members of an organization participate – and are obliged to cooperate – in non-plenary organs. Likewise, there are also rights attributed to certain members only, for example the veto rights of the five permanent members of the UN Security Council. §160. As a quid pro quo for its obligations, a member has the right to be treated as such. Thus, an organization may not normally ban a member from all its sessions or deny it the documentation sent to all other members (for measures taken as sanctions, see below, §1450-1517). §161. Must a member which does not behave as a member still be considered a member? Usually, inactive members continue to be considered members, but a special category of inactive or dormant members, in a special position between membership and non-membership could theoretically be recognized. Particularly within organizations striving at universality such inactive membership may be considered preferable to non-membership.293 The inactive member would hereby retain some link with the organization, which might facilitate a future restoration of active membership. 2.

Collective rights and obligations

§162. In practice all member states together control all powers in every international organization.294 Thus, they can modify and even dissolve the

292.

293. 294.

J.H. Jackson, World Trade and the Law of GATT (1969), at 539, 710, 756; K.W. Dam, The GATT: Law and International Economic Organization 166 (1970); O. Long, Law and its Limitations in the GATT Multilateral Trade System 61-64 (1985). The argument of tolerance by the organization (the “law-creating force derived from circumstances”) was used by the EC in a GATT dispute settlement case, but it was rejected by the GATT Panel dealing with this dispute; see GATT, BISD, 30th Suppl. (1984), at 134, 138-139. Ginther, op. cit. note 236, at 14-24. See more extensively I. Seidl-Hohenveldern, Der Rückgriff auf die Mitgliedstaaten in Internationalen Organisationen, in R. Bernhardt, W.K. Geck, G. Jaenicke, H. Steinberger (eds.), Völkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte – Festschrift für Hermann Mosler (1983), at 881-890.

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organization regardless of its constitutional provisions.295 In that sense, they remain Herren der Verträge. To an extent, this is even true for the European Communities and the European Union.296 These powers are given only to the collective members and not to their governments and still less to the delegations of these governments to the organs of the organizations. Governments and delegations are bound by the provisions of the constitution of the organization. Departure from these provisions is only possible through a waiver by the organization (see above, §157158) or with the approval of all member states given in accordance with their constitutional requirements for binding the state under international law. The only theoretical exceptions to the omnipotence of the members collectively are formed by the supranational organizations. These organizations have independent powers and should be able to exercise these powers against all members. A first step in this direction has been taken by the European Union. Not only the states but also the Union organs are involved in amendment of the Treaty on European Union, although the powers of these organs are limited (see below, §1168).297 In amendment proceedings, non-governmental organs (the Commission and the European Parliament) participate only in an advisory capacity. In fact, the European Union has no real powers which can be exercised against the collective members. In this respect, it is not supranational and differs from federal states.298 §163. In some organizations, certain powers cannot be exercised by any one organ, but are reserved for common action by all member states.

295.

296.

297. 298.

See also J.A. Frowein, Are there limits to the amendment procedures in treaties constituting international organizations?, in G. Hafner et al. (eds.), Liber Amicorum Professor Ignaz Seidl-Hohenveldern – in honour of his 80th birthday 201-218 (1998), in particular at 204. From his analysis of the European Council Werts concludes: “When the European Council was created, important parts of the Treaty were, in an informal way, set aside. Experience with the vague language of the 1974 Paris Summit Communiqué and with the habit there of pushing the Treaty aside on the basis of informal consultation should teach us that ultimately the member states, acting together, will do with the Treaties whatever they wish”. J. Werts, The European Council 305 (1992). TEU, Art. 48. Cf. B. de Witte, Rules of Change in International Law: How Special is the European Community?, XXV NYIL 1994, at 299-333. One of his conclusions is that this procedure for amendment “is based on the very traditional principle of unanimous consent for treaty amendment, and is thereby more respectful of national sovereignty than the amendment procedures of many other multilateral treaties which allow for some form of majority decisionmaking” (id., at 331-332). In addition, De Witte argues that “there is a risk that this “internationalist” character of the Community’s rules of change may contaminate the “constitutionalist” fabric of the Community legal order” (id., at 332).

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Article 27.1(a) of the 1952 UPU constitution required the approval of all members for amendment of the constitutional articles between two sessions of the general congress; in the 1964 constitution this provision was annulled (Article 29). The IMF and the World Bank require the approval of all members for amendment of some expressly listed articles of their constitutions.299 In the European Union, the governments of the member states must appoint by common accord the members of the Commission, the judges and advocates-general of the Court, the President of the Council of the European Monetary Institute, and the President, Vice-President and other members of the Executive Board of the European Central Bank.300 The seat of the Communities’ institutions is also to be fixed by the governments of the member states by common accord.301

It may be submitted that all member states collectively can exert all powers of the organization which have not been attributed to any specific organ of the organization, unless the constitution expressly provides otherwise. §164. As with their individual obligations, the collective obligations of the members can be waived. This will be referred to as suspension of obligations, in contrast to the dispensation of individual obligations.302 Again, it may be assumed that international organizations have the inherent right to suspend the obligations of their members. As suspension disrupts the normal proceedings of the organization, it would appear correct to require a large majority or unanimity for any decision to allow a suspension, whilst a simple majority might be sufficient to terminate it.303 §165. Decision-making by all members collectively is difficult. A reluctant member can stay away from meetings of the organs and thus block a decision without allowing any pressure to be exerted on its delegates. In some organizations specific powers have been granted to a qualified majority of the members. The constitutions of the WMO (Article 3(c) and (e)), the UPU (Article 11.4), the ITU (Constitution, Article 2(c)) and the IMO (Article 8) require the approval of two-thirds of the members for the admission of a new member which is not a member of the UN. Twothirds of the WMO members have to approve the establishment of relations between this organizations and other international organizations (Articles 25-26). The UPU requires the approval of two-thirds of its members for amendments to the constitution (Article

299. 300. 301. 302. 303.

IMF, Art. XVII(b); World Bank, Art. VIII(b). Arts. 214, 223, 117.1, 123.1 EC. EC, Art. 289; ECSC, Art. 77; Euratom, Art. 184; Merger Treaty 1965, Art. 37. Gold, op. cit. note 291, at 189-199. IMF, Art. XXVII, Section 1.

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30.1). IMF and World Bank require, for some decisions, a qualified majority of all members.304

In other cases a simple majority of the members can exercise powers without the reference to an organ of the organization. The UPU formerly required the support of a majority of its members for interpretation of the constitution (1952 constitution, Article 27.1(c)). In the FAO, at least half of the members have to support proposals to amend the constitution (Article XX.1). In the African Union, approval of a majority of the members is necessary for the admission of a new member (Article 29.2).

II.

Associate members305

§166. Some international organizations have a special form of membership with limited rights. In many cases such membership was introduced for colonies or other non-autonomous territories to permit them to participate in the activities of the organization without granting them the rights of independent states.306 After becoming independent, such territories usually continued as associate members until admitted to full membership.307 The significance of associate membership has decreased with the decline in the number of such territories,308 but this form of participation is still occasionally used.309

304. 305. 306. 307. 308.

309.

For example: IMF, Art. XXVIII(a); World Bank, Art. VIII(a). See also P. Hollenweger, Die Assoziation von Staaten mit internationalen Organisationen (Zürcher Studies zum Internationalen Recht No. 41, 1967). WHO, Art. 8; FAO, Art. 2; UNESCO, Art. 2; IMO, Art. 9; World Tourism Organization, Art. 6. UNJY 1971, at 229-230. See membership tables in Kapteyn et al., op. cit. note 24, Suppl. I. App. A. Nevertheless, occasionally non-autonomous territories still apply for this form of membership. In 1990 Macau became associate member of the IMO. Netherlands Antilles (1983), the British Virgin Islands (1983), Aruba (1987), Macau (1995) and Cayman Islands (1999) became associate members of UNESCO. For example, the WHO has two associate members: Tokelau (admitted in 1991) and Puerto Rico (admitted in 1992). See WHO, The Work of the WHO 1990-1991 (1992), at 156, and WHA46/1993/REC/1, at 158.

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More recently, associate membership, or a status which in fact comes very close to it, has been granted to liberation movements,310 and to governments in exile.311 In addition, in 1992, the Western European Union granted associate membership to Iceland, Norway and Turkey.312 In 1996, Bolivia and Chile became associate members of Mercosur.313 Originally, it was not possible to become an associate member of the WEU. However, the 1992 Treaty on European Union (Article J.4, now Article 17) provides that the WEU is to become the defence component of the European Union. In addition, the need felt to strengthen the European pillar within NATO resulted in a larger role for the WEU. Accordingly, the WEU needed to create possibilities for participation in its work: a) by members of the European Union which were not WEU members; they were invited to become full members or observers of the WEU; b) by other European states which were members of NATO; they were invited to become associate members of the WEU.314

Associate membership usually entails membership without the right to vote or hold office in the principal organs of the organization.315 It has been useful for delegates of newly independent countries who could thereby obtain experience prior to their countries’ independence.

310. 311. 312. 313. 314.

315.

In the OAU, see J. Woronoff, Organizing African Unity 196 (1970). Namibia was admitted as an associate member to UNESCO and WHO in 1974 (YUN 1974, at 963, 972). In 1978 it obtained full membership of both organizations. Decision taken by the WEU Council, see Europe Documents No. 1810 (1992). The WEU has now largely become inactive. YIO 2000/2001, Vol. I, at 2104; YIO 2002/2003, Vol. 1, at 2329. See the Declaration adopted by the WEU members in connection with the Treaty on European Union (OJ 1992, C 191/107). Subsequently, the Petersberg Declaration was adopted by the WEU Council (June 1992); this Declaration defined the status, rights and obligations of WEU observers and associate members (reproduced in Europe Documents No. 1787 (1992)). See D. Dormoy, Recent Developments Regarding the Law on Participation in International Organizations, in K. Wellens (ed.), International Law: Theory and Practice. Essays in Honour of Eric Suy (1998), at 323-332. Since associate members usually do not have the right to vote, they usually neither have rights linked to the right to vote, such as the right to sponsor resolutions; see UNJY 1995, at 421-424 (in particular para. 8).

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In the WHO, which served as an example for the FAO and UNESCO and which is also fairly representative of other organizations, associate members have the following rights and duties.316 1. The right to participate, without a vote, in the deliberations of the World Health Assembly (the general congress of the WHO) and of its main committees. 2. The right to participate, vote, and hold office in the other committees and sub-committees of the World Health Assembly, except in the General Committee, the Credentials Committee and the Nominations Committee. 3. The right to propose items for the agenda of the World Health Assembly. 4. The right to receive equally with members all notices, documents, reports and records. 5. The right to participate on an equal footing with full members in the procedure for summoning special meetings of the World Health Assembly. 6. The right to make proposals to the Board and participate in its discussions. However, they may not be members of the Board. 7. Although the associate members are under the same obligations as the full members, in calculating the level of their contributions, their limited rights will be taken into account. At its third session, the World Health Assembly fixed the contributions of all associate members at three units. The minimum contribution of the full members was then five units, the maximum contributions amounted to 4306 units.

§167. In the World Tourism Organization, associate members have one representative on the board, but no voting rights.317 Before the 1975 amendment of the ITU constitution. associate membership was not only open to territories which were not responsible for their external relations but also to independent states.318 Thus, states with some interest in the activities of the organization but not enough to justify full membership could apply for associate membership. No use has been made of this possibility. As many nonautonomous territories were full members of the ITU, associate membership was not very common in this organization. It was abandoned in 1975. Two of the five regional economic commissions of the UN (the Economic and Social Commission for Asia and the Pacific, and the Economic Commission for Latin America and the Caribbean) also offer the possibility of associate

316.

317. 318.

WHO Official Records No. 13, at 100, 337 (reproduced in WHO, Basic Documents 42nd ed. 1999, at 19). For further details, see H.G. Schermers, De Gespecialiseerde Organisaties 71-77 (1957). Art. 14.2. Associate members of this organization are, inter alia, the Flemish Community of Belgium, the Netherlands Antilles, Aruba and Madeira. Art. 1.3.

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membership.319 The non-sovereign territories of these regions may become associate members of these UN organs.320 Originally six European states, which were responsible for African territories, were full members of the Economic Commission for Africa (ECA). In 1963 this membership was converted into associate membership for three of these states. The remaining European states no longer had African colonies (Italy and Belgium) or refused to accept an inferior status (Portugal). Subsequent to Portugal’s departure from the ECA the Portuguese colonies became associate members together with Namibia.321 In 1981 the provision relating to associate membership was deleted from ECA’s terms of reference after Zimbabwe had become a full member of this Commission.322 §168. Some regional organizations also admit associate members in the same way as the organizations of the UN family. Other regional organizations use the word ‘association’ for other purposes, either for partial membership (Council of Europe, Council for Mutual Economic Assistance (now dissolved), see below, §169-171) or for the establishment of external relationship agreements (e.g. between the EC and Turkey; see below, §1781). Because Canada and the US were not European states, they used to be associate members of the OEEC (the predecessor of the OECD) and the European Payments Union. They sent observers to the meetings and received the documentation of the organization.323 Until its disintegration, Yugoslavia enjoyed a similar status in the OECD, which enabled it to send observers.

III.

Partial members

§169. Partial membership is a form of participation in international organizations, pursuant to which states are full members of certain organ(s), while they are not full members of the organization as such. It has been used most

319.

320. 321. 322. 323.

For the procedure for admittance to associate membership, see UNJY 1972, at 172-173. For the legal requirements for associate membership in ESCAP, see UNJY 1990, at 278-279. See also UNJY 1986, at 289-290, concerning the desire of the Cook Islands, an associate member of ESCAP, to become a full member of that Commission. For an enumeration, see United Nations Handbook 2002, at 132, 135. See M.A. Ajomo, Regional Economic Organizations, the African Experience, 25 ICLQ 63-65 (1976). See also ECOSOC Res. 974 DI (XXXVI; 1963). See YUN 1986, at 1533. See A. Elkin, The Organization for European Economic Cooperation, its structure and powers, European Yearbook 1956, at 97-150.

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frequently in the UN, of which, for political reasons, all states have not always been members. It offered a useful solution in some UN organs in which the absence of these states would be felt strongly, while political objections to membership were not particularly strong. Normally, if a UN organ is to be open to states other than members of the UN, this provision is expressly laid down in the resolution creating this organ. According to the UN Office of Legal Affairs, if there is no such express provision, non-member states would not be considered automatically eligible for membership of the organ concerned.324 In 1954, 1955 and 1956 several European states, which had not (or not yet) been admitted to the UN, became members of the Economic Commission for Europe (ECE).325 Switzerland became a member of the ECE in 1971.326 South Vietnam and the Korean Republic,327 Tonga, Western Samoa and Nauru were admitted to the Economic Commission for Asia and the Far East (ECAFE), while they were not UN members.328 In July 1977, the PLO became a member of the Economic Commission for Western Asia.329 Switzerland330, Liechtenstein331 and San Marino332 became parties to the Statute of the International Court of Justice (one of the six principal organs of the UN) when they were not members of the UN. In 1947 Switzerland was elected as a member of the Executive Board of UNICEF, and since then it has served in several functions in the organs of which it is a member.333 All state members of any specialized agency or of the IAEA (e.g. Switzerland) may participate as full members in UNCTAD and its organs, and in the UN Capital Development Fund, both of which are organs of the UN General Assembly.334

§170. Partial membership is also to be found in regional organizations. Article 12(c) of the constitution of the OECD permits this organization to invite non-

324. 325. 326. 327. 328.

329. 330. 331. 332. 333. 334.

UNJY 1986, at 288-289. For example, West-Germany; see ECOSOC Res. 594(XX). ECOSOC Res. 1600(LI). ECOSOC Res. 517(XVII). ECOSOC Res. 1604(LI); UNJY 1970, at 177-178, and UNJY 1971, at 212-213. See in general G. Fischer, Participation des Etats non-membres aux travaux des commissions économiques régionales, 1 AFDI 330-345 (1955); UNJY 1970, at 173-177, UNJY 1971, at 206-215, and UNJY 1972, at 172-174. ECOSOC Res. 2089(LXIII). GA Res. 91(I) and 17 UNTS, at 111. GA Res. 363(IV) and 51 UNTS, at 115. GA Res. 806 (VIII) and 186 UNTS, at 295. YUN 1946-47, at 519, footnote 2. See resp. GA Resolutions 1995(XIX), Art. 1, and 2186(XXI), Art. 8.4. On the participation of West Germany, see E.-O. Csempiel, Macht und Kompromiss, Die Beziehungen der BRD zu den Vereinten Nationen, 1956-1970 (1971); P. Pawelka, Die UNO und das Deutschlandproblem (1971). On the participation of Vietnam see J. Nguyen Duy-Tan, La représentation du Viet-Nam dans les institutions spécialisées, in: 22 AFDI 405-419 (1976).

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member governments or organizations to participate in its activities. In practice, Australia participated in the OECD’s Development Assistance Committee before it became a member of the organization in 1971. Likewise, New Zealand participated in the OECD’s Committee for Agriculture and its working parties, before it became a member of the organization in 1973. The former Yugoslavia used to be a full member in respect of discussions of economic policies known as “confrontations”, scientific and technical matters, agricultural and fisheries questions, technical assistance and productivity; it had observer status in respect of other matters.335 A form of partial membership can also be found in the Statute of the Council of Europe, which through “associate membership” affords an opportunity for full membership in the Parliamentary Assembly without participation in the Committee of Ministers. The Federal Republic of Germany and the Saar participated in the Council of Europe as associate members for several years.336 Since the admission of the Federal Republic of Germany as a full member in 1951 and the disappearance of the Saar as a separate territory in 1957, the Council of Europe has had no other partial members. An interesting form of partial membership is the Norwegian participation in the International Energy Agency (IEA). As the IEA was created as an organization of oil importing states, Norway, as a prospective exporter, clearly could not participate fully. However, being intimately involved in European energy policies, it did not wish to remain outside the organization. It was therefore agreed that Norway would have all the rights and obligations of a full member under four chapters of the constitution of the IEA, whilst not being bound by the cooperation provisions of the other chapters.337 §171. Thus, partial membership offers a flexible form of participation in international organizations, enabling non-members to participate fully in one or some organs only, in the mutual interest of the country concerned and the organization. However, it raises several administrative problems. In the context of the UN, partial members have to be assessed separately in the budget for the expenses of the organs of which they are a member, unless the General Assembly

335. 336. 337.

Agr. OECD/C/61/44, see Kapteyn et al., op. cit. note 24, at II.B.7.a, at 4 (Art. 12). A.H. Robertson, The Council of Europe, its Structure, Functions and Achievements 19-21 (2nd ed., 1961). Agreement between the IEA and Norway of 18 November 1974, Trb. 1975, No. 74. See also R.H. Lauwaars, Some institutional aspects of the International Energy Agency, in: 12 NYIL 113-145 (1981), at 132.

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decides otherwise.338 They are not however represented in the organ which is responsible for the budget (in the UN: the General Assembly). The members of the executive board of UNCDF are elected by the General Assembly. Partial members of this organ do not participate in the election. On the other hand, they do participate in the election of the judges to the ICJ and in the amendment of the Statute of the Court.339 The activities of the secretariat and the appointment of its personnel are carried out under the supervision of the Secretary-General. He is responsible to the general congress. Partial members have no say in these matters.

Consequently, partial members have a weaker position than full members of the organization. On the other hand, international organizations can exert less power over these members.340

IV.

Affiliate members

§172. The World Tourism Organization has a special category of membership: affiliate membership, which is open to international bodies, both intergovernmental and non-governmental, concerned with specialized interests in tourism as well as to commercial bodies and associations whose activities are related to the aims of the organization or fall within its competence.341 Affiliate members are represented in the Committee of Affiliate Members which may designate three observers to the general congress of the organization (Article 9(3)), and one to the board (Article 14(3)). Affiliate members may also participate as individual members in the activities of the World Tourism Organization. They may be individually represented, as observers, in the general congress, but not on the board, and are assessed in the scale of contributions (Article 25(1)). The most interesting aspect of this affiliate membership is the collective representation of affiliate members in organs of the organization. This has the advantage of involving a large number of affiliate members in the work of the organization without overburdening the organs with a large number of participating observers. Another interesting aspect is that affiliate membership is open to private international organizations and even to national bodies.

338. 339. 340. 341.

UN Financial Regulation 5.9 as amended by GA Res. 3371(XXX), B2. ICJ Statute, Art. 69; GA Res. 2520 (XXIV). See the difficulty of obtaining contributions from San Marino for international control of narcotic drugs, UNJY 1967, at 329. Art. 7.1. of the constitution of the World Tourism Organization.

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As of 1 January 2003, 343 affiliated members participated in the World Tourism Organization, such as the Africa Travel Association, the Club Méditerranée, the International Automobile Federation, the International Student Travel Confederation).342

V.

Observers

A.

General

§173. Most international organizations grant some form of observer status to non-member states, other public international organizations, private organizations or individuals. The word ‘observer’ might give the impression that these entities with observer status fulfil a passive role. However, the opposite is often true. Observers often participate actively, transmitting their ideas to international organizations.

It is established UN practice to reserve the term “representative” exclusively for persons representing states participating in UN meetings with full rights including the right to vote. As a rule, all other participants, including states and intergovernmental organizations, participating without the right to vote are referred to as “observers” in reports and other official records of meetings.343 §174. As has been observed by Suy, a former Legal Counsel of the UN, practice with regard to these participants in international organizations is far from being clear, uniform or complete.344 He considers that this is essentially due to two factors: “the variation of observers (states, national liberation movements, intergovernmental organizations, etc.) and the different circumstances and terms under which they acquire and practise this status in every international organization”; thus, it is not surprising that there is no coherent legal theory about the status of observers.345 The advantage of inconsistent

342. 343. 344.

345.

See www.world-tourism.org. UNJY 1982, at 156. See also UNJY 1977, at 220-222. E. Suy, The status of observers in international organizations, in: 160 RdC 75-179 (1978 II), at 83. Also R.G. Sybesma-Knol, The status of observers in the United Nations (1981), at 24 and 319; one of her conclusions is that ‘there are no clear rules or uniform practices concerning the participation of observers, which may vary from a mere “sitting in and listening” to a virtually full participation in the debate and a significant contribution to a consensus’ (at 323). Suy, op. cit. note 344, at 83-84.

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practice in this area is that it “has minimized political tensions, as the irregularity makes the process more flexible to change and re-arrangement”.346 However, the disadvantage is that practice may become chaotic; “practice has reached a point where it would benefit from general guidelines from the parent organs of international organizations”.347 §175. Granting observer status is often related to sessions of specific organs of an international organization. Some organizations however attribute this status on a more general basis.348 The invitation of observers forms part of the policy of the organization concerned; it does not fall within the competence of the secretariat. Whether a subsidiary organ is competent to invite observers to its own meetings depends on the powers given to the organ. Since the invitation of observers (particularly those of states which are not generally recognized) may give rise to political controversies, some caution should be exercised in relation to the granting of competence to subsidiary organs to extend such invitations.349 Where an organ did not have the competence to invite observers, the UN Secretariat suggested that the representatives concerned be invited as official guests,350 a status apparently between observers and public in open meetings.

Organizations entitled to send observers should send a letter to the organization designating their representatives. This letter performs a function similar to the credentials of delegates, but it usually does not require the approval of a credentials committee.351 §176. The precise legal position, the rights and duties of observers, varies from organization to organization, and even from observer to observer. This is usually regulated in the agreement by which the organization admits the

346. 347.

348. 349.

350. 351.

Id., at 159. Id. See Sybesma-Knol, op. cit. note 344, at 330-334, for a slightly different conclusion (Sybesma-Knol is somewhat more reserved than Suy as to the advisability of the elaboration of such general guidelines). See e.g. FAO General Rules 17. UNJY 1964, at 239-241. Many organs decide autonomously, see e.g. YUN 1967, at 356, for organizations admitted to send observers to the Trade and Development Board of UNCTAD. UNJY 1963, at 171-172. Guidelines on observer status by the UN Secretariat, §9, reproduced in UNJY 1975, at 166. On the question of credentials for observers, see also UNJY 1971, at 193-195. An exception is the OAS, where credentials of permanent observers and observers are presented and examined, see Suy, op. cit. note 344, at 158.

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observer, although such an agreement does not always exist. In particular, observers from states are often admitted on an ad hoc basis without any regulation of their rights and obligations. Is a meeting then free to hear statements of these observers? The question has arisen several times in the ECOSOC. An observer from Libya (then not a UN member) was admitted at the sixteenth session to make a statement on the “question of assistance to Libya”. At the eighteenth session, a member of the ECOSOC proposed that the Romanian observer be heard on the question whether Romania should be admitted to UNESCO (at that time applications for membership of UNESCO first had to be transmitted to the ECOSOC). The president of ECOSOC stated that, since the rules of procedure did not provide for such a hearing, the observer could be permitted to express his views only with the unanimous consent of the Council members. Since two members objected, the Romanian observer could not be heard.352

§177. There are only two general characteristics which all observers share: they have some access to meetings and they may never vote. In public sessions, access to the meeting may not seem very significant in terms of mere presence at the discussions, but it is significant in terms of presence in the conference hall itself. Observers often have the opportunity to speak with delegates, to convey ideas to them, and even to persuade them to adopt a certain line of policy. Sometimes they even have the right to make statements and the right to reply.353 Observers are normally seated in the conference hall, but separate from delegates. They receive the working documents of the session like full members through distribution in so-called pigeon-holes.354 Normally observers can circulate documents in organs in which they participate, where a covering note from the chairman is available.355 In formal terms, the chairman circulates a letter in which he states that he has received the annexed communication from an observer for circulation. Similarly, proposals from observers can usually only be voted upon when put to the vote by a (full) member of the organ. Observers sometimes have the right to submit proposals (and amendments) to the organization (see below, §721-724).356

352. 353. 354. 355.

356.

UN Repertory of Practice of UN Organs, Vol. 3, at 536-537. Suy, op. cit. note 344, at 131-142. UNJY 1972, at 159-160. See also Suy, op. cit. note 344, at 120-122. See on the question of the circulation of written statements by ngo’s in ECOSOC and its subsidiary organs, UNJY 1983, at 187. The UN Office of Legal Affairs has indicated that according to the established practice of the UN, the right to participate in the deliberations does not encompass the right to circulate documents (which entails financial implications for the UN); see UNJY 1995, at 419-420. See for example Rule 72.3 of the Rules of Procedure of the ECOSOC. Suy, op. cit. note 344, at 143-145.

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Participants

§178

§178. The influence exercised by observers depends, inter alia, on the organization concerned, and on the size of the organ to which they have been admitted. In general their influence is less than that of full members. The limitations of the status of observer became clear when the US (an observer within the Council of Europe) proposed to suspend Croatia as a member of the organization because it allegedly did not comply with its obligations under the 1995 Dayton Agreement. It was made clear that this initiative was not considered an official proposal because it was not made by a full member of the Council of Europe.357

Nevertheless, observers sometimes participate fully in the debates in small organs; in large organs they may usually not do so. As a general rule therefore, it can be said that the smaller and more technical the organization, the greater the potential influence of observers. In some cases, an observer holds a relatively strong position because of the factual situation. Thus the Italian observer with the UN Trusteeship Council (before the admission of Italy to the UN in 1955) played an important role as Italy administered a trust territory (Somalia). Despite the fact that observers may have only limited influence in official sessions, they may play a substantial role in informal meetings. The original proposal A/C.2/L.1104, submitted by the African states to the Second Committee of the UN General Assembly in September 1970, was co-sponsored by Western Samoa, which was represented at the General Assembly by an observer (since observers have no right to co-sponsor proposals, the document was later corrected). This indicates that during the informal meetings of the African group preparing the proposal, Western Samoa was accepted as an equal partner.

B.

Categories of observers

§179. Five categories of observers can be distinguished: states, liberation movements, public international organizations, private organizations and individuals. Not all observers fall into one of these categories. The WHO, for example, invites the Order of Malta to its sessions despite not having decided whether the Order should be considered as a state or as an organization.358

357. 358.

Europe Nos. 7065 (at 6) and 7067 (at.5); information given by the Council of Europe Secretariat. See C.-H. Vignes in 9 AFDI 636-638 (1963).

§180

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Non-member states359

§180. International organizations often admit delegates from non-member states to their meetings as observers when questions are discussed which are of interest to them.360 The UN General Assembly has refused to grant observer status on a more permanent basis,361 but other UN organs and other international organizations have been prepared to do so.362 This form of participation allows the non-member to maintain contact with the work of the organization. Observer status for non-member states may sometimes also be seen as a stepping-stone to full membership. In the WTO, observer governments must, with the exception of the Holy See, start accession negotiations within five years of becoming observers.363 Observer status similar to that of non-member states is often granted to members to allow them to participate in non-plenary organs of which they are not members. In some organizations, members have an inherent right to send observers to organs of which they are not members, while in others, no such right exists. UN members have no such inherent right.364 Nevertheless, the UN Security Council in practice usually allows non-members to participate (without having formal observer status). Between 1981 and 1997 only three requests by states were denied or not acted upon.365 On 23 June 2000, the Security Council voted against the request for participation by Mr. Jovanovic of Yugoslavia. In its explanation of vote, the US stated that Mr. Jovanovic represented a government whose senior leadership has been indicted for war crimes and other violations of international humanitarian law by the Yugoslavia Tribunal, an organ created by the Security Council.366

§181. In 1989, the Parliamentary Assembly of the Council of Europe created a special category of observers from non-member states, so-called special

359.

360. 361. 362.

363. 364. 365. 366.

See also Suy, op. cit. note 344, at 88-96 and 104-105; Sybesma-Knol, op. cit. note 344, at 25-28 and 45-78; UNJY 1978, at 164-166. For a case study see P. Seger, Die Stellung der Schweiz als Beobachter bei den Vereinten Nationen in New York, 5 Schweizerische Zeitschrift für internationales und europäisches Recht 479-514 (1995). See UN Repertory of the Practice of UN Organs, Vol. 1, at 653 and Vol. 3, at 536-538. See UN Repertory of the Practice of UN Organs, Vol. 1, at 652-653. E.g. the UN’s regional commissions, see UN Repertory of the Practice of UN Organs, Vol. 3, at 537-538; the Council of Europe in some commissions (Spain before it was admitted as a full member). Information taken from the WTO website. See UNJY 1971, at 195-196, and UNJY 1972, at 168-170. See F. Soltau, The Right to Participate in the Debates of the Security Council, ASIL Insight (October 2000). See UN Doc. S/PV.4164, at 3-6.

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Participants

§182

guests, to enable the national legislative assemblies of Central and East European states to take part in its meetings. The existing observer status, which had been granted to Israel, was considered unsuitable for this purpose, because the Assembly wanted to lay down some specific conditions for participation by these Central and East European states, and Israel’s ability to fulfil these conditions was open to some doubt. Once admitted however, the position of the members of special guest delegations is the same as those of observers within the Assembly.367 This special category of observers was created through Resolution 917 (1989) of the Assembly. This mandated the granting of special guest status to national legislative assemblies of European non-member countries which had shown their interest in being accorded such status and which apply and implement the Helsinki Final Act and the instruments adopted at the CSCE conferences, together with the 1966 UN Covenants on Human Rights. (See also Rule 59 of the Assembly’s Rules of Procedure.) In 1990, a similar position (“associate delegates”) was created by the North Atlantic Assembly (see below, §566) for members of parliaments of Central and Eastern European countries.368

2.

National liberation movements369

§182. In the early 1970s, national liberation movements gradually became an important category of observers in many international organizations.370 In February 1969, the UN’s Economic Commission for Africa (ECA) recommended that the names of representatives of the ECA associate members Angola, Mozambique, Guinea (Bissau) and Namibia should be proposed by the Organization of African Unity (OAU).371 Except for Namibia, for which the UN Council for Namibia took responsibility, the arrangement was subsequently confirmed by the UN General Assembly.372 Since 1971, liberation movements have been represented in the ECA by observers.373 In the meetings of the UN Council for Namibia, representatives of the South West Africa People’s Organization (SWAPO) have participated as observers since 1972.374 In 1976, the General Assembly granted observer status to the

367. 368. 369. 370. 371. 372. 373. 374.

CoE, Parliamentary Assembly, Doc. 6060 (1989), at 4. Information Document AK 42, GEN (93) 5 rev.2, of the North Atlantic Assembly (1993). See also Sybesma-Knol, op. cit. note 344, Chapters IX and X. See E. Klein, Nationale Befreiungskämpfe und Dekolonisierungspolitik der Vereinten Nationen: Zu einigen völkerrechtlichen Tendenzen, 36 ZaöRV 618-653 (1976). ECA Res. 194(IX). GA Res. 2795(XXVI); see also GA Res. 2621(XXV). UNJY 1974, at 154. UNJY 1974, at 152. For the financing of SWAPO, see also GA Res. 32/9/F4.

§183

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SWAPO.375 Since 1972, representatives of several liberation movements have participated as observers in debates of the Fourth Committee (the Committee for ‘colonial’ questions) of the General Assembly of the UN. Again, the representatives were nominated by the OAU.376 In August 1974, the ECOSOC called upon the specialized agencies to make appropriate arrangements with a view to enabling the representatives of the liberation movements recognized by the OAU to participate as observers in all proceedings relating to their countries.377 In 1974, the Palestine Liberation Organization (PLO) was invited to deliver a speech to the General Assembly of the UN. The General Assembly subsequently decided to invite representatives of the national liberation movements recognized by the OAU to participate on a regular basis in the regular work of the Main Committees of the General Assembly and its subsidiary organs, as well as in conferences, seminars and other meetings held under the auspices of the UN which related to their countries. It also accepted the principle that the costs of such representation were to be borne by the UN.378 In 1988, the General Assembly decided that the PLO and the SWAPO were entitled to have their communications relating to the sessions and work of the General Assembly (and of all international conferences convened under its auspices) issued and circulated directly, and without the use of an intermediary, as official documents of the Assembly (or these conferences).379 Since then, the representatives of national liberation movements have become an accepted group of observers. They have participated in many conferences organized under UN auspices380, and in the activities of most specialized agencies.381 §183. Originally, invitations were limited to liberation movements recognized by the OAU. Later however, several organs extended the invitations to include

375. 376. 377. 378. 379. 380.

381.

Res. 31/152. See also UNJY 1983, at 227. UNJY 1974, at 150. ECOSOC Res. 1892(LVII), subsequently affirmed by the General Assembly, Res. 3300(XXIX). GA Res. 3280(XXIX); see also UN Doc. A/7775. Res. 43/160 A. See on the status of the PLO in the UN, UNJY 1977, at 217-219; UNJY 1980, at 188-189; UNJY 1982, at 156-159. See e.g. YUN 1974, at 73; YUN 1976, at 73-74 (Conference on the Law of the Sea); GA Resolutions 31/18 (Vienna Conference on the Succession of States), 31/100 (UN Conference on the carriage of goods by sea), 31/179 (UN Conference on technical cooperation among developing countries), or 31/108 (UN Conference on desertification). Specialized agencies have generally adopted the policies with respect to observers embodied in the General Assembly resolutions; see Suy, op. cit. note 344, at 113-114,

137

Participants

§184

national liberation movements recognized by the League of Arab States382, which actually meant an invitation to the PLO. The UN General Assembly invited the PLO as such “to participate in the sessions and the work of all international conferences convened under the auspices of the General Assembly in the capacity of observer”.383 The issuing of an invitations to a national liberation movement to send observers for a particular territory does not necessarily imply that the organization recognizes the liberation movements as the formal representatives of the territories, still less as their lawful governments.384 There may be several authorities claiming to represent the territory. The criteria which national liberation movements should fulfil in order to be accepted as the lawful government of a territory have never been discussed.385 §184. In 1980, the UN General Assembly adopted a resolution in which it, inter alia, called upon states to accord to the delegations of the national liberation movements recognized by the OAU and/or by the League of Arab States, and which have been accorded observer status by international organizations, the facilities, privileges and immunities necessary for the performance of their functions in accordance with the provisions of the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character.386 Similar resolutions were adopted by the General Assembly in the following years, despite severe criticism from Western states,387 which pointed to the fact that the 1975 Vienna Convention had not entered into force and had in fact been ratified by a limited number of states, among which no principal hosts to international organizations.388

382. 383.

384. 385. 386. 387. 388.

in particular footnote 70. Further: C. Lazarus, Le Statut des Mouvements de Libération nationale à l’Organisation des Nations Unies, 20 AFDI 173 (1974); see e.g. the list of participants of the 19th Conference of the FAO (1977); R.H. Mankiewicz, Organisation de l’Aviation Civile Internationale, 23 AFDI 629-630 (1977); YUN 1975, at 998, 1073. See e.g. ECOSOC Res. 1840(LVI), YUN 1974, at 487 (World Food Conference); GA Res. 3276 (XXIX), YUN 1974, at 657 (Conference of the International Women’s Years). GA Res. 3237 (XXIX), YUN 227 (1974). See also L. Gross, Voting in the Security Council and the PLO, 70 AJIL 470-491 (1976); R.H. Mankiewicz, Organisation de l’Aviation Civile Internationale, la 21e session de l’Assemblée, 20 AFDI 642-644 (1974); T. Meron, The Composition of the UN Regional Economic Commissions and the PLO, in: 28 ICLQ 52-64 (1979). UNJY 1974, at 168, para. 9. Lazarus, op. cit. note 381, at 197. GA Res. 35/167. E.g. Res. 47/29 (1992); adopted with 103 votes in favour, 9 votes against and 36 abstentions (28 states were absent). See e.g. YUN 1986, at 1004; YUN 1992, at 1011.

§185

3.

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Public international organizations389

§185. Agreements between international organizations often enable them to participate in each other’s work. The most important agreements of this kind are the agreements between the UN and the specialized agencies.390 These agreements all provide for a reciprocal right to propose agenda items (for the specialized agencies on the agendas of the ECOSOC and the Trusteeship Council) and for “participation without vote”. The UN may send observers to all meetings of the principal organs of specialized agencies, irrespective of the subject matter under consideration. The specialized agencies on the other hand may “participate without vote in the deliberations of the General Assembly, its main committees, the Economic and Social Council, its commissions and committees, the Trusteeship Council and its commissions and committees only if the agenda item is of some concern to them”.391 The definitions of what may be of concern to the specialized agency differ from agreement to agreement. In its rules of procedure, the ECOSOC allows the specialized agencies to be represented at all meetings of the ECOSOC and its committees, to “participate, without the right to vote, through their representatives in the deliberations with respect to items of concern to them, and to submit proposals regarding such items, which may be put to the vote on request of any member of the Council or of the committee concerned”.392 The specialized agencies may even request that a special session of the ECOSOC be held. The session will be convened when either the president and the three vice-presidents of ECOSOC, or a majority of its members, agree to the request.

§186. Apart from the specialized agencies, other public international organizations, such as the OAS, the African Union, the EC, the Council of Europe, the Organization of the Islamic Conference and the Caribbean Community are also permitted to send observers to UN organs.393 Since 1975, ECOSOC’s rules of procedure have included a rule on the participation of intergovernmental organizations in the deliberations of the Council. Two categories of

389. 390. 391. 392. 393.

See also Suy, op. cit. note 344, at 96-99, 123-131; Sybesma-Knol, op. cit. note 344, Chapters IV-VIII. Art. 70 UN Charter. UN Repertory of Practice, Vol. 3, at 545. ECOSOC Rules of Procedure, Rule 75. For a survey of the practice of the UN see UNJY 1971, at 197-199 and UNJY 1975, at 164167; for the cooperation with the OAU see UN Doc. A/46/486 and Add. 1 and 2; also: B. Andemicael, The OAU and UN: Relations between the Organization of African Unity and the United Nations (Unitar Regional Study No. 2, 1976); for the relationship with CMEA and the EEC, see YUN 1974, at 302-303 (GA Res. 3209 (XXIX) and 3208 (XXIX), ECOSOC Rule 79 and many resolutions or rules establishing subsidiary organs; for the relations between the Council of Europe and the UN, see Doc. 7178 (1994) of the Parliamentary Assembly of the Council of Europe. For participation of the E(E)C in UNCTAD see UNJY 1970, at 181.

139

Participants

§186

inter-governmental organizations qualify for such a status: organizations accorded permanent observer status by the General Assembly and organizations designated on an ad hoc or a continuing basis by the Council.394 Many agreements between specialized agencies provide for reciprocal representation at meetings of their principal organs when items of interest to the other organization are under discussion. The agreements also provide for an exchange of information and documents, and often for the establishment of joint committees for matters of common interest.395 Sometimes one organization can propose agenda items to the other.396 Similar arrangements have also been made in agreements between specialized agencies and other international organizations. Many regional organizations have concluded agreements on mutual consultation with other public international organizations. All agreements of the Council of Europe provide for the exchange of information, mutual consultation and an exchange of observers.397 A relationship between the Council of Europe and universal organizations may be useful since the Council of Europe is sometimes able to complete at the regional level a project which could not (yet) lead to an agreement at the global level (e.g. the establishment of a binding convention on human rights in 1950). Cooperation with other European regional organizations may be particularly fruitful when the Parliamentary Assembly of the Council of Europe discusses matters usually handled by an organization without a parliamentary organ (such as the OECD). The European Community has concluded a number of agreements on the mutual exchange of documents and information, and the mutual admission of observers.398 In addition to its representatives in UN organs, the EC also sends representatives to several closed organizations, such as the OAS399, the OECD as well as to most Commodity Councils.

394.

395. 396. 397. 398.

399.

Rule 79. See also ECOSOC Res. 1267 B (XLIII); UN Doc. E/4961; decision, adopted 20 May 1971 by ECOSOC (OR, 50th session, Resolutions, Suppl. No. 1, at 25). See for an overview of the intergovernmental organizations having this status with ECOSOC: YIO 2002/2003, Vol. I, at 639. See e.g. agreement between ILO and FAO, 18 UNTS, at 336-342; agreement between UNESCO and WHO, 44 UNTS, at 324-332. See also below, §1692-1697. Agreement between UNESCO and WHO, Art. 3. Robertson, op. cit. note 336, at 217. See P. Pescatore, External Relations of the European Communities, 103 RdC (1961 II), at 199. See also E. Noël, The external relations of the EEC and its international problems, in: Government and Opposition 159-166 (1975); J.P. Pietri, La valeur juridique des accords liant la Communauté économique européenne, 12 RTDE (1976), at 51-75, 194-214; H. Krück, Völkerrechtliche Verträge in Recht der Europäischen Gemeinschaften (1977). Exchange of letters of 19 Dec. 1970 and 26 Feb. 1971.

§187

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§187. Agreements between international organizations usually provide that observers from the other organization shall be invited to attend meetings. The host organization then decides which of the items on the agenda will be of interest to the other organization.400 As a rule, the invited organization is represented by a member of its secretariat; in important meetings it will be represented by its Director-General.401 Sometimes, however, an organization will send a government representative (see below, §1834-1839). 4.

Private organizations

§188. Many private organizations are established to cover a particular, rather detailed, field. They bring together professional specialists who may possess a wide knowledge of their particular fields. This expert knowledge may be useful to public international organizations. For example, a public international organization considering traffic rules or road signs and signals may benefit from the experience of the International Road Federation and the International Road Transport Union, both private international organizations; for many activities the International Council of Scientific Unions may also provide valuable information.402 A public international organization should maintain contact with the citizens of the member states. Decisions of international organizations will be more readily acceptable if those interested in them have had some part in their drafting. An opportunity to present proposals to an international organization may channel opposition against a certain form of policy in a more positive direction. The right to participate in the work of an organization may even encourage a certain solidarity with it. As Sir Alfred Zimmern observed in 1935: “Even today it is not uncommon to meet private individuals who claim with pride that they ‘belong to the League of Nations’, in virtue of their membership of an unofficial association formed to promote a knowledge of its work and to further its fundamental objects”.403

400. 401.

402. 403.

Exceptions can be found in the agreements between the UN and the IMF and the World Bank. See e.g. WHO Res. EB2.R 36 of November 1948 in which the WHO Board charged the Director-General with appointing representatives to international conferences. See also WMO General Regulation 166(4). On observers of one international organization to another, see R.J. Dupuy, Le Droit des Rélations entre les Organisations Internationales, 100 RdC (1960 II), at 469-475. See e.g. W.S. Wooster, Interactions between Intergovernmental and Scientific Organizations in Marine Affairs, 27 International Organization 103-113 (1973). A. Zimmern, The League of Nations and the Rule of Law 1918-1935 (1936), at 324.

141

Participants

§189

§189. Many public international organizations allow private organizations to participate in their work.404 A wide variety of arrangements exists to associate these organizations with the work of public international organizations, and their role and influence in practice is also diverse. Nevertheless, while the dominant position of governments in public international organizations has not fundamentally changed, the conclusion seems justified that in general the position of private organizations within public international organizations has become more prominent, both in formal arrangements and in practice.405 Mechanisms for consultation have been improved, and in some areas (e.g. the protection of the environment, human rights) private organizations have become more closely involved in policy-making. Nowadays many public international organizations have created specialized units within their secretariat to deal with private organizations,406 and have specific sections on their websites for these organizations (or ‘civil society’ or ‘ngo’s’ as they are usually called). The most detailed system of cooperation with private organizations is that developed by the Economic and Social Council of the UN (ECOSOC). ECOSOC has arrangements for consultation with private organizations which are concerned with matters within its competence and which satisfy several con-

404.

405.

406.

See in general M. Bettati and P.-M. Dupuy, Les ONG et le Droit International (1986); P. Willetts, “The Concience of the World” – The influence of non-governmental organizations in the UN System (1996); B. Dunér, The Fight for Greater NGO Participation in the UN, 28 Security Dialogue 301-315 (1997); A.M. Clark, E.J. Friedmann and K. Hochstetler, The Sovereign Limits of Global Civil Society – A Comparison of NGO Participation in UN World Conferences on the Environment, Human Rights, and Women, 51 World Politics 1-35 (1998); P. Uvin and T.G. Weiss, The United Nations and NGO’s: Global Civil Society and Institutional Change, in M.I. Glassner (ed.), The United Nations at Work 213-235 (1998); J.D. Aston, The United Nations Committee on Non-governmental Organizations: Guarding the Entrance to a Politically Divided House, in 12 EJIL 943-962 (2001). Cf. P. Willetts, Introduction, in Willetts, op. cit. note 404, at 3: “[a]lmost all intergovernmental organizations now accept, as a norm of world politics, that they must have working relationships with NGO’s”. See for an extensive historical analysis of the role of ngo’s in international conferences and organizations S. Charnovitz, Two Centuries of Participation: Ngo’s and International Governance, 18 Michigan Journal of International Law 183-286 (1997). The co-rapporteurs of the ILA Committee ‘Accountability of International Organizations’ recommended that international organizations “should, as a matter of good practice establish at the least a NGO-Liaison Service operating as an inter-agency unit in order to facilitate NGO involvement in their activities” ( Second report of this committee (2000), at 19).

§189

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ditions.407 These arrangements have been improved over time and have generally strengthened the position of these organizations within the UN. Major amendments have been made in 1968 and most recently in 1996. In the 1996 amendment two main changes have been made. First of all, while the previously existing arrangement provided for consultation with private international organizations only, at present private national organizations (or: single country ngo’s) are covered as well. This change, that is also taking place in other organizations,408 followed the practice developed and accepted in large UN conferences such as the 1992 UN Conference on Environment and Development (but also in conferences before 1992).409 Secondly, the 1996 amendment introduced general rules for participation of ngo’s in international conferences convened by the UN and their preparatory process.410 Under the present arrangement private organizations must, for example, have an established headquarters with an executive officer, they must have democratically adopted constitutions and they must have the authority to speak for their members. This form of consultation with private organizations differs from the right of participation without vote which is granted to observers from non-members, liberation movements and specialized agencies. It had to be restricted in order to avoid an overburdening of the ECOSOC or a transformation of ECOSOC into a general discussion organ. In establishing consultative relations, the ECOSOC divides private organizations into three groups.411

407.

408. 409. 410. 411.

ECOSOC Res. 1996/31 of 25 July 1996, which updates Res. 1296 (XLIV) of 23 May 1968 (which in turn replaced ECOSOC Res. 288 (X) of 27 February 1950). See J.J. Lador-Lederer, Status Problems of International Non-Governmental Organizations, 38 NorTIR 149-170 (1968); YUN 1974, at 691-702; Aston, op. cit. note 404. Special rules for consultation with ngo’s are applicable for the Commission on Sustainable Development (see ECOSOC Res. 1993/215). These accreditation rules are more liberal as compared to the general rules laid down in ECOSOC Res. 1296 (1968) before they were updated in 1996, and have also been followed in the rules for the UN conferences on small island developing nations (1994), population and development (1994), and Habitat II (1996) (see GEF Doc. GEF/PA.93/2). The 1996 update (ECOSOC Res. 1996/31) mostly codifies the more liberal accreditation rules orginally introduced for the Commission on Sustainable Development in 1993. E.g. the WIPO, that on 27 September 2002 for the first time admitted national ngo’s as permanent observers (previously this was only done on ad hoc basis). P. Willetts, Consultative status for ngo’s at the United Nations, in: Willetts, op. cit. note 404, at 31-62 (in particular at 54-55). ECOSOC Res. 1996/31, Part VII. See M.M. Gunter, Toward a Consultative Relationship Between the United Nations and NonGovernmental Organizations, 10 VJTL 557-587 (1977).

143

Participants

§190

§190. The first group comprises “organizations in general consultative status”.412 These organizations are concerned with most of the activities of the ECOSOC and its subsidiary bodies and can show that they have a contribution to make to the achievement of the objectives of the UN in the socioeconomic field. Furthermore, they must be closely involved with the economic and social life of the people of the areas they represent. Finally, their membership, “which should be considerable, is broadly representative of major segments of society in a large number of countries in different regions of the world”.413 In 2001, this category consisted of 122 organizations of rather general competence, such as the world organizations of trade unions and employers, the International Chamber of Commerce, the Interparliamentary Union and the World Federation of United Nations Associations.414 §191. The second group comprises “organizations in special consultative status”.415 These organizations have special competence in, and are concerned specifically with, only a few of the fields of activity covered by the ECOSOC and its subsidiary bodies. Consultative status in this category has been granted to 1057 private organizations with restricted tasks such as Amnesty International, Greenpeace International, the International Air Transport Association, the International Bar Association, the International Commission of Jurists and the International Union of Architects.416 Indeed, some of them cover more than one specific field, as in the case of the Salvation Army and the Junior Chamber International. These organizations are however less closely linked with economic and social life than the organizations of the first group. §192. Organizations which are not admitted into either of these categories may be placed “on the Roster”. These organizations are not closely related to the work of the ECOSOC but are of sufficient importance to be related in some way to the UN. Examples are the Arab Society of Certified Accountants, the International Association of Young Lawyers, the International Federation of Air Line Pilots Associations and the World Hypertension League. 424 organizations have been placed on the Roster by actions of the ECOSOC and of the Secretary-General. Additionally 450 organizations are on the Roster by

412. 413. 414.

415. 416.

Before 1996, this category was named Category I. ECOSOC Res. 1996/31, para. 22. YIO 2002/2003, Vol. I, at 639-640. This number has increased significantly over the last few years. In 1993, this category included 42 organizations (UN Doc. E/1994/INF/5, at 2-3). Before 1996, this category was named Category II. Figure for 2001 (YIO 2002/2003, Vol. I, at 640-644). The number of organizations in this group has tripled since 1993 (UN Doc. E/1994/INF/5, at 4-15).

§193

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virtue of their consultative status with any of the specialized agencies or other UN bodies.417 §193. ECOSOC consults with all these organizations through the ECOSOC Committee on Non-Governmental Organizations. This Committee is composed of 19 government representatives and decides on applications for consultative status and upgrading within the three categories. Observers from the organizations with general or special consultative status may sit at the public meetings of the ECOSOC and of its commissions and committees.418 The organizations on the Roster may have representatives present at such meetings to the extent that they are concerned with matters within their field of competence. Representatives of all organizations may be invited to attend public meetings of the General Assembly.419 All organizations receive the provisional agenda of the ECOSOC and its commissions; the organizations with general consultative status may propose additional items to the agenda.420

Organizations with general or special consultative status may submit written statements of limited size to the ECOSOC,421 and sometimes also to other organs of the UN.422 Organizations on the Roster may do so only at the request of the Secretary-General. All organizations in such a consultative relationship may be heard by the commissions and committees of the ECOSOC. In some specific cases observers from the organizations in Categories I and II may also speak in the ECOSOC itself.423 The organizations of all three groups may consult the UN Secretariat. Nevertheless, the results of these consultative relations with the ECOSOC have so far been limited. Once every three years, the ngo’s in consultative status meet in a general assembly (CONGO, the Conference of Ngo’s in Consultative Relationship with the UN) to exchange information about the organizations’ experiences and to coordinate their positions vis-à-vis the UN.424

417.

418. 419. 420. 421. 422. 423. 424.

These are figures for 2001; see YIO 2002/2003, Vol. 1, at 644-648. Figures for 1993: 265 organizations placed on the Roster by actions of the ECOSOC or the Secretary-General, 274 organizations placed on the Roster by virtue of their consultative status with any of the specialized agencies or other UN bodies (UN Doc. E/1994/INF/5, at 16-33). ECOSOC Rules of Procedure (1975), Rule 81. GA Res. 606(VI) and ECOSOC Res. 455(XIV). ECOSOC Res. 1996/31, para. 28. Id., para. 30-31. See e.g. YUN 1973, at 502, 693. For further details, see ECOSOC Res. 1996/31, para. 32. YIO 2002/2003, Vol. I, at 517-518. E. Ballantine, K. Waltheim, V. Saurwein, G. Gallon, 14th General Assembly Conference, Transnational Associations 403-414 (1979).

145

Participants

§194

ECOSOC Resolution 1996/31 requires organizations with general or specific consultative status to submit a brief report of their activities every fourth year, specifically as regards the support they have given to the work of the UN. These reports are examined by the Committee on Non-Governmental Organizations which may then recommend to ECOSOC any reclassification in the status of the organization concerned.425

§194. This consultative status entails certain rights for these organizations. According to the Office of Legal Affairs of the UN, the rules of procedure of UN organs relating to ngo’s are applicable only to ngo’s with consultative status with the ECOSOC. Other organizations, therefore, often may not be invited to meetings or conferences without prior approval of ECOSOC.426 §195. Most specialized agencies,427 the Council of Europe, and the OAS grant consultative status to ngo’s in much the same way as the ECOSOC. To obtain consultative status with the Council of Europe, an ngo must satisfy the following criteria: it must be particularly representative in its field of competence and at the European level. In addition, it should in its work be capable of supporting the achievement of the ‘closer unity objective’ mentioned in Article 1 of the Council’s Statute by contributing to Council of Europe activities and by making known the work of the Council of Europe among the European public.428 As of June 2001, consultative status was held by 418 organizations.429 A permanent structure of cooperation between the Council of Europe and ngo’s has gradually been established. This structure comprises the Plenary Conference of Ngo’s (meeting each year), the Liaison Committee of Ngo’s (consisting of 25 ngo representatives, meeting three times a year),

425. 426. 427.

428. 429.

ECOSOC Res. 1996/31, para. 61. See e.g. E/C.2/1991/2 and Addenda (reports by ngo’s) and E/1991/20, at 6 (recommendations for reclassification). UNJY 1972, at 175; UNJY 1978, at 181-183; UNJY 1980, at 193-194. See e.g. R. Papini, Les Relations entre l’UNESCO et les organisations non-gouvernementales (1967); Y. Beigbeder, Les relations des ONG avec l’organisation mondiale de la santé, in: Bettati and Dupuy, op. cit. note 404, at 167-187; D. Fadda, La FAO et les ONG, in: id., at 188-206; H. Lahner, La contribution des ONG à la formation et à l’application des normes internationales dans le cadre de l’OCDE, in: id., at 221-225; S. Cleary, The World Bank and ngo’s, in: Willetts, op. cit. note 404, at 63-97; Uvin and Weiss, op. cit. note 404, in particular at 226-228. Complete lists of ngo’s having relations with international organizations are included in the Yearbook of International Organizations. See for example the lists of ngo’s maintaining official relations with UNESCO and with the WHO, YIO 2002/2003, Vol. I, at 2408-2410 and 2533-2534 respectively. Res. (93)38 of the Committee of Minisiters, para. 2. This resolution lays down the basic rules governing the relations between the Council of Europe and ngo’s. YIO 2002/2003, Vol. I, at 573-575; lists of ngo’s enjoying consultative status with the Council of Europe are also published in the European Yearbook.

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and the Parliamentarian/Ngo Joint Committee (which studies ways of developing contacts and relations between the Parliamentary Assembly and ngo’s).430 The European Commission often consults interest groups; these groups offer valuable information, particularly in technical fields.431 If possible, the Commission will channel these consultations through organizations at Community level, in which ngo’s of the member states cooperate. However, Commission and Council relations with ‘private’ social and economic life in the EC are mainly organized through the Economic and Social Committee of the EC, representing in particular producers, farmers, carriers, workers, dealers, craftsmen, professional occupations and also the general public.432 This Committee serves as a consultative body. 5.

Individuals and private companies

§196. Individuals play an important role in international organizations when they hold an official position within the organization, such as members of delegations (see below, §243-254), experts of the organization (see below, §267274) or members of the secretariat (see below, §491-546). Some organizations allow individuals to submit written statements (petitions) to it and petitioners may sometimes be admitted to sessions to make an oral statement. In practice, their capacity to make statements is usually limited to the question whether member states have fulfilled their obligations toward the organization. Petitions will therefore be discussed with the issue of enforcement (Chapter Ten, see below, in particular §1429-1438). §197. In some organizations, private companies play an important role. For example, in the ITU several private agencies in the field of communications are members of organs of the Union.433 They enjoy all privileges of membership except that they may not vote in plenary meetings when their state is also represented. Since few matters are decided by voting in plenary session, this restriction is not however very important. Representatives of private agencies have even become chairmen of study groups.434 One study on the ITU notes: “While the logic of including manufacturers and private

430. 431. 432. 433. 434.

Information obtained from the Council of Europe Secretariat. See also S. Mazey and J. Richardson, The Commission and the lobby, in G. Edwards and D. Spence (eds.), The European Commission (2nd ed. 1997), at 178-212. Art. 193 EC. Art. 19 ITU Convention. H.K. Jacobson, ITU: A Potpourri of Bureaucrats and Industrialists, in: R.W. Cox and H.K. Jacobson, The Anatomy of Influence, Decision-Making in International Organizations 82 (1973).

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users of telecommunication equipment in the search for acceptable standards is strong, government entities are rarely willing to share international decisionmaking responsibilities so openly”.435 In the International Energy Agency, a permanent framework is provided for consultation with the international oil companies.436 These companies must be consulted on certain matters.437

VI.

Concluding observations

§198. As is indicated in the introductory paragraphs of this book, international organizations are created by states to cope with the consequences of their increasing interdependence. Participation in international organizations, the subject matter of this chapter, is mainly determined by the practical need to cooperate. The mosaic of different forms of participation sketched above reflects differences in practical needs, as perceived by the participants. The main form of participation is full membership. Full members are in principle entitled to participate in all activities of the organization and have all rights and obligations connected to membership in, or on the basis of, the constitution of the organization. The scope of the other forms of participation is more limited. On the one hand, partial members of the organization are in fact full members, having all rights and obligations, of (a) certain organ(s) of the organization only. On the other hand, associate members, affiliate members and observers may participate in all activities of the organization, but with limited, not full, rights and obligations. Associate membership finds its roots in the colonial past, but in its more recent reincarnation (liberation movements, governments in exile) its function has remained the same: anticipating full membership. Affiliate membership only exists in the World Tourism Organization. The position of affiliate members comes close to that of observers. The category of observers is a ‘mixed bag’ indeed, consisting of states, ngo’s, etc. These entities share an interest in the work of the organization; equally, the organization has an interest in maintaining relations with these entities. The rationale for this form of participation can be very different. For political reasons a state might not wish to join an organization as a full member (Switzerland and the UN) or an organization might not, or not yet wish to accept a state as a full member (special guests in the Council of Europe). However, observer status is usually

435. 436. 437.

G.A. Codding, Jr. and A.M. Rutkowski, The International Telecommunication Union in a Changing World 99-100 (1982). Arts. 37-40. E.g. Arts. 19(6) and 35.

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given to non-state entities, where there is a common interest in some form of participation, but where full membership is excluded because this is considered to be the privilege of the bearers of sovereignty. §199. If we now limit ourselves to the archetypal form of participation in international organizations, full membership of states, a number of observations can be made. In Chapter I (§15) reference was made to the distinction drawn by Virally between two “poles” in the general theory of international organizations: state sovereignty and the concept of function. If the issue of membership is more closely examined from this perspective, it is clear that the notion of state sovereignty leaves its traces on almost every facet of the operation of the organization. At the beginning of this chapter we have drawn a distinction between the internal and external capacity of states in their relations with the international organizations of which they are members. State sovereignty characterizes the external capacity, the position of states as counterparts of the organization. To some extent, the notion of function characterizes their internal capacity: the objectives of the organization are mostly pursued by organs, of which states are the constituent parts. But, in practice, sovereignty also permeates the internal capacity; it does not stop at the border of international organizations. For example, in the general congress of most international organizations members enjoy equal voting strength: each member has one vote. In this rule the principle of sovereign equality of states is clearly manifested, which is an offspring of the principle of sovereignty.438 Another example is the discussion concerning “mini-members” (above, §72-73), which has been dominated by the principle of sovereign equality. The reason why the notion of sovereignty is a dominant factor explaining the position of members of international organizations is of course that in a mainly horizontally structured international society only a few policy-making organs are composed of independent persons, who do not represent member states (see further below, §406-419). Generally however, these organs are composed of representatives of the member states, the same member states that have to act in accordance with the decisions taken by these organs. In other words: rule ‘emitter’ and rule ‘receiver’ are more or less the same. This

438.

See e.g. Arts. 18.1 and 2.1 of the UN Charter.

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situation may be considered as one example of what has been called dédoublement fonctionnel.439 §200. Sovereignty explains a number of rules and practices analyzed in this chapter. Apart from the examples mentioned in the previous paragraph, we can also refer to the fact that all member states together control all powers in every international organization; they can modify and even dissolve the organization, regardless of its constitutional provisions (see above, §162). In this sense, the members (now acting in their external capacity) remain masters of the creature that they once created, Herren der Verträge. In addition, states have felt free to withdraw from organizations which did not recognize such a right, but which had no means of enforcing participation by renegades (see above, §125-133). §201. In view of this omnipotent position of the members, how can the impressive growth and functioning of international organizations in this century be explained, and with it the concomitant erosion of sovereignty of the member states? It is precisely the notion of function which helps to explain this state of affairs. Increasing interdependence, the growing need to cooperate explain why states have established international organizations to pursue certain objectives, to perform certain tasks which they could not longer carry out effectively alone. The bare need to cooperate forces states to act as loyal members of organizations created in their common general interest, and sometimes to water their sovereign wine. Why otherwise would countries which returned to an international organization, some years after an allegedly illegal withdrawal, be willing to pay some percentage of their contributions for their years of absence (above, §128-130)? Why otherwise can organizations impose conditions for the admission of new members – conditions which are closely related to the objectives of the organization? Why otherwise would one recognize an implied power of international organizations to expel an obstructive member be recognized when that prevents the organization from performing its functions (above, §141-142)? An expressive example of the notion of function may be found in the constitutions of some organizations. Article 1.1 of the constitution of the Universal Postal Union provides: “[t]he countries adopting this Constitution

439.

This concept has been introduced, before the Second World War, by G. Scelle. See, inter alia, his Le phénomène juridique de dédoublement fonctionnel, in: W. Schätzel and H.J. Schlochauer (eds.), Rechtsfragen der Internationalen Organisation, Festschrift für Hans Wehberg 324-342 (1956). See also: Nguyen Quoc Dinh, P. Daillier, A. Pellet, Droit International Public 616 (7th ed. 2002), at 90; 624.

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shall comprise, under the title of the Universal Postal Union, a single postal territory for the reciprocal exchange of letter-post items”.440 The Preamble of the 1997 Eurocontrol Revised Convention explains that this revision is necessary “in order to provide for the establishment of a uniform European air traffic management system”; strengthened cooperation between the members must be “based upon the fundamental principle that the airspace should from the perspective of the airspace users, be considered as a seamless system”.441 A final example is the euro area or euro zone (euroland in Dutch), a reference to the eleven EU members that participate in the Economic and Monetary Union. In these and other cases, a fictitious functional territory (or: sky) is created as it were, in which the organization has jurisdiction.442 This explains why organizations such as the ITU, the UPU and the WTO have among their members non-sovereign territories that have sufficient ‘functional independence’ (e.g. their own postal or telecommunication services, see above, §76-78). §202. Thus, sovereignty of states and the functionality of international organizations can to some extent explain membership rules and practices. Nevertheless, the importance of these concepts for our understanding of membership issues should not be over-estimated. Rules and practices relating to membership and, more broadly, to participation in international organizations are multifarious. There are few hard and fast principles applicable to every organization; rules are much more specific than general in this area. For example, while international commodity agreements are similar as far as their objectives, structure and substance are concerned, only some of them allow the organization to expel members (above, §143). Furthermore, there are large differences between international organizations in other respects: founding states of some organizations, which were not members when the constitution entered into force, may subsequently adhere to these organizations for an indefinite period of time, while founding states of other organizations may do so only for a limited period (above, §86). Withdrawals from some organizations take effect immediately, from others only after varying periods of time (30 days, one or two years; see above, §120-122).

440. 441. 442.

This phrase was already included in the original UPU Treaty of 1874. Much shorter is Eurocontrol’s slogan “One Sky for Europe” (see the Eurocontrol publication Skyway (Summer 1997), at 33. See N. Blokker, Proliferation of International Organizations: an Exploratory Introduction, in N.M. Blokker & H.G. Schermers (eds.), Proliferation of International Organizations – Legal Issues 1-49 (2001), at 12. See also J.E.S. Fawcett, The law of nations 183 (2nd ed. 1971); Bühler, op. cit. note 123, at 309-312.

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§203. The pragmatic attitude adopted by organizations towards membership problems partly explains these differences. This explains why the Byelorussian and Ukrainian SSR could become members of the UN, despite the fact that the Charter only refers to independent states as members (above, §75). Another sui generis case is the admission of Namibia as a full member of the FAO and of the ILO, prior to its independence (above, §75). This pragmatic attitude also explains why states may become partial members, or why they may partially withdraw from organizations while the constitution of these organizations does not mention these possibilities. A further example is the Indonesian “withdrawal” from the UN, retroactively interpreted as “cessation of cooperation” (above, §132-133). §204. Having discussed the different types of participants, we will now examine in detail the internal structure of international organizations. First, in the next chapter, a general survey of organs of organizations will be presented: the powers of international organs and rules governing their composition and functions will form the focus of the analysis. Subsequently, we will analyze specific types of organs: policy-making and administrative organs in Chapter Four, advisory and supervisory organs in Chapter Five.

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Chapter 3

Rules for international organs

§205. For any organization to function effectively, organs are needed where delegates meet, discuss problems and take decisions. A distinction can be drawn between primary and subsidiary organs. Primary organs are created in the constitution of each organization; the constitution usually lays down the basic institutional structure which the organization’s founding fathers deem fit for pursuing its objectives. Subsidiary organs are created subsequently, by a decision of one of the organs mentioned in the constitution. Some institutional issues are common to all or to most international organs. The majority of such issues are concerned with the powers of organs (Part I of this chapter), their composition (Part II) and their functioning (Part III). In the following chapters we will study in more detail two specific types of organs: policy-making and administrative organs in Chapter Four, advisory and supervisory organs in Chapter Five.

I.

Powers

A.

Attribution of powers

1.

General

§206. A distinction can be drawn between powers of the organization (discussed in Section 2 below)1 and powers of organs of the organization (Section 4).2 Allegations that organs have exceeded their powers occur more frequently than allegations concerning organizations acting ultra vires. Examples of the

1. 2.

This is closely related to the issue of domestic jurisdiction, discussed in Section 3. The terms ‘powers’ and ‘competences’ are used interchangeably. Some authors distinguish between competence ratione materiae on the one hand and powers (e.g. legislative procedures) as the means to exercise a certain competence. See e.g. K. Lenaerts and P. van Nuffel, Constitutional Law of the European Union (1999), at 88 (referring to V. Constantinesco, Compétences et pouvoirs dans les Communautés européennes (1974). See also T. Tridimas and P. Eeckhout, The External Competence of the Community and the Case-Law of the Court of Justice: Principle versus Pragmatism, 14 YbEL 1994, at 144, who note that neither the EC Treaty nor the case-law of the Court draw the distinction with any consistency.

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latter can be found particularly in the area of human rights but also in other fields. For example, within the ILO: from early claims that this organization had no competence to deal with agricultural questions to the South African withdrawal question and a draft resolution on trade union freedoms in Israel, presented in 1973 but not adopted by the Labour Conference.3 §207. The International Court of Justice has stated that “when the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization”.4 Nevertheless, states have sought securer guarantees to ensure that their brainchild would not become the institutional version of Goethe’s sorcerer’s apprentice, outgrowing the control of the members. A number of constitutions of organizations contain provisions which prohibit that organization from intervening in matters which belong to the domestic jurisdiction of the member states, the most well-known of such provisions being Article 2.7 of the UN Charter, which has been named the current symbol of sovereignty (Section 3 below).5 §208. The classical example of a decision of an organ which was considered to be ultra vires by a number of countries is the 1950 Uniting for Peace Resolution (377(V)) of the UN General Assembly. According to this resolution, the Assembly has the power to issue recommendations to the member states for collective measures, “including in the case of a breach of the peace or act of aggression the use of armed force when necessary”. The Preamble of this resolution shows how the Assembly has constructed this power. It basically refers to the purposes of the UN, the primary responsibility of the Security Council for the maintenance of international peace and security under the Charter, the failure of the Council “to discharge its responsibilities on behalf of all the member states”, and the fact “that such failure does not deprive the General Assembly of its rights or relieve it of its responsibilities under the Charter in regard to the maintenance of international peace and security”. In particular the Soviet Union was opposed to this resolution, which it suggested naming “Disuniting for War”. It did not question the power of the UN in this area, but the power of the Assembly. The Soviet Union’s opposition to the new ambitions of the Assembly stem from its minority position in that organ,

3.

4. 5.

These and other examples are given in E. Osieke, Ultra vires acts in international organizations – the experience of the International Labour Organisation, 48 BYIL 259-280 (1976-1977). See also R. Bernhardt, Ultra Vires Activities of International Organizations, in J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21th Century – Essays in honour of Krzysztof Skubiszewski 599-609 (1996). Certain expenses of the United Nations, Advisory Opinion, ICJ Rep. 1962, at 168. J.S. Watson, Autointerpretation, competence, and the continuing validity of Article 2(7) of the UN Charter, 71 AJIL (1977), at 60.

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whereas in the Security Council it could control decision-making by its veto power.6 More recently, the Security Council adopted a number of decisions establishing a compulsory mechanism for individual reparation claims against Iraq and applying sanctions to enforce compliance with this reparation mechanism. Graefrath came to the conclusion that these decisions were ultra vires, because the Security Council has no competence to create such a compulsory reparation mechanism and because the sanctions to enforce compliance were originally adopted to terminate the occupation of Kuwait.7 2.

Attribution of powers to the organization

§209. A rule of thumb is that, while states are free to act as long as this is in accordance with international law (which may prescribe or proscribe state activities), international organizations are competent to act only as far as powers have been attributed to them by the member states. This is related to a basic principle of the law of international organizations: the powers of international organizations are limited to those attributed to them by states (attributed competence, compétence d’attribution). International organizations may not generate their own powers. They are not competent to determine their own competence.8 Whereas under international law the presumption for states is that they have a right or an obligation to act the way they do, for international organizations this is not the case: their activities always have to be based on some power in the constitution. States are sovereign in the sense that their powers are not dependent on any other authority; the powers of international organizations are limited to whatever is necessary to perform the functions

6.

7. 8.

See E. Stein and R.C. Morrissey, Uniting for Peace Resolution, in: 5 EPIL (1983), at 379-382; H. Reicher, The Uniting for Peace Resolution on the Thirtieth Anniversary of its Passage, 11 CJTL 1-49 (1981). B. Graefrath, Iraqi Reparations and the Security Council, 55 ZaöRV 1-68 (1995). In the well-known German expression: they have no Kompetenz-Kompetenz. In its “Maastricht Urteil” of 12 October 1993, the German Bundesverfassungsgericht rejected the claim that Art. 6.4 TEU laid down such a Kompetenz-Kompetenz for the European Union (published in 20 EuGRZ (1993), Para. C.II.2; English translation in CMLR 57-109 (1994)). In its Rasmussen judgment of 6 April 1998 (English translation in 86 CMLR 854-862 (1999)), the Supreme Court of Denmark referred to the principle of conferred powers in rejecting, inter alia, the claim by the appellants that the condition laid down in Section 20(1) of the Danish Constitution (granting authority for the transfer of sovereignty only ‘to an extent specified by statute’) was not met. This judgment centered around the interpretation of Art. 308 EC. But see also R. Barents, The internal market unlimited: some observations on the legal basis of Community legislation, 30 CMLRev. 85-109 (1993). Barents argues that, because of its near unlimited scope, Art. 95 attributes a factual Kompetenz-Kompetenz to the EC. The EC Court does not share this view, see Case C-376/98, Germany v. European Parliament and Council of the European Union, ECR 2000, at I-8524.

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which their constitutions have defined.9 Therefore, Reuter has referred to the “functional” nature of the competence of international organizations. This means both that organizations have no sovereign power, i.e. no unlimited power unconnected to the pursuance of specific objectives, and that their competences stretch so far as to include all acts indispensable for the performance of the functions of the organization.10 In its 1996 WHO Advisory Opinion the International Court of Justice considered that “international organizations are subjects of international law which do not, unlike states, possess a general competence. International organizations are governed by the ‘principle of speciality’, that is to say, they 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.”11

In this case the WHO requested the ICJ to give an advisory opinion on the following question: “in view of the health and environmental effects, would the use of nuclear weapons by a state in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution?” The main question before the Court was whether or not this question was one “arising within the scope of the activities” of the WHO as required under Article 96.2 of the UN Charter. Partly on the basis of a narrow interpretation of the implied powers doctrine, the Court concluded that the question did not arise within the scope of the activities of the WHO and that it was therefore not able to give an advisory opinion in this case.12

9.

In Virally’s words: the finality of the state is integral (finalité intégrée), whereas the finality of international organizations is functional (finalité fonctionnelle); see above, §16. See also Judge Gros, Separate Opinion to the ICJ Advisory Opinion of 20 December 1980, Interpretation of the agreement of 25 March 1951 between the WHO and Egypt, ICJ Rep. 1980, at 103-104. See in general on the transfer of powers to international organizations, A. Cassese, Modern Constitutions and International Law, 192 RdC 331-475 (1985 III), in particular at 413-418, and M.M. Martin Martinez, National Sovereignty and International Organizations – A Comparative Analysis of Limitations of State Sovereignty from the Perspective of Domestic Law (1996). 10. P. Reuter, Institutions Internationales (7th ed. 1972), at 214-216. See also Reuter’s third report on the question of treaties concluded between states and international organizations or between two or more international organizations, UN Doc. A/CN.4/279, reproduced in YbILC 1974, Vol. II, Part One, at 147). This is the prevailing view in literature on the subject. See for example J.A. Barberis, Nouvelles questions concernant la personnalité juridique internationale, 179 RdC (1983 I), at 219. 11. ICJ Reports 1996, at 78 (para. 25). 12. The Court found that the question related “not to the effects of the use of nuclear weapons on health, but to the legality of the use of such weapons in view of their health and environmental effects. Whatever those effects might be, the competence of the WHO to deal with them is not dependent on the legality of the acts that caused them.” (id., at 76, para. 21, emphasis by the Court). An extensive discussion took place within the WHO on this issue. The Legal Counsel considered it “not the legal mandate of WHO to deal with the lawfulness issue or refer it to the International Court of Justice”; however, the World Health Assembly

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The ‘principle of speciality’ to which the Court refers is synonimous with the principle of attributed powers (or: attribution principle). The French text of this Advisory Opinion refers to both the “principe de spécialité” and to “compétences d’attribution”.13 This principle has also been referred to as the principle of conferred powers.14 §210. The doctrine of attributed competences contains and explains a fundamental difference between states and international organizations. It therefore also helps to clarify why the European Union and the European Communities should still be classified as international organizations. They have no general power to adopt legislation in any field. Article 249 EC, first sentence, provides: “In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations, issue directives, take decisions, make recommendations or deliver opinions”. “In order to carry out their task” illustrates Reuter’s functional competences. “In accordance with the provisions of the Treaty” refers to Article 7.1, second sentence, EC: “Each institution shall act within the limits of the powers conferred upon it by this Treaty”.15 The latter provision clearly embodies the principle of attributed powers.16 Moreover, since the entry into force of the Treaty on European Union, this principle has been laid down more explicitly in Article 5 EC: “The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein”. The functional nature of the work of the Community is further emphasized by the principle of proportionality, laid down in the final sentence of Article 5 EC: “Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty”. 3.

The concept of domestic jurisdiction.

§211. The existence of the principle of attributed powers would seem to imply a guarantee for the members that the organization would not use powers other than those conferred upon it by the members. Nevertheless, particularly in ‘general’ or ‘political’ organizations, these powers are broadly defined. Often in the constitutions of these organizations members have sought additional

13. 14. 15. 16.

came to a different conclusion and requested the advisory opinion (see WHO Doc. A46/VR/ 13 (quotation at 278). On the implied powers doctrine and the restricitve application of it in this case, see below, §232 ff. See also Ch. Chaumont, La signification du principe de spécialité des orgnisations internationales, in Mélanges offerts à Henri Rolin 55-66 (1964). E.g. Opinion 2/94 of the EC Court, ECR 1996, at I-1787. Cf. the French text: “Chaque institution agit dans les limites des attributions qui lui sont conférées par le présent traité”. See D. Wyatt and A. Dashwood, European Community Law (3rd ed. 1993), at 19; P.J.G. Kapteyn and P. VerLoren van Themaat, Introduction to the Law of the European Communities (3rd ed., edited by L.W. Gormley, 1998), at 137-138; A. Dashwood, The Limits of European Community Powers, 21 ELR 113-128 (1996).

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guarantees to ensure that these powers would not be interpreted in such a way as to intervene in their internal affairs. This explains the introduction of clauses to delimit the sphere of what belongs to the members’ “domestic jurisdiction” or reserved domain (domaine réservé), where the organization should stay out. The OAS Charter contains an example of a constitutional provision laying down the principle of attributed powers together with a domestic jurisdiction clause:17 “The Organization of American States has no powers other than those expressly conferred upon it by this Charter, none of whose provisions authorizes it to intervene in matters that are within the internal jurisdiction of the member states.”

§212. Apart from early “domestic jurisdiction” clauses, occurring in particular within agreements for the peaceful settlement of disputes, the first true “domestic jurisdiction” clause in a constitution of an international organization is Article 15.8 of the League of Nations Covenant: “If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement”. It is clear that this clause only relates to dispute settlement, and does not cover all League activities. Article 2.7 of the UN Charter has a wider scope, comprising all UN activities except enforcement action under Chapter VII: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII”. The main reasons for enlarging the scope of this clause were the UN’s powers in the social and economic field and the competences attributed to the ECOSOC. The League Covenant was almost silent on social and economic cooperation. While the inclusion of powers in this area in the UN Charter was widely supported as a basis for “the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations” (Article 55 Charter), at the same time these new powers raised the fear that the UN would penetrate into the social and economic life of the member states.18 In

17. Art. 1, second paragraph. The principle of attributed powers is defined very narrowly in this provision, which only covers powers expressly conferred upon the organization. Nevertheless, in practice activities have been undertaken by, for example, the OAS SecretaryGeneral which are difficult to base on his express powers. See H. Caminos and R. Lavalle, New Departures in the Exercise of Inherent Powers by the UN and OAS Secretaries-General: The Central American Situation, 83 AJIL 395-402 (1989). 18. See for a thorough analysis A.J.P. Tammes, Hoofdstukken van internationale organisatie 224-272 (1951). In addition: G. Nolte in B. Simma (ed.), The Charter of the United Nations (2nd ed. 2002), at 148-171; G. Guillaume in J.-P. Cot and A. Pellet (eds.), La Charte des Nations Unies (2nd ed. 1991), at 141-159; Watson, op. cit. note 5.

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practice Article 2.7 has often been invoked by members, but has hardly ever been a stumbling block for the organization in dealing with the matter in question; the Rhodesian and the South African examples are cases in point.19 Another example is Resolution 688 (1991) of the Security Council, denouncing the repression of the Kurds by Iraq and calling on the member states to provide humanitarian aid. The reference to Article 2.7 in the Preamble of that resolution seems to have served as an element in the diplomatic game preceding its adoption; countries like China, India and Zimbabwe feared that this resolution could be used as a precedent for possible future involvement in their own reserved domains.20 §213. A few other constitutions contain similar clauses.21 The UNESCO Constitution stipulates in Article I.3: “With a view to preserving the independence, integrity and fruitful diversity of the cultures and educational systems of the states members of the organization, the organization is prohibited from intervening in matters which are essentially within their domestic jurisdiction”. Similar clauses are used in regional organizations such as the OAS, the OAU and the African Union, and the OSCE.22 §214. In international economic organizations so-called safeguard clauses fulfil essentially the same function as domestic jurisdiction clauses. Safeguard clauses enable members to commit themselves to more far-reaching obligations than they would be willing to subscribe to otherwise. If in the future the straitjacket of their obligations becomes too tight, there are possible escapes. Examples can be found in the WTO: Articles XII (balance of payments restrictions) and Article XIX (emergency action to protect domestic producers against competitive imports) of the GATT 1994.23 Safeguard clauses have the same endemic danger as domestic jurisdiction clauses: they may be invoked too often, and frequently in cases for which they were not written. In this respect there is a crucial difference between organizations which have and organizations which

19. See Guillaume, op. cit. note 18, at 146-159. 20. See UN Doc. S/PV.2982, at 31-32, 54-56, 62-63. 21. It has even be suggested that this duty not to intervene “should be considered as applying implicitly to any international organization, and applicable in all cases where intervention is not authorized by explicit provisions”, thus, also to organizations which do not have such a clause. See B. Conforti, The Principle of Non-Intervention, in: M. Bedjaoui (general editor), International Law: achievements and prospects (1991), at 475-476. 22. See A.A. Cançado Trindade, The domestic jurisdiction of states in the practice of the United Nations and regional organizations, 25 ICLQ 715-765 (1976); A. Bolaji Akinyemi, The Organization of African Unity and the concept of non-interference in internal affairs of member-states, 46 BYIL (1972-1973), at 393-400; A. Bloed and P. van Dijk, Human rights and non-intervention, in: A. Bloed and P. van Dijk, Essays on Human Rights in the Helsinki Process 57-78 (1985). 23. From the wealth of literature on safeguard clauses: I.B. Kravis, Domestic Interests and International Obligations – Safeguards in International Trade Organizations (1963); D. Robertson, Fail Safe Systems for Trade Liberalization (Thames Essay No. 12, 1977); A. Weber, Schutznormen und Wirtschaftsintegration (1982).

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do not have judicial organs empowered to preserve the balance between the sphere of the organization and the sphere of the member states. In particular the EC Court has been strict in supervising the use of safeguard clauses, emphasizing that exceptions should be interpreted restrictively.24 Organizations having no judicial organ face the danger that members, in balancing the goals of the organization and their own short-term interests, prefer to give priority to the latter; there is no built-in safeguard for the organization. §215. The European Union has no domestic jurisdiction clauses similar to those of the League of Nations or the UN. Like constitutions of other international economic organizations, the EC treaties have a number of safeguard clauses, such as Articles 30 and 119 EC. Nevertheless, given what has been said above, it is not surprising that, parallel to the extending scope of activities and powers of the Communities (inter alia, in the 1986 Single European Act and the 1992 Treaty on European Union), guarantees were sought to protect the domestic sphere from too much penetration by the Union. The magic word “subsidiarity” entered Union vocabulary. The objectives of the European Union shall be achieved “... while respecting the principle of subsidiarity as defined in Article 5 of the Treaty establishing the European Community”.25 Article 5 EC stipulates: “In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member states and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community”.

Its general function is more or less the same as that of domestic jurisdiction clauses: to preserve the reserved domain of the member states and ensure that existing powers of the Communities and of the Union are not interpreted too extensively. The Edinburgh European Council (December 1992) agreed, as stated in the Presidency Conclusions, that the principle of subsidiarity “contributes to the respect for the national identities of member states and safeguards their powers”. It “does not relate to and cannot call into question the powers conferred on the European Community by the Treaty as interpreted by the Court. It provides a guide as to how those powers are to be exercised at the Community level ...”.26 Nevertheless, this interpretation has left the

24. This is standing case law of the Court. See for example Case 29/72, Marimex, ECR 1972, at 1318; Case 113/80, Commission v. Ireland, ECR 1981, at 1638. See H.G. Schermers and D.F. Waelbroeck, Judicial Protection in the European Union 15-16 (6th ed. 2001), with references to case-law. 25. TEU, Art. 2, last sentence. 26. See Europe No. 5878BIS (Sp. Ed.; second part), at 1-2. See also the “Position of the European Commission of defining and implementing the principle of subsidiarity” (October 1992),

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precise content, nature, and scope as uncertain as before.27 Some clarification was in particular given in the Protocol on the application of the principles of subsidiarity and proportionality annexed to the EC Treaty in the 1997 Amsterdam Treaty.28 This Protocol indicates, inter alia, the following guidelines for Community action: -

-

the issue under consideration has transnational aspects which cannot be satisfactorily regulated by action by member states; actions by member states alone or lack of Community action would conflict with the requirements of the Treaty […] or would otherwise significantly damage member states’ interests; action at Community level would produce clear benefits by reason of its scale or effects compared with action at the level of the member states.29

§216. A few observations to conclude this section on domestic jurisdiction clauses. These clauses seem to fulfil a particular political/psychological function as instruments to dispel the doubts of states in the creation of organizations which they fear might outgrow their founders’ intentions. In view of their lack of precision these clauses are not suited to use as legal instruments to prevent the organization from taking action. Domestic jurisdiction clauses do not seem to bring about a change in the powers which are attributed to organizations. Nevertheless, it is likely that without such clauses members would have been more reluctant to attribute powers to organizations. In addition, during the life of the organization these clauses may serve as part of political compromises, as a price paid to win support for a resolution enabling the organization to enter into the reserved domain (cf. the ‘Kurds’ Resolution 688 of the Security Council, referred to above, §212). Domestic

published in Europe Documents, No. 1804/05 (1992). The principle of subsidiarity has been described as “a filter between Community competence and the possibility of exercising that competence”; see Lenaerts and Van Nuffel, op. cit. note 2, at 99. 27. See N. Emiliou, Subsidiarity: An Effective Barrier Against “the Enterprises of Ambition”?, 17 ELR 383-407 (1992); A.G. Toth, The Principle of Subsidiarity in the Maastricht Treaty, 29 CMLRev. 1079-1105 (1992); D.Z. Cass, The Word that Saves Maastricht? The Principle of Subsidiarity and the Division of Powers within the European Community, 29 CMLRev. 1107-1136 (1992); K. Lenaerts and P. van Ypersele, Le principe de subsidiarité et son contexte: étude de l’article 3 B du Traité CE, 30 CDE 3-83 (1994); G.A. Bermann, Taking Subsidiarity Seriously: Federalism in the European Community and the Unites States, 94 Col.LR 331-456 (1994); G. Strozzi, Le principe de subsidiarité dans la perspective de l’intégration européenne: une énigme et beaucoup d’attentes, 30 RTDE 373-390 (1994); R. von Borries, Das Subsidiaritätsprinzip im Recht der Europäischen Union, 29 Europarecht 263-300 (1994); T. Koopmans, The Quest for Subsidiarity, in D. Curtin and T. Heukels (eds.), Institutional Dynamics of European Integration, Essays in Honour of Henry G. Schermers, Vol. II (1994), at 43-55; N. Bernard, The future of European economic law in the light of the principle of subsidiarity, 33 CMLRev. 633-666 (1996); G. de Burca, The principle of subsidiarity and the Court of Justice as an institutional factor, 36 JCMS 217-235 (1998). 28. OJ 1997, C 340/105. On this protocol, see S. Weatherill and P. Beaumont, EU Law 27-32 (3rd ed. 1999). 29. Id., para. (5).

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jurisdiction clauses are symbols of sovereignty. They can be seen as “the intersection of both law and politics on the one hand, and domestic versus international jurisdiction on the other”.30 Generally, these clauses have hardly prevented international organizations from carrying out activities – although they have often been invoked.31 This is partly due to their wording. Domestic jurisdiction clauses do not contain lists of specific areas which belong to the sphere of the organization or the sphere of the members. It has always been recognized that these spheres are not static and may change over time, with developments in international relations and international law. As early as 1923 the Permanent Court of Justice observed, with regard to Article 15.8 of the League Covenant: “The question whether a certain matter is or is not solely within the jurisdiction of a state is an essentially relative question; it depends upon the development of international relations”.32 As so often, it is useful to be aware of the experience of the European Communities and the European Union in this respect. In particular, the role of the Court of Justice has been important as far as the delimitation of powers between the Communities and the member states is concerned. One of the important findings of the Court has been that, in delimiting whether the EC is competent, to the exclusion of the member states, to participate in an international agreement in the area of the external relations, the agreement “must be assessed having regard to its essential objective rather than in terms of individual clauses of an altogether subsidiary or ancillary nature”.33 It remains to be seen to what extent the Court will further develop the principle of subsidiarity, as introduced in the Treaty on European Union. In general, the work of the Court of Justice has shown the importance of having a judicial organ. It has been of particular use in delimiting the scope of safeguard clauses and in clearing differences of opinion as to the scope of the spheres of competence of the organization and of the member states (in the area of external relations). In view of the fact that, in the long run, it can be expected that the process of attributing powers to international organizations will continue, as will the concomitant claims by member states for guarantees against undue interferences in what remains of their reserved domain, this experience might prove useful for other organizations as well.

30. J.S. Watson, op. cit. note 5, at 60. The quotation relates to Art. 2.7 of the UN Charter only, but is also true for other, similar clauses in other constitutions. 31. This is different for the above discussed safeguard clauses, which are much more specific and which have in practice been used in varying degrees to allow members to escape their obligations lawfully. 32. Nationality Decrees Issued in Tunis and Morocco, PCIJ Rep. 1923, Series B, No. 4, at 23. 33. Opinion 1/78 of the Court, given pursuant to the second subparagraph of Article 228(1) of the EEC Treaty (International Agreement on Natural Rubber), ECR 1979, at 2917.

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§217

Attribution of powers to organs of the organization.

§217. Sometimes all powers of the organization are vested in its general congress.34 Most organizations, however, within their general competence, give more specific competences to organs of the organization. But these specific competences are often phrased in vague terms. As a result, conflicts may arise as to which organ is competent to deal with a specific matter. The drafters of the League of Nations Covenant were very reluctant to lay down an explicit division of tasks between the League’s two main organs. The Assembly and the Council, therefore, were given exactly the same competence: the Assembly/the Council “may deal at its meetings with any matter within the sphere of action of the League or affecting the peace of the world”.35 The drafters of the UN Charter decided to lay down a true division of tasks between the Assembly and the Security Council. However, as is shown by the Uniting for Peace Resolution, this is no guarantee for the absence of future conflicts. The UN General Assembly “may discuss any questions or any matters within the scope of the Charter”. It may make recommendations on all questions with the exception of those expressly attributed to the Security Council.36

§218. The definition of competences of organs can be vague because the organ may only issue recommendations, and has no power to take decisions binding the member states. As soon as organs have the competence to take binding decisions, their powers will usually be defined more strictly. Within the EC the Commission may “formulate recommendations or deliver opinions on matters dealt with in this Treaty, if it expressly so provides or if the Commission considers it necessary”.37 The areas where the Commission (or the Council) may take binding decisions are defined more precisely.

§219. Whether the powers of an organ are binding or merely recommendatory, conflicts may arise as to the competence to take certain decisions, as has been proved by the Uniting for Peace Resolution (see above, §208). Whenever the competence of an organ is challenged, that organ itself usually decides whether the challenge has merit. One may speak of a rule of customary law to this effect.38 In most international organizations there is no possibility of judicial

34. For example: World Bank, Art. V, Section 2; EBRD, Art. 24.1. Cf. Art. XII, Section 2(a), first sentence, of the IMF Articles of Agreement: “All powers under this Agreement not conferred directly on the Board of Governors, the Executive Board, or the Managing Director shall be vested in the Board of Governors”. 35. LoN Covenant, Art. 3.3 and Art. 4.4. 36. UN Charter, Art. 10. 37. Art. 211 EC. 38. Cf. Certain Expenses Case, ICJ Rep. 1962, at 168. See also Interpretation of the Greco-Turkish Agreement of December 1st, 1926, PCIJ Rep. 1928, Series B No. 16, at 20: “... as a general rule, any body possessing jurisdictional powers has the right in the first place itself to determine the extent of its own jurisdiction ...”. Cf. also UNJY 1992, at 440-443.

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review of that decision. As far as the UN is concerned, the International Court of Justice has concluded that “Proposals made during the drafting of the Charter to place the ultimate authority to interpret the Charter in the International Court of Justice were not accepted; ... As anticipated in 1945, therefore, each organ must, in the first place at least, determine its own jurisdiction”.39

In practice, if it is questioned whether an organ has certain specific powers or not, the legal advisor or the legal office of the secretariat of the organization is sometimes consulted and may influence decision-making by the organ concerning its competence. For example, the UN Office of Legal Affairs was consulted on the question whether the UNHCR Executive Committee was competent to expel or suspend any of its members. A negative answer was given: “The Executive Committee was established by the Economic and Social Council, which also elects its members. Consequently, it is exclusively within the competence of the Council to determine any questions relating to membership of the Executive Committee”.40

§220. The European Union is an exception in this respect. On several occasions the Court of Justice has considered whether organs had exceeded their powers or had infringed upon powers of other organs. In doing so, the Court has introduced the principle of institutional balance, governing the relations between Parliament, Commission and Council.41 According to this principle, these institutions, in exercising their competences, have to respect each other’s competences. In 1990 the Court of Justice for the first time specified its own role of guaranteeing respect for this principle: “Observance of the institutional balance means that each of the institutions must exercise its powers with due regard for the powers of the other institutions. It also requires that it should be possible to penalize any breach of that rule which may occur. (...) it is the Court’s duty to ensure that the provisions of the Treaties concerning the institutional balance are fully applied and to see to it that the Parliament’s prerogatives, like those of the other institutions, cannot be breached ...”.42

39. Id. See also the WHO Nuclear Weapons Advisory Opinion of the ICJ, ICJ Rep. 1996, at 82-83. 40. UNJY 1982, at 180. The UNJY provides many other examples of such questions; see e.g. UNJY 1992, at 440-443. 41. See G. Guillermin, Le principe de l’équilibre institutionnel dans la jurisprudence de la Cour de Justice des Communautés européennes, in: 119 JDI 319-346 (1992); S. Prechal, Institutional Balance: a Fragile Principle with Uncertain Contents, in T. Heukels, N. Blokker, M. Brus (eds.), The European Union after Amsterdam – A Legal Analysis 273-294 (1998). 42. Case C-70/88, Parliament v. Council, ECR 1990, at 2073.

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§221

§221. The principle of institutional balance might resemble to some extent the constitutional principle of separation of powers (trias politica) existing in national legal orders, but nevertheless is different. The rise of the separation of powers principle in the 18th and 19th centuries was basically a reaction to the previously omnipotent position of the sovereign, and resulted from the wish to create “checks and balances” within the state, to protect the individual against the concentration of uncontrolled power. The traditional distinction between the legislative, executive and judicial power, more or less respected in current liberal democracies in various forms, has not been laid down in the EC Treaties and has not been considered subsequently to be implied in the Treaties by the Court.43 Nevertheless, the principle of institutional balance has in common with the separation of powers principle the idea that organs fulfil separate functions in a given legal and political system and that one organ should not overstep its competences at the expense of another. §222. No other international organization has developed a similar principle of institutional balance,44 although it has been referred to within the context of a WTO dispute settlement procedure.45 Since there seems to be some connection between the presence of substantive powers and this principle (and the separation of powers principle), this situation accords with the fact that no other international organizations have powers equivalent to the EC. Nevertheless, it is interesting to note that the question of judicial review and the relationship between organs of an organization has again come up within the UN. As a result of the end of the Cold War, the Security Council became active as never before, interpreting extensively its own jurisdiction, qualifying all kinds of conflict (some almost exclusively internal) as “threats to international peace and security”.46 The possibility of judicial review of Security Council decisions by the International Court was not created by the founding fathers of the UN. Nevertheless, in its case law the Court has always stressed that the Council dealing with a specific case should not preclude the Court from doing so, essentially because both organs have different functions to fulfil within the UN system. While the Council is a political organ, the Court is the principal judicial organ of the UN (Article 92 of the Charter). As the Court

43. Cf. L.-J. Constantinesco, Das Recht der Europäischen Gemeinschaften – Das institutionelle Recht (1977), at 357-362; K. Lenaerts, Some reflections on the separation of powers in the European Community, 28 CMLRev. 11-35 (1991). More broadly, R. Monaco, Les principes régissant la structure et le fonctionnement des organisations internationales, 156 RdC (1977 III), at 110-111. 44. On principles governing the relations between organs of international organizations, see also Monaco, op. cit. note 43, at 119-128. Cf. also §1243. 45. See WTO Doc. WT/DS90/AB/R, containing the report of the Appellate Body of 6 August 1999 (AB-1999-3) in a dispute between India and the US. India argued in this case that there is a principle of institutional balance which requires WTO Panels, in determing the scope of their competence, to take into account the competence conferred upon other WTO organs (para. 98). This was rejected by the Appellate Body. 46. See G. Gaja, Réflexions sur le rôle du Conseil de Sécurité dans le nouvel ordre mondial, 97 RGDIP 297-319 (1993).

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itself has observed on numerous occasions: “[b]oth organs can therefore perform their separate but complementary functions with respect to the same events”.47 The question of judicial review arose in particular in the Lockerbie Case, but was not addressed by the Court when it decided upon Libya’s request for the indication of provisional measures (1992).48 Nevertheless, some of the judges paid attention to the issue in their individual opinions. In particular Judge Lachs, who noted that the framers of the Charter “did not effect a complete separation of powers”, and observed that “it is important for the purposes and the principles of the United Nations that the two main organs with specific powers of binding decision act in harmony – though not, of course, in concert – and that each should perform its functions with respect to a situation or dispute, different aspects of which appear on the agenda of each, without prejudicing the exercise of the other’s powers”.49 This is essentially what the Community principle of institutional balance (§220-221) is about. §223. Apart from the specific relationship between the International Court and the Security Council, reference is made only occasionally to the concepts of institutional balance and separation of powers in organizations other than the EC. The Convention establishing the European Telecommunications Satellite Organization “EUTELSAT” originally provided with respect to EUTELSAT’s organs (Article VI.b): “Each organ shall act within the limits of the powers that are conferred upon it by the Convention or by the Operating Agreement. No organ shall act in such a way as to harm the exercise by another organ of the powers vested in it by the Convention or by the Operating Agreement”. However, the last sentence was removed in the 1999 amendment of the Convention.

47. E.g. Nicaragua Case (ICJ Reports 1984, at 434-435; Genocide Case (ICJ Reports 1993, at 19); Congo v. Uganda, Order of 1 July 2000, ICJ Reports 2000, at 126 (para. 36). 48. See on this case G.R. Watson, Constitutionalism, Judicial Review and the World Court, 34 HILJ 1-45 (1993); V. Gowlland-Debbas, The Relationship between the International Court of Justice and the Security Council in the Light of the Lockerbie Case, 88 AJIL 643-677 (1994). Cf. also E. Klein, Paralleles Tätigwerden von Sicherheitsrat und Internationalem Gerichtshof bei friedensbedrohenden Streitigkeiten, Zu Fragen der Zuständigkeit und Organtreue, in R. Berhardt et al. (eds.), Völkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte, Festschrift für Hermann Mosler (1983), at 467-491; M. Bedjaoui, Nouvel ordre mondial et contrôle de la legalité des actes du Conseil de sécurité (1994); I. Brownlie, International Law at the Fiftieth Anniversary of the United Nations, 255 RdC (1995), in particular at 211-227; J.E. Alvarez, Judging the Security Council, 90 AJIL 1-39 (1996). 49. ICJ Rep. 1992, at 138-139. Monaco refers to “le principe de la coopération interorganique”, which “contribue souvent à l’équilibre institutionnel de l’organisation” (op. cit. note 43, at 119). See also the separate opinion of ICTY Judge Sidhwa in the Tadic case (Case No. IT-94-1-AR72, 2 October 1995, Decision on the defence motion for interlocutory appeal on jurisdiction), para. 26; M. Bedjaoui, Les relations entre la Cour internationale de Justice et les autres organes principaux des Nations Unies – pour des rapports de seconde génération, in Boutros Boutros-Ghali Amicorum Discipulorumque Liber – Peace, Development, Democracy 175-225 (1998); B. Fassbender, UN Security Council Reform and the Right of Veto – A Constitutional Perspective (1998), at 101-102. See also below, §1243.

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The UN Secretariat’s Office of Legal Affairs has prepared a study of the role of the Secretary-General as chief administrative officer of the UN, in which some attention was given to the delimitation of the Secretary-General’s functions vis-à-vis those of the General Assembly. According to the Office, this delimitation “has analogies in the delimitation (or separation of powers) in any democratic governmental system between the legislative and the executive. Although these analogies should not be pressed too far, since the United Nations is not a government and its principal organs do not perform governmental functions strictu sensu, the basic considerations that define the relationship between certain types of national organs would also seem to apply to intergovernmental ones”. These basic considerations amount to the legislature laying down general rules and the executive applying them to specific cases.50

B.

Delegation of powers

§224. May an organ establish subsidiary organs to which some of its functions are delegated? Many constitutions expressly allow delegation of functions to subsidiary organs.51 Even when constitutions contain no such provisions, subsidiary organs are still created to which powers are delegated.52 We may take it to be a general rule that an organ may create subsidiary organs to which it may delegate part of its functions,53 provided that such new organs do not increase the obligations of the organization or of its members. There is no harm in creating a drafting committee in order to facilitate the work of the organ, but there would be financial consequences if an organ is created which is to meet outside the session of its parent organ. International organizations have become more restrictive in allowing the creation of new organs, in order to limit their immense increase. In 1973, the ECOSOC decided that subsidiary bodies, with the exception of the regional commissions, were not allowed to create intersessional subsidiary bodies without the approval of ECOSOC itself.54 In 1974, the General Assembly took a similar decision.55

50. UNJY 1982, at 190-191. 51. E.g. UN Charter, Arts. 7.2, 22, 29, 68; OAS, Art. 53; Art. 11 of the Rules of Procedure of the EEA Council (published in OJ 1994, L 138/39); IOM, Art. 10; On practice in the UN, see UNJY 1971, at 201-203. See for specific examples of cases, where it was questioned whether powers had been delegated: UNJY 1978, at 174-176, 184-186. 52. Rule 66 of the UN Trusteeship Council is not based on the UN Charter. For other examples see J. Gold, Voting and Decisions in the IMF 203 (1972). 53. F. Seyersted, Objective International Personality of Intergovernmental Organizations, in: 34 NorTIR 1964, at 111; G. Meier, Das Recht der Internationaler Organisationen zur Schaffung und Bevollmachtigung einiger Organe, 12 Archiv des Völkerrechts 14-33 (1964/65); J. Makarczyk, La création des organes subsidiaires et les statuts des organisations internationales, 6 PYIL 183-298 (1972-1973); B.G. Ramcharan, Lacunae in the Law of International Organizations: The Relations between Subsidiary and Parent Organs, with particular Reference to the Commission and SubCommission on Human Rights, in: M. Nowak, D. Steurer, H. Tretter (eds.), Progress in the Spirit of Human Rights, Festschrift Ermacora (1988), at 37-49. See also ICJ, Effect of Awards Case, ICJ Rep. 1954, at 47 ff. 54. ECOSOC Resolutions 54th session, UN Doc. E/5367, at 34; YUN 1973, at 593. See also UNJY 1973, at 157.

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The International Energy Agency reserved the power to create new organs to its principal organs.56 In 1991 the Office of Legal Affairs of the UN Secretariat concluded in a legal opinion that “[t]he power to establish United Nations subsidiary organs, which under the Charter of the United Nations is conferred upon three of the principal organs of the United Nations, is clearly not conferred upon UNDP, which is itself a subsidiary organ of the United Nations. However, UNDP may be empowered in a specific case, and under an appropriate legislative authority of the General Assembly, or of its Governing Council, to establish its own subsidiary organs”.57

§225. To what extent may powers of organs be delegated to other, inferior, organs?58 Apart from possible constitutional limits, there are two general restrictions to the power of delegation: (1) no more powers may be delegated than the organ itself possesses; all delegation should contain the same restrictions, which may exist in the powers of the delegating organ.59 (2) responsibility may not normally be transferred. §226. Both restrictions were illustrated by the EC Court in the First Meroni Case.60 The High Authority of the European Coal and Steel Community (ECSC) had delegated the equalization of scrap-prices to two private institutions in Brussels. The decisions of these institutions were not subject to the same conditions as the decisions of the High Authority (inter alia: the duty to state reasons for its decisions, the duty to publish annually a general report, the possibility of judicial review by the EC Court). The Court therefore considered the delegation contrary to the ECSC treaty. It stated: “Hence the power of the High Authority to authorize or itself to make the financial arrangements mentioned in Article 53 of the Treaty gives it the right to entrust certain powers to such bodies subject to conditions to be determined by it and subject to its supervision”. The Court of Justice paid considerable attention to the transfer of discretionary powers: “In pursuit of the objectives laid down in Article 3 of the Treaty, the High Authority must permanently reconcile any conflict which may be implied by these objectives when considered individually, and when such conflict arises must grant such priority to one or other of the objectives laid down in Article 3 as appears necessary having regard to the economic facts or circumstances in the light of which it adopts its decisions.

55. 56. 57. 58.

GA Res. 3351 (XXIX)1,5, YUN 1974, at 920, 922. See also GA Res. 31/140, para. 6d. IEA, Art. 49. UNJY 1991, at 296-300 (quotation at 299). P. Schindler, Delegation van Zuständigkeiten in den Europäischen Gemeinschaften (1972); R.H. Lauwaars, Auxiliary Organs and Agencies in the EEC, 16 CMLRev. 1979, at 371-374, 383-387. 59. On the question whether the GA transferred more powers than it had when it created the UN Emergency Force in the Middle East (UNEF), see G. Rosner, The United Nations Emergency Force (1963), at 42-43. See also ICJ Rep. 1962, at 177. 60. Case 9/56, Meroni, ECR 1957-58, at 151-152. See Schermers and Waelbroeck, op. cit. note 24, at 361-363.

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§227

Reconciling the various objectives laid down in Article 3 implies a real discretion involving difficult choices, based on a consideration of the economic facts and circumstances in the light of which those choices are made. The consequences resulting from a delegation of powers are very different, depending on whether it involves clearly defined executive powers the exercise of which can, therefore, be subject to strict review in the light of objective criteria determined by the delegating authority, or whether it involves a discretionary power, implying a wide margin of discretion which may, according to the use which is made of it, make possible the execution of actual economic policy. A delegation of the first kind cannot appreciably alter the consequences involved in the exercise of the powers concerned, whereas a delegation of the second kind, since it replaces the choices of the delegator by the choices of the delegate, brings about an actual transfer of responsibility”. The Court considered that transfer of discretionary power would not be permitted under the constitution for the following reason: “The objectives set out in Article 3 are binding, not only on the High Authority but on the “institutions of the Community...within limits of their respective powers, in the common interest”. From that provision there can be seen in the balance of powers which is characteristic of the institutional structure of the Community a fundamental guarantee granted by the Treaty in particular to the undertakings and associations of undertakings to which it applies. To delegate a discretionary power, by entrusting it to bodies other than those which the Treaty has established to effect and supervise the exercise of such power each within the limits of its own authority, would render that guarantee ineffective”. The powers transferred in this case affected persons who were not represented in the transferring organ, but whose interests it should protect. Their interests are safeguarded by the composition of the High Authority and by the way it must function. Delegation of power might adversely affect this safeguard and would therefore be illegal. It seems that in this respect the Court of Justice interpreted a general rule of law, applicable in other international organizations as much as in the European Communities and the European Union.

§227. The situation may be different if those whose interests are protected by the composition of the organ have expressly agreed to the delegation. It may be legal if the Security Council of the UN, with the support of the permanent members, were to transfer power to an organ in which no right of veto would be applicable. The permanent members would then voluntarily renounce their special position. Even in this case, the legality of the delegation could be questioned, however, if it were not expressly provided for in the Charter,61 since it may well be in the interest of the other members of the UN for the five permanent members of the Security Council to bear full responsibility for all functions attributed to it.

61. UN Charter, Art. 29.

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With the agreement of the state concerned, the UN has sometimes created subsidiary organs which could treat more directly with individuals than the delegating organ itself.62 §227A. The two general restrictions to the power of delegation – illustrated by the EC Court in Meroni – will often become relevant in cases where a (parent) organ is actively using its powers and creates a subsidiary organ to meet challenges not anticipated by the founders of the organization. When for example the Security Council in the 1990s made use of its powers much more extensively than before this development was not only welcomed. On numerous occasions it was also claimed that the Security Council acted ultra vires because it allegedly did not respect the two above mentioned restrictions (§225). Two examples may be given, dealing with these restrictions. §227B. In 1993 the Security Council established the Ad Hoc Tribunal on War Crimes in the Former Yugoslavia.63 One of the issuess surrounding the Tribunal was whether it was established lawfully. In this context one of the principal queries was the question how the Council could lawfully create a subsidiary organ with powers the Council did not have itself. This question was voiced both in the chambers of the Security Council at the Tribunal’s inception,64 in literature65 and in the proceedings before the Tribunal. In the Tadic case, the Appeals Chamber of the Tribunal confirmed that the Security Council “is not a judicial organ and is not provided with judicial powers”.66 According to the Chamber the Security Council has resorted to the establishment of a judicial organ in the form of an international criminal tribunal as an instrument for the exercise of its own principal function of maintenance of peace and security, i.e., as a measure contributing to the restoration and maintenance of peace and security in the former Yugoslavia.67

62. P. Manin, L’Organisation des Nations Unies et le maintien de la paix (1971), at 157-159. 63. Resolutions 808 and 827. See §608 below. 64. UN Docs. S/PV.3175 and S/PV.3217. Brazil stressed that “the powers of the Council cannot be created, recreated or reinterpreted creatively by decisions of the Council itself, but must be based invariably on specific Charter provisions” (UN Doc. S/PV.3175, at 6). 65. See e.g. G. Arangio-Ruiz, The establishment of the International Criminal Tribunal for the former territory of Yugoslavia and the doctrine of implied powers of the United Nations, in F. Lattanzi and E. Sciso (eds.), Dai Tribunali Penali Internazionali Ad Hoc a Una Corte Permanente 31-45 (1996). 66. Case No. IT-94-1-AR72 (decision of 2 October 1995 on the defence motion for interlocutory appeal on jurisdiction), para. 37. On this case see J.E. Alvarez, Nuremberg Revisited: The Tadic Case, 7 EJIL 245-264 (1996). 67. Id., para 38.

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The Appeals Chamber therefore took the view that the Council could establish a subsidiary organ to perform functions the Council could not itself exercise.68 This reasoning could not fully succeed in removing all doubts about the lawfulness of the creation of the Tribunal, partly in view of the general principle that no more powers may be delegated than the organ itself possesses. Nevertheless, there was sufficient agreement that this course of action was the only viable alternative for the timely creation of an international tribunal given the need for its establishment.69 §227C. The second general restriction to the power of delegation is the prohibition to transfer responsibility. A parent organ may not ‘delegate away’ its responsibility. Again, the Security Council practice of the 1990s offers an example. In numerous resolutions, it authorized ‘coalitions of the able and willing’ to use force.70 Both writers and members of the Council voiced the criticism that some of these decisions – in particular but not only Resolution 678 – amounted to carte blanche authorizations with no control by the Council over the implementation of the authorization by the coalition.71 However, a clear development can be traced in the authorization resolutions adopted since 1990. By specifying the mandate and the duration of the operation and by increasing the reporting requirements for the coalition the Security Council increased its authority and control, and responded to its critics.72 Another example taken from UN practice is a legal opinion given by the UN Secretariat in 1991. Although the opinion does not explicitly refer to the prohibition to transfer responsibility, it comes down to the same rejection of attempts to ‘delegate away’

68. A similar decision was taken by Trial Chamber 2 of the Rwanda Tribunal in the Kanyabashi Case, Case No. ICTR-96-15-T. See the case note by V. Morris in 92 AJIL 66-70 (1998). 69. See further D. Sarooshi, The legal framework governing United Nations subsidiary organs, 76 BYIL 1996, in particular at 428-431; D. Sarooshi, The United Nations and the Development of Collective Security – The Delegation by the UN Security Council of its Chapter VII Powers (1999), in particular at 95-98 and 102-106. When the Security Council in 2000 expressed the need to establish a special court for Sierra Leone, it was decided not to create this court as an organ of the Security Council but as a separate institution. The Sierra Leone Court is an independent court having international legal personality, created through the conclusion of an agreement between the UN and the government of Sierra Leone, 16 January 2002 (SC Res. 1315 and 1400). 70. Strictly speaking, ‘authorization’ is not entirely the same as ‘delegation’. ‘Authorization’ means a permission that something may be done. Delegation generally means that a certain task must be performed by the subsidiary body. Nevertheless, ‘authorization resolutions’ have often been qualified as examples of delegation, both in practice and in legal doctrine. 71. E.g. B. Weston, Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy, 85 AJIL 516-535 (1991), at 517: the Security Council “eschewed direct UN responsibility and accountability for the military force that ultimately was deployed, favoring, instead, a delegated, essentially unilateralist determination and orchestration of world policy, coordinated and controlled almost exclusively by the United States”. 72. See further N. Blokker, Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by ‘Coalitions of the Able and Willing’, 11 EJIL 541-568 (2000).

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responsibilities. The question was whether the Governing Council of UNEP – UNEP itself being a subsidiary body of the UN General Assembly – could delegate its decisionmaking and approving powers to a subsidiary body. The UN Secretariat was of the opinion that “[i]n the absence of a decision of the General Assembly, the answer to the question would be negative. The Governing Council is itself a subsidiary body of the General Assembly; its tasks and functions have been determined by the General Assembly and may not be changed without approval of the Assembly.” At the same time the UN Secretariat concluded that subsidiary bodies of the Council “are fully entitled to consider and make recommendations to the Council or to implement Council decisions when requested” (emphasis added).73

§228. Within the European Union, it has been questioned as to whether the creation of the Management Committees (see below, §275) disturbed the balance of power in the institutional structure of the EC. The Court of Justice answered this question in the negative, since no power to take decisions had been delegated to these committees.74 This question concerning delegation of powers and the balance of power has also arisen in the context of the creation of agencies within the European Union. Over the years many agencies have been created in specific policy areas. Examples are the European Environment Agency, the European Agency for the Evaluation of Medicinal Products, the Community Plant Variety Office and the European Monitoring Centre on Racism and Xenophobia. One of the advantages of the creation of such agencies is that they “relieve the Commission of specific administrative tasks, which would leave the Commission greater room to concentrate on the giving of more political direction”.75 By creating agencies, more and often rather specific tasks can be carried out within the EU, making greater use of scientific and technical expertise. At the same time however, the delegation of tasks to agencies entails questions concerning their legitimacy and legality. For example, where agencies carry out legislative or executive functions, is the European Parliament involved to the same extent as compared to cases where the Commission itself is performing such functions? To what extent are decisions by agencies subject to judicial review? To what extent must the above mentioned Meroni principles (§226) be strictly applied?76

73. UNJY 1991, at 286. 74. Cases 25/70, Köster, 26/70, Henck, and 30/70, Scheer, ECR 1970, at 1161-1211. See further K. Lenaerts and A. Verhoeven, Towards a legal framework for executive rule-making in the EU? The contribution of the new comitology decision, 37 CMLRev. (2000), at 645-686. 75. E. Vos, Reforming the European Commission: what role to play for EU Agencies?, 37 CMLRev. 1113-1134 (2000), at 1116. 76. Vos, op. cit. note 75. According to Vos, the strict application of these principles may not always be necessary: “the institutional balance of powers principle […] will not be upset as long as the shift of powers is accompanied by a reinforcement or re-balancing of the existing institutions and constitutional guarantees for decision-making are safeguarded” (at 1123).

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Another delegation issue in the EU has been the question whether the European Commission may delegate powers to one of its members or to officials. It is permitted for the Commission to delegate powers to individual Commissioners, who in turn may subdelegate powers to Directors-General and Heads of Service.77 The principle of collective responsibility of the Commission as a whole must aways be respected.78 The Court has always been strict as to the delegation of powers to officials, who must be expressly authorized to commit the Commission. The Court does not accept the delegation of decisions of principle.79 The power to sign letters on behalf of the Commission could be delegated to individual Commissioners and to their high officials.80 Powers may also be delegated by the EC to another international organization. In this context the Court stated that the Community may “cooperate with a third country for the purpose of giving the organs of such an institution appropriate powers of decision and for the purpose of defining, in a manner appropriate to the objectives pursued, the nature, elaboration, implementation and effects of the provisions to be adopted within such a framework”.81 This includes the possibility of the Community becoming a member of an organization having “its own system of courts, including a court with jurisdiction to settle disputes between the Contracting Parties to the agreement, and, as a result, to interpret its provisions”; “the decisions of that court will be binding on the Community institutions, including the Court of Justice”.82 §229. May powers be delegated to member states? This question has arisen several times in the European Communities. In a case in 1970, the Court of Justice considered it legitimate, in the interest of the work of the organization, to confer temporarily functions on the member states which functions at a more advanced stage of development, have been taken over by the common institutions.83 But in another case, where the Commission had been expressly charged to implement particular rules, the Court of Justice ruled that the Commission could not validly delegate this task to a member state.84 As a rule, international organizations may be considered to be entitled to delegate tasks to all member states, each being obliged to perform them within their own territory. Delegation of tasks of the organization to one or more 77. Commission, Rules of Procedure (OJ 2000, L 308/26), Rule 13. 78. Id. 79. See Case C-137/92 P, Commission v. BASF and Others, ECR 1994, I-2555, concerning a decision finding an infringement of the EC competition rules. The Court decided that the power to take such decisions may not be delegated to a Commissioner. See Kapteyn/VerLoren van Themaat, op. cit. note 16, at 246-247. 80. See Commission, Rules of Procedure, Rule 27; Case 48/69, ICI, ECR 1972, at 649-650. See further: Schermers and Waelbroeck, op. cit. note 24, at 372-373 (with references to case law). 81. Opinion 1/76 of the EC Court, Laying-up Fund, ECR 1977, at 755-756. 82. Opinion 1/91, EEA Agreement, ECR I-6106 (1991). 83. Case 30/70, Scheer, ECR 1970, at 1207-1208. 84. Case 23/75, Rey Soda, ECR 1975, at 1302, 1306.

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specific member states will generally not be permitted unless there are particular reasons, such as geographic position, which justify such delegation (see also above, §227C). §230. As a general rule, a delegation of powers may be retracted and subsidiary organs may be dissolved in the same way as they were established.85 The delegating organ remains responsible for the actions of the subsidiary organ. It may issue directives which usually have to be followed by the subsidiary organ86 and it may usually revoke its decisions.87 A delegation of powers does not normally include a sacrifice of powers (however, see below §231). C.

Sacrifice of powers

§231. The same reasoning of the Meroni Case (see above, §226), which militates against the delegation of powers to other organs, also militates against an organ sacrificing its powers. The constitutional task of an organ is an obligation as much as a right. There may be two exceptions to this rule. (1) When gaps in the institutional structure of an organization are filled by the creation of new organs, the attribution of powers to those organs may be final. The supreme organ, which might claim that it has all powers which the constitution does not expressly attribute to other organs, may no longer claim powers which have been vested in such new organs. The clearest example is the creation of judicial organs. Their purpose would be frustrated if the organ which originally attributed powers to them could claim them back. Such a transfer of powers must be final. The International Court of Justice decided in 1954 that the General Assembly was bound by the decisions of an administrative tribunal created by it, since it had intended to create a judicial organ with the power to take binding decisions. One of the reasons for this exception was that the General Assembly had not delegated powers which it could have exercised itself but had created the Administrative Tribunal under its general power to regulate staff relations.88

85. But see Art. IX, Section 3.3 of the Articles of Agreement of the Council of Europe Development Bank. According to this provision, the powers delegated “may be reassumed only in exceptional circumstances and for a specified period”. 86. See the legal opinion by the UN Legal Counsel on the interpretation of Paragraph 4 of GA Res. 36/231 A. This opinion dealt with the question as to whether the Committee on Contributions, an organ of the General Assembly, must consider itself bound by the four criteria, mentioned in the resolution, to be observed by the Committee in its subsequent review of the scale of assessments of the UN. According to the Legal Counsel, these criteria were binding for the Committee, which is bound to carry out its tasks in accordance with any directives addressed to it by the Assembly (see UN Doc. A/37/11, Annex I (1982)). Likewise, subsidiary organs may not delete from their provisional agenda an item which was included therein by the parent organ (UNJY 1986, at 275-276). 87. An exception is the case where the subsidiary organ is a judicial organ. E.g. the Security Council may not revoke decisions of the Yugoslavia Tribunal. See D. Sarooshi, The United Nations and the Development of Collective Security (1999), at 103-105. See also below, §231. 88. Effect of Awards, ICJ Rep. 1954, at 61.

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Another example concerns the UN Joint Staff Pension Board, created in 1948 by the General Assembly to administer the UN Joint Staff Pension Fund. The UN itself and a number of organizations of the UN family participate in this Fund and are represented on the Board. In 1984 the Board decided that the interest or discount rate of 6.5 per cent for the calculation of lump sums payable by the Pension Fund in partial commutation of retirement, early retirement or deferred retirement benefits would be applicable to service as from 1 January 1985. During the debate on the report of the Board, within a working group of the Fifth Committee of the General Assembly, it was suggested that the General Assembly decide that this rate should instead be applicable in respect of all periods of service by participants as of some specified future date, e.g. 1 April 1986. The UN Legal Counsel was requested to give his opinion on this matter. He stated that, according to the relevant provisions, it was for the Board to set such interest rates, not for the General Assembly itself. “Even though the Pension Board was established by ... the General Assembly, if the Assembly wishes to assume itself any function that it has assigned to the Board by the Regulations, then it must amend the Regulations”. Neither could the Assembly simply direct the Board to change the interest rate or to adopt certain tables, because “... the Board is both a tripartite body (i.e., one representing the interests of the legislative organs of the member organizations, of their executive heads and of their participants) and an inter-organizational one (i.e., one on which each participating organization is represented)”. The Assembly had two representatives on the (at the time) 21-person Board. “While the Assembly can presumably instruct those two representatives, it evidently cannot instruct the others or the Board as a whole as to any discretionary decision that under the Regulations lies within the authority of the Board”.89

(2) In legal terms, a long tradition of not using a power does not necessarily lead to the loss of that power. Politically, however, the right of future use may become questionable and subsequent usage may lead to tensions or conflicts. D.

Implied powers90

§232. In accordance with the principle of attributed powers, international organizations always need to have a legal basis for their activities. However, it is never possible to lay down an exhaustive list of powers of the organization in a constitution, inter alia because any organization needs to respond to

89. UNJY 1985, at 138-139. 90. B. Rouyer-Hameray, Les compétences implicites des organisations internationales (1962); R.L. Bindschedler, La délimitation des compétences des Nations Unies, 108 RdC (1963 I), at 327-330; P. Hay, Federalism and Supranational Organizations (1966), at 185-191; J. Castañeda, Legal Effects of United Nations Resolutions, (1969), at 32-38; R. Khan, Implied Powers of the United Nations (1970); C.J. Mann, The Function of Judicial Decision in European Economic Integration (1972), at 288-299; A. Giardina, The rule of law and implied powers in the European Communities, 1 Italian Yearbook of International Law 99-111 (1975); H.F. Köck, Die “implied powers” der Europäischen Gemeinschaften als Anwendungsfall der “implied powers” internationaler Organisationen überhaupt, in: K.-H. Böckstiegel et al., Law of Nations,

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developments in practice which cannot be foreseen when it is created.91 Therefore, other foundations for the organization’s activities exist, such as customary and implied powers. Since these foundations are not explicit attributions of power to the organization, laid down in its constitution, member states might more easily hold different opinions as to the existence or scope of such powers. Implied powers should be distinguished from customary powers. The basis for the former are powers explicitly attributed to the organization in the constitution. The basis for customary powers postdates the constitution: during the life of the organization, member states may consent to new powers for it. Thus implied powers are founded on powers attributed to the organization at its creation, while customary powers are attributed subsequently. The implication of powers means that “a term is being read into the organization’s statute not in order to modify it or add to the members’ burdens, but in order to give effect to what they agreed by becoming parties to the constitutional treaty”.92 Implied powers will usually be more controversial than customary powers, because the course of time might change the scope of powers members want to attribute to an organization. For example, the creation of peacekeeping forces by the UN General Assembly has not been generally accepted; inter alia France and the Soviet Union denied such a power when the Assembly created the UN Emergency Force in 1956 and when it exercised authority over the UN force in the Congo (ONUC). As a result, the existence of such a power cannot be derived from custom, while it might be derived from implied powers. §233. Many powers can only be exercised on the basis that other powers exist; in other words, explicit powers often presume the existence of implied powers. Thus would it be impossible to apply sanctions against a member, unless an explicit right exists to recognize a violation of obligations. The right of sanction implies a right to recognize violations.

Law of International Organizations, World’s Economic Law, Liber amicorum honouring Ignaz Seidl-Hohenveldern 279-299 (1988); K. Skubiszewski, Implied Powers of International Organizations, in: Y. Dinstein (ed.), International Law at a Time of Perplexity (Essays in honour of Shabtai Rosenne) 855-868 (1989); S. Stadlmeier, Die ‘Implied Powers’ der Europäischen Gemeinschaften, 52 ZÕR 353-388 (1997). On their national constitutional roots, see also J. Becker, Die Anwendbarkeit der Theorie von den Implied Powers im Recht der Europäischen Gemeinschaften (1976). 91. Essentially the same arguments have been used in the application of implied powers within federal states, long before the development of such powers within the law of international organizations. As was stated before the US Supreme Court in M’Culloch v. The state of Maryland et.al., a landmark decision of this Court rendered in 1819: “It was impossible for the framers of the constitution to specify prospectively all these means, both because it would have involved an immense variety of details, and because it would have been impossible for them to foresee the infinite variety of circumstances in such an unexampled state of political society as ours, forever changing and forever improving” (statement by Mr. Pinkney for the plaintiff in error; reproduced in H. Wheaton, Cases argued and decided in the Supreme Court of the United States, Book 4, at 385 of the original text). 92. Skubiszewski, op. cit. note 90, at 856-857; quotation at 860.

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It may be difficult, however, to establish the extent of the powers implied. Occasionally a distinction is made between powers implied from explicit powers as opposed to powers implied from purposes and functions of organizations. The latter basis for implied powers is broader than the former. Mostly, however, purposes, functions and explicit powers are used interchangeably as a basis for implied powers.93 To determine the extent of the powers implied another method is commonly used: is the power in question necessary or essential for the organization to perform its functions?94 This functional definition of implied powers is, of course, no panacea, since opinions usually differ on what is necessary or essential for the organization to carry out its tasks. Understandably, the perspective of the organization in this respect is fundamentally different from the perspective of the member states. This cannot be changed by criteria or definitions. Therefore, the most effective remedy is the existence of a judicial organ, empowered to define decisively the scope of implied powers. This has been proved by the case law of the ICJ and of the Court of Justice of the European Communities. The International Court of Justice accepted the theory of implied powers in its Reparations for Injuries Advisory Opinion, which is in a way for the UN what the US Supreme Court decision in M’Culloch v. The State of Maryland et. al. was to the United States. In this case the ICJ was confronted with the question of whether the UN possessed the capacity to bring an international claim in respect of damage caused to the UN and to the victim or to persons entitled through him. No such competence has been explicitly attributed to the UN in the Charter. In its advisory opinion of 11 April 1949 (Reparations for injuries suffered in the service of the United Nations) the Court held: “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”.95 The Court concluded that UN agents, in carrying out their functions, must be ensured of effective protection by the UN. Therefore: “Upon examination of the character of the functions entrusted to the organization and of the nature of the missions of its agents, it becomes clear that the capacity of the organization to exercise a measure of functional protection of its agents arises by necessary intendment out of the Charter”. In defining the competence of a particular organ of the UN (the General Assembly), this theory was also accepted in the Court’s advisory opinion of 13 July 1954 (Effect of awards of compensation made by the UN Administrative Tribunal). In that case the question arose, inter alia, whether the General Assembly could create an independent

93. Id., at 857-859. Cf. also the dissenting opinion by Judge Hackworth in the Reparations for Injuries case, ICJ Rep. 1949, at 196-204. 94. E.g. the dissenting opinion of Judge Shahabuddeen in the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Order of 28 February 1990, ICJ Rep. 1990, at 41-42. 95. ICJ Rep. 1949, at 182. See also below, §1566-1568, 1856. For a survey of the case-law of the Court in this respect, see E. Gordon, The World Court and the Interpretation of Constituted Treaties, 59 AJIL (1965), at 816-821.

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international tribunal. The Court answered this question in the affirmative.96 It held, inter alia: “It would, in the opinion of the Court, hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals and with the constant preoccupation of the United Nations Organization to promote this aim that it should afford no judicial or arbitral remedy to its own staff for the settlement of any dispute which may arise between it and them. In these circumstances, the Court finds that the power to establish a tribunal, to do justice as between the Organization and the staff members, was essential to ensure the efficient working of the Secretariat, and to give effect to the paramount consideration of securing the highest standards of efficiency, competence and integrity. Capacity to do this arises by necessary intendment of the Charter”. The Court also showed no hesitation in deciding to which organ that capacity should be attributed. Articles 7.2, 22 and 101.1 clearly indicated that it should be the General Assembly. In its 1996 WHO Advisory Opinion the ICJ – referring to the above mentioned Reparation for Injuries and Effect of Awards Opinions – observed that “[i]t is generally accepted that international organizations can exercise such powers, known as ‘implied’ powers”, and took the same criterion as before (‘powers which (…) are conferred upon it by necessary implication as being essential to the performance of its duties”).97 However, different from its earlier judgments and opinions, the Court applied this criterion in a restrictive way, without further explanation, when it concluded that the WHO did not have any implied power to address the legality of the use of nuclear weapons – even in view of their health and environmental effects. Commentators have rightly criticized the restrictive application of the implied powers theory in this case.98 This restrictive application should probably be understood in the specific context of this case and of the other ‘Nuclear Weapons’ Advisory Opinion of the same day, in which the Court did have the opportunity to deal with questions similar to those requested in the WHO case.99 Moreover, although the Court applied the theory in a restrictive way, it did not reject it and even explicitly described it using the classical formula quoted above.

96. Effect of Awards of Compensation made by the UN Administrative Tribunal, Advisory Opinion, ICJ Rep. 1954, at 56-58. On this case see Khan, op. cit. note 90, at 185-195. 97. ICJ Rep. 1996, at 79. 98. D. Akande, The Competence of International Organizations and the Advisory Jurisdiction of the International Court of Justice, 9 EJIL 437-467 (1998); N.D. White, The World Court, the WHO, and the UN System, in N.M. Blokker & H.G. Schermers (eds.), Proliferation of International Organizations – Legal Issues 85-109 (2001), in particular at 100-104. 99. Cf. however J. Klabbers, An Introduction to International Institutional Law (2002), at 78-80. In his view, this restrictive application of the implied powers theory by the ICJ should not be seen in isolation, but as part of a more general tendency – in particular during the 1990s – of increased awareness of the limits of this theory. “While it is clear that the doctrine played a useful role when organizations were still in development, and more in particular when the very phenomenon of the international organization was still developing, it would seem that, at least in some of the more settled organizations, the doctrine has passed its heyday” (id., at 79).

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§233A

The EC Court has accepted the theory of implied powers in a number of cases.100 It considered that it is permitted: “...to apply a rule of interpretation generally accepted in both international and national law, according to which the rules laid down by an international treaty or a law presuppose the rules without which that treaty or law would have no meaning or could not be reasonably and usefully applied”.101

§233A. As mentioned above, there are widely differing views on the scope of implied powers. As such, it is more difficult, and more important, to indicate their limits. There are at least four.102 First, recourse to the implied powers concerned must be necessary or essential for the organization to perform its functions, as mentioned by the ICJ in its Reparation for Injuries Opinion. A second limitation is the existence of certain explicit powers in the area concerned.103 If there is an explicit power in the constitution, does this prevent the use of an implied power in the same area? A narrow view on this matter has been expressed by some of the Judges of the ICJ, for example by Judge Moreno Quintana in the Certain Expenses case: “[t]he implied powers which may derive from the Charter so that the Organization may achieve all its purposes are not to be invoked when explicit powers provide expressly for the eventualities under consideration”.104 A partly different opinion is given by Bustamente, dissenting Judge in the Certain Expenses case. He was of the view that the UNEF and ONUC operations could be undertaken despite the fact that Article 43 agreements had not been concluded. However he also asked the question whether “the negotiation of ’special agreements’ is, according to the spirit of the Charter, such a basic one that, if such agreements are not concluded, the action ordered should not be undertaken”.105 Bustamente’s answer to this question was in the negative (“I incline not to think so”), but implies that it would have been positive had the issue concerned been “a basic one”. On this limitation of implied powers, the ICJ itself has not taken a position so far. Campbell’s conclusion is correct: “the exercise of powers would

100. Case 5/55, Fédéchar, ECR 1954-56, at 299; Case 20/59, First Publication of Transport Tariffs Case, ECR 1960, at 336-338; Case 25/59, Second Publication of Transport Tariffs Case, ECR 1960, at 372-373; Case 22/70, Commission v. Council (ERTA), ECR 1971, at 263; Opinion 2/94 (Accession by the European Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms), ECR 1996, at I-1787 (para. 26). See more extensively: Schermers and Waelbroeck, op. cit. note 24, at 374-375; Lenaerts and Van Nuffel, op. cit. note 2, at 90-94. 101. Case 8/55, Fédéchar, ECR 1954-56, at 299. 102. The following is largely reproduced from N. Blokker, Beyond ‘Dili’: on the powers and practice of international organizations, in G. Kreijen (ed.), State, Sovereignty, and International Governance (2002), at 299-322. 103. See in particular A.I.L. Campbell, The Limits of the Powers of International Organizations, 32 ICLQ 523-533 (1983). 104. Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962, ICJ Rep. 1962, at 245. See also Hackworth, dissenting Judge in the Effect of awards Advisory Opinion of 13 July 1954, ICJ Rep. 1954, at 80. 105. ICJ Rep. 1962, at 298.

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have to be such as would not substantially encroach on, detract from, or nullify other powers”.106 On the one hand, it is difficult to accept that the use of implied powers may violate explicit powers. On the other hand, if certain powers are enumerated explicitly but their use encounters difficulties, it is arguably too strict to prohibit the organization from using any other powers if this would mean that otherwise it cannot perform its functions. Thirdly, the use of implied powers may not violate fundamental rules and principles of international law.107 As an example Gill refers to the 1971 Namibia Opinion.108 In this Opinion the ICJ concluded that in view of Security Council Resolution 276 UN member states “are under obligation to abstain from entering into treaty relations with South Africa in all cases in which the Government of South Africa purports to act on behalf of or concerning Namibia”.109 However, an exception is made for “certain general conventions such as those of a humanitarian character, the non-performance of which may adversely affect the people of Namibia. It will be for the competent international organs to take specific measures in this respect”.110 Thus, in this example, the Council’s power to adopt the resolution in question was limited by ‘certain general conventions such as those of a humanitarian character’. A fourth limitation is that implied powers may not change the distribution of functions within an organization.111 This limitation was important in the Certain Expenses case, in which one of the core questions was the scope of the powers of the General Assembly in the area of the maintenance of international peace and security, given the primary responsibility of the Security Council in this field. §234. Some organizations have the power to waive obligations of their member states. This power may imply the authority to draw up general rules to regulate its exercise in practice.112

106. Campbell, op. cit. note 103, at 528. Gill arrives at essentially the same conclusion, which in his view “follows from the basic canons of treaty interpretation, such as those contained in Article 31 of the Vienna Convention on the Law of Treaties and from general principles of interpretation such as lex specialis derogat legi generali”: T.D. Gill, Legal and some Political Limitations on the Power of the UN Security Council to exercise its Enforcement Powers under Chapter VII of the Charter, 26 NYIL 1995, 33-138 (at 71). 107. Gill, op. cit. note 106, at 71: “[...] the Council’s general powers do not provide it with a blank cheque to take measures which would violate fundamental principles and rules of international law, even if these are not specifically referred to in Chapter I or in other provisions of the Charter” (in Gill’s analysis, general powers are the same as implied powers). 108. Id., at 71-72. 109. ICJ Rep. 1971, at 55. 110. Id. 111. Campbell, op. cit. note 103, at 529-532. Cf. also Sarooshi, op. cit. note 69 [BYIL 1996], at 458-477. 112. J. Gold, Dispensing and Suspending Powers of International Organizations, 19 NedTIR 169-200 (1972), at 179.

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As regards international organizations whose tasks are enumerated in a relatively small number of articles of a constitution, the doctrine of implied powers is so essential that its possible application can be safely assumed. The constitution of the European Centre for Medium-Range Weather Forecasts expressly provides that the Council “shall have the powers and shall adopt the measures necessary to implement this Convention”.113 The constitution of the European Organization for the exploitation of meteorological satellites (EUMETSAT) stipulates that the Council “shall have the powers to adopt all the measures necessary for the implementation of this Convention”.114 According to Article 6.4 TEU “[t]he Union shall provide itself with the means necessary to attain its objectives and carry through its policies”.

§235. Article 308 EC provides: “If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the Assembly, take the appropriate measures”.115 This provision contains the essential elements of the implied powers doctrine: the explicit powers are considered insufficient for the organization, and additional powers may be considered implied as far as necessary to perform its functions. It has sometimes been argued that, because of this “explicit implied powers provision” the implied powers doctrine as such could not be applied in the Communities.116 However the preferable point of view seems to be that Article 308 provides for new, independent powers if the existing ones are insufficient to attain the Community’s objectives. The implied powers doctrine, however, does not provide for new, independent powers; rather, implied powers are derived from existing powers. If there is

113. Convention establishing the European Centre for Medium-Range Weather Forecasts, Art. 4. (Trb. 1974, No. 7 at 43). 114. Convention establishing EUMETSAT, Art. 5.1. 115. For the application of this article, see H. Lesguillons, L’extension des compétences de la CEE par l’article 235 du Traité de Rome, 20 AFDI 886-904 (1974); H.P. Gericke, Allgemeine Rechtsetzungsbefugnisse nach Art. 235 EWG (Hamburger Abhandlungen aus dem Seminar für Öffentliches Recht, Heft 60, 1970); R.H. Lauwaars, Art. 235 als Grundlage für die flankierenden Politieken im Rahmen des Wirtschafts- und Währungsunion, 11 EuR 100-129 (1976); U. Everling, I.E. Schwartz, C. Tomuschat and J. Pipkorn, Die Rechtsetzungsbefugnisse der EWG in Generalermächtigungen, insbesondere in Art. 235 EWGV, EuR, Sonderheft 1976, at 2-73; I.E. Schwarz, Article 235 and the Law-Making Powers in the European Community, 27 ICLQ 614-628 (1978); Kapteyn and VerLoren van Themaat, op. cit. note 16, at 235-240; H. von der Groeben, J. Thiesing, C.-D. Ehlermann (eds.), Kommentar zum EU-/EG Vertrag (5th ed. 1997), at 5/590-5/718 (with extensive references to further literature); A. Dashwood, The Limits of European Community Powers, 21 ELR 113-128 (1996), in particular at 123-126. 116. See for references to literature: C. Denys, Impliciete bevoegdheden in the Europese Economische Gemeenschap, (1990), at 307-308.

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no explicit power, there can be no implied power. On the basis of Article 308 however, new powers may be created.117 Article 308 elucidates the distinction between powers and objectives, a distinction which is not always made, in particular in relation to the implied powers doctrine. It adds powers, not objectives, to those mentioned in the EC Treaty. As the EC Court has emphasized in 1996, this provision being an integral part of an institutional system based on the principle of conferred powers, cannot serve as a basis for widening the scope of Community powers beyond the general framework created by the provisions of the Treaty as a whole and, in particular, by those that define the tasks and the activities of the Community. On any view, Article [308] cannot be used as a basis for the adoption of provisions whose effect would, in substance, be to amend the Treaty without following the procedure which it provides for that purpose.118

If a particular goal (for example the creation of an Economic and Monetary Union) cannot be attained by creating new powers under Article 308, the list of objectives has to be expanded by amendment of the Treaty, through a more extensive procedure (inter alia ratification by all member states) than the procedure laid down in Article 308. The latter is still a weighty procedure, but extension of the powers of the Community is a weighty decision. Since member states at times may be tempted to prefer taking decisions by unanimity, excluding the possibility that they are outvoted, a large number of decisions have been based, partly or exclusively, on Article 308. However, in a number of cases, the Court has emphasized the subsidiary function of Article 308. Recourse to this provision “is justified only where no other provision of the Treaty gives the Community institutions the necessary power to adopt the measure in question”.119 The implied powers doctrine is therefore applicable within the Communities.120 Nevertheless, it has been of limited importance in practice, outside the area of external relations. An explanation is that the existing powers in the Treaties, from which implied powers have to be derived, are carefully

117. See Denys, op. cit. note 116, at 307-316; Kapteyn and VerLoren van Themaat, op. cit. note 16, at 240-242. See also A. Tizzano, L’article 235 CEE et le développement des compétences communautaires, in G. Lüke, G. Ress, M.R. Will (eds.), Rechtsvergleichung, Europarecht uns Staatenintegration – Gedächtnisschrift für L.-J. Constantinesco 781-799 (1983). 118. Opinion 2/94 (Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms), ECR 1996, at I-1788. In this Opinion, the Court concluded that at the time the EC had no competence to accede to this convention. The Danish Supreme Court heavily relied on this interpretation by the EC Court in the Rasmussen case of 6 April 1998 (3 CMLR 854 (1999)). 119. E.g. Case 45/86, Commission v. Council, ECR 1987, at 1520. 120. Cf. also Opinion 2/94, ECR 1996, at I-1788: “Article [308] is designed to fill the gap where no specific provisions of the Treaty confer on the Community institutions express or implied powers to act […]” (italics added).

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defined and not very broad.121 Furthermore, due to the very existence of Article 308, allowing for the creation of new powers, there was little need to have recourse to the implied powers doctrine. §236. The most fascinating aspect of the doctrine of implied powers is its flexibility. By accepting the binding character of the (opening) articles of a constitution which deal with the purposes of an international organization, it can easily be concluded that the powers necessary to fulfil these purposes have been implied.122 However, international organizations are not federal states. The ICJ and the Court of Justice of the European Communities operate in a different environment than the US Supreme Court; as a result, these courts will sooner be faced with the limits of the implied powers doctrine than the Supreme Court. A rather wide interpretation of its implied powers was accepted by the General Assembly of the UN when it awarded UN distinctions to personnel who had fought in Korea, overruling Polish objections that comparable distinctions could only be awarded by states and that the General Assembly had never been granted any such competence.123 The General Assembly apparently considered the awarding of service distinctions as implied in its right to recommend the expedition of forces. Another field in which the General Assembly has interpreted its competence extensively is that of the granting of independence to colonial countries and peoples. The UN Charter provides that members administering non-autonomous territories accept the obligation “to transmit regularly to the Secretary-General for information purposes...statistical and other information...”.124 The General Assembly has developed the view that it has a right to discuss this information and to make recommendations on the way it should be transmitted.125 Since this right cannot be based on any other provisions of the Charter, it is apparently considered as being implied by the obligations of the members to transmit the information and by the position of the General Assembly as the supreme organ in this field.

II.

Composition of organs

A.

Size

§237. Each international organization has at least one plenary organ: an organ which is composed of representatives of all member states. Most organizations,

121. Kapteyn and VerLoren van Themaat, op. cit. note 16, at 240-242. 122. See Dag Hammarskjöld, speaking to the Students Association in Copenhagen, quoted by F. Seyersted, United Nations forces in the law of peace and war (1966), at 154, and in GAOR, 14, Suppl. No. 1A. 123. Seyersted, op. cit. note 122, at 153. 124. UN Charter, Art. 73(e). 125. R. Zacklin, The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies, (1968), at 188-195.

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in particular those having a large number of members, also have non-plenary organs, in which only some of the member states participate. Opposing factors influence the size of such organs: (a) Non-plenary organs should be small to enable efficient decision-making and to keep their costs at a reasonable level (the ‘efficiency’ factor). (b) In order to have expert knowledge of all relevant aspects and the confidence of all members, it may be essential that all existing interests and opinions be represented (the ‘representativeness’ factor). The weight of these factors depends on the function of the organ concerned. In a political organ charged with expressing public opinion or keeping contact with different sections of opinion in the member states, without the necessity of decisions being taken, efficiency will be relatively less important. In non-political organs charged with a specific task, there may be no need to have several possible standpoints represented by many different delegations. Non-plenary organs usually have a size of between one fifth and one third of the entire membership (see below, §414). For parliamentary organs, an assurance that all opinions will be brought forward is more important than fast and efficient decision-making. Parliamentary organs are therefore usually large. The Parliamentary Assembly of the Council of Europe has 313 representatives, the European Parliament 626. Judicial organs usually try to operate with less than eight members (see below, §672-674). When non-plenary organs are created, or when their composition is changed, discussions often take place in which supporters of a larger size stress the importance of the ‘representativeness’ factor and supporters of a smaller size emphasize the importance of the ‘efficiency’ factor. The current discussions on a possible change in the composition of the UN Security Council are an example (see below, §420). Similar discussions took place preceding the two enlargements of the UN Economic and Social Council, in 1965 and 1973.126 Another, less well-known example, is the composition of the Textiles Surveillance Body, a quasi-judicial organ created in the Multifibre Arrangement. Article 11.1 of this arrangement provided that this organ “shall consist of a chairman and eight members to be appointed ... on a basis ... so as to ensure its efficient operation. In order to keep its membership balanced and broadly representative of the parties to this arrangement provision shall be made for rotation of the members as appropriate”. During the years of discussion preceding the enlargement of this organ in 1990 those in favour stressed the need for its membership to be “broadly representative”, while those against emphasized the need for its “efficient operation”.127

126. See R. Lagoni and O. Landwehr in Simma (ed.), op. cit. note 18, at 980-985. Cf. also the discussion about the increase of membership of the UN Commission on International Trade Law (e.g. UN Docs. A/CN.9/500 (2001) and A/56/315). In 2002 the General Assembly decided to increase the membership of this Commission from 36 to 60 states (GA Res. 57/20). 127. See N. Blokker, International Regulation of World Trade in Textiles (1989), at 168-170. The Multifibre Arrangement was concluded in 1973. It was amended and extended several times and was in force until 1995, when a transitional regime entered into force to integrate the textiles and clothing sector into GATT 1994.

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Representation of members

§238. Neither member states nor their governments can be physically present at meetings of organs. They have to be represented. There are two different sorts of representation in public law. On the one hand, a public corporation can only operate through a natural person, as with member states of international organizations who can only act in organs of these organizations through their representatives. On the other hand, a public corporation can be represented by another public corporation. Likewise, a member state may sometimes represent another member state in an international organ. Wherever doubts may arise, we will use the terms “delegation” and “delegate” when the first form of representation is referred to, and “acting by proxy” when discussing the second.128 1.

Representation by a delegation129

a.

Denomination

§239. The members of delegations to international organizations are denominated differently. Sometimes a delegation may consist of one delegate with alternates, advisors and experts; in other cases there is a “head of delegation” accompanied by delegates, alternates, advisors and experts. These names have little importance.130 It is always the head of the delegation who is empowered to represent the member state. He may delegate his powers to other members of his delegation. The different denominations of other members are a useful indication of the hierarchy of the delegation, enabling other delegations to know with whom they should negotiate. b.

Instructions

§240. Delegations do not act in their personal capacity; they represent members of the organization. Therefore members instruct delegations as to how they

128. Sereni denies that the first case is a case of representation. Since a legal person can only operate by means of natural persons he considers the legal person to be actually present (and not represented) when one of its functionaries is present. He reserves the notion ‘representation’ for one legal person acting as proxy for another. A.P. Sereni, La réprésentation en droit international, 73 RdC 69-166 (1948 II). 129. See also R.F. Pedersen, National Representation in the United Nations, 15 International Organization (1961), at 256-266; P.R. Baehr, The Role of a National Delegation in the General Assembly (Occasional Paper No. 9 of the Carnegie Endowment for International Peace, 1970); J. Kaufmann, United Nations Decision Making (1980), in particular Chapter 6; M.J. Peterson, The General Assembly in World Politics (1986), in particular at 284-289; J. Kaufmann, Conference Diplomacy (2nd rev. ed., 1988), in particular Chapter VII. 130. On a proper use of terminology, see Study prepared by the UN Secretariat, UN Doc. A/ CN.4/L.118. YbILC, 1967 II, at 162-163.

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should proceed. Instructions may sometimes be very detailed; sometimes they are very broad. “Rumor has it that a permanent representative ... cabled home for instructions during one important crisis and was told in no uncertain terms that he was sent to New York to take care of that part of his country’s foreign policy and that his asking for instructions was quite uncalled for. Another delegate, it is said, not only gets detailed instructions about every vote, but has all of his speeches sent verbatim from his capital with instructions on when to speak with sincerity and when to inject an ironic inflection”.131

Very detailed instructions may frustrate the organization’s purposes, because they impede the reconciliation of different opinions and the seeking of the most acceptable compromises. On the other hand, detailed instructions may be necessary for the consistency of domestic policies: they help to avoid conflicting views within a delegation between people belonging to different departments, national governments are sure that their policies are carried out and other delegations are certain that the points of view of a delegation really represent those of the government of the relevant member state. In practice, the nature of instructions should mainly depend on the stage of the decision-making process. For preparatory discussions, detailed instructions are not needed. Governments will find a later opportunity to intervene if their delegates propose or accept solutions which they do not support. It may even be useful to have experts discuss a matter before their governments have dealt with it. National decision making – and the instructions given to national delegations – may then be influenced by international interests and by the wishes of other governments (see below, §275). This may be helpful in reaching a final decision in which all relevant interests are balanced in a fair way.132 §241. Action outside the limits of an instruction is always possible. It requires the prior approval of the government concerned. Sometimes instructions expressly provide for consultations in specific situations. Gaps may have been left in the instructions in order to anticipate future developments, or as a result of a certain reluctance on the part of a government to make early concessions.133 In practice, further briefing during sessions is only sought in exceptional cases.134

131. E. Hambro, Some notes on parliamentary diplomacy, in: W. Friedmann et al. (eds.), Transnational Law in a Changing Society 280-297 (1972), at 287. 132. H.G. Schermers, Integratie van Internationale Organisaties, inaugural address at Leiden, 30 June 1978, at 12-14. 133. J.N. Hyde, United States Participation in the United Nations, 10 International Organization (1956), at 25. 134. UN Doc. E/4844, at 9.

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c.

Rules for international organs

§242

Size of delegations

§242. In normal circumstances, members may freely decide how many delegates they want to send to a meeting. The only requirement of the 1975 Vienna Convention is that “the size of the delegation shall not exceed what is reasonable and normal, having regard, as the case may be, to the functions of the organ or the object of the conference, as well as the needs of the particular delegation and the circumstances and conditions in the host state”.135 The organization is principally interested in the presence of a delegation which can voice the opinion of the member concerned. For this purpose, one delegate will normally be sufficient. In general, while a small delegation will have a more coherent view over the whole of the agenda, a large delegation will contain more specialized knowledge of each individual item of the agenda and allow greater possibilities for negotiation, informal contacts and reporting. Some principal organs, such as the UN General Assembly, may split into several sub-organs (see below, §402). It may then be necessary to send more delegates to serve each of the sub-organs when they meet simultaneously. Delegations of UN members to the General Assembly “shall consist of not more than five representatives and five alternate representatives and as many advisers, technical advisers, experts and persons of similar status as may be required by the delegation”.136 Some delegations number more than fifty members.137 Within the European Union, the Council shall consist of one representative of each member state at ministerial level. These representatives may be accompanied by officials who assist them.138 In the general congresses of other organizations the prescribed number of representatives varies from one (e.g. FAO, WIPO, OPCW), three (WHO) to five (UNESCO, World Tourism Organization). Some constitutions do not specify the number of delegates (e.g. those of IMO and ICAO).

In practice, large delegations may slow down the work of meetings and may be less flexible than small ones. Delegates operate more effectively if they are not supervised by a large group of experts. Therefore the EC Council decided, at its 252nd session on 24 July 1973, that no more than six members of each delegation should be present in the conference hall during the discussions on any item on the agenda.139 On many occasions, especially when compromises had to be reached, this number was gradually reduced until the ministers finally negotiated among themselves.

135. Vienna Convention on the Representation of States in Their Relation with International Organizations of a Universal Character, Art. 46 (this convention has not yet entered into force). See also UNJY 1982, at 209-210. 136. Rule 25 of the rules of procedure of the UN General Assembly. 137. Baehr, op. cit. note 129, at 10. 138. Art. 203 EC and Art. 5.3 of the Rules of Procedure of the Council (OJ 2000, L 149/21). 139. Europa van Morgen (1973), at 224. This rule is still followed.

§243

d. (i)

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Composition of delegations Governmental delegates

§243. The freedom of action enjoyed by a delegation makes its composition important. Member states choose members of delegations on the basis of the agenda of the meeting concerned. Delegation members should be familiar with the substance of the agenda items; they should know how the interests of their respective states are affected. This knowledge is often found among civil servants, who deal with the substantive issues at the national level.140 If their knowledge is too specialized, diplomats may be added to the delegation to cover more general political problems. When a government has successfully formed a delegation which it believes to be competent to deal adequately with every item on the agenda, it will be more willing to issue broad instructions, which facilitate the seeking of compromises. To ensure that delegates will have sufficient authority and freedom to manoeuvre, some organizations require their members to send delegates of a particular rank or status. For example, the Council of the European Union “shall consist of a representative of each member state at ministerial level, authorized to commit the government of that member state”.141 The European Council is composed of the heads of state or government of the member states and the president of the Commission.142 Several other regional organizations also require their members to appoint members of government in their delegations to the organization’s main organ; for example, Benelux (Article 17). In the African Union, the supreme organ is, in principle, composed of heads of state and government (Article 6.1).

§244. If an organ has to be composed of members of government, it should be left to the respective national authorities to decide which minister to delegate. This will depend on the topic under discussion and on the division of competences within the different governments. The Statute of the Council of

140. Delegates are usually recruited not only from the Ministry of Foreign Affairs, but also from other ministries. This may lead to conflicts of loyalty if national ministers favour different policies. Proper national coordination should prevent such conflicts (see below, §1739-1741). 141. Art. 203 EC. Prior to the entry into force of the TEU, the composition of the Council was regulated in Art. 2 of the Merger Treaty, providing that, inter alia, “The Council shall consist of representatives of the member states. Each government shall delegate to it one of its members”. The amendment was made in response to the wish of the German Länder (the states within the German Federal Republic), which have important competences under the German constitution, and wanted to become more involved in EC policy making in areas within their competence, where previously only the central government was authorized to send members to the Council. See R. Geiger, EG-Vertrag – Kommentar zu dem Vertrag zur Gründung der Europäischen Gemeinschaft (1993), at 516. The amendment also offers possibilities for the other member states, depending on the interpretation of “... at ministerial level, authorized to commit the government...”. 142. Art. 4 TEU.

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Europe (Article 14) goes too far in requiring the presence of the Minister of Foreign Affairs at the sessions of the Committee of Ministers. The constitution of the Latin American Integration Association (Article 31) has a more commensurate provision in this respect. The Council of Foreign Ministers of this Association is composed of the Ministers of Foreign Affairs of the member states; “however, in the event that the responsibility for integration matters is assigned to a minister or secretary of state other than for foreign affairs, the member countries may be represented in the Council, with full powers, by the respective minister or secretary”. The Statute of the Council of Europe also contains an exception to the rule mentioned above: “When a Minister of Foreign Affairs is unable to be present or in other circumstances where it may be desirable, an alternate may be nominated to act for him, who shall, whenever possible, be a member of his government”. In practice, other ministers prefer not to act as “alternates” for their colleague from Foreign Affairs. When a Minister of Foreign Affairs is absent, he is usually represented by a state-secretary (deputy-minister) or by a diplomat. Only in 1955, when the Committee of Ministers of the Council of Europe held a discussion with the ECSC High Authority, were the members represented by their Ministers of Economic Affairs. The Ministers of Justice and those of Education have never wished to meet as “alternates”. They come together in separate meetings, organized and staffed by the Council of Europe, but outside the scope of the Committee of Ministers (see below, §397).143

§245. Even if the choice of government members is left to the member states, the nature of the agenda will usually require the presence of a specific minister. This is particularly the case in the European Union. It makes no sense to delegate a minister other than the Minister of Agriculture to an agricultural session of the Council. The Council has adapted itself so much to its changing membership that it even meets in different compositions on the same day. §246. The requirement to send (usually very busy) members of government may hamper the possibility of convening the organ at all (see below, §311). This problems can be avoided by allowing the members to send deputies instead of the required officials – which in turn, however, has the disadvantage that no consultations and confrontations take place among the main responsible state representatives take place. This possibility exists, for example, in the African Union (Article 6.1) and in the OAS (Article 64). In the Council of Europe, the OECD, and in ESA the general congress can be split: it may meet either in sessions of ministers or in sessions of permanent representatives (Council of Europe, OECD) or delegates (ESA).144

143. See further G. De Vel, Le Comité des Ministres du Conseil de l’Europe (1994), at 15-16 and 116-122. 144. For ESA, see Art. XI.2 of the ESA Constitution, and R. Loosch, Decision-making and voting, in: The Implementation of the ESA Convention, Lessons from the Past (Proceedings of the ESA/EUI International Colloquium, Florence, October 1993) 59-71 (1994), at 62-64.

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§247. In several organizations the general congress cannot be composed of representatives other than ministers. The supreme organ is reserved for the supreme representatives, while the need for meetings on a lower level is met by the creation of special plenary organs with fewer powers than the general congress (see below, §393-395). §248. If a constitution does not prescribe that representatives of states in a certain organ have to be government members, it is, of course, permissible that the organ may meet at this level, to increase the authority of certain decisions of the organ in question. When the UN Security Council adopted, 29 November 1990, Resolution 678 (authorizing countries cooperating with Kuwait to use force against Iraq), most members of the Council were represented through their Ministers of Foreign Affairs. Subsequently this occurred on various other important occasions, e.g. at the first ministerial meeting of the Security Council on the situation in Africa, 25 September 1997, and at the adoption of the Security Council Declaration on the global effort to combat terrorism, 12 November 2001. On 31 January 1992, the Council met for the first time on the level of Heads of State and Government to discuss its responsibility in the maintenance of international peace and security. Similarly, the North Atlantic Council (the general congress of NATO) normally meets weekly at the level of permanent representatives (it is then known as the “Council in permanent session”). At least twice a year it meets at the level of Foreign Ministers. On occasion, it meets at “summit level” (Heads of Government or State).145 The same is true for other organs, for example the EFTA Council.146

§249. Some organizations do not require members to delegate ministers, but other specific representatives. According to the constitution of the WMO (Article 7(b)), delegates to the general congress should be the directors of the national meteorological or hydrometeorological services. The constitution of the WHO (Article 11) provides that delegates should be qualified by their technical competence in the field of health, preferably representing the national health administration of the members. The UNESCO constitution (Article 4.1) prescribes that the governments of the members shall select their delegates after consultation with a national commission broadly representative of the government and of the principal national bodies interested in educational, scientific and cultural matters (or with such bodies directly, if no national commission has been established).147 The ILO constitution (Article 3.2) requires at least one of the advisers to the delegation to

145. See NATO Handbook (1998), Chapter 2. 146. See EFTA, Annual Report 1992, at 37. 147. See also the Charter of National Commissions for UNESCO, adopted by the General Conference at its twentieth session (1978), in which the functions of these National Commissions are specified, as well as their role in their relations with member states, services rendered by them to UNESCO, and the responsibilities of member states and UNESCO towards the National Commissions. The text of this Charter is included in a publication by UNESCO, Basic Texts (2000 edition), at 143-149.

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be a woman if questions specifically affecting women are to be considered by the general congress. The Board of the Bank for International Settlements is composed of, inter alia, governors of the central banks of a number of members (Article 27).

(ii) Delegates representing specific interests §250. The ILO offers the most important exception to the rule that delegations represent the governments of the members. Each member sends four delegates to the general congress of the ILO, of which only two are government representatives. The other two are delegates representing respectively the employers and the workpeople of the members (Article 3.1). The principle of “tripartism” (representatives from three groups: governments, employers and workers) is characteristic of the ILO. Members have undertaken to nominate the nongovernment delegates in agreement with the industrial organizations – if such organizations exist – which are most representative of employers or workers in their countries (Article 3.5). These two delegates are not allowed to receive instructions from their government and are not responsible to it. They vote according to their own opinion, or on the basis of suggestions received from the organization from which they are chosen (cf. Article 4.1). Their voting capacity is limited in one way only: a non-government delegate from a member is not entitled to vote if that member has failed to nominate the other nongovernment delegate (Article 4.2). This restriction is necessary to keep the equilibrium between worker-delegates and employer-delegates. The principle of tripartism caused difficulties when socialist states entered the ILO in 1934 and 1954. In particular the employer-delegates from the other members raised objections to having communists in their midst. They considered that delegates of communist workers and certainly those of communist employers, were actually delegates of the government. Admitting them as delegates of workers or employers would disturb the balance between the three groups. In 1956 the ILO published a report on the influence or control of each government on the national organizations of workers and employers.148 The report shows that there are great differences between member states. Whereas there was no weakening of the independence of employers’ and workers’ organizations in the leading industrial countries, there were more possibilities for government control over these organizations in the developing countries. In the socialist countries, there were no “independent” employers in the “capitalist” sense of the word. “Nevertheless, if one finds there persons in charge of industrial undertakings whose functions correspond in part to the functions of the employing class in the majority of the member states, it is reasonable to expect that these persons would have a contribution to make to the work and the discussions of the ILO”.149 In this

148. Prepared by the ILO Committee on Freedom of Employers’ and Workers’ Organizations (the “McNair Committee”). 149. For the text of the report see ILO, Official Bulletin, Vol. XXXIX, No. 9 (1956). See on this report and on these difficulties regarding the principle of tripartism: V.-Y. Ghebali, The International Labour Organisation (1989), at 125-141 (the quotation from the McNair report is at 129).

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way, the ILO’s aim to be a universal organization prevailed over strict application of the principle of tripartism. On the basis of this report, it was concluded that there was no reason to amend the provisions of the ILO constitution on the composition of the delegations of the member states. But problems were not solved. The conflict between the US and the ILO, which finally led to the withdrawal of the US from 1977 until 1980, was partly due to the alleged erosion of tripartism.

(iii) Delegates from national parliaments §251. Some states appoint members of their parliaments to their most important delegations, in particular in the delegations to the UN General Assembly, but also, to a lesser extent, in other delegations. By thus keeping their parliament involved in the work of the organization, they hope to safeguard the policy of the government in that organization against later disapproval by the parliament. Parliamentarians’ understanding of the problems involved and of the atmosphere of the negotiations is thus increased. The US included some of the most influential senators in its delegation to the 1945 San Francisco Conference, during which the UN was established. This was to prevent a repetition of the disaster of 1920, when the Senate blocked US ratification of the Covenant of the League of Nations, in the formation of which the US, and in particular President Wilson, had taken such an active part. Since then, the US has often included parliamentarians in its delegations to the UN General Assembly. A number of other UN members do the same.150

§252. It may be doubted whether the appointment of parliamentarians to delegations to international organizations is a sound policy in all respects. On the one hand, it is certainly useful to keep the parliament actively involved in national politics concerning international organizations. On the other hand, a general task of a parliament is to control – and, if necessary, to criticize – the government’s policy. This may become more difficult if parliamentarians share the responsibility for that policy. Furthermore, it may not be propitious in all respects to provide parliamentarians with inside information in an unofficial way. This prevents them from asking for information through official channels which are accessible to the general public. Parliamentarians cannot fully participate in national delegations on an independent basis. The delegation is responsible to a cabinet minister and should follow a consistent policy. This means that all delegates, including parliamentarians, are subject to instructions. A parliamentarian who is un-

150. The Provisional List of Delegations to the 49th Session of the General Assembly (UN Doc. ST/SG/SER.C/L.593 (1994)) contains the names and positions of members of the delegations of some 130 member states. From this list it appears that at least 17 delegations include members of parliament. See also Doc. 7178 (1994) of the Parliamentary Assembly of the Council of Europe, Appendix V, indicating that thirteen member states of the Council regularly include members of parliament in their national delegations to the UN General Assembly.

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willing to accept instructions should not accept an invitation to participate in a national delegation. In some cases, parliamentarians are appointed as observers in delegations. They thus retain independence from policy-making. In the Dutch delegation to the 26th session of the UN General Assembly (1971) parliamentarians participated as special advisors. As national rules would not allow observers to participate in confidential meetings and to read confidential documents this meant that their status was less influential than in previous years when they were members of the delegation. Equally, they were treated as less important by other delegations. In subsequent years, the parliamentarians were again appointed as members of the delegation.151

(iv)

Foreign delegates152

§253. States usually appoint their own nationals as their delegates, and in principle the diplomatic members of a delegation should be of the nationality of the sending state.153 This is not obligatory, however, unless organizations specifically require it, which they rarely do. On several occasions states have appointed nationals of other states to their delegations or even as their single delegates. For example, in 1966 the Dutch Professor Cohen represented Belgium on the UN Scientific Committee on the Effects of Atomic Radiation. In the 1970s Belgium was represented in the same committee by another Dutchman, Professor F.H. Sobels. Without the approval of the host state, diplomatic members of a delegation may not be appointed from among persons having the nationality of that state.154 Even if they grant such approval, host states often refuse or restrict privileges and immunities to delegates of their own nationality.155 Sometimes privileges and immunities are also denied to nationals of a third state.156 The UN Secretariat has (rightly) objected to the latter practice (followed in the US).157 The use of nationals of a third state may be of interest to the state which sends them and to the organization, but is of no concern to the host state. Foreign delegates may speak on behalf of the delegation. It may be questioned, however, whether they are entitled to make official statements on behalf of the government of the state of which they are a national.158

151. 152. 153. 154. 155. 156.

Information obtained from the Dutch Ministry of Foreign Affairs (October 1994). See also Kaufmann, op. cit. note 129 [Conference Diplomacy], at 117-118. 1975 Vienna Convention, Art. 73.1. Id., Art. 73.2. Such a restriction is permitted by Art. 76 of the 1975 Vienna Convention. Study prepared by the UN Secretariat on the practice of the UN, the specialized agencies and the IAEA concerning their status, privileges and immunities, Doc. A/CN.4/L.118, paras. 82-86, YbILC 1967 II, at 175 (UN), 196-197 (agencies). 157. UN Doc. A/CN.4/L.118, paras. 82-86. 158. For objections, see Statement of the UN office of Legal Affairs, UNJY 1973, at 156-157.

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(v) Multinational delegations §254. According to Article 42.2 of the 1975 Vienna Convention, two or more states may send one delegation to an organ or to a conference, unless the rules of the organization in question prohibit them to do so. Normally, a delegation of more than one state will be composed of delegates from each of the participating states. A combined delegation would be particularly useful for small states in meetings of minor importance and in meetings requiring expertise. When acting by proxy is permitted (see below, §264-266), the common delegation could be accredited by either state and act as proxy for the other. When acting by proxy is not permitted, the delegation could be formally accredited by one of the participating states, and simply act on behalf of the other(s). In that case, only one vote would have to be allotted to the combined delegation. This would not seem unreasonable since the interest of the individual state(s) concerned is apparently not extensive. When a delegation has been formally accepted as representing two or more states, it should be entitled to cast two or more votes. Otherwise, such acceptance is to no purpose. Sometimes states share a particular interest in the work of an organization. Such an interest might justify a common delegation. The Benelux states, for example, form a customs union and will therefore have the same interest in all matters concerning customs duties. They will feel it necessary to send one delegation to conferences concerning customs in order to ensure that one line of policy is followed. Denmark, Finland, Norway and Sweden, although not forming a customs union, agreed to appoint a joint negotiating delegation to the Kennedy Round trade negotiations, within the framework of the GATT.159 Within the Caribbean Development Bank five of its members (UK overseas territories Anguilla, British Virgin Islands, Cayman Islands, Montserrat, Turks and Caicos Islands) together send one delegate (governor) to the general congress of the organization.160

e.

Obligation to send a delegation

§255. The acceptance of membership of an organization or of one of its organs entails some moral obligation to participate in its meetings. The provisions of most organizations on the quorum required (see below, §302-305), however, imply that absence is not illegal. Frequently, members do not participate in meetings, either for lack of sufficient interest or because they consider the organ concerned incompetent to discuss the matter in question. They thus

159. The agreement for such a joint delegation has been reproduced in 36 NorTIR (1966), at 128-129. 160. J. Syz, International Development Banks (1974), at 30; information from www.caribank.org.

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follow a policy also used elsewhere, for instance in national parliaments.161 Only a systematic policy of refusal to participate may be contrary to a general obligation of membership (see above, §156). f.

Credentials

§256. In organizations with a limited number of members, like the European Union, the delegations will soon know each other. In larger organizations this is often impossible. Delegates will then have to prove that they are representing their states. This proof is given by the credentials: a letter in which the government of the member state lists the names of the members of its delegation. If the organization requires delegations to be composed of particular persons (such as directors of meteorological services or experts in the field of health), the function, title or special competence of the delegate concerned has to be mentioned in the credentials. §257. Credentials must be issued by the Head of State, the Head of Government, the Minister of Foreign Affairs or, if the rules of the organization so permit, another competent authority of the sending state.162 An ambassador to the organization or to the state where the organization is seated will usually have delegated power. Ministers other than the Minister of Foreign Affairs often sign credentials to technical organizations.163 The credentials of delegates representing a national parliament in an international parliamentary organ should be issued by the President of the Parliament rather than by the Minister of Foreign Affairs. The original constitutions of the European Communities provided that the members of the European Parliament must be appointed by the national parliaments.164 The Statute of the Council of Europe (Article 25) is less specific. The credentials of the members of the Parliamentary Assembly of the Council of Europe used to be signed by the national governments. In 1967 this led to problems when the Greek government withdrew the credentials of a parliamentarian.165 The Consultative Interparliamentary

161. See F. Dehousse, Réflexions sur le droit de retrait et sur la politique de la “chaise vide” en droit des gens contemporain, 4 RBDI 127-139 (1968). 162. 1975 Vienna Convention, Art. 44. 163. On the practice in the UN and the specialized agencies, see YbILC 1967 II, at 166-168 and 193-195 (study made by the UN Secretariat, Doc. A/CN.4/L.118). On the practice of the General Assembly with regard to the examination of credentials submitted by member states: UNJY 1985, at 128-130. 164. ECSC, Art. 21; EC, Art. 138; Euratom Art. 108. 165. CoE Parliamentary Assembly Doc. 2323 of 22 January 1968 (Documents Vol. 8); Official Reports of Debates, 19th session (Jan./Febr. 1968) Vol. 3, at 936-938; see also Vol. 2, at 297.

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Council of Benelux follows the same procedure as the European Parliament did before its direct election.166

§258. A special commission of each session of a main organ of an international organization (the “credentials committee”) verifies the credentials.167 On the basis of this committee’s report, the organ itself will decide whether or not to accept the delegation. As a rule a delegate may no longer participate in the session of an organ when his credentials are rejected. As long as no decision is taken he may participate with full powers in all activities.168 This rule is necessary to avoid confusion as otherwise the delegations of certain states might be in difficulty at the beginning of each meeting. It would be possible to eliminate their votes in the first decisions (e.g. elections of the president and of the credentials committee) simply by disputing their credentials. The above rule is made on the assumption that the credentials should be discussed and approved at the beginning of each session. However, in practice a decision on the credentials is often left to the very end of the session. This enables the credentials committee to decide on those credentials which are only received during the session, but also to delay difficult decisions until they are no longer important. As a consequence, a delegation whose credentials are disputed can fully participate in a session regardless of the outcome of the examination of its credentials. In the 15th session of the general congress of the UPU (1964), for example, delegations of Panama and Haïti participated with full powers, except for the last two days when the congress had approved the report of the Credentials Committee which considered that their credentials were insufficient.169 They could then no longer vote. In 1990, 1991 and 1992, the UN General Assembly did not take a decision on the report of the Credentials Committee, in order to avoid difficult political discussions concerning the credentials of Israel (see below, §262). However, a delay in the decision making concerning credentials is not always without consequences. The ITU general congress met in Montreux in 1965 to draft a new International Telecommunication Convention. On 12 November the convention was signed. Mr. Dickenson signed on behalf of Rhodesia, a member of the ITU since 1925. After the end of the session a letter was received from the UK in which the British government stated that, after the illegal proclamation of independence on 11 November 1965, the mandate of the Rhodesian delegation had become void. Mr. Dickenson, therefore, had no power to sign on behalf of Rhodesia on 12 November. The ITU board, after consulting the members of the organization, instructed the Secretary-General of the organization on 2 June 1966 “to delete the signatures of the former Rhodesian delegation appended to the copy of the International Telecommunication Convention

166. Benelux Art. 23 and Art. 1 of the 1955 Convention establishing this Interparliamentary Council. 167. Cf. on the need for a credentials committee: UNJY 1971, at 219. 168. E.g. UN General Assembly, Rule 29; FAO, Rule 3.5; WHO, Assembly Rule 23; UNESCO, Rule 25; WMO, General Regulation 21. 169. 15th UPU Congress, Doc. 136, adopted on 8 July 1964.

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(Montreux 1965)” as well as those appended to several other texts adopted at the same session of the general congress.170

§259. Usually, approval of credentials is a formality. Normally a fake delegation – i.e. not representing the government – would have little chance of avoiding detection in meetings of any importance. In practice, most problems arise not out of the authenticity of the credentials, but from the competence of those who issue them. In the ILO, where employers and workers each nominate one quarter of the delegates, the legality of nominating groups has often been disputed in the Credentials Committee.171 But in most organizations, only governments are entitled to send delegations and they must sign the credentials. Problems arise when the legality of a government is disputed. This has happened both when there are two governments claiming to be the lawful government of the member state in question and also when there is a single government claiming to be the lawful representation. §260. When there are two governments claiming to be the only lawful government of a member, the credentials committee, and subsequently the organ itself, must make a choice which goes far beyond the verification of credentials: it concerns the recognition of a government (see below, §1851). It has been generally recognized in practice that the UN General Assembly has the competence to inquire into the matter of representation, and to take such decisions regarding recognition.172 It would be most unfortunate if only some of the organs of an organization were to accept the credentials of the government of a member, and if others accept the credentials of the rival government. Therefore, the UN General Assembly recommended that whenever more than one authority claims to be the government entitled to represent a member state in the UN, it should be considered by the General Assembly, and the attitude adopted by the Assembly should be taken into account in other UN organs and in the specialized agencies.173 In General Assembly discussions about these situations, members have used arguments of effectiveness (which government has effective control over

170. ITU Administrative Council Res. 599. See Documents 3525, 3582, 3586 and 3605/CA21 – May/June 1966; Telecommunication Journal, 15 June 1966, at 218; UNJY 1966, at 164-165; 5 ILM (1966), at 989-990. 171. C. Wilfred Jenks, The International Protection of Trade Unions Freedom (1957), at 67-179; E. Osieke, Constitutional Law and Practice in the International Labour Organisation (1985), at 55-68; Ghebali, op. cit. note 149, at 125-141. 172. D. Ciobanu, Credentials of delegations and representation of member states at the United Nations, 25 ICLQ 351-381 (1976), in particular at 360-368. 173. GA Res. 396(V). This resolution was applied, for example, in 1971 by UNESCO and FAO; see UNJY 1971, at 107-108. The resolution also mentions the Assembly’s Interim Committee to deal with these matters (if the Assembly is not in session), but this Committee did not meet after 1961 (see below, §395). See also UNJY 1982, at 180-181; UNJY 1986, at 291-292.

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the territory of the member) as well as arguments of legitimacy (which government has the legitimate right to represent the member state). The arguments of effectiveness now seem to be more dominant than the arguments of legitimacy: once governments have been recognized by the Assembly as the representative of a member state, they will not loose this position until a competing government has clearly come to power, without the assistance from another country.174 In practice political factors seem to prevail when a choice has to be made; not surprisingly, since politics has always dominated the issue of recognition of governments in general. The best known example of a question of recognition which originally arose as a question of credentials, is that concerning the representation of China. China was a member of the UN and of many specialized agencies when, after the 1949 revolution, the communist Mao government came in power and the previous nationalist Chiang Kai-Shek government only remained in control of Taiwan. Both governments claimed that they were the legitimate representations of China as a member state of numerous organizations. Were the credentials signed by the Taiwan government still valid credentials for delegations from China after the communist government had taken over the mainland? During the period 1950-1971 the question was disputed in the UN every year. Until October 1971 the UN and the specialized agencies had taken the view that the Taiwan government had remained the lawful one and that credentials signed on its behalf were valid credentials for the delegations from China. Consequently, until 1971 credentials signed by the communist government were considered unlawful.175 Since then, the communist government was generally recognized as the legitimate representation of China in international organizations, and the Taiwan government was excluded from further participation in the work of these organizations.176

174. S. Magiera in Simma (ed.), op. cit. note 18, at 254. See also Ciobanu, op. cit. note 172, at 368-371. 175. On the representation of China, see: M.S. McDougal and R.M. Goodman, Chinese participation in the United Nations: The Legal Imperatives of a Negotiated Solution, 60 AJIL 671-727 (1966); L.P. Bloomfield, China, the United States and the United Nations, 20 International Organization 653-676 (1966); B.S. Weng, Communist China’s Changing Attitudes Towards the United Nations, 20 International Organization 677-704 (1966); China, the United Nations and US Policy (a report of a national policy panel established by the UN Association of the US), 20 International Organization 705-723 (1966); A. Oraison, La réprésentation de la Chine aux Nations Unies, 49 RDI (1971), at 181-220 (arguments and voting tables); 11 ILM 561-570 (1972) and 12 ILM 1526-1527 (1973) (data and reasoning); L.C. Green, Representation versus Membership: The Chinese precedent in the United Nations, 10 CYIL (1972), at 102-136 (also discussing the position of Taiwan); E. Bello, Chinese Representation in the United Nations, 50 RDI 44-67 (1972); M. Virally, l’Organisation Mondiale (1972), at 269-274; H. Chiu, Taiwan and the United Nations, in M.I. Glassner (ed.), The United Nations at Work 161-170 (1998). 176. In 1993, representatives of 7 Central American countries requested the UN General Assembly to examine the situation of Taiwan and its participation in the UN (UN Doc. A/48/191); see also UN Doc. A/49/144). Of course, the Bejing government considered this to be “a serious infringement upon China’s sovereignty and gross interference in China’s internal affairs”, and is “firmly opposed to any attempt to create ‘two China’s’, ‘one China, one Taiwan’, or ‘one country, two seats’ both in and outside the United Nations by any country, international organization or individual under whatever pretext and in whatever form” (UN Doc. A/49/274, at 1).

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Other cases of two governments claiming to be the only lawful representation of a UN member state are Congo (1960), Yemen (1962), Cambodia (1972-1983; 1997),177 and Afghanistan (1997-2001).178 Cambodia was represented in the UN by the Pol Pot government, responsible for the genocide in that country between 1975 and 1979. In 1979 a new government led by Heng Samrin was installed following the Vietnamese invasion of Cambodia and the retreat by the Pol Pot government to the border region between Cambodia and Thailand. Both the Pol Pot and the Heng Samrin governments claimed in the UN to be the only legitimate representation of Cambodia. The credentials of the former continued to be accepted, despite firm opposition by a number of countries which argued, inter alia, that this came down to a justification of the genocide committed under the Pol Pot regime. Other UN members, however, took the view that acceptance of the Heng Samrin credentials would amount to a recognition of the Vietnamese invasion.179 In 1997, two delegations presented credentials to represent Cambodia at the 52nd session of the General Assembly. One set of credentials was signed by King Norodom Sihanouk, the other by Prince Norodom Ranariddh. The Credentials Committee decided to defer a decision on the credentials of Cambodia “on the understanding that, pursuant to the applicable procedures of the Assembly, no one would occupy the seat of that country at the 52nd session”.180 In 1998, credentials for Cambodia were only presented on behalf of King Norodom Sihanouk; these were accepted.181 In 1965, two delegations of the Dominican Republic presented their credentials to the general congress of the ILO. Neither of them was approved; as a result, no delegation from that member state could participate in the discussions.182 In March 1971, the credentials of the delegates of Uganda were disputed in the OAU. Two opposing governments had sent their representatives. The OAU did not want to postpone a decision until the end of the session, but it failed to reach an agreement and was obliged to close the meeting before it could even establish its agenda.

§261. Although it has been generally recognized that the UN General Assembly should take the lead in deciding delicate credential issues, this is not always possible. Such questions may, for example, arise in May (annual meeting of the WHO general congress) or in June (annual meeting of the ILO general

177. Congo: see YUN 1960, at 66-71 and R. Higgins, The development of international law through the political organs of the United Nations (1963), at 162-164. Yemen: see YUN 1962, at 148-149 and Higgins, id., at 161-162. Cambodia: see YUN 1972, at 225-226, and subsequent issues. 178. See UN Docs. A/52/719, A/53/556, A/54/475 and A/55/537. In 1997 it was decided “to defer a decision on the credentials of representatives of Afghanistan on the understanding that the current representatives of Afghanistan accredited to the United Nations would continue to participate in the work of the General Assembly pursuant to the applicable rules of procedure of the Assembly” (UN Doc. A/52/719, at 3). This decision was also applied the following years, until the arrival of the Karzai government in 2001. 179. See for example YUN 1979, at 271-279 and 290-293; YUN 1983, at 230. 180. UN Doc. A/52/719, at 2; UNGA Res. 52/178. See D. Shraga, La qualité de membre non representé: le cas du siège vacant, 45 AFDI 1999, at 649-664 (in particular at 651-653). 181. UN Doc. A/53/726 and UNGA Res. 53/23B. 182. International Labour Conference, 49th session, Records of Proceedings (in the French text, at 521 and 229).

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congress), before the General Assembly would usually be confronted with the issue (in September). Some coordination may take place beforehand, between members of the organization or between international secretariats (in particular their legal counsels), but this does not always happen, for varied reasons. Moreover, the specialized agencies are independent organizations which are fully competent to take these decisions by themselves. For example, during the 46th meeting of the World Health Assembly (the WHO’s general congress), the Assembly’s Credentials Committee received credentials from Zaire’s government of President Mobutu, and credentials issued by the transitional government represented by Prime Minister Tshisekedi. Two meetings went by without a decision being taken on the matter. Finally, the Credentials Committee took the following decision: “Having taken due note of Resolution 396(V) adopted by the United Nations General Assembly on 14 December 1950 (...), the Committee recommends the Assembly accept the credentials issued on behalf of the President of the Republic of Zaire by the Minister of Foreign Affairs, Professor Mpinga Kasenda, dated 24 April 1993, as well as credentials issued by the Permanent Mission of the Republic of Zaire” (emphasis added).183 It is clear that from a legal as well as from a practical point of view, such a situation is highly unsatisfactory. Who was to vote in the name of Zaire? Who would represent Zaire on the committees of which it was a member? Moreover, it was doubtful whether other organizations would follow the same, unsatisfactory, course. The same problem was raised in the ILO’s Credentials Committee, meeting in June. The Committee referred to the discussions in the WHO and requested advice from the UN Legal Counsel. (...) The Committee discussed the possibility of not acting upon any of the communications that had been submitted, but it considered that it had to make a choice, inter alia because “as a general practice, permanent missions accredited by the United Nations in Geneva are recognized by the ILO as one of the authorities empowered to issue credentials for the International Labour Conference”. The ILO’s Credentials Committee concluded that it had an insufficient basis to make a choice between the two delegations, “but that the credentials issued by the Permanent Mission of Zaire in Geneva should be taken into consideration, on the clear understanding that recognition of those credentials by the Committee or the International Labour Conference did not imply recognition of the government whose representatives were included in those credentials, such recognition being a question for the United Nations General Assembly”.184 Finally, on 29 October 1993, the UN General Assembly also decided by consensus to accept the credentials of the Mobutu government.185 Earlier, on 14 October 1993, in a meeting of the Credentials Committee, the UN Legal Counsel took the view that “in keeping with past practice of the General Assembly and the Committee, the credentials signed by the Head of State were to be regarded as formally correct”.186 Some

183. See WHO Documents A46/41, A46/44 and A46/51. 184. ILO, Provisional Record No. 14, 80th Session – June 1993, Second Report of the Credentials Committee. This decision was confirmed in a further meeting of the Committee, which dealt with objections to the decision to accept the credentials of the Mobutu government (Provisional Record No. 22). 185. See GA Res. 48/13 A and UN Doc. A/48/512. 186. UN Doc. A/48/512, at 2 (1993).

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Western countries (e.g. Austria) criticized this point of view. Although they did not want to formally challenge the ‘Mobutu’ credentials, this “in no way implied that Austria accepted that government, which had been formed from political conclaves composed exclusively of representatives from the presidential side [...]”.187

§262. Once international organizations had become familiar with recognizing governments by approving the credentials of their delegations, the next question to be raised was that of judging the legality of a government in the absence of a second government claiming to lawfully represent the same state. For a long time international organizations have been reluctant to accept nonrecognition of credentials as a means of actual expulsion. They have tried to avoid this by deciding on the credentials at the very last moment, having allowed the delegation concerned to participate in the session (e.g. Hungary in the 11th-17th sessions of the UN General Assembly), or by permitting the delegation to continue its participation in the organ without approved credentials (South Africa in the 28th session of the UN General Assembly), or by not adopting the report of the Credentials Committee (UN General Assembly, 45th, 46th and 47th session). The more international organizations concern themselves with the internal policy of their members, the stronger will be the feeling that it is necessary to verify that a delegation represents a lawful government. Increasingly, the credentials procedure has been used for this purpose. In universal organizations there have never been objections to cooperation with states such as South Africa; however, there have been serious objections against cooperation with the apartheid government of that state, since this government was not considered as lawfully representing the entire population. In practice, one of the ways to prevent cooperation with such governments is a rejection of credentials signed by them. Rejection of credentials for such reasons exceeds their original purpose when, as a result, a delegation is not permitted to participate in the organ and thus the member is not represented at all. This leads an organization not only into questions of recognition (see below, §1851), but also into problems of expulsion (see above, §137-148) or of suspension from the exercise of rights and privileges of membership (see below, §1466-1469), in which other organs may be competent, or for which other voting majorities may be required. After the Hungarian revolt in 1956, the Kadar government came into power under Soviet military pressure. It was not considered to represent the Hungarian people.188 Many states, therefore, did not wish to recognize credentials signed on behalf of this government. Most states did not want to reject these credentials either. After long discussions the UN General Assembly decided, from its 11th to its 17th session, “to take no decision regarding the credentials submitted on behalf of the representatives

187. Id. 188. See the UN Report of the Special Committee on the Problem of Hungary, UN Doc. A/3592.

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of Hungary”.189 This meant that the credentials were not approved, but that the Hungarian delegate could (provisionally) participate in the sessions. After the 17th session, the Hungarian credentials were no longer challenged.190 In its 25th session (1970), the UN General Assembly refused to approve the credentials of the delegation of South Africa as a strong condemnation of the policy of apartheid; the delegation of South Africa was nonetheless accepted as representing that member (this was the so-called Hambro formula, named after the 1970 President of the General Assembly).191 It participated in subsequent voting. Similar decisions were taken in the period 1971-1973. In 1974, however, the Assembly concluded (following a ruling of Assembly President Bouteflica) that after the rejection of its credentials the South African delegation could no longer participate in the session.192 After that decision South Africa did not usually send any delegations to the General Assembly until the end of the apartheid regime in 1994, so that no decisions on their credentials were needed. For a discussion on the question of Namibia, South Africa sent a delegation in May 1979; its credentials were again rejected.193 The same happened in 1981.194

189. See for example YUN 1956, at 82. 190. UN Doc. A/5676/Rev.1 and GA Res.1977(XVIII) no longer mention the Hungarian credentials. 191. UN Documents A/5676/Rev.1 and A/6208; GAOR 25th session, 11 November 1970, plenary meetings nos. 1900 and 1901 (at 6-25, in particular at 25 para. 286); UNJY 1973, at 140-141. 192. The report of the Credentials Committee was adopted on 30 September 1974. At the same date, the Assembly adopted Res. 3207(XXIX), which “calls upon the Security Council to review the relationship between the United Nations and South Africa in the light of the constant violation by South Africa of the principles of the Charter and the Universal Declaration of Human Rights”. Subsequently, the Security Council discussed this matter in 11 meetings (in October 1974), but no generally acceptable solution was found. On 12 November 1974 the President of the General Assembly, Abdelaziz Bouteflica, gave a ruling in which he interpreted the Assembly’s earlier adoption of the report of the Credentials Committee as “tantamount to saying in explicit terms that the General Assembly refuses to allow the delegation of South Africa to participate in its work” (UN Doc. A/PV.2281, at 76). The ruling was challenged by the US, but it was upheld by a large majority (id., at 86). See on this affair: P. Tavernier, L’année des Nations Unies, questions juridiques, 20 AFDI (1974), at 488-489; A. Abbott, F. Augusti, P. Brown and E. Rode, The General Assembly, 29th Session: The Decredentialization of South Africa, 16 HILJ (1975), at 576-588; E. McWhinney, Credentials of State Delegations to the UN General Assembly: A New Approach to the Effectuation of Self-Determination for Southern Africa, 3 HCLQ 1976, at 19-35; D. Ciobanu, op. cit. note 172; G. Erasmus, The Rejection of Credentials: A Proper Exercise of General Assembly Powers or Suspension by Stealth, 7 South African Yearbook of International Law 40-53 (1981); K.D. Magliveras, Exclusion from Participation in International Organizations (1999), in particular at 209-222; D. Shraga, op. cit. note 180, at 654-656. 193. UNGA, Resumed 33d session, 99th plenary meeting, 24 May 1979, at 1691 ff. Following the rejection of the credentials of the South African delegation, the President of the General Assembly, after the South African delegation had left the meeting, made a statement in which he interpreted this rejection as “an indication that the majority of members do not wish to permit the delegation of South Africa to participate in the work of this session, but that the General Assembly has not taken a decision concerning the status of South Africa as a state member of the United Nations”. 194. Resumed 25th session, 103rd plenary meeting. This time there was no statement by the President.

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Another state whose credentials caused problems is Israel. From 1980 up to 1989 a number of – usually Arab – countries were in favour of the rejection of the credentials of the delegation from Israel to the UN General Assembly. However, they lacked sufficient support and Israel’s credentials were approved each year.195 In 1990, 1991, and 1992, it was decided to take no decision on the report of the Credentials Committee, because this issue was linked with the Gulf crisis and the Palestinian question (1990), and because of the Middle East peace process.196 This clearly illustrates the political function which the approval of credentials has in practice obtained. Only in 1993 were the reports by the Credentials Committee adopted again by the General Assembly.197 In addition, in the 1980s, objections were made in the UN to the credentials of the delegations of Afghanistan, Chile and Grenada.198 In the ILO, objections are regularly expressed against the credentials of delegations of governments, workers or employers. For example, from 1974 to 1978, objections were made to the credentials of the workers’ delegation from Chile by some trade union organizations because of, inter alia, the absence of freedom of association in Chile.199

§263. Is it lawful for an international organization to reject the credentials of a delegation of a member for political reasons, because the government which has issued the credentials is not accepted as the legitimate representative of the member state? In general, the rules governing credentials in international organizations only stipulate that credentials shall be “examined” by a credentials committee or by the secretariat; subsequently, a final decision is taken by the organ itself.200 The scope of the “examination” is usually not specified. Originally there was general agreement that this examination was limited to a mere technical verification of the authenticity of credentials, i.e. whether the credentials of delegations were indeed issued by the government in power in the member state. This still is the point of view of Western countries, which is

195. See for example YUN 1981, at 263: “The Arab Group based its reservations [-on the credentials of Israel-] on what it considered Israel’s violation of the United Nations Charter, its defiance of United Nations resolutions on Palestine and the Middle East, its policy of aggression against the Arab peoples and states, and its proclamation of Jerusalem as its capital”. See also UN Doc. A/40/PV.37 (1985): on behalf of a number of Arab states the representative of Kuwait stated that Art. 6 of the Charter (expulsion from the UN) should be applied to Israel. Since, however, a proposal to expel Israel would be vetoed in the Security Council by the US, “the General Assembly, which represents the international community and the world conscience (...) should resort to a less effective method by rejecting the credentials of the delegation of Israel” (at 8-10). 196. See publications 146 (at 36-37), 148 (at 38-39), and 149 (at 46-47) of the Dutch Ministry of Foreign Affairs (reports of the 45th, 46th and 47th annual session of the UN General Assembly). 197. GA Res. 48/13. See also Magliveras, op. cit. note 192, at 223-229. 198. Afghanistan: see for example GAOR 36th session, 103rd plenary meeting, at 1871-1872. Chili and Grenada: see for example A/41/727, at 4. 199. See Osieke, op. cit. note 171, at 57-59. 200. See for example UN General Assembly, Rule 28.

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supported by the UN Secretariat.201 It is “based on the presumption that in each member state represented in the organ there exists a definite government competent to appoint representatives and issue their credentials”.202 In practice there is general agreement on one exception to this limited examination: the case of two governments both claiming to be the sole legitimate government of the member state and both sending a delegation to an international organization. One way to solve such problems is to choose one government through the credentials procedure. In this case, the examination of credentials clearly has a wider, political function. There is general disagreement as to the existence of a second exception to the rule of limited examination of credentials: to give the credentials procedure the above-mentioned political function as well if there is only one delegation from a member state. In this way, participation by members in the work of an organ can be prevented. Western countries reject such an exception, whereas other countries are mostly in favour of it. Since these other countries have a majority in universal organizations, the credentials procedure has been used in such organizations for this purpose. Nevertheless, from a legal point of view this is erroneous. One of the basic rights of members of an international organization is to participate in the work of its organs. Precisely because this is a basic right, special procedures usually exist to deprive a member of this right: for example, decisions under Articles 5 and 6 of the UN Charter (suspension from the exercise of rights and privileges of membership and expulsion from the UN respectively) can only be taken by the General Assembly upon the recommendation of the Security Council. These two organs share the competence to take these decisions; if one organ alone should exercise this competence it would act ultra vires. To use the credentials procedure for the purpose of suspending a state from the exercise of rights and privileges of membership is an illegal circumvention of special procedures such as those laid down in Article 5 of the UN Charter.203 It was therefore correct that in September 1992 the delegation from Serbia and Montenegro, claiming to represent UN member state Yugoslavia, was prevented from participation in the work of the General Assembly, not through the credentials procedure, but through a procedure similar to that prescribed in Articles 5 and 6 of the Charter (recommendation of the Security Council, resolution by the General Assembly; see above, §107-110). If members need to take a decision on the credentials of a delegation of a government which they do not recognize, they can “explain their position”, following “limited” examination of the credentials. For example, in 1981, after

201. UN Doc. A/8160, at 2: “Unlike the acceptance of credentials in bilateral relations, the question of recognition of a government of a member state is not involved...”. 202. Letter from the Cuban government, UN Doc. A/1308 (1950), reproduced in GAOR, 5th session, Agenda item 61, at 3; quoted in Ciobanu, op. cit. note 172, at 364. 203. Cf. the statement by the representative of Kuwait referred to above, note 195. In 1970, the Legal Counsel of the UN came to the same conclusion; see UN Doc. A/8160.

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the adoption by the UN General Assembly of the report of the Credentials Committee, the representative of the Federal Republic of Germany made the following statement: “The fact that my delegation has not challenged the credentials of the Afghan delegation must be viewed in relation to our understanding of the competence of the Credentials Committee. We have always held the view that that Committee has solely the technical task of examining whether the credentials of a delegation are formally in order. Since we do not want our position regarding the Babrak Karmal régime to be misunderstood, I should like to place it on record that the fact that we do not protest against the Credentials Committee’s report does not mean that we recognize the legitimacy of a régime installed and kept in power by foreign intervention”.204

In addition, an organ may even reject the credentials of a delegation representing a government which is not recognized, as long as this rejection is not interpreted as a refusal to allow the delegation in question to participate in the work of the organ. Thus, the view is taken here that the practice of the UN General Assembly from 1970 up to 1973 with regard to South Africa (the above mentioned Hambro formula) was not a violation of the Charter; the South African delegation was allowed to participate in the work of the Assembly. However, UN practice since 1974 was unlawful; the Bouteflica ruling expressly prevented this delegation from exercising this elementary membership right.205 2.

Representation by proxy

§264. A number of international organizations expressly permit their members to act by proxy for not more than one other member each;206 sometimes for two members each.207 In other organizations a member may act by proxy for only some of the other members, not for all.208 Again, other international organizations forbid representation by proxy.209 In the UN General Assembly

204. GAOR, 36th session, 103rd plenary meeting, at 1872. 205. See Ciobanu, op. cit. note 172, at 380. 206. EC, Art. 206; the 2001 International Coffee Agreement, Art. 14.2. See also the memorandum of the UN Secretariat to UNCTAD, UNJY 1967, at 317-320. 207. Intergovernmental Organization for International Carriage by Rail, Art. 6, para. 4; Convention establishing the European Telecommunications Satellite Organization “EUTELSAT”, Arts. VII.b and X.b. 208. In some commodity councils proxy is only permitted within each of the interest groups (exporters and importers): e.g. International Tropical Timber Agreement 1994 (Art. 11.2); International Cocoa Agreement 2001 (Art. 11.2). In other commodity councils proxy is permitted for any other member: the Sixth International Tin Agreement (Art. 15.3), the 1986 International Agreement on Olive Oil and Table Olives (Art. 11.3) and the International Sugar Agreement 1992 (Art. 12.2), under which any party may authorize any other party to represent its interests and to exercise its voting rights. 209. E.g. FAO, Art. 3.3; UNESCO, Rules of Procedure of the General Conference, Rule 83.11.

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and in some specialized agencies, majorities are taken from the members “present and voting”, which also excludes proxies.210 There are several arguments in favour of representation by proxy. It would permit otherwise absent members to be represented at meetings, and, by reducing the number of delegations, facilitate procedure at meetings. It would be particularly useful for groups of members with a common interest (e.g. customs unions in customs conferences). The sixth international tin agreement provided (Article 56) that any reference in the agreement to a “Government” or to “Governments” shall be construed as including a reference to the EEC and to any intergovernmental organization having responsibilities in respect of the negotiation, conclusion and application of international agreements, in particular commodity agreements. The organization will have no votes of its own, but shall cast the votes of its members. One could say that the organization acts by proxy for its members.

On the other hand, there are several disadvantages to representation by proxy. It could be inconsistent with the purpose of meetings: mutual discussion and persuasion. It could also cause confusion since other delegations may not know on behalf of which state a delegate speaks. It would also lead to multiple voting and concentration of power. §265. Could a member act by proxy for another member when the law of the organization concerned contains no rules?211 An affirmation of the position that proxy would be generally possible in international organizations could be found in the express exclusion of proxy representation by some organizations. The express recognition of proxy in other organizations does not prove, on the other hand, that an express provision was considered necessary to permit proxies. The provisions of these organizations are also restrictions of proxy representation as they exclude the exercise of proxy representation by one member for more than one other member or for a category of other members. Until 1975, it was the consistent position of the UN Secretariat, and of the UN organs concerned, that representation of more than one government or state by a single representative was not permissible unless clearly envisaged

210. Emphasis added. UN Charter, Art. 18; ILO, Art. 17.2 (the 1986 amendment of the ILO constitution, which has not yet entered into force, has changed the phrase “the votes cast by the delegates present” (Art. 17.2) into “the votes cast for and against”; therefore, once into force, this provision will no longer exclude voting by proxy); WHO, Art. 60; UNESCO, Art. IV.C.8(a). 211. See also A.P. Sereni, Agency in International Law, 34 AJIL (1940), at 645: “In the absence of any general principle on international agency [-i.e. proxy-], this relationship must necessarily be based on an agreement between principal and agent”. See also, by the same writer, La réprésentation en droit international, 73 RdC 69-166 (1948 II), in particular at 133134.

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in the rules of procedure of the particular body.212 Customary international law seemed to prohibit proxy representation of one member by another, unless it was expressly permitted. Nevertheless, the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations stipulates (Article 42.2) that two or more states may send the same delegation to an organ or to a conference in accordance with the rules of the organization. This convention has not entered into force, however. §266. There have been fewer objections to a member acting by proxy for a nonmember or for an international organization. Although some of the objections would be similar, a member would not (or would to a lesser extent) affect its negotiating position by representing an entity which has no voting rights. The UN Secretariat considers it permissible in exceptional cases for one individual to be accredited to a technical UN organ by (i) one state and one observer organization, or (ii) one member state and one observer state, or (iii) two observer states. These exceptions should not, however, be extended to representation of more than two entities by a single person, and should be embodied in a rule of procedure or in an express decision of the organization.213 C.

Use of individual experts

§267. Government representatives are not always the most suitable components of organs of international organizations. In many cases an organization will benefit more from an organ composed of individuals who are not responsible to any government. This is most clearly the case in judicial organs. Courts and tribunals are traditionally composed of independent individuals, rather than of government representatives. The same is true for international secretariats. In early international organizations, secretariats used to be composed of government representatives. Nowadays most international organizations use secretariats of individuals, which are responsible only to the organization as a whole (see below, §524-528). The value of individual experts serving the organization is not limited to courts and secretariats. They are also to be preferred to government representatives in some other organs. Shortly after 1945 a preference emerged for employing individual experts in many different organs. Sometimes these experts were selected by the organization,214 in other cases by specific members empowered by the organization to do so.215 But after a few years a ten-

212. Yb ILC 1967 II, at 169, para. 40. See also ILC, Draft articles on representatives of states to intergovernmental organizations, Art. 83, Report of the ILC on the work of its 22nd session, GAOR 25, Suppl. No.10 (A/8010/Rev.1). See also UNJY 1965, at 223, and UNJY 1973, at 156. 213. UNJY 1967, at 319-320. 214. E.g. the board of UNESCO before 1954 (UNESCO, Art. 5.1, original text); UNITAR, Art. 3.1. 215. E.g. WHO, Art. 24.

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dency developed towards a stronger influence from governments, and several organs composed of individual experts were replaced by organs composed of government representatives. FAO and UNESCO decided (respectively in 1947 and 1954) to transform their most important organs of individual experts (the executive boards) into organs of government representatives. Before 1954 the members of the Executive Board of UNESCO were elected in their individual capacity from among the delegates appointed by the member states. The question arose as to whether an outgoing member could be re-elected even though he was not a member of his country’s delegation to the session of the Conference at which such election took place. A special Arbitral Tribunal gave a negative answer.216

§268. However, the opposite development has occurred as well. The task of supervising the implementation of the International Covenant on Economic, Social and Cultural Rights was initially given to a working group of ECOSOC, composed of government representatives. When it became clear that this composition was inappropriate for a critical, non-political review of national reports, the working group was replaced by the Committee on Economic, Social and Cultural Rights, composed of individual experts (see below, §610).217 §269. In principle, the most appropriate composition of an organ depends on its task. Organs charged with supervising government activities, those rendering administrative services (secretariats), legal and military organs and many technical organs can be better composed of individual experts, whilst organs with a governmental or budgetary function should be composed of government representatives.218 Many organs, however, perform both kinds of functions and could be composed of either set of representatives. In this respect there have been many arguments for and against individual experts.219 The most important arguments in favour are: (1) Independent experts are not bound by the general policy of their government. They base their decisions entirely on the interests of the organization. They can freely make any suggestion they see fit. Government representatives may have to take account of interests other than those of the organization.

216. 217. 218. 219.

ILR 1949, at 331 (Case 113). ECOSOC Res. E/1985/17. See M. Virally, l’Organisation mondiale (1972), at 58. Many of these arguments were used in the debates preceding the above-mentioned changes in FAO and UNESCO. See the records of the third session of the FAO Conference and of the 7th and 8th sessions of the General Conference of UNESCO. See also UNESCO Documents 24 EX/10 and CL/639, FAO Doc. C47/1, and E.B. Haas, International Integration, in: 15 International Organization 366-378 (1961). On the importance of committees of experts, see also H.R. Greaves, The League committees and world order: a study of permanent expert committees of the League of Nations as an instrument of international government (1931, reprinted in 1979).

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As the Bank for International Settlements (BIS) is an organization of central banks, which enjoy various degrees of autonomy in the performance of their functions, the Statutes of the BIS contain provisions with a view to preserving the independence of the organization itself. In particular, a member of the Board of Directors may neither be a member nor an official of a government unless he is the governor of the central bank, nor a member of a legislative body, unless he is the governor or a former governor of a central bank.220

The value of this argument depends on the task of the organ concerned. It is considerable if the organ works in opposition to the member states, if it has to supervise them or if it prepares decisions which will bind them. But the argument is much weaker if the organ is charged with a coordinating function, if it has to try to bring the states together in a common line of policy. (2) Independent experts may have more prestige. They are selected from well known and highly esteemed personalities. Government representatives, on the other hand, are often accused, rightly or wrongly, of being influenced by political motives. The value of this argument again depends on the task of the organ. For highly technical tasks the prestige of experts will weigh heavily. For more general political functions this is less important. It is also important to consider who are to be the organ’s proposed addressees. If it appeals to public opinion, prestige will be more important than if it makes recommendations to organs of government representatives. Independence and prestige are vital elements for judicial organs. It is, therefore, a combination of these first two arguments which has led to courts being composed of individuals. The same argument may be decisive for other organs which perform judicial or partly judicial functions. The combination of these first two arguments probably explains the composition of the Commission established by the UN Secretary General pursuant to Security Council Resolution 780, to examine and analyze information on violations of international humanitarian law committed in the territory of the former Yugoslavia. This Commission was composed of impartial experts.

(3) The organ as a whole may be stronger if the appointing organ can select the members individually.221 It then can look for a homogeneous group of people including at least one specific expert for each of the functions which the organ may have to fulfil. For example, the sixteen members of the Advisory Committee on Administrative and Budgetary Questions of the UN are appointed by the General Assembly; at least three

220. BIS Statutes, Art. 30. 221. Cf. A. Loveday, Reflections on International Administration (1956), at 217.

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of these members must be financial experts of recognized standing.222 Fulfilment of this requirement would be hampered if sixteen governments were elected to appoint one member each.

This argument is persuasive if the organ has a wide variety of tasks. In an executive board, for instance, it may be useful to appoint a budgetary expert together with an expert on personnel matters and several experts in the fields in which the organization operates. In organs composed of government representatives, the elected governments sometimes consult each other, either directly or through the SecretaryGeneral, in order to ensure a balanced representation.223 The resolution establishing the Intergovernmental Commission on Transnational Corporations, for example, provides that the elected states may consult with the president of the ECOSOC before they finally appoint their experts, so as to ensure as far as possible a balanced representation reflecting the various fields of activities covered by the Commission.224 (4) Individual experts are always available. To form an organ of government representatives, the cooperation of governments is essential. Usually such cooperation is given loyally. Members appreciate the influence they can exert in these organs and accept the general obligation of all members to promote the proper functioning of the organization. There are exceptions, however. In 1962 the General Assembly of the UN established a special Committee on the South African Government’s policies of apartheid, composed of representatives of eleven governments. In 1966 it wanted to enlarge this commission with six members from particular groups of states. The president of the General Assembly did not succeed in finding six more governments prepared to take a seat on the Committee. Several states based their refusal to participate in the Committee on the argument that they had voted against its enlargement.225

§270. The most important arguments against composing organs of individual experts are: (1) Many organs must be representative of the entire organization even though their membership may be much smaller than that of the organization. All member states may want an opportunity to exert some influence. This is easier in an organ of government delegates than in an organ of individuals. Individual experts determine their own policy. Sometimes they might be influenced by suggestions from their own government, but other governments have little chance of influencing them. The instructions to government delegates, on the other hand, may be subject to intergovernmental consultations. In many

222. GA Rules of Procedure, Rule 155. 223. See P.J.G. Kapteyn, De Verenigde Naties en de international economische orde (1977), at 35. 224. ECOSOC Res. 1913 (LVII), YUN 1974, at 485 (see also below, §273). 225. YUN 1966, at 80-81.

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regions, periodic political meetings offer an opportunity for such consultations. If there are no such consultations, another government could have its opinion expressed by its diplomatic mission with the government represented in the organ. As a seat in a subsidiary organ usually rotates among states of a particular region, each government in its turn will need its partners for expressing its opinions in the organ. This may be an additional reason for taking observations of other states into account. (2) Government representatives are a better guarantee for a consistent policy in different organizations. This is important in two respects. In the first place, the development of an international legal order will be better served if the same question rising in different organizations is settled in the same way. The situation could become chaotic if, in different organizations, people from the same state were to defend totally different points of view on the same general question. However, the force of this argument is doubtful. Conformity of action between different organizations is certainly useful, but it may lead to unnecessary conservatism. An individual expert defending a view which is totally different from that of his government may reactivate political thinking in that particular area in his country. In the second place, a consistent policy within the same organization is important. Many secondary organs have to prepare decisions for the principal organ. Compromises between different opinions will often be necessary. The value of a compromise in a secondary organ is much greater when it is assured that it will be supported in the principal organ by the member states whose nationals have drafted it. The value of preparatory discussions in a secondary organ will be substantially greater when it clarifies the views of the member states than when personal opinions only are brought forward. On the basis of a discussion between government representatives, further consultations can follow after the session of the organ. Consistency of policy is particularly important in financial matters. The states which pay the largest share of the budget usually have a seat in secondary organs. Unlike individual experts, the government representatives in these organs can commit their states to allow the necessary financial support. (3) Government representatives are backed by a large institution. This may give them more expert knowledge than individuals. The government can send the ablest people, if necessary from outside the government service. Their instructions are based on the advice and opinions of many experts in different fields. There is more certainty that all aspects of the matters under discussion will be considered. The larger the variety of items under discussion, the stronger this argument will be. The availability of a government institution means also that a government representative can be more easily replaced if he is unable to attend a meeting. He will usually be an official who has a deputy taking care of his work during his absence. His documents will form part of official archives to which others have access. Replacement of an individual expert working alone will be more difficult.

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(4) Decisions of organs composed of government representatives are more effective. It may be more difficult to persuade a representative who has instructions from his government than an individual expert, but the effect of a compromise reached with government representatives will be stronger, since they will generally be supported later by their governments. In the discussion on the composition of the executive board of FAO (the Council), the US delegate stated: “As recommendations of international organizations depend on member governments for their implementation, such recommendations should express not only desirable goals but goals practically attainable. Experience in many fields has demonstrated that governments are most likely to implement by national action those international recommendations which they themselves, or a representative body composed of governments have had a hand in shaping. This is a major reason why the United States Government favours the establishment of a Council of government representatives”.226

(5) Many individually elected experts are, in fact, not independent from their governments. They may hold an office under the supervision of their government or they may depend on their governments in other ways. Even when they are independent, experts may be greatly involved in national policy. They may at the same time be advisors to their own governments. In that capacity they may have shaped national policy. Singer made a study of the Advisory Committee on Budgetary and Administrative Questions, an important UN committee, then composed of twelve experts. He concludes, from the activities of the committee, that it is little more than the corresponding plenary governmental committee of the General Assembly in microcosm.227 Schwarzenberger wrote of the individual experts: “more often than not they are either government agents in disguise or tend to be more popish that the pope”.228 There would be no harm done if all experts were equally independent. There will be an imbalance, however, if one expert is more independent than another.

The difficulty of finding experts who are genuinely independent should not necessarily be a reason for composing an organ of government representatives. For some functions, in particular for those concerning the settlement of disputes, it is often very difficult to find persons who are entirely independent. Although a person may feel independent, he still may be influenced by the public opinion which is dominant in his state. It may therefore happen that nobody is considered as being fully independent by both of the parties concerned. In such a case it may be advisable to compose the organ of semiindependent persons in such a way that the views of both parties find an equal amount of support. For a proper functioning of the organ this composition

226. FAO Doc. C 47/1 (1947). 227. J. David Singer, Financing International Organization (1961), at 176. 228. G. Schwarzenberger, Power Politics (1951), at 683.

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may well be better than that of representatives of governments which have taken sides in the dispute. Those who are partially independent can probably cooperate better and will succeed more easily in achieving compromises than government representatives who are under instruction to support one of the two parties. §271. It is not possible to draw any general conclusions as to what would be the best composition of international organs. This depends on the task of the organ concerned. Moreover, if it were possible to conclude in theory that a specific organ would best be composed of independent experts, in practice member states of an organization might still favour an organ composed of government delegates, because they do not want to trust the settlement of disputes involving important national interests to independent experts who are beyond their control. For example, in most international economic organizations final decisions in dispute settlement procedures are taken by the plenary organ, composed of government delegates; experts usually play an advisory role.229 Another example is the ILO’s general supervisory procedure. Under this procedure, member states have to submit periodical reports on the application of ILO conventions ratified by them. These reports are examined by the Committee of Experts on the Application of Conventions and Recommendations; this committee is composed of independent experts of recognized competence in the field of labour law. The Committee of Experts does not give a final judgment on the national reports. It publishes its observations in a report which is sent to the International Labour Conference, the main policy making organ, half composed of government delegates, half of employers and workers. This organ has the final say in the appraisal of the application of ILO rules by the member states.230

§272. If it is decided that an organ should be composed of experts, how is such an “expert character” of the organ in question implemented and maintained? In 1986, the UN Office of Legal Affairs prepared a memorandum dealing with this question.231 The main elements of this memorandum are mentioned below. First, objective criteria should be used to indicate the required expertise. For example: financial experts of recognized standing (the Advisory Committee on Administrative and Budgetary Questions); individuals of recognized competence who have had substantial experience of executive responsibility in public administration or related fields, particularly in personnel management (International Civil Service Commission).

229. Cf. G. Malinverni, Le règlement des différends dans les organisations internationales économiques (1974), in particular at 16-22, 99-101 and 204-209. 230. N. Valticos, International Labour Law (1979), at 239-242; Osieke, op. cit. note 171, at 171177. 231. UNJY 1986, at 277-280.

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Second, since the experts will often be nominated by member states, compliance with the above-mentioned objective criteria may be monitored by requiring the state concerned to consult with an appropriate international official (for example, the Secretary-General of the organization). There may also be the requirement that the candidates are approved by another organ. The influence of the member state is further reduced by providing for the selection to be performed not by the state, but by an international official following consultation with member states (i.e. after receiving their nominations) and other organs.232 Third, once expert members are selected, it is important to ensure that they cannot be casually replaced. This can be done by giving members a reasonably long fixed tenure, if possible renewable (as longer service is apt to enhance expertise), and by providing that the experts should not, or only under certain conditions, be supplied with alternates. Fourth, in order to reduce the influence of political considerations and, more broadly, to protect the independence of the experts, it can be provided that the meetings of the expert organ are closed, and that members may not be accompanied by advisors. §273. In practice, we find three intermediate forms of composing organs, which combine the above mentioned elements with other elements to strengthen the influence of the member states: (a) the electing organ may elect certain governments who each appoint an independent expert. This form is used when some link between the expert and his government is considered useful, or when the government is thought to be better able to select a suitable person than the organization.233 In this case the elected governments should coordinate their individual appointments in order to reach a balanced composition of the organ. (b) The electing organ may elect government officials in their individual capacity as experts (many of the members of the International Law Commission are legal advisors to ministries of Foreign Affairs). This form of composition is particularly useful for organs in which expert knowledge of the matter concerned is important while independence is not as relevant. Since many experts fulfil government functions, the requirement of independent experts often means a considerable reduction of choice. Furthermore, government officials elected in this way are less dependent on their states than representatives of governments, since the government cannot replace them.

232. Cf. the UN Commission on Sustainable Development, an organ of ECOSOC, which is composed of government representatives. According to the rules of procedure of this commission, these representatives are designated following consultations with the Secretary-General and under the reservation of confirmation by the ECOSOC. However, in practice this requirement has been ignored. See P. Orliange, La Commission du Développement durable, 39 AFDI 820-832 (1993), at 824-825. 233. E.g. WHO, Art. 24 (composition of the Executive Board).

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The FAO member states seeking election to the Programme Committee or the Finance Committee of the FAO must, not later than ten days before the opening of the session in which the election is held, communicate the name of their prospective representative and details of his qualifications and experience.234 In UNESCO the members of the Executive Board are elected in their personal capacity and as representatives of their governments and of the General Conference.235 Their governments may replace them only in exceptional circumstances.236

(c) It is possible for organs to be composed partly of government representatives and partly of individual experts. It might be difficult, however, for the two groups to collaborate harmoniously and on an equal footing. The ECOSOC Commission on Transnational Corporations, composed of government representatives, selects persons on the basis of their practical experience, who participate in a private consultative capacity in the discussions.237 In 2000, ECOSOC established as a subsidiary organ the Permanent Forum on Indigeneous Issues. This organ’s task is “to discuss indigeneous issues within the mandate of the Council relating to economic and social development, culture, the environment, education, health and human rights”. It has sixteen members who all serve in their personal capacity as independent experts on indigeneous issues. Of these sixteen, eight are nominated by governments and elected by ECOSOC; eight are appointed by the ECOSOC President “following formal consultation with the Bureau and the regional groups through their coordinators, on the basis of broad consultations with indigeneous organizations”.238

§274. In each of these cases a close link with the government is achieved, but the elected organ operates independently and the governments are in no way bound by suggestions made by their nationals in that organ. This makes it easier for the experts to discuss new ideas which do not necessarily conform with the policy of their governments. In these intermediate forms of composition, problems might arise as to the privileges and immunities of the persons concerned. Usually privileges and immunities are granted to representatives of the member states and to members of the staff of the organization. Independent experts can be considered as part of the staff of the organization. Individuals appointed by their governments, and government experts elected by the organization, may be in a different position. In cases where the privileges and immunities of staff members differ from those of government representatives it may be difficult to decide which of the two provisions is applicable to them.

234. FAO Rules of Procedure (as amended in 1977) 26 and 27. See also Report of the 19th Session of the FAO Conference, Doc. C77/REP, at 54. 235. UNESCO 92 EX Decision 3.1.1., Part II, UNJY 1973, at 55. 236. UNESCO, Art. V.A.2(b); UNESCO Res. 17.2, see UNJY 1976, at 106. 237. ECOSOC Res. 1913 (LVII), YUN 1974, at 485. For commentary see S.J. Rubin, Reflections concerning the United Nations Commission on Transnational Corporations, 70 AJIL 73-91 (1976). 238. ECOSOC Res. 2000/22.

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Use of civil servants

§275. Under B (above, §238-266) we discussed the composition of organs of government representatives. These persons speak on behalf of their states. They receive (often detailed) instructions, and their statements are those of their states. Under C (above, §267-274) we discussed the possibility of composing organs of private individuals. They are not accountable to anyone but the organization. Even though they may be chosen from national civil servants, they act in a private capacity. A third possibility is to compose organs of civil servants in their official capacity, but not as representatives of their governments and therefore not under government instruction. In such organs, civil servants of member states consult each other in the preliminary stages. Normally, different government departments first ascertain the national position. They then issue instructions on which the national representatives act. If the matter concerned has been the subject of national controversy, the instructions may represent a laboriously obtained compromise, and may therefore be hard to amend. As a result, the national delegate has no flexibility and will have to take a rigid stand in the international organization. Organs composed of civil servants in their official capacity work in a different order. The civil servants concerned (usually the heads of the departments responsible for the subject matter) negotiate with their colleagues from other members before a national position has been established. They try to find proposals which are internationally acceptable or at least to understand the positions of the other members. With the insights thereby obtained, they raise the matter in national interdepartmental discussions. These discussions will then take full account of the interests of other members. Organs composed of civil servants are only advisory. Their proposals must undergo further national discussion before a final decision can be taken. The advisory organs of government experts (and the civil servants composing them), however, have a strong influence. In any case, the voice of the responsible officer in the civil service carries considerable weight in national decisionmaking. This weight will be greatly increased when he also speaks on behalf of his colleagues from other states.239 Organs of civil servants are common in Benelux. Most of the work of this organization is done in Committees and Special Committees.240 These are composed of national civil servants, usually from specialized ministerial departments (Ministry of Social Affairs for the Committee for Social Questions, Ministry of Transport for the Committee for Transport Questions, etc.). The reports of the Committees and Special Committees

239. H.G. Schermers, Integratie van Internationale Organisaties, inaugural address at Leiden, 30 June 1978, at 12-16. 240. Benelux, Arts. 28-32. The English text of the Benelux Treaty has been unofficially published by the Secretariat of Benelux on 16 September 1958, Doc. SG(59)1043.

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are subsequently discussed in the Council of the Economic Union,241 which is composed of heads of the national delegations to the Committees (with a maximum of ten for each member). In this Council, representatives of different ministerial departments of each member discuss the proposals to be made to the Committee of Ministers. Solidarity between representatives (of different nationality) from the same Committees is no less than that between representatives from the same member states. If the Benelux Council comes to an agreement, practically no discussion within national cabinets is needed; if not, the Benelux Committee of Ministers will decide after due internal consideration within each member state. In the European Union, two sorts of committees play a similar role: (1) Hundreds of committees of national civil servants presided over by a staff member of the Commission discuss all sorts of technical subjects in order to prepare the legislative proposals of the Commission. In these committees, national civil servants meet their foreign colleagues. Their participation in the preparation of EC decisions facilitates approval by the national governments, and therefore also by the Council of Ministers, but the task of these civil servants is purely advisory.242 (2) Other committees of national civil servants perform a different function in the decision-making process. Particularly in the field of agriculture, the Council has delegated important powers to the Commission for the implementation of the rules which the Council lays down.243 It did not want, however, to completely remove governmental influence from decisions to be taken in the future. Therefore committees were created, composed of government officials, which must be consulted by the Commission. This system of consultation is usually named ‘comitology’.244 It has been criticized for being “a fairly undemocratic structure where uncontrolled experts make decisions about technical details which may have far-reaching impact”.245 Examples of such decisions are the ban on British beef and the approval of genetically modified foodstuffs in the 1990s.246

241. Benelux Arts. 25-27. 242. See H. Schmitt von Sydow, Die Zusammenarbeit nationaler und europäischer Beamter in den Ausschüssen der Kommission, 9 EuR 62-75 (1974). 243. On the basis of Art. 202 EC. See also Art. 211 EC. 244. On these committees, see C. Bertram, Decision-making in the EEC: The Management Committee Procedure, 5 CMLRev. 246-264 (1967-68); answers of the Commission to questions of Mr. Vredeling, OJ 1634/67; OJ 1968 C 66/56; OJ 1969 C 124/2; P. Schindler, The Problems of Decision-Making by way of the Management Committee procedure in the European Economic Community, 8 CMLRev. 184-205 (1971). D. Lasok and J.W. Bridge, Introduction to the Law and Institutions of the European Communities (3rd ed. 1982), at 213-219; P.J.G. Kapteyn and P. VerLoren van Themaat, op. cit. note 16, at 390-399; C. Blumann, La Commission, agent d’exécution du droit communautaire, La comitologie, in: J.-V. Louis and D. Waelbroeck (eds.), La Commission au coeur du système institutionnel des communautés européennes 49-70 (1989); M. Andenas and A. Türk (eds.), Delegated Legislation and the Role of Committees in the EC (2000). 245. A.E. Toeller and H.C.H. Hofmann refer to this criticism in their study Democracy and the Reform of Comitology, in Andenas and Türk (eds.), op. cit. note 244, at 25. 246. Cf. the House of Lords report on comitology (Session 1998-99, third report, 2 February 1999), expressing (at 5) the common criticism: “[t]he fact that these committees exist is fairly well-known. But who sits on them, when they meet, how they work and what they decide is something of a mystery, except to insiders, assiduous Brussels watchers and a few academics and students”.

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The decision-making procedures involving these committees have been laid down in Council Decisions, most recently in 1999.247 A distinction is made between three types of procedures. Most powers are given to the Commission under the Advisory Procedure, which only obliges the Commission to take the utmost account of the opinion delivered by the committee, which has a strictly advisory role. The position of the Commission is weaker under the Management Procedure: if the Commission adopt measures which are not in accordance with the opinion of the committee, the measures have to be communicated to the Council, which may take a different, definite, decision. The Commission’s position is further weakened under the Regulatory Procedure where it may only submit a proposal to the Council, if the measures envisaged by the Commission are not in accordance with the opinion of the committee.248 In the field of agricultural policy, in which most day-to-day decision-making has been delegated by the Council, the Commission and the committees agree in the vast majority of cases. In the years 1991, 1992, and 1993, more than 2000 favourable opinions were delivered each year by the relevant committees. In 188 (1991), 132 (1992), and 213 (1993) cases, the committees could not agree upon an opinion. In no case was an unfavourable opinion given in 1991 or 1992; in 1993, an unfavourable opinion was delivered in two cases.249 In 1999 and 2000, favourable opinions were given in 2318 (1999) and 1786 (2000) cases; no opinion was given in 140 (1999) and 118 (2000) cases; opinions against were given in 2000 only (in three cases).250 It has been questioned whether the creation of these committees disturbed the balance of power in the institutional structure of the EC (see above, §220-221, §228). The Court of Justice answered this question in the negative, since no power to take decisions has been delegated to these committees.251

247. Council Decision 1999/468/EC, OJ 1999, L 184/23. As indicated in this decision, its purpose is “with a view to achieving greater consistency and predictability in the choice of type of committee, to provide for criteria relating to the choice of committee procedures, it being understood that such criteria are of a non-binding nature” (Preambular para. 5). On this Decision and on the development of comitology, see G. Haibach, The History of Comitology, in Andenas and Türk (eds.), op. cit. note 244, at 185-215. See further K. Lenaerts and A. Verhoeven, Towards a legal framework for executive rule-making in the EU? The contribution of the new comitology decision, 37 CMLRev. (2000), at 645-686. 248. These are only the main differences between the three procedures. Procedures II and III each have two variants, with small differences between the powers of the Commission and the Council. 249. See for these figures: EC Commission, General Reports on the Activities of the European Communities 1991 (at 180), 1992 (at 182), and 1993 (196). 250. General Reports on the Activities of the European Union (1999, Chapter IV, Section 19) and (2000, Chapter III, Section 13) (information taken from the EU website). 251. Cases 25/70, Köster, 26/70, Henck, and 30/70, Scheer, ECR 1970, at 1161-1211. See also Case 5/77, Tedeschi, ECR 1977, at 1555. See on this case-law A. Türk, The Role of the Court of Justice, in Andenas and Türk (eds.), op. cit. note 244, at 217-253.

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Equitable representation of interests

1.

Equitable geographical representation

a.

Need for regional representation

§276

§276. In plenary organs, all members are represented, and it may thus be presumed that all different points of view will be brought forward. In nonplenary organs, it is inevitable that some states will not be able to express their knowledge and interests. Universal organizations generally assume that the opinions and interests of states of the same region are similar and therefore that most differing views will be expressed in non-plenary organs which are composed of members selected from all geographic areas. A comparison of voting habits in plenary organs shows that, indeed, states from the same region often vote alike.252 Bodies which advise on technical issues need a composition that in its totality is the most expert in the field. This does not necessarily mean that only the most learned individuals are required as members, for they might come from one region of the world only. Although the expertise of individual members from other regions may be less, their participation in the organ increases its representativeness. Members of the organization which are not members of the organ in question will more readily put their faith in an organ in which they find their own culture represented. Moreover, a body composed of experts from different regions will include members who can more easily understand the views of different peoples and their reactions to proposals which may be made. Finally, it is also important for the organization that membership of non-plenary organs rotates among all members of the organization. Members elected to these organs feel more involved in the work of the organization. For these reasons, many international organizations require an “equitable” or “balanced” geographical distribution in the composition of their non-plenary organs.253 International organizations strive for an equitable geographical distribution of seats in non-plenary organs even where there is no constitutional requirement to this effect. Some constitutions provide merely for certain limits in the composition of non-plenary organs. The ILO constitution used to provide that two employers’ representatives and two workers’ representatives should be from non-European states.254 Prior to the 1976

252. See e.g. B.M. Russett, Discovering Voting Groups in the United Nations, 60 APSR 327-339 (1966), also published in R.W. Gregg and M. Barkun, The United Nations System and its Functions (1968), at 72-87. 253. See e.g. UN Charter, Art. 23.1; WHO, Art. 24; UNESCO, Art. V.3; ICAO, Art. 50; WMO, Art. 13; IAEA, Art. 6.a; FAO, Rule XXII.3. 254. ILO, Art. 7.4 (original text).

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amendment, two Executive Directors of the IMF were to be elected by American states other than the US.255

The usual method for obtaining equitable geographical representation is by the reservation of a number of seats in non-plenary organs for members of particular regions. b.

Composition of regions

§277. To facilitate an equitable geographical distribution of seats in non-plenary organs, international organizations must divide their members into different regional groups. Such regional groups may also play their role when regional commissions are created (see below, §428-431). The words “region” and “regional” should not necessarily be understood in their strict geographical sense.256 Geographical representation forms part of the representation of interests. The exact meaning of the word “region” depends on the interest involved and therefore on the purpose of the organization concerned and of the organ formed. The WMO works with geographical data. Wind and weather do not depend on political and cultural factors. The regions of WMO are defined geographically, partly by degrees of longitude and latitude.257 For the WHO geographical factors also have great importance. Contagious diseases will spread within territorial regions. Here, however, some political factors also play a role. Communications between peoples are strongly affected by frontiers. It is therefore useful to form regions of states belonging to the same political sphere, provided that they are not too far apart geographically. This mixture of political and geographical factors caused problems in forming an Eastern Mediterranean regional bureau in which Israel and the Arab states would both have had to take part.258 Due to this the establishment of the regional bureau in Alexandria was delayed for a long time. The UPU mainly depends on communications. Short-distance mail is usually greater in volume than long-distance mail. The UPU regions are geographically based. Postal communications, however, also depend on political relations between states. The borders between the UPU’s five regions, therefore, are also in-

255. IMF, Art. XII, Section 3b. 256. For different types of groups, see Kaufmann, op. cit. note 129 [Conference Diplomacy], at 146-152. See also R. Goy, Les régions établies par l’UNESCO en vue de l’exécution de ses activités régionales, 20 AFDI 613-625 (1974). 257. The regions are: Africa, Asia, South America, North and Central America, South-West Pacific and Europe. See WMO General Regulations, Annex II. 258. On the regions of WHO, see R. Berkov, The World Health Organization (1957), at 129 ff., 146 ff, and Resolutions WHA 1.72, WHA 5.43 and WHA 6.45 of the World Health Assembly (the general congress of the WHO). The regions of the WHO are: (1) Eastern Mediterranean (from Tunisia to Pakistan, from Cyprus to Ethiopia and Somalia), (2) Western Pacific (including Laos, Malaysia and Singapore),(3) South East Asia (including Mongolia, Thailand and Indonesia), (4) Europe (including Israel, Russia and Turkey), (5) Africa, (6) the Americas (for a complete enumeration, see UN Handbook 2002, at 253-259).

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fluenced by (former) differences in the political systems of its members; Eastern and Western Europe are separate regions.259 §278. The UN performs such a variety of tasks that the basis for “equitable geographical representation” will vary considerably depending on the organ to be formed. The Security Council is a political organ. Its members should “equitably” represent political groupings. The “gentleman’s agreement” made in London in 1946 actually recognized political groupings, although the groups were geographically prescribed.260 The General Assembly deliberately misinterpreted the agreement when it elected Greece and Turkey to the Eastern European region, however geographically far east in Europe these states may be. The seat was intended for an Eastern European state belonging to the Socialist group. The geographical distribution used at present by the UN also takes account of political affiliations. There is no reference to regional groups in the UN Charter. In practice such groups have been formed for various purposes (e.g. consultations and negotiations, distribution of elected places in a number of organs). At present there are five regional groups in the UN: the African states, the Asian states, the Eastern European states, the Latin American and Caribbean states, and the Western European and other states (WEOG).261 For the election of the vice-presidents of the General Assembly, the UN divides its members into six groups: (1) African states; (2) Asian states; (3) Eastern European states; (4) Latin American states; (5) Western European and other states; (6) Permanent members of the Security Council. The same division, with the exception of the sixth above mentioned group, is used for the election of the chairmen of the Main Committees of the General Assembly. In the Security Council the seats for nonpermanent members have been distributed, since 1965, between the following four groups: African and Asian states, Eastern European states, Latin American and Caribbean states, Western European and other states, in the proportion 5:1:2:2.262 In the Economic and Social Council of the UN, the following pattern is used: 14 members from African states, 11 from Asian states, 10 from Latin American and Caribbean states, 13 from Western European and other states, 6 from Eastern European states.263 This pattern is followed in a number of other UN organs. Again, other UN organs allocate their seats to both developing and developed states (see below, §280).

§279. As the composition of the regions depends on the function of the organ concerned, it may well happen that a particular state belongs to different

259. UPU’s five regions are: Western Hemisphere; Eastern Europe and Northern Asia; Western Europe; Southern Asia and Oceania; Africa. 260. See T. Hovet, Block Politics in the UN (1960); S.D. Bailey and S. Daws, The Procedure of the UN Security Council (3rd ed. 1998), at 168-173. 261. See UN Handbook 2002, at 18-19. 262. GA Res. 33/38, amending Rules 31 and 38 of the GA rules of procedure; GA Res. 1991 A (XVIII) amending Charter Arts. 23 and 27 relating to membership of the Security Council. 263. GA Res. 2847 (XXVI).

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regions for different purposes. Disputes may often arise as to who is to decide on the affiliation of a state to a particular region.264 This is not only a question of concern to the state itself. It is equally important for the region to have a say in the question of who may represent it in the organization, and it is of importance for the organization that the opinion expressed on behalf of a group of members is representative of these members. Equitable geographical representation is an issue for non-plenary organs. In the plenary organs, all members are represented and the voting power of a region depends on the number of its members. To some extent, the organization can strengthen the position of a particular region either by admitting very small states as separate members or by allowing a weighted representation to the most important states (see below, §282-284). 2.

Equitable representation of specific interests

§280. In some international organizations, interests other than those which are merely geographical must be represented on an equitable basis. Such interests may be conflicting or just differ in importance between states. Examples of conflicting interests are those of producers and consumers and those of developed and developing states. Examples of interests of different importance are to be found in fishing or aviation which are major sources of national income for some states, while of almost no interest to other states. In the case of conflicting interests, one should strive for an equitable representation of both groups; in the case of different importance of interests, for a balance in which the interests are represented proportionally. A balance of interests between producing and consuming states is found in the commodity councils, which usually distinguish between two categories of members; exporting (or producing) members and importing (or consuming) members. Usually these two groups each hold the same amount of votes. The Executive Board of UNDP and UNFPA balances the interests of developing and developed states. It is composed of 20 developing states (allocated as follows: 8 for African countries, 7 for Asian and Pacific countries, and 7 for Latin American and Caribbean countries) and 16 for developed states (12 for Western European and other countries, and 4 for Eastern European countries).265 The members of some UN organs are selected “on the basis of their demonstrated interest” which means that states which voluntarily contribute to the programme concerned will obtain a greater influence.266

264. Berkov, op. cit. note 258, at 129 ff. 265. GA Res. 48/162. See UN Handbook 2002, at 177-179. 266. See E.H. Buehrig, The UN and the Palestinian Refugees, A Study in non-territorial Administration (1971), at 55.

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Many specialized agencies attribute greater representation to the states which are particularly involved in their fields of operation.267 The European parliamentary organs distribute representation according to the population of the member state (see below, §568-569). In the UN, the most powerful members have a privileged position.268 The Executive Board of IFAD is composed of 8 Western states, 6 developing states and 4 members of OPEC.269

§281. Apart from representation by particular states, specific interests may be defended by representatives of the interest groups themselves. Their representation in public international organs is rare. Most international organizations which want to allow interest groups a hearing prefer to form separate advisory organs for them (see below, §424-425) or permit them to make proposals, either informally or officially (see below, §720). The ILO is the only important international organization in which representatives of interest groups sit in the same organs with the same power as representatives of member states. In most organs of the ILO, representatives of the workers and the employers each hold a quarter of the seats. In the general congress of the organization, the nongovernment representatives form part of the national delegations (see above, §250) although they vote independently. In other organs they are chosen in their own capacity.270 It may be quite possible for a Dutch worker representative to sit on a board which contains no delegate from his government. Apart from the ILO, we find worker and employer representatives as well as government representatives (two worker, two employer and two government representatives per member) in the Consultative Committee for the Free Movement of Labour of the EC.271 Mixed commissions of government representatives and parliamentarians are sometimes appointed in the Council of Europe, for instance the Joint Committee,272 and the European Commission for Legal Cooperation.273

267. See e.g. ILO, Art. 7; IAEA, Art. 6A; ICAO, Art. 50; IMF, Art. XII, Section 3: World Bank, Art. V, Section 4; IMO, Art. 17. 268. See e.g. UN Charter, Arts. 23 and 86. See also below, §500-505. 269. Art. 6, Section 5a; Schedule II.3(b). See also UN Handbook 2002, at 301. 270. In committees dealing with the items on the agenda, it is he practice of the ILO general congress to give equal representation or equal voting power to the three groups. See Standing Orders of the International Labour Conference, Art. 65, para. 3 (footnote 8). Exceptions are the Finance Committee, entirely composed of government representatives (Standing Orders, Art. 7bis), the Credentials Committee, with only one government representative to one worker and one employer (Standing Orders, Art. 5.1), and the Drafting Committee, whose members are chosen individually regardless of their groups (Standing Orders, Art. 6.1). 271. Regulation 38/64 of the Council, Arts. 39-46. 272. CoE Resolution adopted by the Committee of Ministers, May 1951, published by the CoE as annex to its statute. 273. NJB (1964), at 143.

§282

3.

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Means of strengthening representation

§282. In order to achieve an equitable representation of interests, the position of some states may have to be strengthened. There are three ways of doing so. (a) Extra votes may be attributed to the most interested members, or the votes may be distributed in such a way that two groups of members obtain the same number (weighted voting, see below, §795-812). (b) A member may be permitted to send more than one delegation to a meeting (weighted representation). The most extreme form of weighted representation is the attribution of separate membership to parts of the states concerned (see above, §75-78). Another form is the acceptance of a large number of delegates with voting rights. Additional state representatives will strengthen that state’s position if they are under the instructions of their government. Even when they are not under the instructions of their government, for instance in European parliamentary organs, additional representatives will increase the influence of their states. Almost every individual will in some way be influenced by public opinion in his own state. Only in a highly integrated organization will the nationality of delegates play a minor role. The most important examples of weighted representation are found in European regional organs. The larger states send more parliamentarians to e.g. the Parliamentary Assembly of the Council of Europe than the smaller states (18 for the largest, 2 and 3 for the smallest states in the Council of Europe). The parliamentarians of one member do not always vote in the same way. The Board of Directors of the European Investment Bank consists of three directors nominated by each of the largest EC member states (France, Germany, Italy and the UK), two by Spain, and one director nominated by each of the other member states. The European Commission appoints the 25th director.274 Since the 1994 direct elections, 99 representatives from Germany are members of the European Parliament; the other large member states (France, Italy and the UK) send 87 representatives, Spain 64, and the smaller member states 31 to 6.275 As in other parliamentary organs of international organizations, these parliamentarians are not under the instructions of their governments. They do not usually vote as national units. To the Economic and Social Committee of the EC and Euratom, and to the EC’s Committee of the Regions, the largest member states send 24 members; Spain 21; Austria, Belgium, Greece, the Netherlands, Portugal, and Sweden 12; Denmark, Finland,

274. Protocol on the Statute of the European Investment Bank, Art. 11, as amended by Art. 4 of Protocol No. 1 annexed to the 1994 Act of Accession (and amended when Norway decided not to become a member of the Union, see OJ 1995, L 1/9). 275. See the Decision amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Decision 76/787/ECSC, EEC, Euratom of 20 September 1976 (OJ 1993, L 33/15).

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§282

and Ireland 9; Luxembourg 6.276 These representatives are not under government instruction either, and do not vote as national units. The Benelux Interparliamentary Consultative Council is composed of 21 members appointed by the Belgium and the Dutch parliaments each and 7 members appointed by the Luxembourg Parliament.277

(c) Those members with the greatest interest may be attributed seats in nonplenary organs. The smaller the organ, the greater the relative strength of such members. The attribution of specific seats may be to expressly denoted states (e.g. China, France, UK, US and USSR (now Russia) in the UN Security Council). This, however, has the disadvantage of freezing positions. If the relative interests of the members change, the necessary redistribution would only be possible by constitutional amendment. Amendment of the constitution may not be necessary when the privileged state renounces its position. According to the original text of the Statute of the IAEA, Belgium was in a favourable position for being elected to the board (Article 6A.2), in view of its colony Congo, a producer of uranium. When Congo became independent, the Belgian government agreed to accept a different composition of the IAEA board. In 1973 the text of the IAEA Statute was amended accordingly.278

Usually, however, specific seats in non-plenary organs are not attributed to expressly denoted states; objective criteria are used to define which states are intended to benefit. For example, Article 7 of the ILO constitution provides that the Governing Body (the ILO’s board) shall consist of 56 persons, of which 28 representing governments. Of these 28 persons, “ten shall be appointed by the members of chief industrial importance” (emphasis added). The 1986 amendments to this provision have not yet entered into force. Article 50 of the ICAO constitution deals with the composition of the ICAO Council, a non-plenary organ. Paragraph (b) stipulates, inter alia: “In electing the members of the Council, the Assembly shall give adequate representation to (1) the states of chief importance in air transport; ...” (emphasis added).279 Articles 16-17 of the constitution of the International Maritime Organization (IMO) deal with the composition of the IMO Council. This Council is composed of 32 members, of which 8 shall be “states with the largest interest in providing international shipping services” (Article 17(a)); another 8 shall be “other states with the largest interest in international seaborne trade” (Article 17(b)).

276. Arts. 258 and 263 EC. 277. 1955 Convention setting up a Benelux Interparliamentary Consultative Council, Art. 1. 278. Declarations during the 23rd session of the UN General Assembly, see publication no. 93 of the Netherlands Ministry of Foreign Affairs, at 29. See also P.C. Szasz, The Law and Practices of the International Atomic Energy Agency (1970), at 148-149. 279. For the procedural problems involved in electing representatives from different groups of interests, see R.H. Mankiewicz, Organisation de l’Aviation Civile Internationale, in: 8 AFDI 675-768 (1962).

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While these systems of attributing seats have the advantage that constitutional amendments are not necessary to change the occupation of these seats, they have the disadvantage that conflicts may arise as to which states are “of chief industrial importance”, “of chief importance in air transport”, etc. For example, the original text of Article 28(a) of the IMCO constitution reads “The Maritime Safety Committee shall consist of fourteen members elected by the Assembly from the members, governments of those nations having an important interest in maritime safety, of which not less than eight shall be the largest ship-owning nations, ...”. In 1959, Liberia and Panama were not elected to this Committee. Different interpretations of the phrase “largest ship-owning nations” led the IMCO Assembly to request an advisory opinion from the International Court of Justice. According to the ICJ, the ship’s flag is the decisive criterion; the largest ship-owning nations are the nations having the largest registered ship tonnage. Applying this criterion, Liberia and Panama belonged to the eight largest ship-owning nations, and therefore had the right to be elected to the Maritime Safety Committee.280 When the US withdrew from the ILO in 1978, it was decided that Brazil should fill the vacant seat in the Governing Body, as a member of chief industrial importance. When the US re-entered the ILO in 1980, it was recommended that Brazil should leave the Body, not being ‘one of the ten’ any more. However, this gave rise to controversy, and after a number of consultations it was decided that Brazil would remain a member of the Body. As a result, there were now 11 members of chief industrial importance. A number of ILO members pointed out that this was not in conformity with the constitution. An opinion was requested from the Legal Advisor of the ILO, who found a way to justify this situation: China – one of the ten – was at the time not an active ILO member, thus in practice there were ten active members of chief industrial importance. (In fact, this justification could only be used up to June 1983, when China resumed active membership in the ILO.)281

§283. The effect of the various means of strengthening representation is not quite the same. Extra votes are fully controlled by the states concerned and thus constitute a powerful method of attributing more influence. Sending more than one delegation may have the same effect, but in practice the additional delegation is often either from a part of the member (a separate republic or an overseas territory) which may have sufficient autonomy to develop a policy of its own, or it is not subject to instructions and may therefore follow a different policy from the main delegation. Permanent seats provide a strong position, but only in non-plenary organs. Unlike weighted voting and weighted representation, they have no effect in plenary organs. §284. Too great a strengthening of the influence of a particular group of states may lead to tension within the organization. When the developing states found their influence insufficient in the IMCO, they increasingly dealt with maritime

280. Constitution of the Maritime Safety Committee of the Intergovernmental Maritime Consultative Organization, Advisory Opinion, ICJ Rep. 1960, at 150 ff., in particular at 167-171. 281. See Osieke, op. cit. note 171, at 103-107.

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§285

matters in other organizations, mainly in UNCTAD in which their position was stronger. This finally led to a complete restructuring of IMCO into a new organization, the IMO, where interests were better balanced.282 F.

Election of non-plenary organs

§285. The interest of members in some types of commissions may be so limited that a commission which is open to all members will be sufficiently small in practice. More often, however, members of non-plenary organs will have to be elected. The system of election may influence the composition of the organ. In principle, two systems of election are available: election by the general congress of the organization (in which all members are represented), or election by the region or group concerned. 1.

Election by the entire organization

§286. With the non-plenary organ representing the entire organization, all member states are concerned to see that it is comprised of members in whom they have the utmost confidence. Usually, they will all take part in the elections on an equal footing, even those who are represented in the organ by virtue of a constitutional provision. This system is employed in most universal organizations: the five permanent members take part in the election of the other members to the Security Council, while the “seafaring”, “air-navigating” and “nuclear” states, which have seats on boards of the IMO, the ICAO and the IAEA nevertheless participate with full rights in the election of the other members. In most universal organizations, the Asian and European members participate in the election of the African or Latin American representatives to non-plenary organs and vice versa. This system is also followed for the European Commission and the EC Court. Even though in practice each member state claims one or more seats for its own nationals, it may not appoint them. Since they are charged with a Community function, they must be appointed by mutual agreement of the governments of the member states.283 §287. The advantage of this system of election is that the non-plenary organ represents the organization as a whole. Each of its members will have the confidence of at least a majority of the organization. The electing organ can take interests other than equitable geographical representation into consideration. Under this system of election, it is possible simultaneously to have an equitable geographical distribution, equitable distribution of interest groups and a fair division of seats between small and large states.

282. See J. Dutheil de la Rochère, Une institution spécialisée renaissante: la nouvelle Organisation maritime internationale, 22 AFDI 434-473 (1976). 283. EC Arts. 214.2 (Commission) and 223 (Court).

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For example, Article 50(b) of the ICAO constitution provides that “In electing the members of the Council, the Assembly shall give adequate representation to (1) the states of chief importance in air transport; (2) the states not otherwise included which make the largest contribution to the provision of facilities for international civil air navigation; and (3) the states not otherwise included whose designation will insure that all the major geographic areas of the world are represented on the Council”.

An optimal distribution of seats of any non-plenary organ is only possible, however, when the majority in the electing organ has the wisdom to take account of minorities in the elections. When a particular political group dominates the organization, minorities may be insufficiently represented. Thus between 1950 and 1962, there was a tendency in the UN to elect states aligned with the West as members of subsidiary organs.284 §288. What are the legal consequences arising from a possible inability of the plenary organ to elect a member of the non-plenary organ, as a result of which the latter is imperfectly composed? This happened when in December 1979 the UN General Assembly failed to elect one non-permanent member of the Security Council. On 31 December 1979 the UN Legal Counsel made a statement in the meeting of the Assembly on this matter. He noted that a failure to elect a non-permanent member in time “would constitute a failure to comply with its constitutional functions and would violate the clear language of Article 23 of the Charter”. He concluded that “such an act of omission could not produce legal consequences for the functioning of the Security Council”. Decisions of the Council would nevertheless constitute valid decisions. While such a situation is not legally or constitutionally desirable, “in the interests of maintaining the authority of the Security Council and the balance of powers between the General Assembly and the Security Council, it is essential that the General Assembly should fulfil its obligations and responsibilities under the Charter”. Finally, on 7 January 1980 the election was completed.285 2.

Election by the region or group concerned

§289. Since the organ is representative of the different interests existing within the organization, it may be formed by the interest groups or regions themselves. The organization must decide only which regions or interests will have seats in the non-plenary organ and determine their proportional allocation.

284. M.R. Singer and B. Sensenig III, Election within the United Nations: an Experimental Study Utilizing Statistical Analysis, 17 International Organization 901-925 (1963). 285. UNJY 1979, at 164-166. In 1983, the same question was raised with respect to the ECOSOC, and the earlier opinion by the Legal Counsel was considered equally applicable to this organ (see UNJY 1983, at 183-184).

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This system is found in part of the membership of the board of the WMO. On this board sit, inter alia, the Presidents of the Regional Organizations, who are elected by the regions.286 This system is also used in the OPCW. The 41 seats of the Executive Council are distributed among five geographical regions. The OPCW member states located in each region have to designate ‘their’ required number of members of the Council.287

§290. The system of election by which groups of members are represented by one specific member of the board is followed most explicitly by the IMF and the World Bank. It applies in the election of their Executive Directors, who form the executive boards of these organizations as well as, in practice, those of the IFC and the IDA, whose Executive Directors are Executive Directors of the World Bank.288 The regional development banks use the same system for forming their boards.289 The IMF’s Executive Board, a non-plenary organ, is the permanent decision making body of this organization. In 2002, it was composed of 24 Executive Directors. Of these 24, 5 were appointed by the members having the largest quotas:290 US, Japan, Germany, France, UK.291 In addition, 19 Executive Directors were elected by the Board of Governors, the IMF’s general congress.292 Each elected Executive Director can be regarded as the representative of the members who elected him. In 2002, 19 elected Executive Directors represented 174 member states. For example, the Italian Director represented, apart from Italy: Albania, Greece, Malta, Portugal, and San Marino. The Indian Director represented India, Bangladesh, Bhutan and Sri Lanka.293 The Executive Directors will defend the interests of their constituency in particular. They have the right to cast all the votes of the members that elected them. They are responsible for presenting and explaining the views of ‘their’ countries during Board discussions.294 In practice, a close relationship has developed between the Executive Directors and the members they represent.295

§291. The main purpose of this special method of forming the executive boards of the financial organizations was to transfer the weighted voting system of

286. 287. 288. 289.

290.

291. 292. 293. 294. 295.

WMO, Arts. 13 and 18(e). OPCW, Art. VIII.C.23. IFC, Art. IV.4; IDA, Art. VI.4. Inter-American Development Bank, Art. 8, Section 3; African Development Bank, Art. 33, juncto Annex B; Asian Development Bank, Art. 30; European Bank for Reconstruction and Development, Art. 26. If they are not amongst these 5, the 2 members who had subscribed or lent to the IMF the largest amount of resources used by the Fund in its outstanding transactions, may also appoint one Executive Director each (IMF, Art. XII). IMF, Annual Report 2002 (Appendix VII), at 146. Rules on the election of these Executive Directors are laid down in Schedule E annexed to the constitution. IMF, Annual Report 2002 (Appendix VII), at 146-148. J. Gold, Legal and Institutional Aspects of the International Monetary System, Selected Essays: Volume II, (1984), at 386-390, 451. J. Gold, Voting and Decisions in the IMF (1972), at 65.

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the plenary organ to the executive board. Organizations without a weighted voting system could, however, use the same principle in forming non-plenary organs. The transfer of the system to other universal organizations would mean that, generally, every three to five members of an organization would have one common representative in the non-plenary organ. §292. Could a regional group block the functioning of an organ by not nominating a representative to this organ? With regard to the composition of the Ad Hoc Committee on the Preparations for the Public Hearings on the Activities of Transnational Corporations in South Africa two questions were raised: first, whether the ECOSOC President could proceed with the appointment of the candidates nominated by four of the five regional groups on the understanding that he would continue his efforts to obtain the fifth regional group’s nomination for the remaining vacancy and, second, whether the Ad Hoc Committee could be considered as properly constituted and able to proceed with its work if the group in question indicates that it does not wish to participate in it. The Office of Legal Affairs of the UN Secretariat replied to the first question that the ECOSOC President may proceed to appoint the persons that already had been nominated, because the resolution establishing this Ad Hoc Committee did not require him to wait until all nominations were made, and because this was in line with previous UN practice. As to the second question, the Office answered that examples from practice may lead to the conclusion that “the fact that a particular group entitled to be represented on a subsidiary organ of the United Nations does not desire to participate in the work of that organ should not have the effect of preventing the organ concerned from being effectively, albeit incompletely, constituted and from carrying out the functions entrusted to it. In our view this in effect constitutes a waiver by the group concerned of its right to be represented on the organ in question”.296 §293. The main advantage of election of members to a non-plenary organ by the region or group concerned is the close tie between each of the members of the organization and one member of the organ. Every member of the organ represents a particular group of members of the organization. He can look after their interests and he can receive instructions, or at least suggestions, from all of them. Each member of the organization will find itself represented in the non-plenary organ and may therefore be more closely involved in its work. The confidence of the total membership in the non-plenary organ is thus increased. One early study has demonstrated that this enabled the IMF, the World Bank, IFC and IDA to delegate far more powers to their executive boards than any other organization.297 The close liaison between the member

296. UNJY 1984, at 167-168. 297. See E.P. Hexner, The Executive Board of the International Monetary Fund: A Decision-Making Instrument, 18 International Organization 74-96 (1964).

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of the non-plenary organ and the states that have elected him offers the further advantage of stimulating cooperation between the states concerned. This cooperation may be further enhanced when states are jointly represented in a subsidiary organ. In their 1975 report on a New UN Structure for Global Economic Cooperation, a UN group of experts proposed joint representation in the ECOSOC. One delegation would represent all states of the group; which state would actually send the delegates, would depend on the subject matter under discussion.298 This proposal may be useful for groups of states like the EC, Benelux or the Nordic countries, which are closely linked. But for most other groups, the problems involved in forming a common delegation and providing it with instructions may be too great. In 1974 Trinidad and Tobago made a proposal to open membership of the ICAO board officially to groups of members of the organization. In their opinion, such groups already existed informally (e.g. the Scandinavian states). The proposal, however, failed to obtain the required majority.299

§294. Apart from the practical problems in forming groups of states, one disadvantage may be that a delegate representing a number of states will need instructions, delivered after mutual consultation with the states concerned which will therefore be difficult to amend. This will impede compromise solutions (see above, §240-241).300 3.

Election or rotation?

§295. Elections often take much time and they may antagonize delegations at the beginning of meetings. Therefore, some organizations prefer a form of rotation of posts (see e.g. the appointment of chairmen, below, §355-356). For many subsidiary organs there are no elections, as the members do not consider them to be of sufficient importance to warrant a contest. For organs such as credentials committees, therefore, the bureau of the electing organ and the secretariat will usually prepare a plan for fair representation, and ask delegations whether they are willing to take a seat. When their proposals for its composition are successful, the electing organ will accept this without any formal election. Sometimes the president of an organ is charged with determining its composition.301 It has happened, exceptionally, that a member state, not a member of the Credentials Committee of the UN General Assembly, requested to participate as an observer in a meeting of the Committee. This request was refused. Subsequently, the Office of Legal Affairs of the UN Secretariat supported this decision, arguing that “such participation [by a non-member] could seriously

298. 299. 300. 301.

UN Doc. E/AC.62/9. R.H. Mankiewicz in 20 AFDI (1974), at 638. See for example UN Doc. A/7214, at 13. See e.g. GA Resolutions 1966 (XVIII), 2081(XX), para. 15; 2188 (XXI), and in a more general way IFAD, Governing Council Rule 15.2.

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affect the ability of [the Credentials Committee and other expert bodies] to carry out their responsibilities expeditiously and effectively”.302 4.

Co-option

§296. Any system of election makes the organ to some extent dependent on the organ which elects it. In some cases, a hierarchy between organs is avoided by appointing the total membership as the electoral college (for example, the European Commission and the EC Court, appointed by common accord of the governments of the member states). Even then, however, the elected persons will, in some way, be dependent. They need the support of governments to be re-elected. Practice has shown that members of the European Commission have sometimes not been re-elected for a new term because of opposition from a member state.303 For the purpose of creating a fully independent organ, the original constitution of the European Coal and Steel Community provided that at least one, and at most five, of the nine members of the High Authority would be co-opted by the other members.304 The member governments would have a limited right of veto against unfavourable appointments. If abused, a veto could be annulled by the Court of Justice. This system would make it possible to elect members belonging to national opposition parties. In practice the system did not work. To function effectively, the organ was obliged to cooperate with the member states. It would not have been able to do so very successfully with members who were unacceptable to one or more member states. When a member had to be appointed by co-option, the High Authority would consult the governments and co-opt a person acceptable to them (or even proposed by them). 5.

Term of office

§297. How long should a member of a non-plenary organ retain his seat? Several factors should be taken into account. (1) Experience will enhance the value of members of organs, particularly during the first years. The person concerned – whether he is an individual expert or a government representative – will probably be an expert in the field in which the organization operates. He may not be familiar, however, with established procedures in the organ and with its non-technical tasks. Boards – the most important non-plenary organs – in particular often have many administrative functions which require a certain amount of routine work. This may be a case for long-term appointments.

302. UNJY 1983, at 173-174. 303. For example, in 1961 President Hirsch of the (then) Euratom Commission was not re-elected because of opposition by De Gaulle. See J.-V. Louis, La désignation de la Commission et ses problèmes, in: Louis and Waelbroeck (eds.), op. cit. note 244, at 10. 304. ECSE, Art. 10 (original text).

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(2) The purpose for which the organ is established should be taken into account. Most non-plenary organs formulate their own policy. In particular, boards of international organizations develop the day-to-day policy of the organization, and this requires time. Only gradually will the members gain the insight and develop an esprit de corps necessary to form a policy and acquire the standing necessary for its general adoption. If the member states want the organ to be influential or independent, they should appoint its members for a long term. If they want to restrict the power of the organ, the term should be limited. In addition, the task of some organs may require extensive, long-term personal involvement. The International Law Commission of the UN is charged with codification and progressive development of international law. It appoints one of its members as rapporteur for a given subject. The rapporteur needs a long time to prepare a draft. The member states are requested to comment on that draft, which again takes time. Then the ILC itself needs a long period for discussion. It may well happen that the rapporteur is no longer a member of the organ when ‘his’ subject comes up for discussion. A new rapporteur then has to be appointed. Before his report reaches the final stage he also may have left the commission.305 This is, of course, an inefficient procedure. If extensive personal involvement is necessary, the members of the organ should be nominated for a long term.

(3) Some non-plenary organs meet only rarely, while others are convened frequently. In the first case the term of appointment should be longer than in the second. (4) The organization may want a rotation of the seats, especially if a nonplenary organ is composed of government representatives. It may be useful to have all governments in turn participate in the organ. This keeps them involved in its work. Having served in a non-plenary organ for a period of time, the member will have a greater understanding of the problems it handles. In organizations with a large membership, an effective rotation of seats is only possible if the members sit in the organ for a short term. §298. Apart from these factors, what is the practice concerning the term of office of members of non-plenary organs? In general, there is a rapid rotation (two or three years) within non-plenary organs composed of government representatives. This period is longer if the general congress of the organization in question (the electoral college of the non-plenary organ) does not meet often, e.g. once each five years. Rotation is generally slow in judicial organs, to guarantee their independence. Rotation of non-permanent members of the UN Security Council is two years. Many boards have a three-year term (ECOSOC, Trusteeship Council, executive boards of ILO,

305. The ILC had four successive rapporteurs on the law of treaties (Brierly, Lauterpacht, Fitzmaurice, Waldock).

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FAO, WHO, ICAO). The executive boards of UPU and ITU are nominated for five and four years, respectively. The members of the board of UNESCO sit for four years. IAEA and UPU stimulate rotation of their executive boards seats by prohibiting306 or limiting307 re-election, or by encouraging member states who are re-elected to appoint a new representative. A disadvantage of these rules for rapid rotation is that they prevent the procedure, common in many other organizations, of continuous re-election of the most important member states on the board. This disadvantage does not exist in UNESCO, where member states are eligible for re-election to the Executive Board, but shall, if they are re-elected, endeavour to change their representatives on this organ.308 Judicial organs (see below, §597 ff.) usually employ longer terms. The judges of the International Court of Justice and of the International Criminal Court are appointed for nine years,309 those of the Court of Justice of the European Communities, the European Court of Human Rights and the Inter-American Court of Human Rights for six years.310 Judges of the Benelux Court of Justice retain their seats as long as they are members of the national courts from which they were appointed.311 This is the only international judicial organ with members appointed for life (until their 70th birthday). Exceptions to this practice, with respect to judicial organs, are the four administrative tribunals of the UN family (UN, ILO, World Bank, and IMF). Members of these tribunals are appointed for three or two years only.312 Some other administrative tribunals or boards of appeal use the same terms of office while others employ different terms (e.g. the OAS Administrative Tribunal – six years –).313

6.

Dates of replacement

§299. In most cases, not all members of an organ are replaced at the same time. In order to allow it to continue functioning, it is usually considered preferable to replace one third of the organ annually, if the members sit for three years, or one half if they sit for two years. One of the few amendments made in the Statute of the Permanent Court of International Justice when it was replaced by the International Court of Justice in 1945, was a provision for the election of five judges every three years instead of fifteen judges every nine years. The aim of staggered election, to constantly maintain a group of experienced members, can only be fully realized if the groups elected every time are of approximate-

306. IAEA, Art. VI.A.2 (for 20 seats only). 307. UPU General Regulation 102, para. 3 (“no member may be chosen by three successive congresses”). 308. UNESCO, Art. V.A.4.(b). 309. ICJ Statute, Art. 13; ICC Statute, Art. 36.9(a). 310. EC, Art. 223; Protocol No. 11 to the European Convention on Human Rights, Art. 23.1; American Convention on Human Rights, Art. 54. 311. Benelux Court of Justice, Art. 3, para. 2. 312. Three years: UNAT (Statute, Art. 3.2), ILOAT (Statute, Art. 3.2), WbAT (Statute Art. 4.3). Two years: IMFAT (Statute, Art. 7). 313. See for the statutes or other texts establishing administrative tribunals C.F. Amerasinghe, Documents on International Administrative Tribunals (1989).

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ly the same size. Replacements should therefore sit for the outstanding period of the members replaced, and extensions in membership should be fitted into the scheme. The Council of Europe had not taken full account of this when the European Convention on Human Rights was drafted. It was obliged to amend the Convention when the groups of members of the European Commission on Human Rights and of the European Court of Human Rights, which were elected every three years, had become disproportionate in size. New parties to the Convention automatically meant new members in the Commission and in the Court from the date that such new members entered the organization.314

§300. A consequence of staggered elections is that they diminish the possibility of reviewing the entire organ at the same time. For this reason, the members of the European Commission are all elected together.315 This makes it possible to replace at the same time a Dutch Christian Democrat by a Dutch Conservative, a French Socialist by a French Christian Democrat and a German Conservative by a German Socialist. It would be much more difficult to keep the balance between nationalities as well as between political parties if all vacancies could not be filled simultaneously. To avoid the drawbacks of a totally new organ, the freedom to elect all new members at the same time is balanced by a freedom to re-elect sitting members. §301. The actual date of replacement is usually the first of January after the election, or sometimes even earlier.316 If the organ meets only many months later, this may lead to its impotence between 1 January and the next session, as there are no designated officers who can conduct its activities. For organs which function between their sessions, or whose working parties continue to operate, this may be harmful. The UN General Assembly therefore decided that the members of the UN Commission on International Trade Law (UNCITRAL) take up their functions at the “beginning of the first day of the regular annual session of the Commission immediately following their election”.317 Thus the old members stay in office until a session of UNCITRAL can organize the work for the new members. G.

Quorum318

§302. Not all members of an organ need to be present for it to be formed. Most international organs can be formed by a certain percentage of their member-

314. Fifth Protocol to the European Convention on Human Rights. 315. EC, Art. 214. 316. The members of the board of UNIDO hold office from the close of the session of the general congress in which they are elected: UNIDO, Art. 9, para. 2. 317. GA Res. 31/99, para. 10. 318. See also H.G. Schermers, The quorum in international organs, in: K.-H. Böckstiegel et al., op. cit. note 90, at 527-535.

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ship: the quorum. Often the quorum is a simple majority of the members,319 sometimes it is a qualified majority,320 but it may also be a minority.321 In determining the quorum only members should be counted in, not other participants without the right to vote (e.g. associate members, see above, §166).322 Parliamentary organs of international organizations usually have special rules concerning the quorum. The Parliamentary Assembly of the Council of Europe (PA) and the European Parliament (EP) may deliberate whatever the number of representatives present. For both organs the quorum is one third of the representatives. All votings (EP) or all votes other than votes by roll-call (PA) are valid, whatever the number of representatives voting, unless, before the voting has begun, the President has been requested to ascertain the number of those present by at least 32 representatives (EP) or by at least one sixth of the representatives authorized to vote and belonging to at least five national delegations (PA); if it is ascertained that there is no quorum, no voting can take place.323 The commodity agreements usually require a double quorum, both of the membership of each category (importers and exporters) and of the voting power. See for example Article 13 of 1989 International Agreement on Jute and Jute Products: 1. The quorum for any meeting of the Council shall be the presence of a majority of exporting members and a majority of importing members, provided that such members hold at least two thirds of the total votes in their respective categories. 2. If there is no quorum in accordance with paragraph 1 of this article on the day fixed for the meeting and on the following day, the quorum on the third day and thereafter shall be the presence of a majority of exporting members and a majority of importing members, provided that such members hold a majority of the total votes in their respective categories.

§303. Waiting for the presence of a quorum before the opening of a meeting often leads to considerable delay. In order not to waste time, the UN General Assembly decided in 1971 that its President, and the Chairman of one of its main committees, may declare a meeting open and permit the debate to proceed when at least one third of the members of the General Assembly or

319. UN General Assembly Rule 67 (for the taking of decisions); UNESCO, General Conference Rule 62 (for the taking of decisions); IMO, Art. 14; ICAO, Art. 48(c); MIGA Council (Art. 40(b)- the majority of the governors should exercise not less than two-thirds of the total voting power). 320. IFAD, Art. 6, Section 2(g); Art. 25.3 Statute of the ICJ (9 of the 15 judges of the Court); Art. 15 Statute of the EC Court. 321. UN General Assembly Rule 67 (for meeting and debating, one third of the members is sufficient); WIPO, Art. 7.3(b). 322. See UNJY 1991, at 301-302. 323. Parliamentary Assembly CoE, Rule 41 (text 2000); European Parliament, Rule 126 of the Rules of Procedure (text 1999).

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one quarter of the members of a main committee are present.324 In 1972, the ECOSOC took a similar decision, enabling the chairman to proceed when at least one quarter of the members are present.325 In both organs the presence of a majority of the members is required for any decision to be taken. §304. The presence of only a majority of the members usually means that majority decisions of an organ are not necessarily supported by a majority of the members of the organ. The General Assembly of the United Nations (191 members April 2003) can be legally formed by 96 members. Majority decisions can be taken by 49 votes in favour and 47 votes against (if there are abstentions, the required majority may be even less). Moreover, the quorum is often verified at the beginning of a session. The members are then not counted again at each meeting (see below, §836). Subsequent meetings might therefore lack a quorum. Decision-making in the absence of a number of the members is not necessarily objectionable. If the agenda containing the items to be discussed is published well in advance of the meeting, and a number of members do not attend, one may assume that they are not sufficiently interested in the items under discussion and would therefore not hold any strong position either for or against any decision to be taken. Their absence need not, therefore, impede decision-making by the other members.326 If, on the other hand, the organ wishes to discuss items which are not proposed in advance, or if the items are considered to be of such importance that they must be of interest to all members, the presence of only slightly more than half would be insufficient to take action. Some organs which are responsible for important decisions or which should be able to decide on items not previously announced, may be formed by a quorum of the members but may take their decisions only by a specified majority of their total membership (see below, §821-822). §305. In plenary organs, each delegation represents only one member and it may well be left to that member to decide whether or not it wishes to be represented. In non-plenary organs, the members often represent more than one member. They are elected to represent a particular region, interest or point of view. For that reason absenteeism should not be lightly tolerated. A high quorum should be required when composing non-plenary organs, although this would increase the risk of sessions having to be postponed for lack of

324. GA Res. 2837 (XXVI), amending the rules of procedure of the General Assembly. It has become practice to waive this requirement in order to avoid the late start of meetings, “on the understanding that such a waiver would not imply any permanent change in the provisions of Rules 67 and 108 of the Rules of Procedure” (UN Doc. A/BUR/57/1, at 6). 325. ECOSOC Resolutions 53rd session (UN Doc. E/5209), at 24. 326. Some rules of procedure expressly forbid the addition of items to the agenda when members are absent (see below, §339).

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a quorum. However, most organizations do not require a substantial quorum for their non-plenary organs. Often a majority of the membership is sufficient; sometimes two thirds of the members are needed.327

III.

Functioning328

A.

Sessions

1.

Characteristics

§306. Most organs of international organizations meet only occasionally. Does this affect the permanent character of the organ? Originally the general congresses of the International Telecommunications Union and the Universal Postal Union only existed when they were in session. They were brought together by a host government in a particular town for a definite period. Each congress had its own character. It adopted its own procedure and elected its own officers. Before this election, a delegate of the host country would lead the debates. Gradually, however, these organs attained a permanent status. Currently in almost all international organizations the principal organs have a set procedure applicable to each session. The officers remain in office until their successors are elected, items on the agenda are referred to subsequent sessions, and a permanent constitution entrusts the organ with specific functions. In modern international organizations it would no longer be correct to state that an organ only exists when it is in session. Some organizations still imply this by referring to sessions of organs instead of to the organs themselves, for example, to the “third general congress”.329 In accordance with current opinion we shall consider the principal organs as permanent bodies, institutionally in existence even when not in session. §307. A session runs between its official opening and its official closure, often for several weeks at a time. The actual gatherings are called “meetings”. They take place once, twice or even three times a day (morning, afternoon and evening). A session is composed of a series of meetings. Between two meetings a session is considered to be adjourned. How long may adjournments be? Adjournments of several days are quite normal, but long adjournments during which delegates return to their home countries are undesirable. They might easily lead to problems concerning the

327. WHO Executive Board, Rule 26; IAEA, Art. VI.E; IMO, Art. 19(b) (of the 32 members of the IMO Council, 22 constitute a quorum). 328. See for an early study of the functioning of international organs M. Prélot, Le Droit des Assemblées Internationales, in: 104 RdC 471-527 (1961 III). 329. E.g. the WHO. The 56th World Health Assembly met in Geneva from 19-28 May 2003.

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remunerations, privileges and immunities of delegations during the adjournments. In the European parliament such problems arose when two members of this organ claimed immunity from jurisdiction. Mr. Fohrmann, director of the company which printed the periodical “CGT” and Mr. Krier, chief editor of this periodical, were sued in a Luxembourg Court by Mr.Wagner. He claimed that his reputation was injured by an anonymous article in “CGT”, contending inter alia that he falsified prices and weights in his shop and underpaid his employees. Both Mr. Fohrmann and Mr. Krier claimed immunity from jurisdiction since they were members of the European Parliament. The Luxembourg members of this parliament enjoyed immunity from jurisdiction in Luxembourg “during the sessions of the Assembly” (i.e. the European Parliament).330 The European Parliament meets 12 times a year for approximately one week. Nonetheless, it holds only one session per year which is opened in March and closed almost a year later. During this period the session is merely interrupted. The Luxembourg Court requested a preliminary ruling of the Court of Justice of the European Communities on the question of whether the European Parliament was in session on 6 November 1962. In his conclusion, Advocate General Lagrange submitted that the European Parliament should not be considered to be in session during the interruptions. The Court of Justice held, however, that a session lasts from the opening to the closure, so that the European Parliament may be in session even when it is not actually meeting. Fohrmann and Krier, therefore, enjoyed immunity from jurisdiction, unless this immunity was waived by the European Parliament.331 The European Parliament subsequently waived the immunity on 15 June 1964.332

In such cases, sessions should be closed, and re-opened after the interval. Some constitutions contain restrictions on the convocation of an extra session of an organ, or have such a strong tradition of yearly or biannual sessions that they cannot easily convene extra sessions when needed. This has led to a practice of suspending sessions in cases where they should have been closed.333 An organ will be less tempted to interrupt its sessions for long periods if it can freely decide when it wants to hold its next session.334 §308. In the UN General Assembly, it has been disputed as to whether a special session could be held simultaneously with a regular session. In fact both the Sixth and the Seventh Special Sessions were held during the suspension of

330. Protocol on the privileges and immunities of the European Communities, Art. 10. 331. Case 101/63, Wagner, ECR 1964, at 195. Confirmed in Case 149/85, Wybot v. Faure, ECR 1986, at 2391. 332. After a report of its legal committee (Doc. 27). See Handelingen Europees Parlement, IX/64, at 5-15. 333. The General Assembly of the UN frequently suspends its sessions. For example, in 1990 it was decided to suspend the 45th session (GA Decision 45/401 and Doc. A/45/250, at 4). The resumed 45th session took place between 3 May and 16 September 1991. 334. See e.g. UNESCO, Art. IV.9.

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a regular session. The Seventh Special Session came very close to the end of the suspension of the 29th and the opening of the 30th regular session. By continuing its meeting during the night and morning prior to the opening of the regular session, it finished its work just in time. On one day, 16 September 1975, the Seventh Special Session and the 29th regular session were closed and the 30th regular session was opened. Special sessions have transferred agenda items to regular sessions when they were unable to complete their work although there have been doubts on their competence to do so.335 In 2001, the Special Session on Children (the 27th Special Session of the General Assembly) was scheduled to take place between 19 and 21 September 2001, overlapping with the regular 56th session of the General Assembly.336 It was not questioned whether this Special Session could be held simultaneously with the regular session. 2.

Frequency and duration

§309. Some organs are permanently in session (see below, §411), but most meet only occasionally. Policy-making organs need only meet for the purpose of setting out the main strands of policy and for taking important decisions on behalf of the organization. The frequency and the length of their sessions will depend on the number and complexity of policy-decisions they have to take and on the possibility of delegating powers to other, more specialized organs. The general congress meets only rarely in technical organizations which have established their constitutional and procedural rules and have delegated many tasks to specialized bodies. There is usually a strong need for frequent meetings in the initial period but this later decreases. In the UPU the general congress meets once every five years; in the ITU and WMO once every four years; in the WIPO once every two years; in the WTO at least every two years. The general congresses of the FAO, UNESCO and the ICAO originally met annually. Later, these organizations amended their constitutions so that the general congress now meets once every two years, or in the case of ICAO, once every three years.337 The WHO repeatedly considered reducing the number of sessions of its general congress (the World Health Assembly) from annual sessions to once every two years. The required constitutional amendments were proposed by the Executive Board in February 1953.338 But the World Health Assembly has not so far wanted to reduce its sessions.339 Instead it has streamlined its work in other ways, for example by deciding in Resolution WHA44.30 that, with effect from the 46th World Health Assembly

335. UNJY 1967, at 321-325. 336. Following the terrorist attacks of 11 September 2001, the General Assembly decided on 12 September to postpone this special session (Decision 56/401), that finally took place from 8 to 10 May 2002. 337. FAO in 1949, UNESCO in 1952, ICAO in 1954 (entry into force 1956). 338. WHO, EB 11, R. 69. 339. For example Resolutions WHA 6.57, WHA 11.25 and WHA 12.38.

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(1993), technical discussions would take place in even-numbered years only, when there is no proposed programme budget to consider.340 The Assembly of Heads of State and Government of the Organization of African Unity considered reducing the number of its sessions from one a year to one every two or three years, but an amendment has never been adopted.341 The EFTA Council usually meets twice a month at the level of officials (Heads of Permanent Delegations to EFTA) and twice a year at ministerial level. The EEA Council normally meets twice a year.342

§310. A specialized organ often has one particular task to perform. It would be conceivable for the organ to continue its session until it resolved the problem for which it was formed. Specialized organs, however, hardly ever do so. There are at least three reasons that make it more profitable to assemble more frequently for short periods. (a) In one continuous session there is insufficient time for the administration to digest ideas proposed by the delegates. Intervals between sessions can be used by the secretariat for writing a systematic survey of the arguments used in a session. The members of the organ can study these arguments and, if necessary, discuss them with their own national advisors. (b) Long sessions are tiring and therefore less effective than shorter ones. This argument of efficacy may also be used conversely. Organs – particularly those composed of government representatives – may not include the same delegates at each session. Time may be wasted by new delegates repeating the arguments of their predecessors. In a long continuous session there is less risk that the composition of the organ will be changed. (c) Experts often cannot leave their principal functions for long periods. Prolonged sessions might dissuade the most renowned experts from attending. §311. Some organizations require a specific person to represent his state at a meeting of a particular organ, usually the general congress (see above, §243247). This may limit the physical possibility of frequent meetings. This limitation plays a role in the European Union. There the need for decisions is so strong that the Council must meet frequently. Between its establishment in 1958 and its merger with the other councils in 1967, the EEC Council met 224 times, an average of almost twice per month. In 2002, the Council held 77 meetings.343 A session often takes two or even three days, and even if we take into account that the Council meets in different compositions, this means a heavy burden for cabinet ministers. The physical impossibility of accepting more work might have led to a delegation of functions from the Council to the European Commission which the EC Treaty permits.344 In practice,

340. WHO, The Work of the WHO 1990-1991, at 2 (1992). 341. D. Thiam, Le Fédéralisme Africain, 126 RdC (1969 I), at 353-354; YIO 2000-2001, Vol. 1B, at 1863. 342. Art. 91.2 of the EEA Agreement. 343. General Report 2002 on the Activities of the European Union, para. 1091. 344. EC, Art. 211.

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however, much of the preparatory work of the Council has been taken over by the Committee of Permanent Representatives (see below, §393), which has no powers under the treaties, but may prepare Council decisions in such a way that they occupy very little of the Council’s own time.345 The existence of this Committee of Permanent Representatives has enabled the number and length of Council sessions to be decreased.

3.

Specialized sessions

§312. Due to the increasing number of subjects on agendas, coupled with the growth in the number of participating states, many organs are confronted with a lack of time to treat fully all subjects under discussion. One method of alleviating this burden is to divide the agenda items between different sessions. Since 1992, the ECOSOC holds an annual organizational session, usually in early February (not exceeding four days), and a substantive session to take place in alternate years in New York and Geneva.346 The substantive session is organized, sequentially, as follows. First, a “high level segment” of four days open to all member states in accordance with Article 69 of the Charter, with ministerial participation, devoted to the consideration of one or more major economic and/or social policy themes to be determined at the organizational session. Second, a “coordination segment”, devoted, inter alia, to the coordination of the policies and activities of the specialized agencies, organs, organizations and bodies of the UN system. Discussions are organized around one or more themes selected at the organizational session. Third, an “operational activities segment” of two to three days devoted to operational activities of the UN system. Finally, a “committee segment” to consider specific economic, social and related issues in two separate committees meeting simultaneously to consider and take decisions on the reports of the subsidiary bodies of ECOSOC.347

4.

Costs

§313. The costs of meetings of international organs (see below, §957-959) should be divided into two categories: a) the administrative costs of the secretariat, the conference rooms, the translations, etc. The administrative costs of large conferences are considerable. The ILO estimated the expenditure for its two general congresses in 1992 and 1993 at $ 9,752,327.348

345. EC, Art. 207.1. 346. GA Res. 45/264. The substantive session originally was to meet for five weeks; in 1996 the General Assembly limited this to four weeks (Res. 50/227). 347. Id. See also GA Res. 48/162 and 50/227; UN Docs. A/47/534, A/48/639 and A/49/558. 348. International Labour Organization, The Director General’s Programme and Budget Proposals for 1992-1993, Information Annex No. 3A.

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b) the travel and maintenance costs of delegations of members at meetings. Are these latter costs to be borne by the members concerned or by the organization? Both views can be defended. A distinction should be drawn between travel expenses and other costs. §314. Arguments in favour of paying all the delegation’s costs out of the budget of the organization are: (1) States participate in the work of the organization in their “internal” capacity, as constituent parts of organs of the organization (see above, §66). The sending of a delegation is not only in the interest of the member concerned, but is also for the benefit of the organization. If discussions are to be profitable, competent delegations are needed from all members. (2) Most budgets divide costs according to capacity to pay. Since participation in organs is an activity of the organization, its expenses should be distributed in the same way as other costs. Payment of delegations by the members themselves favours the rich states, which are able to afford to send delegations to all sessions. In addition to these arguments, there are valid reasons why an international organization should meet the delegation’s travel expenses at least. Delegations from distant members are, in any case, in a disadvantageous position. Their travelling takes more time; communication with their national governments – for example, for obtaining further instructions – is more difficult. If they were obliged to pay for themselves, distant members might be unwilling to send delegations to less important meetings and this would upset equitable geographical representation. Alternatively, they may send the staff of local embassies instead of experts. §315. An argument against the organization paying the costs of delegations is that it is the duty of the members to determine their delegations’ living standards. Moreover, the paying of the total costs of the delegations would considerably increase the budgets of international organizations. This last argument is probably the main reason why the UNIDO constitution (Article 12) provides that each member shall bear the expenses of its own delegation to any organ in which it may participate. However, the value of this argument should not be overestimated. Although the budget of the organization is affected, there is no substantial difference in the total costs borne by the members. They pay their delegations in any event; the only difference lies in the distribution of costs and perhaps in the section of the national budget in which the costs are incorporated. In practice the payment of subsistence allowances impedes prolongation of sessions and convocation of additional sessions, since the budgets of international organizations are more strictly controlled than most national budgets. An extra session of a working party of the Council of Europe (which pays subsistence allowances) is far more expensive to the organization than an additional session of a similar working party in the European Union (which pays only travel costs). It is

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partly for this reason that extra sessions of working parties of the Council of Europe are very difficult to arrange, to the possible detriment of a working party whose task is greater than anticipated.

§316. While the above-mentioned arguments in favour and against payment of travel and subsistence costs by the organization lead to different arrangements with regard to plenary organs, the situation is different for delegations to non-plenary organs. These delegations are expected to represent a particular interest or region, or have been elected for a certain expert-knowledge. For this reason a number of international organizations finance delegations to nonplenary organs, even when they do not do so for plenary organs. It illustrates that member states act in their “internal” capacity, representing interests broader than just their own (see above, §66). For the same reason, sometimes government representatives are entitled to travel and subsistence expenses when they are entrusted with representational responsibilities by the organ concerned.349 The UN originally paid the travel expenses for five delegates from each member in the General Assembly.350 Following consideration by the General Assembly of the report of the Group of High-level Intergovernmental Experts to Review the Efficiency of the Administrative and Financial Functioning of the UN,351 reimbursement of travel costs was limited to delegates from the least developed countries. As regards members of other organs or subsidiary organs the two basic principles are, first, that “travel and subsistence expenses shall be paid in respect of members of organs and subsidiary organs who serve as representatives of governments” and, second, that “neither travel nor subsistence expenses shall be paid in respect of members of organs or subsidiary organs who serve as representatives of governments”.352 The financial agencies provide subsistence allowances for delegates to their general congresses.353 The WHO,354 UNESCO,355 the ITU,356 and the IFAD357 which do not finance delegations to their general congresses, pay travel and subsistence allowances to the delegations to the board. The Council of Europe reimburses travel and

349. See for example UNJY 1990, at 297-304, concerning the standard of travel applicable to members of the UN Committee on the Exercise of the Inalienable Rights of the Palestinian People, when attending seminars, symposia and other meetings away from the headquarters. 350. GA Res. 1798 (XVII), para 3(a) (i), replacing Res. 1075 (XI). 351. GAOR, 41st session, Suppl. no. 49, (recommendation 6); GA Res. 41/213. 352. See GA Res. 1798 (XVII), par. 2. The second principle is subject to certain exceptions, specified in para. 3 of this Resolution. See for a more detailed examination: UNJY 1990, at 297-304. 353. IMF, Art. XII, Section 2h; World Bank, Art. V, Section 2g; IFC, Art. V, Section 8; IDA, Art. VIII, Section 8. 354. Decision of the first session of the World Health Assembly, see Official Records WHO, No. 13, at 100 and 317. 355. UNESCO, Rules of Procedure of the Executive Board, Rule 61. 356. ITU Convention, Art. 4.6. As of 1 January 2004, only the expenses of board members from developing countries are borne by the organization. 357. IFAD, Bylaws Sections 3 and 5.

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subsistence allowances for members of committees of experts, although the member states pay all costs of the delegates to the Committee of Ministers and to the Parliamentary Assembly.358 The FAO only pays travelling expenses of not more than one member of the delegation of each member state on the Council.359 In UNIDO, members of the general congress as well as members of the board have to bear the expenses of their own delegations (Article 12). The European Bank for Reconstruction and Development does not remunerate members of the general congress, whereas it does to members of the executive council (the “Board of Directors”).360

5.

Place

§317. Usually organs are required to meet at the headquarters of the organization.361 Some organs meet elsewhere for practical reasons, at a location related either to their task (e.g. fact-finding commissions), or to their composition (small organs which need little help from the secretariat may meet at a place within easier reach of their members). Thus, until 1970, the general congress of the ICAO met in New York for its extraordinary sessions where the members could be represented by the staff of their permanent missions to the UN.362 In some international organizations the main organ (general congress) meets regularly363 or occasionally364 away from the seat of the organization.

358. Statute Council of Europe, Art. 38.a. 359. FAO, Rule XXV, para.6. 360. Art. 23.2 (general congress) and Bylaws, Section 4 B(a) (Board of Directors); the latter provision stipulates that “the Bank shall bear the cost of remuneration of any four people in respect of each Directorship”. 361. See GA Res. 31/140 paras. 4 and 5, and Res. 40/243; UNJY 1984, at 162-163. See also the report of the Group of High-level Intergovernmental Experts to Review the Efficiency of the Administrative and Financial Functioning of the United Nations (Document A/41/ 49), Recommendation 4 (at 6), and UN Doc. A/49/212. 362. R.H. Mankiewicz, Organisation de l’Aviation Civile Internationale, 23 AFDI (1977), at 626. Subsequently, these extraordinary sessions were held in other cities (Rome, in 1973) or at the ICAO headquarters (Montreal, in 1984 and 1990). 363. UPU, ITU, WTO, WEU, OAS, OAU/AU. For a list of the places where the UPU Congress met between 1874 and 1964, see M.A.K. Menon, Universal Postal Union, 552 Int. Conc. (March 1965), at 32. The 1969 session in Tokyo, the 1974 session in Lausanne, the 1979 session in Rio de Janeiro, the 1984 session in Hamburg, the 1989 session in Washington D.C., the 1994 session in Seoul, and the 1999 session in Beijing should be added. The WTO Ministerial Conference met in Singapore (1996), Geneva (1998), Seattle (1999) and Doka (Qatar, 2001). 364. The General Assembly of the UN held the first part of its third session in Paris; during its 43rd session (from 13 to 15 December 1988) it convened in Geneva, following the denial by the US of the visa application by Yasser Arafat, who wanted to make an opening statement in the Assembly’s debate on Palestine (see GA Res. 43/49). The general congress of ILO met in San Francisco (31st session), that of WHO in Rome (2nd session), Mexico City (8th session), Minneapolis (11th session), New Delhi (14th session), and Boston (22nd session), that of ICAO in Caracas (10th session), Buenos Aires (1968) and Vienna (1971); and that of IAEA in Tokyo (1965), Mexico (1972), Rio de Janeiro (1976) and New Delhi (1979).

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§318. There are certain advantages to be gained by important organs choosing a location other than the seat of the organization for their meetings, even where the tasks to be performed may not make such a choice necessary. (1) If an organ discusses matters relating to a region, the quality and the effect of these discussions may be improved by meeting in the region concerned.365 (2) The public relations of an organization in a particular state or region will benefit from a session in that state or region. The local authorities will do their best to display hospitality, and the organization will receive the special attention of the local press. (3) The organs are usually composed of qualified persons. At the same time these persons are often experts in the organization’s field of operation and responsible officers of their own governments. Their experience in another country and contacts with local experts improve mutual understanding which will also be especially beneficial to the organization.366 (4) The session may encourage local development and interest in the fields in which the organization operates. (5) The disadvantage of the members situated far away from the organization’s headquarters will be partly compensated if some sessions are held in their vicinity.367 §319. There are also strong disadvantages: (1) The costs of the session will be considerably higher.368 Part of the staff of the organization and many documents will have to be temporarily transferred. Office space and meeting halls will have to be rented. Often, however,

365. E.g. the UN Security Council met in Addis Ababa in 1972 and in Panama City in 1973. During these meetings, it focused its attention on the question relating to the region with which the Council was seized and the implementation of the relevant Council resolutions (see UNJY 1986, at 285-286). These meetings away from the seat must be distinguished from missions carried out on some occasions by the Council. Such missions are usually composed of a limited number of members of the Council. The June 2001 mission to Kosovo represented the first mission comprising all fifteen Council members (UN Doc. S/2001/600). A legal question raised in the context of that mission was whether during the three days of this mission the Council was still “so organized as to be able to function continuously” and whether the members were “represented at all times at the seat of the organization”, as required by Art. 28.1 of the Charter. 366. For an example, see the report of the UN Special Committee on the Situation with regard to the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, on its meeting in Africa, instead of New York, YUN 1967, at 620. 367. The International Secretariat of the Future, Royal Institute of International Affairs (London, 1944), at 48. 368. Therefore the Group of High-level Intergovernmental Experts to Review the Efficiency of the Administrative and Financial Functioning of the UN recommended that the existing principle that UN bodies should meet at their established headquarters should be strictly enforced. Furthermore: “Whenever the Assembly accepts an invitation from the government of a member state to hold a conference or meeting away from established headquarters, the additional costs should be borne in full by that government. The methods of budgeting these costs should be improved so as to ensure that all additional costs are accounted for” (UN Doc. A/41/49, at 6).

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the host country (which benefits financially from a session) is prepared to pay part or all of the extra costs (see below, §961). This is not always possible, however. No invitations were received from states to host the 21st session of the general congress of the ICAO. The meeting had to be held at the headquarters of the Organization (Montreal).369 (2) Since much of the work of the secretariat will continue as normal, it will not be possible to use the secretariat’s own clerical staff. In any case the cost of temporary transfer would usually be too high. The necessary temporary local clerical staff will usually be less competent than the organization’s own secretariat at headquarters. (3) The absence of many administrative staff members and the impracticability of transferring all the organizations’ documentation will limit the delegates’ source of information during the session. Library and archive services will be less comprehensive than at the headquarters. (4) The personnel of an international organization benefits from close contact with the delegates to an organ of the organization. The presence of such delegates provides necessary stimulation of staff members, who will be able to learn of developments from the discussions. Those staff whose attendance, by virtue of the nature of their work, is not required at sessions, will be at a disadvantage if they are denied occasional contact with the delegates. (5) Sometimes members have a permanent representation at the headquarters of an international organization (for example, in Geneva and New York). They will also have to transfer these persons which may pose problems, especially when they hold other offices at the same time (several permanent representatives of small states are also ambassador or consul to the state concerned). This was demonstrated when the Security Council met in Addis Ababa (29 January – 4 February 1972) and in Panama (15-21 March 1973).370 Since then, the Security Council has always met in New York, the only exception being its 2923rd meeting (25 May 1990). This meeting took place in Geneva to enable Yasser Arafat to address the Council, after the US refused to give a visa to the PLO leader.

(6) Finally, the possibility of meeting elsewhere may lead to long debates on where to locate the meeting.371 §320. The value of these arguments varies from organization to organization and from organ to organ. Organs of a regional organization which require strong support from the secretariat should not meet outside the headquarters. Universal organizations with small secretariats, such as the Universal Postal

369. Mankiewicz, op. cit. note 362, at 626-627. 370. See J. Mourgeon, Les réunions du Conseil de Securité hors du Siège, 19 AFDI 564-578 (1973); Bailey and Daws, op. cit. note 260, at 335-338; UN Doc. S/PV.1684-1686 of 16 and 26 Jan. 1973. 371. See B. Boutros-Ghali, Les difficultés institutionnelles de panafricanisme (1971), at 24-26.

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Union, can easily hold meetings elsewhere. In most cases it would be preferable normally to meet at headquarters.372 6.

Public and Private Meetings, Publicity and Transparancy

§321. Whether the meetings are public or not may make a considerable difference to the proceedings of a session.373 In public meetings more speeches will be made for national political purposes rather than for the benefit of the organization. In closed meetings it may be easier to make concessions which are unpopular nationally. The absence of the press may, however, lead to the use of less valid arguments. Parliamentary control is impossible in the case of closed meetings. Most meetings of modern international organizations are held in public. This is even true for the UN Security Council that often has to deal with politically sensitive issues concerning the maintenance of international peace and security.374 The Council only exceptionally meets in private. This is always when a recommendation to the General Assembly is discussed and decided regarding the appointment of the SecretaryGeneral.375 It may also happen on other occasions.376 For example, in February 1991 when military action was taken against Iraq (following the invasion of Kuwait by that country) some Security Council members required an early meeting of the Council to discuss the matter and exercise its responsibility. The United States and other states participating in the military action rejected this demand. Finally, as a compromise, it was decided that the Council should meet in private.377 One of the exceptions to the ‘rule’ that most meetings of international organizations are held in public is the Council of the European Union, which normally meets in closed session.378 Following decisions on “transparency” taken by the European Council in December 1992 (Edinburgh), the first “open” meeting of the Council of Ministers was held on 1 February 1993, devoted to the working programme of the following

372. See C. Wilfred Jenks, The Headquarters of International Institutions (1945), at 11. 373. See in general: Kaufmann, op. cit. note 129 [Conference Diplomacy], at 73-95. 374. Rule 48 of the Council’s Provisional Rules of Procedure. Nevertheless, most of the preparations for these public meetings of the Council are done informally and escape the public eye. See L. Feuerle, Informal Consultation: A Mechanism in Security Council Decision-Making, 18 NYUJILP 267-306(1985). In the 1990s the Security Council decided on numerous occasions to have greater recourse to open meetings; see Presidential Statement 1994/81 and Docs. S/1998/1016 and S/1999/1291. See further M.C. Wood, Security Council Working Methods and Procedure: Recent Developments, 45 ICLQ 150-161 (1996). 375. Rule 48 of the Council’s Provisional Rules of Procedure. 376. See Bailey and Daws, op. cit. note 260, at 53-60. 377. UN Doc. S/PV.2977 (Part I). The difficulty of taking the decision to meet in private is illustrated by the result of the voting on this decision: 9 votes in favour, 2 against and 4 members abstaining (id., at 66). 378. Art. 5 of the Rules of Procedure of the Council (OJ 2000, L 149/21). Cf. also the Interinstitutional declaration by the European Parliament, the Council and the Commission, on democracy, transparency and subsidiarity (published in OJ 1993, C 329/133); J.-C. Piris, After Maastricht, are the Community Institutions More Efficacious, More Democratic and More Transparent?, 19 ELRev. 449-487 (1994).

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sixth months.379 Although this meeting was indeed transparent, it was rightly commented that this also “makes for very dull television”:380 ministers only read out prepared speeches and no discussions took place.381 In May 2001, an EC regulation was adopted regarding public access to European Parliament, Council and Commission documents.382 The starting point of this regulation is that all documents of these three institutions should be accessible to the public, in accordance with the rationale indicated in the preamble: “[o]penness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system”. Article 4 of the regulation specifies a number of exceptions. Where these apply, the institution concerned shall refuse access. The exceptions relate to, inter alia, public security, defence and military matters, international relations, the privacy and integrity of the individual, commercial interests of a natural or legal person, court proceedings and legal advice. Citizens may apply for access to a document, without the need to state reasons for the application. Each of the three institutions shall provide public access to a register of documents. As a rule, decisions on a request for access to a document shall be taken within 15 working days. A definite refusal to provide access may be challenged before the EC Court.383

During the 1990s international organizations have increasingly accepted the need to make their decision-making as transparent as possible and to offer the general public as much as possible access to information concerning the work of the organization. For example, the 1997 Amsterdam Treaty amended Article 1 of the Treaty on European Union to the effect that “decisions are taken as openly as possible and as closely as possible to the citizen” (emphasis added). A large number of international organizations have adopted their own ‘transparency policies’.384 Within the WTO a distinction has been made between ‘internal’ and ‘external’ transparency. Internal transparency refers to the policy to include all WTO members in the decision-making process. For example, during the unsuccessful 1999 Seattle Ministerial Conference, the critical final ‘Green Room’ consultations to resolve the most difficult issues took place without participa-

379. 380. 381. 382.

See Europe No. 5878BIS (Sp.Ed.). Weatherill and Beaumont, op. cit. note 28, at 75. See Europe No. 5910, at 7-8. Regulation (EC) No. 1049/2001 of the European Parliament and the Council, OJ 2001, L 145/43. 383. Some case law already exists with respect to challenges of decisions of the institutions taken on the basis of earlier legislation in the field of public access to documents. See Lenaerts and Van Nuffel, op. cit. note 2, at 497-501. See for a case in which the Council and the Commission invoked the ‘international relations exception’ to refuse access to documents: Case T-204/99, Mattila, ECR 2001, at II-2268. 384. This is reflected in some of the draft general principles concerning accountability of international organizations prepared within the ILA (‘transparency in both the decisionmaking process and te implementation of institutional and operational decisions’; ‘participatory decision-making process’; ‘access to information’). See the Second Report of the ILA Committee on Accountability of International Organizations, prepared for the London Conference (2000).

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tion of many of the smaller trading nations. After Seattle, the ‘effective participation’ of all members in WTO was discussed and consensus was reached on a number of recommendations. For example, there was “broad recognition” that, particularly when decisions by Ministers are required, such decisions should be well prepared in advance at WTO headquarters; “a strong, inclusive, and transparent process leading up to, and including, Ministerial Conferences, was fundamental in order to ensure a successful outcome”.385 External transparency on the other hand refers to WTO openness towards the outside world. In 1996 Guidelines were adopted on relations with ngo’s.386 The chaotic proceedings at the Seattle Ministerial Conference urged the WTO to improve its ‘public outreach’. The WTO website is an important instrument in this regard, as is the increased dialogue with ngo’s. Nevertheless, at the same time the intergovernmental nature of the WTO was underlined, limiting the extent to which ngo’s could be involved more directly in WTO activities.387 One aspect of publicity is publication of the records of meetings. As verbatim, and even summary, records are very expensive, most organs do not publish their records. Apart from the General Assembly and the Security Council only a limited number of UN organs are authorized to do so.388 7.

Documentation

§322. Modern international organizations are overwhelmed with documents. A large number of lengthy documents are distributed, many of which are hardly read. In 2001, delegations to the UN received on average a set of 30 documents or 350 pages each working day, which meant an annual total of 87,500 pages.389 The costs of duplication and distribution are enormous. In 1974 the Economic and Social Council of the UN (ECOSOC) decided to consider no report exceeding 32 pages, with only a limited number of exceptions. According to the UN Committee on Conferences this limit has helped to contain the volume of documentation.390 Since 1981, the General Assembly has repeatedly requested subsidiary organs to strive at keeping their reports within this 32 pages limit.391 In practice, there has been a tendency towards

385. WTO website; WTO Newsletter ‘Focus’, November 2000, at 4-5. 386. WTO Doc. WT/L/162. For example, it was agreed that WTO documents would be made public more promptly. 387. WTO website; WTO Newsletter ‘Focus’, November 2000, at 5-6. 388. See ECOSOC Decision 65 (ORG-75). See also GA Res. 31/96 II, §2; IFAD, Rule 25. 389. UN Doc. A/57/289, at 9. 390. Report of the Committee on Conferences 1978, UN Doc. A/33/32, at 12, para. 76. 391. Res. 36/117 A. Also, for example, Res. 45/238 B. See for a general overview on the work by the General Assembly in this area: Doc. A/INF/47/1 (1992).

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decreased compliance with this rule.392 More recently, the General Assembly has invited all intergovernmental bodies to consider reducing the length of their reports from 32 to 20 pages.393 In addition, a limit of 16 pages has been established for reports originating in the UN Secretariat.394 The Secretary-General of the UN is required to indicate the documents to be submitted in respect of each agenda item in order to enable the Council to keep control of its documentation.395 Furthermore, the ECOSOC has decided to automatically adjourn agenda items to the following session if the relevant documentation has not been made available to its members six weeks before the opening of the session.396 8.

Privileges and immunities at sessions397

a.

Definition

§323. There is no sharp distinction between privileges and immunities. The immunity from tax legislation is usually considered to be the most important privilege. We shall use the word “privilege” for all cases where local legislation is not, or is differently, applicable, and the word “immunity” for the immunity from jurisdiction (unless indicated otherwise). This is the most basic distinction as, in the case of immunity from jurisdiction, local legislation is fully applicable, so that no privileged position is granted. The only consequence of immunity from jurisdiction is that local courts cannot assess the applicability of the law in specific cases. Whenever this is done by other courts, tribunals

392. See the 1990 Report of the UN Committee on Conferences, GAOR, 45th session, Suppl. no. 32, at 11-12. Reference was made to approximately 24% of subsidiary bodies respecting the 32 pages rule. See also Doc. A/AC.172/149 (1992), presenting figures showing that the situation has further deteriorated. 393. E.g. GA Res. 53/208 B, para. 15. See further UN Doc. A/57/228 (in particular at 15-19). 394. See e.g. GA Res. 53/208 B, para. 16. See further UN Doc. A/57/228 (in particular at 15-19). This document itself has 52 pages. This substantial exceeding of the 16-page limit is attributed to “the consolidation of several separate reports into one response”. 395. ECOSOC Res. 1894 (LVII). 396. ECOSOC Res. 1770 (LIV). 397. Further literature: J.L. Kunz, Privileges and Immunities of International Organizations, 41 AJIL 828-862 (1947); C. Wilfred Jenks, International Immunities (1961); K. Ahluwalia, The Legal Status, Privileges and Immunities of the Specialized Agencies of the UN and certain other International Organizations (1964); The practice of the UN, the Specialized Agencies and the International Atomic Energy Agency concerning their status, privileges and immunities, study prepared by the UN Secretariat, UN Documents A/CN.4/L.118 and Add. 1 and 2, published in Yb ILC 154-324 (1967 II); D.B. Michaels, International Privileges and Immunities: A Case for a Universal Statute (1971); J. Duffar, Contribution à l’étude des privilèges et immunités des organisations internationales (1982); C. Dominicé, La nature et l’étendue de l’immunité de juridiction des organisations internationales, in: K.-H. Böckstiegel et al., op. cit. note 90, at 77-93; P.H.F. Bekker, The Legal Position of Intergovernmental Organizations – A Functional Necessity Analysis of Their Legal Status and Immunities (1994); M. Wenckstern, Die Immunität internationaler Organisationen (1994); A. Reinisch, International Organizations before National Courts (2000).

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or authorities, the immunity does not necessarily grant a more favourable position. b.

Why are privileges and immunities granted to international organizations?

§324. No international organization could function properly if the host state could at will decide what persons invited by the organization would be permitted to enter its territory, and what persons would not be permitted to do so. No international organization could function properly if its personnel could be arrested at will by the authorities of the member states. In 1999 the Federal Republic of Yugoslavia (FRY) initiated proceedings before the ICJ against ten states which participated in the NATO air campaign during the Kosovo crisis. One of these states was the Netherlands. It would not be lawful for the Netherlands as the host country of the ICJ not to give a visa to the agent representing the FRY in these proceedings. Therefore a visa was given, even when matters became more complicated because the agent in question was included in an EU ‘black list’ of FRY citizens to whom no visa would be given by EU member states.

In general, international organizations need to be protected from undue interference in their own affairs by states. Such protection is afforded by granting them privileges and immunities. In other words, often used in this context, the raison d’être of privileges and immunities of international organizations is their functional necessity: their existence is necessary for the independent exercise of its functions by an international organization.398 It has often been stressed that privileges and immunities are accorded for this reason, and not for the personal benefit of the persons in question.399

398. This doctrine has found general acceptance in literature (see previous footnote) and legal practice (for example, conventions, judgments by the International Court of Justice (Mazilu Case, Advisory Opinion, ICJ Rep. 1989, at 177, in particular paras. 44-55) and the Court of Justice of the European Communities (Case C-2/88, Zwartveld, Order of the Court, ECR 1990, at I-3365). For example, Art. 38.1 of the Agreement between the WTO and Switzerland provides, inter alia: the purpose of the privileges and immunities provided for in this Agreement “is solely to ensure, in all circumstances, the freedom of action of the organization and the complete independence of the persons concerned in the discharge of their duties in connection with the organization” (see for the text of this agreement WTO Doc. WT/GC/1). 399. See, for example, Section 23 of the Convention on the Privileges and Immunities of the United Nations (“Privileges and immunities are granted to experts in the interests of the United Nations and not for the personal benefit of the individuals themselves”); Art. 36 of the Agreement between UNESCO and Venezuela relating to the headquarters of the Office of Regional Coordination for Latin America and the Caribbean and to its Privileges and Immunities in Venezuelan Territory, reproduced in UNJY 1984, at 32-38; General Principle A of the Donnez report on the draft Protocol revising the Protocol on the Privileges and Immunities of the European Communities of 8 April 1985 in respect of members of the European Parliament (Doc. A 2-121/86, at 13: “not a Member’s personal privilege but a guarantee of the independence of Parliament and its Members in relation to other authorities”), adopted by the European Parliament at its sitting of 10 March 1987 (OJ 1987,

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This doctrine of functional necessity not only explains why privileges and immunities are granted to international organizations. It also helps to delimit their scope: what specific privileges and immunities should be granted, to whom are they applicable, in what circumstances should they be waived by the organization, and similar questions. Nevertheless, while this doctrine provides for guidance in finding answers to these questions, it can never predetermine specific answers. It is evident that opinions differ as to what precisely is necessary for the independent exercise of its functions by an international organization. In this chapter we will concentrate on the role of privileges and immunities during sessions of international organs. Privileges and immunities for international civil servants are discussed in Chapter Four. Finally, some attention will be given to privileges and immunities when discussing the legal status of international organizations in national law (Chapter Eleven). c.

Instruments laying down privileges and immunities

§325. For almost every international organization a treaty or agreement400 has been concluded, granting privileges and immunities to the organization (see below, §1606-1612), to its staff (see below, §529-537) and to the delegates to the sessions of its organs. Within the UN two general agreements have been concluded concerning privileges and immunities: one for the UN,401 and the other for the specialized agencies.402 These agreements also cover the privileges and immunities necessary for delegations to meetings of the organizations. Comparable agreements are concluded for other international organizations.403 Apart from such agreements, which bind all members accepting them, most organizations also have some form of agreement with the host state (the headquarters agreement).404 When meetings are convened away from the seat of the organization, ad hoc agreements must be made with the host state.405 In many cases privileges and immunities are granted by national law. The status, privileges and immunities of both the UN Interim Administration Mission in Kosovo (UNMIK)

C 99/44). 400. The term “agreement“ is used for treaties concluded by international organizations (see below, §1744). 401. Convention on the Privileges and Immunities of the United Nations, adopted by the UN General Assembly in 1946, 1 UNTS, at 15. 402. Convention on the Privileges and Immunities of the Specialized Agencies, approved by the UN General Assembly in 1947, 33 UNTS, at 261. 403. E.g. the 2002 Agreement on the Privileges and Immunities of the International Criminal Court (published in Doc. ICC-ASP/1/3, at 215). 404. See A.S. Muller, International Organizations and Their Host States – Aspects of Their Legal Relationship (1995). 405. See e.g. the Agreement between the UN and the government of Jamaica regarding arrangements for the 8th session of the Commission on Human Settlements of the UN, UNJY 1985, at 15.

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and the international security presence in Kosovo (KFOR) have been laid down in UNMIK Regulation 2000/47.406 Usually host states will be parties both to general (multilateral) agreements on privileges and immunities and to a (bilateral) headquarters agreement with the organization. These two types of agreements generally contain largely similar rules on a largely similar series of subject matters: the status, privileges and immunities of the organization and its staff. An obvious difference is that the obligations of the host state under general, multilateral agreements are obligations vis-à-vis other state parties to these agreements, whereas the – often similar – obligations of the host state under headquarter agreements are obligations vis-à-vis the organization. Some of these agreements contain provisions on the relationship between a general agreement and a headquarters agreement. For example, Section 52 of the Agreement between Austria and the UN regarding the seat of the UN in Vienna provides that “[t]he provisions of this Agreement shall be complementary to the provisions of the General Convention. In so far as any provision of this Agreement and any provision of the General Convention relate to the same subject matter, the two provisions shall, wherever possible, be treated as complementary, so that both provisions shall be applicable and neither shall narrow the effect of the other”.407 In a few agreements an additional provision is included, according to which in case of conflict between the provisions of the general agreement and those of the headquarters agreement, the latter shall prevail.408

d.

Subjects of privileges and immunities

(i)

Individual experts

§326. Some international organs are composed of experts serving in their personal capacity. The position of such delegates comes close to that of staff

406. In 2001 the Ombudsman for Kosovo concluded that this regulation was incompatible with recognized international human rights standards (see further below, §1611). 407. BGBl. III, 18 Juni 1998, Nr. 99, at 774-789. A similar provision is included in Section 41 of the 1967 Agreement between the UN and Austria regarding the headquarters of UNIDO (UNTS No. 8679). 408. See e.g. Section 26 of the UN-US Headquarters Agreement (11 UNTS 12); Section 49(b) of the 1957 Headquarters Agreement between Austria and the IAEA (UNTS No. 4849); Section 34(b) of the 1951 Headquarters Agreement between Italy and the FAO (UNTS Vol. 1409, I-23602); Section 17 of the 1958 Agreement between the UN and Ethiopia regarding the headquarters of the UN Economic Commission for Africa (UNTS No. 4597); Art. 13.2 of the 1979 Agreement relating to the headquarters of the UN Economic Commission for Western Asia (ESCWA). The last mentioned headquarters agreement does not contain a clause providing for general immunity from national service obligations, also for national of the host state. Such a clause is however included in the 1946 Convention on the Privileges and Immunities of the UN. The question arose in practice which provision would prevail. In 1987 the Office of Legal Affairs of the UN Secretariat advised that “as the Headquarters Agreement contains an exception in respect of national of the host State, that exception, which is lex specialis and was negotiated later than the Convention, should prevail over the earlier and more general provision of the Convention” (see UNJY 1987, at 212).

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members. The main difference is the temporary nature of their engagement which often leads to restriction of their fiscal privileges.409 The 1946 Convention on the Privileges and Immunities of the United Nations distinguishes between the privileges and immunities of the UN as such, of the representatives of UN members, of UN officials, and of experts on mission. In practice, on a number of occasions the UN has appointed persons not having the status of UN official (for example, to prepare reports or studies, to participate in peace-keeping forces; members of the International Law Commission, the Human Rights Committee).410 All these persons have been regarded as “experts on mission” within the meaning of Section 22 of the 1946 Convention. The International Court of Justice has accepted this view. It has concluded that Section 22 “is applicable to persons (other than United Nations officials) to whom a mission has been entrusted by the Organization and who are therefore entitled to enjoy the privileges and immunities provided for in this Section with a view to the independent exercise of their functions. During the whole period of such missions, experts enjoy these functional privileges and immunities whether or not they travel”.411 Experts who serve in a private capacity in independent organs, such as courts, may have been granted privileges and immunities in a separate treaty or agreement.412 Their immunity cannot be waived by the Secretary-General of the organization, but only by the organ of which they are members, to guarantee the independence of this organ. On 9 December 1983 Mr. Tejendrasingh, an applicant before the European Commission on Human Rights in a number of applications, issued proceedings in the High Court in England against Mr. Fawcett, the English member (and former president) of the

409. See e.g. Art. 6 of the Convention on the Privileges and Immunities of the United Nations, 1 UNTS, at 26. 410. See e.g. UNJY 1992, at 479-480 (on the status of UN Guards as experts on mission); UNJY 1991, at 305-307 and UNJY 1992, at 481-483 (on the status of members of UN Volunteers); UNJY 1992, at 480-481 (on the distinction between officials and experts on mission). 411. Mazilu Case, Advisory Opinion, ICJ Rep. 1989, at 196; Cumaraswamy Case, Advisory Opinion, ICJ Rep. 1999, in particular paras. 42-45. 412. See e.g. Second Protocol to the General Agreement on Privileges and Immunities of the Council of Europe, 1956 (on the privileges and immunities of the members of the European Commission on Human Rights). For a case on the immunity of a member of the Commission, see ILR 1970, at 438-451 (Zoernsch v. Waldock and Another, English Court of Appeal, 24 March 1964). Privileges and immunities of members of the International Court of Justice are laid down in an Appendix to a Note from the President of the Court to the Minister of Foreign Affairs of the Netherlands (1946); see GA Res. 90 (I). Reproduced in S. Rosenne, Documents on the International Court of Justice (bilingual edition, 1991), at 541-555. This note mentions two reasons for dealing separately with the Court’s privileges and immunities. Firstly, while the members of the Court enjoy diplomatic privileges and immunities, the agents, counsel and advocates of the parties before the Court enjoy the privileges and immunities necessary to the independent exercise of their functions. Secondly, the Court is an organ whose members, with their small staff, perform duties of a special character and whose requirements are consequently different from those of the other organs of the United Nations.

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Commission, and against the Commission itself. He alleged “incompetence, negligence, abuse, libel and deliberate fraud” in the handling of Application 8231/78 brought by him and rejected by the Commission on 4 and 6 March 1982. Mr. Fawcett invoked immunity which was accepted by the High Court on 13 June 1984 (1983 T No.543). The Court referred to an earlier case (Zoernsch v. Waldock), considering itself bound by that decision.413

(ii)

Delegates of members

§327. In terms of size, the most important group of subjects of privileges and immunities are the representatives of members sent to the organization. These delegates need protection against undue interference in the fulfilment of their duties by the government of the state where they operate. Privileges and immunities that are usually granted to them include the freedom of speech during the meetings of organs, the inviolability of their archives, their right to use diplomatic bags and codes when necessary, and exemption from immigration restrictions, alien’s registration and military service in the state where the organ meets.414 The accordance of privileges and immunities to delegates of members is so strongly established that it would be justifiable to state that customary international institutional law provides for the most essential privileges and immunities for all delegations to meetings of international organs. By admitting an international organization to its territory, the host country may be considered to have accepted the obligation to render a minimum of privileges and immunities necessary for the proper functioning of the organization.415 §328. Problems concerning privileges and immunities of delegates have arisen in three cases. (1) Are they also to be given to a state’s own nationals? (2) Do they have to be accorded when the organization concerned is not in session? (3) Are they only necessary for as long as the delegates act in their official capacity, or should they cover the delegates at all times? §329. Ad (1) It is the task of a delegation to advance the opinion of the government which sends it. The delegation will be fully responsible to that government. It is not in an independent position; therefore, there is no reason to protect it from undue influence from its government, and no need for privileges and immunities.416 When the sending state would tax its own delegates

413. See Art. 59 of the Convention on Human Rights and the Second Protocol to the General Agreement on Privileges and Immunities of the Council of Europe. (The Tejendrasingh case is the only case after the Zoernsch case from 1964.) 414. Cf. also UNJY 1986, at 327-328. 415. Cf. UNJY 1976, at 224-229. 416. See, for example, Section 15 of the Convention on Privileges and Immunities of the UN.

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for allowances received from the organization, it would not unjustly interfere in the functioning of the organization. The situation may be different if a delegate is not a national of the sending state. While there is no need for privileges and immunities from the sending state, the delegate should receive some protection against undue interference by its own state, which has to respect the relationship between the sending state and its delegates. There is a functional necessity to grant at least immunity from jurisdiction for official acts committed on behalf of the sending state. Opinions differ on the question as to whether further privileges and immunities should also be granted. §330. Ad (2) Privileges and immunities are accorded for the time when the organ concerned is in session and for a reasonable period before and after that, in order to allow delegates to travel. It seems unnecessary to grant any privileges and immunities to delegates who stay in the country long after the closure of the session to which they were delegated. Delegates will only remain immune for their official acts.417 It is not always clear when an organ is in session. Some sessions have been adjourned for long periods without being officially closed. There seems to be no need for privileges and immunities during such adjournments. On the basis of the relevant agreements, privileges and immunities are, however, often accorded from the official opening until the official closure of a session (see above, §307). §331. Ad (3) The members of a delegation enjoy full immunity from the criminal jurisdiction of the host state. Their immunity from civil and administrative jurisdiction is restricted to acts performed in the exercise of their official functions.418 They have no immunity from the civil and administrative jurisdiction of the host state in relation to an action for damages arising from an accident caused by a vehicle, vessel or aircraft, used or owned by the person in question, where those damages are not recoverable from insurance.419 Since the late 1990s, the opinion is gaining ground that immunities for high state representatives (such as heads of state and foreign ministers) should not by definition prevent national courts from exercising criminal jurisdiction on the basis of the universality principle, if the officials concerned are suspected of international crimes such as torture or genocide.420 This develop-

417. Vienna Convention 1975, Art. 68. Cf. Vienna Convention on Diplomatic Relations 1961, Art. 39. 418. Vienna Convention 1975, Art. 60(1). 419. Id., Art. 60.4. 420. Cf. Article 27 (“Irrelevance of official capacity”) of the 1998 Statute of the International Criminal Court: “1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute,

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ment may also affect the immunity from criminal jurisdiction of representatives of member states of international organizations. So far however, in practice national courts have not yet been confronted with questions concerning this relationship between immunity and individual criminal responsibility of representatives of their members. (iii)

Delegates of non-members

§332. Some international organizations invite or admit delegates of non-member states to their sessions. Is the host state obliged to extend privileges and immunities to them? Is it only bound to admit these delegates without interference? Or is it under no obligation at all? These questions should be settled in an agreement between the host state and the organization. In practice, however, such agreements are not very specific. Some do not refer to delegates of non-member states at all,421 others only provide that the host state should admit to the seat of the organization all persons invited by that organization.422 In practice, no further privileges are granted beyond the privilege of admission to the place where the organ meets, unless the persons concerned have diplomatic status and must therefore be admitted under the normal conditions for diplomats. Often, immunity is given as a gesture of courtesy.423 Difficulties could easily arise, in particular when the representative comes from a state which is not recognized by the host state. The 1975 Vienna Convention grants the same privileges and immunities to observer delegations as are granted to delegations from members.424 However, this Convention has not yet entered into force, and the provision in question does not seem to be a codification of customary international law, in view of the lack of consistent practice. (iv)

Delegates of other public international organizations

§333. Many public international organizations are officially represented at sessions of other international organizations (see above, §185-187). Their delegates may then enjoy privileges and immunities on two grounds: either (1) the host state is a member of the organization which has sent the representatives and is party to an agreement which allows privileges and immunities

421. 422. 423. 424.

nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person”. E.g. headquarters agreement ICAO-Canada; OAS-USA, Art. 2 (181 UNTS, at 147). E.g. headquarters agreement CoE-France, Art. 5 (249 UNTS, at 210); UNESCO-France, Art. 9 (357 UNTS, at 10); UN-US, Art. 4 (11 UNTS, at 11). For a survey of practice, see Yb ILC 1967 II, at 190-191 (UN), and 203-204 (specialized agencies). Art. 72. Cf. UNJY 1983, at 227.

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to the staff of that organization, or (2) a specific agreement may oblige the host state to accord privileges and immunities to delegates of organizations (see below, §1770). In practice the agreements do not provide more than a right for all persons admitted by the organization to enter and to leave the territory freely.425 There are no provisions on immunity from jurisdiction or on specific privileges. Even the right to enter and to leave the territory is not guaranteed in all cases. Some headquarters agreements only extend this right to representatives of specific organizations, as in the case of the ICAO, where Canada is only obliged to permit and facilitate the entry into Canada of representatives of the UN and of the specialized agencies (Article 5, Section 27). The headquarters agreement between the US and the UN is more specific. The US is under an obligation to afford any necessary protection to all persons invited to the headquarters district by the UN (Article 4, Sections 11-14).

(v)

Delegates of private international organizations and individuals

§334. Sometimes delegates of private international organizations and individuals are consulted by international organizations (see above, §326 en §188196). Delegates of private international organizations usually do not enjoy any privileges and immunities. Traditionally these are limited to public agents. In many cases, however, the host state is under an express obligation to allow private individuals to enter and to leave the territory freely.426 The obligation of the US not to impede transit to and from the headquarters district and to afford any necessary protection to persons invited to the headquarters district will also benefit delegates of private international organizations and individuals. But opinions differ on the interpretation and application of this provision. On some occasions the US has denied visas to representatives of private organizations wishing to attend sessions of UN organs in New York.427

§335. The granting of visas will enable the persons concerned to travel to the place where a meeting is held. For some, however, visas are not enough. They also need immunity from jurisdiction.

425. ICAO-Canada, Art. 5, Section 27 (96 UNTS, at 172); CoE-France, Art. 5 (249 UNTS, at 210; France shall not interfere with access to the seat of the Council). The agreement between IAEA and Austria contains further obligations (Art. 16, Section 42; 339 UNTS, at 167); see R.S. Rodgers, The Headquarters Agreement of the International Atomic Energy Agency of 1 March 1958 at Vienna, 34 BYIL (1958), at 391-395. See also: Ethiopia-ECA, Art. 4, Section 9(a) (317 UNTS, at 101); Thailand-ECAFE, Art. 6, Section 15 (260 UNTS, at 35); Chili-ECLA, Art. 6, Section 12 (314 UNTS, at 49). See also UNJY 1982, at 207-209. 426. The headquarters agreement between UNESCO and France (Art. 9, para. 2(e)(h); 357 UNTS, at 10) contains a specific provision in favour of representatives of private international organizations with consultative status; the agreement between the Council of Europe and France (Art. 5, 249 UNTS, at 210) provides free access to the seat of the Council of other persons invited by the Council to assist in its work. For the UN: see UNJY 1971, at 185. 427. See Yb ILC 1967 II, at 285-288 and 318-319.

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In 1963 Mr. Henrique Galvao addressed the Fourth Committee of the UN General Assembly. On the basis of an extradition treaty between Portugal and the US, extradition proceedings could be instituted in the US against him (he was charged with piracy by Portugal). For that reason, appearing before the UN included certain risks for him. He was successful, however, in leaving the US unrestrained.428 In order to obtain an assurance that members would not raise requests for extradition in such a case, the UN Secretary-General addressed an inquiry to all member states. The majority of replies gave appropriate assurances.429

§336. A number of agreements of specialized agencies make provision for individuals, offering some immunity in addition to a right of passage.430 In the case of the IAEA, privileges and immunities are extended to representatives of all organizations with which the IAEA has established a relationship or which have been invited to the session concerned. Experts performing missions authorized by, serving on committees or other subsidiary bodies of, or consulting at its request in any way with, the IAEA are also covered.431 Cover may also extend to private international organizations. 9.

Procedure

§337. The procedure of most international meetings is strongly influenced by the Rules of Procedure of the General Assembly of the UN, which have been moulded into a very explicit and balanced set of provisions.432 On the binding force of rules of procedure, see below, §1205. a.

Agenda

§338. The programme of a session is described in its agenda. Members need to consider the agenda before deciding whether they will send a delegation to the session and, if so, who that delegation should comprise. Instructions to delegations are made according to the agenda (see above, §240-241). It may be submitted that delegations have no power to commit their governments to issues which were not incorporated in the agenda.

428. See L.K. Tobiassen, The Reluctant Door: The Right of Access to the United Nations (1969), at 375-395. Cf. also above, §331. 429. Yb ILC 1967 II, at 285-288; UNJY 1963, at 164-168. For the text of the inquiry, see UNJY 1964, at 219-220. 430. For examples, see Yb ILC 1967 II, at 318. 431. Headquarters Agreement IAEA-Austria, Art. 16, Section 42. 432. See for an overview of the functioning of the UN General Assembly during a regular session: Peterson, op. cit. note 129, at 265-297; see also, for example, the Memorandum by the Secretary-General on the organization of the 58th regular session of the General Assembly, adoption of the agenda and allocation of items (A/BUR/58/1).

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Many international organs provide that the agenda should be communicated to the members a reasonable time before the opening of a session.433 A preliminary agenda is usually drafted by the secretariat on the basis of items sent to it. As a rule, the secretariat has no right to refuse the inclusion of items proposed for the agenda.434 Most of the items usually come from previous sessions of the organ which have either planned subjects for future discussion or adjourned subjects which could not be dealt with completely. Other items are brought by other organs of the same organization.435 Normally, superior organs may refer agenda items to inferior organs: sometimes the converse is possible as well (executive boards may propose items for the agenda of the general congress). Finally the members of the organization may propose items for the preliminary agenda. §339. As a rule, an organ is master of its own agenda. It establishes the agenda at the beginning of each session. it may change the order, or delete items, and it may incorporate items in the agenda of its next session. The agendas of subsidiary organs may need the approval of another organ. May an organ in session add new items to its agenda, or may it engage in substantive discussions or take substantive decisions under an agenda item entitled “other matters” or “other business”?436 In doing so, it prejudices absent members (who might have come if the item had been previously announced) and governments (who might have prepared instructions on such items). Some organs may only add items to their agenda when all members are present,437 but most have no specific limitation and should decide for themselves.438 How far an organ may go outside its original agenda depends on its composition. Organs formed by Ministers of Foreign Affairs are barely restricted in this respect. These ministers are competent to discuss all matters and to issue their own instructions. At the other extreme, a session with only routine items on the agenda, at which many members are represented by wellbriefed secretaries from their local embassies, should make no additions to its agenda. The addition of an item for discussion will usually meet little objection. If necessary the discussion may lead to the incorporation of the item on the

433. See e.g. GA Rule 12 (60 days), Rule 14 (20 days); OPCW Rules of Procedure of the Conference, Rule 12 (60 days); OPCW Rules of Procedure of the Executive Council, Rule 17 (in principle at least seventy-two hours before the meeting); in the European Investment Bank, the members of the Board of Governors (the general congress) “must be in possession of the agenda and related documents not less than twenty days before the meeting” (for the members of the Board of Directors: eight days; Arts. 3 and 12, Rules of Procedure). 434. See UNJY 1978, at 180. 435. GA Rules 12-24. 436. See UNJY 1983, at 166-167. 437. See e.g. Art. 6 of the Rules of Procedure of the Council of the Economic Union of Benelux, Bulletin Benelux Publikatieblad 1960-3, at 46. 438. GA Rules 15, 19.

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agenda of the next session. The addition of an item for decision will be more controversial. Restrictions are often made on such items (see below, §747-749). b.

General debate

§340. After the adoption of the agenda and the election of the officers, the General Assembly of the UN (as was formerly the case in the Assembly of the League of Nations) begins with a general debate which consists of a series of statements made by chairmen of delegations. The chairmen state the views of their governments on the functioning of the organization and on the general issues contained in the agenda of the session. A general debate may offer a suitable opportunity to raise fresh initiatives. Before an international organization can successfully tackle any problem it needs to become aware of all its major aspects. It would be difficult to identify these without an open discussion between qualified delegates from all states concerned. Only after a full debate will the delegates be aware of all aspects of the problem and the chances of implementing the proposed solutions. General debates are also used for drawing attention to the national progress made by the member involved in the field in which the organization operates. However, such debates take a considerable amount of time. The 58th session of the General Assembly spent from 16 September to 3 October 2003 on the general debate. In 2003 the General Assembly decided that the general debate shall open on the Tuesday following the opening of the regular session of the General Assembly and shall be held without interruption over a period of nine working days.439 There is no formal time limit for speeches during the general debate, but only a voluntary guideline of up to twenty minutes for each statement. Most specialized agencies have adopted a time-limit for speeches in the general debate, which is enforced by means such as light-signals, bells or the break-off of simultaneous interpretation. The time-limit is 15 minutes in the ILO, 20 in UNESCO and 10 in the WHO.440 The inaugural conference of Heads of State and Government of the Organization of African Unity listened to prepared speeches for two and a half of its three days.441

§341. In the majority of organs general remarks and statements on national policy contribute little to the progress of the session, and specific remarks can be made under relevant agenda items. Most international organizations, therefore, do not hold general debates. Since the General Assembly of the UN is the general international political forum, general policy statements are more in order there than anywhere else. The advantages

439. GA Res. 57/301; see also UN Doc. A/BUR/58/1. See on the dates of the general debate for the period 2004-2008, UN Doc A/INF/58/1. 440. Id., para. 315; Standing Orders of the ILO, Art. 14 (6). 441. Z. Cervenka, The Organization of African Unity and its Charter (1968).

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of obtaining these general statements from all (or almost all) members, of attracting Heads of Government or Ministers of Foreign Affairs – who deliver these statements – and of obtaining publicity from the national press – which refers to their ministers’ statements – may, in this particular case, outweigh the disadvantage of loss of time. During the first part of a session the lobby of the General Assembly requires a considerable amount of time for preliminary discussions on agenda items. Many delegates find that time during the general debate.

c.

Discussion of agenda items

§342. One of the main tasks of the president or the bureau of a session is to arrange the most suitable form of discussion for each agenda item. Many tasks may be delegated to commissions (see below, §421-431). Such delegation must be made by the organ itself, normally at the suggestion of its chairman. The session will save considerable time if such commissions can meet simultaneously or during the general debate in the plenary session. Usually debates in large meetings present a number of difficulties. If many delegations wish to speak, requests for the floor must be made several days beforehand. When prepared statements are read they are often not altered despite similar remarks having been made shortly before their delivery. Consequently, arguments are often repeated. Reactions to particular remarks may come only days later. The president often has some power to alter the order of the interventions, which normally follows the order in which delegations asked for the floor.442 He may permit a delegation to give brief answers to specific questions. d.

Statements of delegations

§343. During the proceedings, delegates may make statements. As a rule, such statements are made on behalf of the member states in their capacity as constituent parts of the organization. They may commit the members to supporting a certain policy of the organization; they will usually not impose upon them any obligations concerning their own policy. Sometimes, a delegate makes a statement on the policy of his own state. He may declare that his state will grant independence to a colony, or that it accepts a proposed settlement of a dispute. Such a statement binds his state. In the Mosul Case, the Permanent Court of International Justice considered, with regard to the Council of the League of Nations: “It is, therefore, composed of representatives of members, that is to say, of persons delegated by their respective governments, from

442. GA Rule 68 leaves the president no room to deviate from this order.

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whom they received instructions and whose responsibility they engage”.443 This opinion of the Court is equally valid for other organs of government delegates.444 In the Nuclear Tests Case, the International Court of Justice stated, in more general terms: “When it is the intention of the state making the [unilateral] declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the state being thenceforth legally required to follow a course of conduct consistent with the declaration”.445

§344. An important category of statements by delegates is that of the pledges for voluntary financing. Many of those pledges are made subject to parliamentary approval or other conditions. Other pledges create binding obligations (see below, §1037-1039). §345. In a statement a delegate may criticize the policy of another member. In this and other cases the chairman may or shall accord the right to reply to the delegation of that other member.446 Preferably, the opportunity to reply should be obtained during the same meeting in which such criticism was levelled.447 e.

Limits to freedom of speech

§346. Time limits.448 Most organs of international organizations or their presidents may restrict the time available for each speaker in order to prevent prolonged debates. The president should enforce these limitations. In modern conferences he has the physical power to do so, since microphones and loudspeakers are used which can be switched off by the president. As a rule, a president will call on the speaker once or twice before enforcing a time limit. May a distinction be made between members and non-member states (observers) of an international organ as regards limitations of speaking time? With regard to the UN’s Commission on Human Rights the Office of Legal Affairs of the UN Secretariat has noted that this “would seem to run contrary to the spirit of Rule 69(3) [of the rules of procedure of the functional commissions of the ECOSOC] ...”.449

443. PCIJ Rep., Ser.B., No. 12, at 29, See also PCIJ Rep., Ser.A/B, No. 53 (Ihlen-declaration). 444. G. Schwarzenberger, International Law as Applied by International Courts and Tribunals, Vol. I (3rd ed., 1957), at 160. 445. ICJ Rep. 1974, at 267. 446. See e.g. GA Rule 73 (“may”); ECOSOC Rule 46 (“shall”). In the General Assembly, such a right of reply is routinely granted to any member state that requests it; see UNJY 1983, at 170. 447. See e.g. GA Rule 73; FAO Document C77/Rep. §19. See also UNJY 1982, at 160-161. 448. GA Rule 72. 449. UNJY 1984, at 168. This Rule stipulates: “A state thus invited shall not have the right to vote, but may submit proposals which may be put to the vote on request of any member of the commission or of the subsidiary organ concerned”. According to the Office, this rule (and the rules on which it is based) “seem to foresee only two differences between

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§347. Closure of the list of speakers.450 During the course of a debate the president may announce the list of speakers and the organ may close this list. No new speakers may then enrol for the topic under discussion. The president can make an exception to the rule by allowing a right of reply to a delegation. Sometimes organs decide that every delegation may intervene only once in the debate.451 This is to the disadvantage of delegations which are in a solitary position, such as Israel in many debates on Palestine (and previously South Africa in almost all debates on apartheid). Because of this the delegation may wish to reply separately to different attacks, or repeatedly after particular speakers. §348. Closure of the debate. Under the Rules of Procedure of the General Assembly of the UN, any delegate can request the closure of the debate on the item under discussion.452 If a majority of the Assembly supports the request, the president declares the debate closed, whether or not any other representative has signified his wish to speak.453 The organ will then move to a vote on the agenda item concerned, or to the next agenda item when there are no proposals to be voted upon. Closure of the debate may be abused by majorities to curtail minorities. On the other hand, it is the only effective remedy against filibustering. There would be good reason to require a qualified majority for a closure of the debate. The General Assembly of the UN does not insist on this requirement. The only concession to the minority is that, if a motion to close the debate is introduced, before it is put to the vote permission to speak on the closure of the debate shall be accorded only to two speakers opposing the closure.454 f.

Procedural motions

§349. During sessions, speakers are summoned to the platform in the order in which they have asked for the floor, and agenda items are discussed in the order accepted at the beginning of the session. This is well-established, so little time needs to be wasted on establishing the sequence of the proceedings. There are, however, exceptions. The chairman may overlook a listed speaker, an amendment or a proposal. He may make some other mistake. Delegates should have an opportunity to correct him, without being obliged to wait their turn

450. 451. 452. 453.

454.

the participation by members and non-members: (1) the right to vote; (2) the right to require that proposals be voted on”. GA Rule 73. See e.g. 20 AFDI (1974), at 494-495. GA Rule 75. Nevertheless, in the UN General Assembly, closure of debate does not prevent the exercise of the right of reply or the explanation of votes, whether before or after the vote, nor the submissions of certain specific motions and proposals (such as the division of a proposal); see UNJY 1983, at 174-175. GA Rule 117.

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on the list of speakers. Procedural motions – such as the motion to suspend a meeting – cannot be tabled long beforehand. All rules of procedure make provisions for some procedural motions which may be raised and discussed with priority. As they interrupt the normal sequence of events, their scope has to be limited: only specific types of questions may be raised as procedural motions, and the debate on them is restricted. §350. Several procedural motions might be raised at the same time. The rules of procedure of the General Assembly therefore establish the following order in which procedural motions have to be decided.455 (a) Motions to suspend the meeting. (b) Motions to adjourn the meeting. (c) Motions to adjourn to debate on the item under discussion. (d) Motions for the closure of the debate on the item under discussion. §351. All procedural motions are raised as points of order. A delegate requesting the floor on a point of order has the right to explain his point forthwith, even when another delegate is speaking. The president must decide immediately, with the qualification that, in the case of a motion for the closure of the debate, permission to speak on the closure shall be accorded to two speakers opposing the closure; in the case of a motion to adjourn the debate, two speakers (in addition to the proposer) may support and two oppose the motion before it is put to the vote.456 These requirements are generally the same in other organizations, although the details may differ slightly. In the Parliamentary Assembly of the Council of Europe, the rapporteur or the chairman of the committee concerned will be heard.457 This may be useful since these officers will be able especially to judge the importance of the debate itself. §352. Often delegates may wish to make a remark during the debate without having to wait their turn on the list of speakers. To avoid discussion on substantial issues disguised as points of order, the General Assembly has repeatedly tried to define or explain the matters which a point of order may cover. So far the most widely accepted formula is that of the 1949 Special Committee on Methods and Procedures of the General Assembly, which stated: “It is the opinion of the Special Committee that a valid point of order may relate to the manner in which the debate is conducted, to the maintenance of order, to the observance of the rules of procedure, or to the manner in which the Chairmen exercise

455. GA Rules 71 and 77. As is the case for most of the other rules of procedure discussed here, these rules on the order in which procedural motions have to be decided have been copied by other organizations; see e.g. OPCW Rules of Procedure of the Conference, Rule 62, and WHO Rules of Procedure of the Health Assembly, Rule 64. 456. GA Rules 113, 116, 117. 457. CoE Parliamentary Assembly, Rule 37.3.

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the powers conferred upon them by the rules. Thus, within the scope of the General Assembly’s rules of procedure, representatives are enabled to direct the attention of the presiding officer to violations or misapplications of the rules of procedure by other representatives or by the presiding officer himself. Points of order may also refer to legitimate requests for information, to material arrangements (temperature of the room, seating, interpretation system), to documents, translations and so on. On the other hand, no representative, when rising to a point of order, should be permitted to speak on the substance of the matter under discussion”.458

§353. Apart from the possibility of abusing points of order by making remarks of substance, procedural motions may be exploited in order to obstruct a meeting. By pouring in a flood of amendments and points of order, delegates may frustrate any constructive discussion.459 It is hard to decide procedural motions on their own merit. Usually the voting on procedural motions is strongly influenced by the question of whether the members favour the proposed solution on the substance or not. B.

Officers460

1.

Chairman461

a.

Appointment

§354. To ensure that an organ functions smoothly and speedily, it is of great importance to have a determined, tactful but not too verbose chairman who is familiar with the subjects under discussion. Much of the success of a meeting depends on its chairman. His appointment should be made with care. In some cases the chairmanship of an organ is considered so important that it is decided at a superior level. Before the entry into force of the 1992 Treaty on European Union, the chairman and the vice-chairmen of the European Commission were appointed by mutual agreement between the governments of the member states. Since the entry into force of this Treaty the chairman (and the other members of the Commission) are appointed by common accord of the governments of the member states, after approval by the European Parliament; it

458. UN Doc. A/937, para. 37; UN Doc. A/5423, para. 53; see also UN Docs. A/2206 and A/ 2402. 459. For examples of abuse of procedure, see Bailey and Daws, op. cit. note 260, at 201-202. Another example may be the discussion on the proposal for a High Commissioner for Human Rights during the 25th Session of the General Assembly; see R.St.J. MacDonald, A United Nations High Commissioner for Human Rights: The Decline and Fall of an Initiative, 10 CYIL 41-57 (1972). 460. S.E. Werners, The Presiding Officers in the United Nations (1966); see also Peterson, op. cit. note 129, at 279-284, with references to further literature. 461. J.-P. Queneudec, Le président de l’Assemblée des Nations Unies, 70 RGDIP 878-915 (1966); F. Vincent, La présidence des assemblées européennes, 2 RTDE 1966, at 79-111; H.G. Schermers, The Chairman of an International Organ, 34 GYIL 296-306 (1991).

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is for the Commission to appoint a vice-chairman or two vice-chairmen from among its members.462 In other organs, chairmen are usually elected by and from among its members. The UN General Assembly normally elects its president for each session. In emergency sessions, however, there are no elections. The president shall be the head of the delegation from which the last president was chosen.463 It is left to the member concerned to appoint either the former president or another person as the head of its delegation. The presidency usually rotates among the regions. In the European Parliament it has rotated among factions since 1970 on the basis of a gentlemen’s agreement. Previously the largest faction almost exclusively nominated the president. Before the entry into force of the 1992 Maastricht Treaty on European Union, the President of the European Commission was appointed together with the other Commission members by common accord of the governments of the member states. This procedure has been amended by the 1997 Amsterdam Treaty and by the 2001 Nice Treaty. The amendments increased the influence of the envisaged President on the appointment of the other members of the Commission and finally responded to the long standing demand of the European Parliament to be involved in the appointment of the Commission.464 The procedure as laid down in the Nice Treaty is as follows: “[t]he Council, meeting in the composition of Heads of State or Government and acting by a qualified majority, shall nominate the person it intends to appoint as President of the Commission; the nomination shall be approved by the European Parliament. The Council, acting by a qualified majority and by common accord with the nominee for President, shall adopt the list of the other persons whom it intends to appoint as Members of the Commission, drawn up in accordance with the proposals made by each Member State. The President and the other Members of the Commission thus nominated shall be subject as a body to a vote of approval by the European Parliament. After approval by the European Parliament, the President and the other Members of the Commission shall be appointed by the Council, acting by a qualified majority”.465

§355. Elections may take much time and effort. To avoid this, many organs have no elected chairmen but instead allow the delegates of their members to preside in turn. Apart from the advantage that no election procedures are needed, this system offers the further advantage that one member state is always in charge of the presidency. The representative of that state will also act when there is no official session. He will, for instance, convene and preside over informal meetings of the members during other conferences, and he will act as their spokesman in such conferences. Another advantage is the inducement this may provide to all members in turn to observe the rules of the organization; a good record of rule observance increases the authority of the

462. 463. 464. 465.

EC, Arts. 214 and 217. GA Rule 63. See further Lenaerts and Van Nuffel, op. cit. note 2, at 322-325, in particular footnote 71. Art. 214.2 EC.

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presidency. This is particularly true for the presidency of the Council of the European Union.466 Examples of organs in which the members preside in turn are the Security Council,467 the Council of the European Union,468 and the Council for Arab Economic Unity.469 In these organs members take the presidency in alphabetical order. In OPEC the rule has been further refined by the provision that the date of commencement of membership in the organization takes precedence over the principle of alphabetical rotation.470 This avoids the situation where the representative of a new member may take the chair shortly after entry. Until 1995, the rules for the presidency of the Council of the European Union provided for two cycles of six years. The first cycle contained the original, alphabetical order of member states which should hold the office of president of the Council. If the number of member states was even, and because the presidency is always held for six months, the same states would be president for the same (first or second) half of the year. This situation was considered undesirable; for example, the Netherlands ‘always’ acted as president in the second half of the year, when there is summer recess, and when the regular session of the UN General Assembly meets. Therefore, a second cycle was created, which began after the six years of the first cycle were over. In this second cycle, the order was changed. Whereas the order of the first cycle was: Belgium, Denmark, Germany, Greece, etc., the order of the second cycle was: Denmark, Belgium, Greece, Germany, etc. This system was changed by the Treaty concerning the Accession of Norway, Austria, Finland and Sweden to the European Union, which provides in Article 12 that the office of President of the Council shall be held in the order decided by the Council acting unanimously.471 This EU system of a six-month presidency rotating among the member states is the subject of an on-going discussion. The responsibilities of the presidency have increased over the years and are more complex in a Union of 25 members (as of 1 May 2004) as compared to the original Communities having 6 member states. In particular for smaller member states (whose number will increase in 2004) these responsibilities are difficult to shoulder. Moreover, the need is felt to have more continuity than a sixmonth presidency can offer. It has therefore been proposed to create a presidency for two and a half years. The large members are generally in favour of this proposal. Most

466. It has been suggested to amend the present rules governing the presidency of the Council, to the effect that member states would not be allowed to hold the presidency if their observance of EU law falls below a certain standard. See Europe, 3 February 2000, at 6. 467. Security Council, Rule 18. The Council may decide to suspend the operation of this rule. For example, it decided in August 1994 that the presidency of the Council during September 1994 would not be held by Rwanda but by Spain. Subsequently it was decided that Rwanda would hold the presidency during the month of December 1994. See UN Docs. S/PV.3420 and S/PV/3426. 468. EC, Art. 203; see W. Hummer and W. Obwexer, Die “EU-Präsidentschaft”, 34 Europarecht 409-451 (1999). 469. Agreement for Economic Unity among Arab League States, Art. 4, para. 3. 470. OPEC, Art. 21. 471. See Art. 203.2 EC and Council Decision 95/2/EC, Euratom, ECSC (OJ 1995, L 1/220). See in general A. Schout, The Presidency as Juggler – Managing Conflicting Expectations, EIPASCOPE 1998/2, at 2-10; W. Hummer and W. Obwexer, Die ‘EU-Präsidentschaft’, in 34 Europarecht (1999), at 409-451.

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of the other members generally fear that this would make the position of the large members too dominant.

§356. In the European Union the representative of the member presiding over the Council also presides over all committees of the Council and the Committee of Permanent Representatives.472 This means a heavy burden for the member in charge of all presidencies, but it offers considerable advantages for proper coordination between different organs. §357. In some cases the president of an organ is a member of the secretariat of the organization. The general congress (Council) of the OECD is presided over by the Secretary-General of the organization when it meets at a nonministerial level.473 The Secretary-General of NATO is the chairman of the plenary organ (the North Atlantic Council). In the IMF and in the World Bank a similar situation exists. There, the head of the Secretariat presides over the meetings of the board. In the IMF, this combination has not given rise to any problems; in the World Bank, there seem to have been some tensions.474 Several organs follow the rule of the UPU whereby the chief delegate of the host country presides over some organs.475 The Convention concerning International Carriage by Rail (COTIF) used to provide that Switzerland, the host state of the Intergovernmental Organization for International Carriage by Rail, would preside over the Administrative Committee (the board) of this organization.476 In 1990, however, this Convention was amended; any member state may now become the chairman of the Administrative Committee.477 §358. Elected presidents sit in their personal capacity and not as delegates of particular states.478 This means that in the event of their absence a vice-pres-

472. See R. Pourvoyeur, Presidency of the Council in the EC, 22 Administration (1974), at 115-121; R. Pourvoyeur, België en het voorzitterschap van de Raad van de Europese Gemeenschappen, in: Belgisch buitenlands beleid en internationale betrekkingen, Liber Amicorum Professor Omer De Raeymaeker (1978). 473. OECD, Art. 10, para. 2. 474. R. Barents, Het Internationale Monetaire Fonds, Studies over internationaal economisch recht, Vol. I. 3(a) (1977), at 67-68. See also below, §460. 475. UPU General Regulations, Art. 102 (2); Benelux, Council of the Union, Rules of Procedure, Art. 8 (Bulletin Benelux Publikatieblad 1960-3, at 46). 476. Art. 7, para. 1 of this Convention. 477. Switzerland has agreed that this new rule should apply as of 1 January 1991, before the entry into force of the amendment. See Decision 7 (j) of the 2nd OTIF General Assembly (December 1990). 478. See for the UN: UNJY 1990, at 277-278. There are a few exceptions to this rule (e.g. the vice-presidents of the UN General Assembly). Since elected presidents usually sit in their personal capacity they are usually not entitled to vote. In the Parliamentary Assembly of the Council of Europe the rules of procedure were not fully clear with respect to the voting rights of the President of the Assembly, in particular with regard to elections. In 1999 the Assembly’s Rules of Procedure were therefore amended in order to exclude the President’s voting rights at any one time. See Doc. 8361 (Addendum) of the Assembly

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ident will take over and not another member of the president’s delegation. If none of the vice-presidents are available, the Secretary-General of the organization or his representative may take the chair temporarily until a member of the organ is selected to act as presiding officer for that meeting.479 If it is not expressly provided otherwise, the president will be elected from the delegations sent to the organ. In larger organs the president is freed from national obligations. He designates another member of his delegation to vote for his country and to look after the national interests. Once he has done so, he does not serve his state any longer. It does not seem essential, therefore, that he remains an accredited representative of his government. A problem arose in this respect at the seventh session of the third United Nations Conference on the Law of the Sea. Ambassador Hamilton Shirley Amerasinghe of Sri Lanka, who was elected president of the conference at its start in 1973 and had served in that capacity ever since, was not appointed in the Sri Lanka delegation in 1978. According to many delegates he could, therefore, no longer preside. After long debates, however, the Conference agreed that Mr. Amerasinghe could stay in office.480

§359. The term of office of a president normally lasts until his successor has been appointed.481 Therefore, presidents usually open the session subsequent to the one over which they presided. This may cause problems when in a nonplenary organ the president comes from a state which is no longer a member of the organ at the next session. To prevent this problem arising, the Legal Committee of the ICAO elects its chairmen and vice-chairmen at the end of a session for the next two sessions.482 In other organs, it may be wise to provide that presidents and vice-presidents cease to hold office, should the term of office of the member from which they are representatives expire before their terms of office are completed.483 §360. Normally a president remains in office when the interests of his state are discussed. In the Security Council of the UN, the president – who does not sit in a personal capacity, as is the case in the General Assembly – may

and Rule 18.2 of the Rules of Procedure. 479. See the notes of the Office of Legal Affairs of the UN, published in UNJY 1973, at 144-145, 156 (§21), and in UNJY 1984, at 158-159. 480. B.H. Oxman, The Third United Nations Conference on the Law of the Sea: the Seventh Session (1978), 73 AJIL (1979), at 1-3. See also UNJY 1984, at 168-169. 481. In the Parliamentary Assembly of the Council of Europe, the President shall remain in office until the opening of the next Ordinary Session (Rules of Procedure of the Parliamentary Assembly, Rule 13.5). At the opening of this next Ordinary Session, his task is not taken over directly by the next President. According to the Rules of Procedure (Rule 5.1), at the beginning of each Ordinary Session the oldest member of the Assembly present shall preside (as the “provisional President”) until the election of the President of the Assembly has been announced. 482. Legal Committee ICAO, Rules of Procedure, Rule 6. 483. UN Office of Legal Affairs, UNJY 1973, at 151-156.

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decide not to preside when his state is directly concerned with the question under consideration. The next president will then take over.484 This rule has been applied ten times between 1945 and 1996.485 b.

Powers and obligations

§361. Presidents have considerable powers which normally increase the longer they are in office, as experience in the particular presidency adds weight to their position. When the French Government of de Gaulle wanted to reduce the power of the Commission of the European Communities, it proposed to reduce the term of office of the presidency to a period of one year.486

§362. The president rules on all questions of procedure. Delegations may challenge rulings of the chair, in which case a vote will be taken. The president’s obligation to guide the meetings towards satisfactory results will often encourage him actively to discuss agenda items with particular delegations before the meeting. By previously seeking compromises on procedural matters and on agenda items which are mainly of interest to only a few delegations, he may considerably ease the pressure on meetings. Some organs expressly charge their presidents to initiate consultations both before and during sessions for the purpose of facilitating their tasks.487 If there are different proposals and the president has to decide which proposal is most far-reaching (since this is usually voted on first), he may ask for a tentative non-binding vote to be able to determine the order of voting (see below, §846). §363. Some presidents have a casting vote when the votes are equally divided,488 and many presidents have specific powers when sessions of the organ are convened. The organ may furthermore attribute particular functions to its president, such as appointing members of commissions or committees, or acting as a mediator in cases of conflict. Finally, presidents represent their organs on a number of official occasions or in other organs. This duty may occupy a considerable amount of the presidents’ time.

484. Security Council, Provisional Rule 20. 485. Bailey and Daws, op. cit. note 260, at 125-126; P. Tavernier, in: 36 AFDI (1990), at 541, and in: 39 AFDI (1993), at 690. 486. See K. van Miert, The Appointment of the President and the Members of the European Commission, 10 CMLRev. (1973), at 264-267. 487. See e.g. ECOSOC Res. 1768 (LIV), VII. 488. E.g. in the IMF, but there it has never been used, see J. Gold, Voting and Decisions in the IMF (1972), at 115. In the European Commission of Human Rights this power has been regularly used.

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Before the merger of the institutions of the three European Communities the constitution of the European Coal and Steel Community attributed extensive powers in the budgetary field to a committee composed of the presidents of the four principal institutions of the community (Court, High Authority, Council and Parliament).489 Special missions are often given to the president of the General Assembly, for example the mission on the Hungarian problem given to president Prince Wan Waithayakon after the eleventh session.490 The Security Council has charged its president, for instance, with conciliation on Kashmir.491

§364. The powers and obligations of a president may not always be in conformity with the position of his delegation. A president should preferably leave the leadership of his national delegation in the hands of a deputy. Some organs require the president to be replaced if his impartial position could be threatened by the fact that the matter under discussion is of direct interest to his state (see above, §360). 2.

Vice-presidents and bureau

§365. Apart from taking the chair when the president is absent, the main power of vice-presidents is usually their participation in the bureau of the session.492 The president, vice-presidents and often rapporteurs and chairmen of congress commissions form this bureau, which is charged with the general guidance of the session. Most general procedural matters, such as hours for opening and closure, time limits for proposals etc., are decided by the bureau. Many universal organizations strive for equitable geographical distribution in the bureau.493 This may lead to a rather large bureau. Appointment as vice-chairman is an honour to the person concerned. As the function of vicechairman is considered to be an honorary position – and as it is often deemed useful to honour many people – the organ may be further enlarged. Many international organs have a large number of vice-presidents.494 For the duration of the Sixth Special Session, the Chairman of the Ad Hoc Committee of that Session was accorded full rights of membership in the bureau (General Committee). As president of the Group of 77, he represented an important interest group, and, therefore, could contribute valuably to the organization of the session.495

489. ECSC, Art. 78, para. 3 (original text). 490. GA Res. 1133 (XI); UN Doc. A/3774; Publication No. 51 of the Netherlands Ministry of Foreign Affairs. 491. Mission of Mr. Jarring; SC Res. 123 (1957). 492. In the General Assembly of the UN the bureau is called “General Committee”, see Rules 38-44. On this Committee, see UN Doc. JIU/REP/71/4 (annexed to A/8319), paras. 329-341. 493. The General Assembly goes a long way in this respect: no two members of the bureau (General Committee) may be members of the same delegation. See also ECOSOC Res. 1807 (LV), YUN 1973, at 598. 494. The General Assembly of the UN has 21 vice-presidents (Rule 31). 495. See YUN 1974, at 1069 and 20 AFDI (1974), at 493.

§366

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Rapporteurs

§366. Secondary organs report to a superior organ. They often appoint a rapporteur to prepare reports on the basis of their discussions.496 In such a report recommendations are made to the superior organ and usually also explained. In organs that do not have a rapporteur the secretariat prepares these reports. If the organ has a rapporteur he will usually be assisted by the secretariat. C.

Languages497

§367. Most organizations have members using different languages. This causes deliberate and unwitting misunderstandings. Even the best translation of a text may diverge from its original meaning. Therefore, translations may exaggerate different points of view and may make it more difficult to reach compromises. Of course, language is also a weapon of rhetoric which is employed in any international organ as a means of influence. In addition, the use of vague terms may conceal fundamental differences of opinion, to present a semblance of consensus to the outside world. In Rosenne’s words: treaties may be the product of disagreements reduced to writing.498 It is therefore not surprising that most organizations have rules on the use of languages, and that sometimes members are willing to pay all the costs of adding their language to the existing ones in the organization. One example of a fundamental disagreement concealed in a vague text is Resolution 665 (1990) of the Security Council. This resolution deals with the enforcement of the economic sanctions applied against Iraq. It calls upon the member states cooperating with Kuwait which were deploying maritime forces to the area “to use such measures commensurate to the specific circumstances as may be necessary ... to hold all inward and outward maritime shipping ...”. From the records of the meeting of the Council during which this resolution was adopted, it appears that these “measures” included the use of force. However, China indicated that it had voted in favour of the draft resolution, because “the reference ... to using” such measures commensurate to the specific circumstances as may be necessary “does not contain the concept of using force”.499

§368. Before the First World War French was the diplomatic language par excellence, used in most international organizations existing at the time. The creation of the League of Nations meant the breakthrough of the English

496. GA Rule 103. 497. See L. Focsaneanu, Les langues comme moyen d’expression du droit international, 16 AFDI (1970), at 256-274 (with bibliography); M. Tabory, Multilingualism in International Law and Institutions (1980). 498. Quoted in Tabory, op. cit. note 497, at 228. 499. See UN Doc. S/PV.2938, at 54-55.

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language. To the regret of France it was agreed that English should also be an official language of the new organization.500 Nevertheless, due to a number of factors (the US did not become a member; the League Secretariat was based in Geneva), in practice French became its most important language.501 Since the Second World War most international organizations have increasingly used English as their lingua franca, en dépit de French resistance. In 1995 Judge Deschênes (a Canadian national) of the ICTY criticized the fact that a decision of the Appeals Chamber was originally rendered in English only, a non authentic French version to be published at a later date. “This offends two principles which should direct the Tribunal’s conduct: a) the simultaneous publication of the English and French texts of the judgments of the Tribunal; b) the equally authoritative character of both texts” (para. 2). He reviewed briefly the language regimes of other international courts and concluded that “[i]n light of the Statutes, Rules, Regulations and best international usages, one cannot and should not tolerate, in this Tribunal, that the French speaking jurists must, either work in a language with which they are less fluent, or risk to be scientifically overrun while awaiting an official text to which they are entitled”.502

Before the Second World War the use of more than one language meant considerable loss of time, since translation followed the speeches. This was still the case during the first part of the first session of the UN General Assembly.503 Only during the second part of that session and during subsequent sessions was simultaneous translation introduced (in the Committee rooms). Currently most international organs have facilities for simultaneous translation in several languages. Consecutive interpretation means that the interpreter takes notes at the conference table and reports the full statement in another language after the speaker has finished. This method is only suitable for very small meetings involving two or three languages. Simultaneous interpretation means that the interpreter sits in a sound-proof booth where he or she hears the speaker through earphones and delivers a running translation, relayed through a microphone to participants in the meetings who wear earphones. Simultaneous interpretation is much quicker and appropriate for large meetings or meetings involving several languages. Organs of the UN system rely mainly on simultaneous interpretation.504

500. See D. Hunter Miller, The Drafting of the Covenant, Vol. 1 (1928), at 505 ff. 501. See Tammes, op. cit. note 18, at 190-192. 502. Separate declaration by Judge Deschênes to the ICTY Appeals Chamber decision on the defence motion for interlocutory appeal on jurisdiction in the Tadic case (Case No. IT-94AR72, paras. 2, 18). 503. YUN 1946-47, at 223-224. 504. Joint Inspection Unit, Management of interpretation services in the United Nations system (JIU/REP/86/5), reproduced in UN Doc. A/41/648 (1986), at 1-2. This report contains valuable information about practical problems in providing all meetings with the required interpretation services (e.g. very few interpreters have Russian passive), about the costs and workload involved, about the recruitment, training and career prospects for inter-

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§369. Translation is costly. The UN Joint Inspection Unit has pointed out that a section with ten translators or interpreters and two working languages would need to increase its numbers to twenty for three working languages, to forty for four working languages and to eighty for five working languages.505 In 1973, the cost of adding Chinese as a working language was estimated at $1,050,000 (for the biennium 1974-1975). That of Arabic was estimated at $2,800,000 (for the biennium 1974-1975). The Arab states undertook to pay this extra expenditure over three years.506 §370. Many organizations traditionally distinguish between official and working languages. Definitions of these languages vary. Usually there are more official languages, which are languages into which all official documents of the organization are translated. The working language is traditionally the language which is used in day-to-day communications within the organization. At the 1945 San Francisco Conference establishing the UN, Chinese, Russian, Spanish, English and French served as official languages, and the latter two as working languages. Interpretation was provided for all statements, and translation into the two working languages for all Conference documents, records and the official journal. Only certain types of documents (e.g. all proposals presented to the Conference or its subordinate bodies) were published in the official languages upon request. This practice was followed during the early years of the UN.507 Gradually, however, the distinction between official and working languages has disappeared in practice. The same development took place in many other organizations. Nevertheless, many rules of procedure still maintain the distinction, usually for no substantive reason.508 Most international organs allow representatives to make speeches in languages other than the official or working languages, provided that the speaker himself is responsible for the translation (simultaneously if possible) into one of the languages of the organ in question.509 The UN Secretariat has ruled that a provision to this effect “concerns individual interventions to be made by representatives during meetings, but it does not provide a suffi-

preters, etc. 505. UN Documents A/8158 and A/33/108. 506. YUN 1973, at 836. See also GA Res. 34/226. More examples are given in the previous edition of this book, §314. 507. See Tabory, op. cit. note 497, at 6-7. 508. See Tabory, op. cit. note 497, at 21. See also written question no. 1576/79 posed by Mr. Patterson of the European Parliament to the EC Council, and the answer given by the Council. It was asked, inter alia, what the distinction is between official and working languages. The Council answered that “neither Article 217 of the Treaty establishing the EEC nor Regulation No. 1 determining the languages to be used by the EEC ... throws any light on this matter”. Published in: OJ 1980, C 150/17. 509. See for example UN General Assembly, Rule 53; CoE Parliamentary Assembly, Rule 27.2; Standing Orders of the International Labour Conference, Art. 24.4.

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cient basis for meetings to be conducted by a presiding officer entirely or even partially in a language other than one of the official languages ...”.510 §371. The UN does not have common rules on the use of languages for all organs. Each organ is competent to decide which language(s) to use.511 Since 1974 the General Assembly uses six languages: Arabic, Chinese, English, French, Russian and Spanish. Speeches in one of these languages are simultaneously translated into the other five languages. Verbatim or summary records, as well as resolutions and other documents, are drawn up in these six languages.512 The language rules of the specialized agencies are influenced by UN practice, but vary from one organization to another.513 §372. In the Council of Europe, English and French are the official languages.514 Its parliamentary organ, the Parliamentary Assembly, also uses other languages. The use of German and Italian was initiated in 1954 and gradually expanded until both languages were accepted as “additional working languages” of the Assembly in 1971. Most recently Russian was added as a working language. Speeches delivered in one of these five languages are simultaneously interpreted into the other four languages.515 §373. The European Union has eleven official and working languages.516 Upon accession of ten new members in 2004 there will be twenty such languages. All languages are equally authentic. Each of the institutions has

510. UNJY 1985, at 133. 511. Each year the UN Secretariat circulates a calendar of conferences and meetings of UN bodies, which also indicates the languages in which interpretation will be provided. The calendar for 1993 lists 267 conferences and meetings; 155 of these use all six official languages (UN Doc. A/AC.172/151). See for the calendar for 1994-1995, UN Doc. A/AC.172/155. 512. Rules of Procedure of the General Assembly, Rules 51, 52, 54 and 56. According to Rule 57, the General Assembly may decide to publish its documents in another language. In 1974 it decided (Res. 3355 (XXIX)) to create a translation service to prepare German translations of its resolutions, those of the Security Council and the ECOSOC, as well as the annual reports of organs of the General Assembly. The UN receives financial support from Austria, Germany, Liechtenstein and Switzerland for these translations into German. See M. Hilf in Simma (ed.), op. cit. note 18, at 1382. 513. See for an overview: Tabory, op. cit. note 497, at 21-22 and 237-259. 514. Statute of the Council of Europe, Art. 12. 515. Rules 26 and 27 of the Rules of Procedure of the Assembly. 516. See Arts. 290 EC and 190 Euratom; Regulation 1 (EEC) and Regulation 1 (Euratom), published in OJ 1958, at 385 and 401, as amended on the accession of new members. In addition, some texts are also authentic in the Irish language (e.g. the EC and Euratom Treaties, the Treaty on European Union). See in general on the language problem in the Union, H. Kusterer, Das Sprachenproblem in den Europäischen Gemeinschaften, 35 Europa Archiv 693-698 (1980); B. de Witte, Surviving in Babel? Language Rights and European Integration, in Y. Dinstein and M. Tabory (eds.), The Protection of Minorities and Human

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its own rules on languages. The Court of Justice has very elaborate rules in this respect, laid down in its rules of procedure.517 In 1997, around 15% of the posts in the Commission related to translation or interpretation. More than one-third of the Commission’s administrative costs and more than 60% of those of the European Parliament are linguistic.518

§374. In interpreting Community law, the Court has always respected the equal authenticity of Community languages. It has stressed that “the necessity for uniform application and accordingly for uniform interpretation makes it impossible to consider one version of the text in isolation but requires that it be interpreted on the basis of both the real intention of its author and the aims he seeks to achieve, in the light in particular of the versions in all four languages”.519 The different language versions “must be given a uniform interpretation and hence in the case of divergence between the versions the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms a part”.520 In case of linguistic discrepancies a text may have to be interpreted in a manner at variance with the natural and usual meaning of the words. The Court has held that in such cases, for reasons of legal certainty, “it is preferable to explore the possibilities of solving the points at issue without giving preference to any one of the texts involved”.521 This practice of interpreting Community law is perfectly in line with Article 33 of the 1969 Vienna Convention of the Law of Treaties, which, inter alia, lays down the presumption that the terms of a treaty have the same meaning in each authentic text, and contains the rule that in case of linguistic discrepancies “the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted”. This rule has also been followed in the practice of other organizations. See for example the legal opinion given in 1987 by the UN to the Director General of UNIDO. In this opinion, reference was made to “a well established principle of international law that where authentic versions of a plurilingual treaty differ, an attempt

517. 518. 519.

520.

521.

Rights (1992), at 277-300. Cf. also K. Armbrüster, Rechtliche Folgen von Übersetzungsfehlern oder Unrichtigkeiten in EG-Dokumenten, Europäische Zeitschrift für Wirtschaftsrecht 246-248 (1990). See for a concise overview A. Weber in Von der Groeben et al. (eds.), op. cit. note 115, at 5/292-5/298. Kapteyn and VerLoren van Themaat, op. cit. note 16, at 106-107. Case 29/69, Stauder v. City of Ulm, Sozialamt, ECR 1969, at 424. See also Case 9/79 Koschniske v. Raad van Arbeid, ECR 1979, at 2724, and Case 283/81, CILFIT v. Ministry of Health, ECR 1982, at 3430. Case 30/77, Regina v. Bouchereau, ECR 1977, at 2010; Joined Cases C-267/95 and C-268/95, Merck and Beecham, ECR 1996, at I-6283; Case C-36/98, Spain v.Council of the European Union, ECR 2001, at I-779, para. 49. Case 80/76, Kerry Milk v. Minister for Agriculture and Fisheries, ECR 1977, at 435.

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must be made to conciliate the divergent versions”. The following more specific principle was derived from this general principle: “[i]t is further well established that where one or more of the authentic texts contain a precise expression, in particular if it is a technical or legal term, that expression is applied, if its application is compatible with the more general or vague expressions used in one or more of the other authentic texts”.522

§375. The fear has often been expressed that the use of an increasing number of languages hampers the functioning of international organizations: it has “introduced an element of division, whereas the end in view was unity” ... “at a time when the world needs unification more than anything else, we start on the road of fragmentation”.523 Language is seen as an attribute of sovereignty. Members consider the acceptance of their own language as one of the official or working languages of an organization as a matter of prestige. Therefore, in a number of instances they were willing to pay the costs connected with the use of their language by the organization themselves. Following this line of reasoning, one would expect that organizations such as the European Union, which aim for greater union than universal organizations, would be more inclined to reduce the number of languages of the organization. Indeed, also in view of the expanding membership of the Union and the cost involved in translations, it is sometimes suggested that the languages used be limited to one or two. However, more persuasive arguments plead for maintaining the current linguistic regime. An important amount of Community legislation is directly applicable, containing rights and obligations which may be invoked before the courts by individuals, e.g. farmers. The European Parliament is still in the process of being recognized as the true common representative of the peoples of the member states. Furthermore, as a rule, the plaintiff before the Court may choose the language of the proceedings.524 Integration does not seem to have proceeded to the stage where it may be expected that, in cases such as these, languages other than the native languages of the individuals concerned are used.525 At the same time, in other cases efficiency reasons have prevailed. In particular, certain EU agencies (see above, §228) have reduced the number of languages. For example, when in

522. See UNJY 1987, at 234-235 (para. 3). 523. E. Hambro, GAOR, 7th session, 5th Committee, 356th meeting, 7 November 1952, para. 89; continued in id., 401st plenary meeting, 5 December 1952, paras. 15, 18. Quoted in Tabory, op. cit. note 497, at 47. 524. Rules of Procedure of the Court, Rule 29.2. 525. Cf. on the importance of using all languages of the member states: the 1993 judgment of the German Bundesverfassungsgericht concerning the Treaty on European Union, 20 EuGRZ (1993), at 438 (English translation in CMLR 57-109 (1994), at 87; answers given by the Commission to questions by members of the European Parliament, OJ 1991, C 85/27 and C 98/44. In Jan. 1995, a French proposal to discuss during the 1996 Intergovernmental Conference the idea of reducing the number of working languages of the European Union to five was generally rejected by the other member states and by the European Parliament (see Europe No. 6403).

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1994 the Office for Harmonization in the Internal Market (trade marks and designs) was established, it was decided that only English, French, German, Italian and Spanish would be the languages of the office.526 It is likely that the debate concerning the language regime of the European Union will be intensified when ten new members will join in 2004 and the costs involved in interpretation and translation will further increase. These arguments do not, or to only a limited extent, count for other organizations. Nevertheless, they at least show that in the further progress of international organizations the objectives of the organization need not only be furthered by reducing the number of languages. This is particularly true if organizations are more than instruments of intergovernmental cooperation, and directly affect the daily life of individuals in the member states.

IV.

Concluding observations

§376. The work of international organizations is carried out by international organs. All organizations have at least one organ. International organs are not comparable in a number of respects, because of their different tasks. The Committee of Representatives of the Latin American Integration Association (LAIA) is the permanent body of this association and, inter alia, has to promote the reaching of agreements of regional scope.527 The Board of Directors of the European Bank for Reconstruction and Development is responsible for the direction of the general operations of the Bank.528 The International Sugar Council, inter alia, “shall exercise all such powers and perform or arrange for the performance of all such functions as are necessary to carry out the provisions of this [-the 1992 International Sugar-] Agreement ...”.529 The Court of Justice of the European Communities “shall ensure that in the interpretation and application of this Treaty the law is observed”.530 At first glance these international organs seem to have little in common. Nevertheless, especially from an institutional point of view, international organs have much in common. Fundamental among these common institutional aspects are the powers of international organs. Daily work of these organs is determined, more often than is realized, by the doctrine of attributed competences. In addition, all international organs need rules, more or less elaborate, governing their composition and functioning. For example, provisions on the composition of delegations, on the credentials of delegations, the quorum, the

526. Council Regulation (EC) 40/94, OJ 1994, L 11/1. See Lenaerts and Van Nuffel, op. cit. note 2, at 384; Vos, op. cit. note 75, at 1128-1129. 527. LAIA Constitution, Art. 35. 528. EBRD Constitution, Art. 27. 529. 1992 International Sugar Agreement, Art. 8.1. 530. Art. 164 EC.

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frequency and duration of meetings, privileges and immunities, procedure, languages, etc. §377. Does the distinction between the notions of function and state sovereignty help us to understand the issues and rules discussed in this chapter? As far as the composition and functioning of international organs is concerned, one might presume that detailed rules such as those about the quorum and languages have little to do with, or could hardly be explained by, these two concepts. On the basis of what has been examined in this chapter, it can be concluded that this presumption is partly correct. Any organ, whether strictly national or whether it forms part of an international organization, needs rules on the quorum and on the frequency and duration of meetings. Such routine matters are not a particular characteristic of international organs only. Moreover, these two notions do not explain small differences between institutional rules of international organs which are highly comparable. For example, it has been shown in this chapter that in some commodity councils proxy is permitted only within the exporters or importers group, while it is permitted for any member in other commodity councils. However, a few examples will show that a number of rules and practices concerning the composition and functioning of international organs, even those which seem routine, can nevertheless sometimes be better understood within the frame of the distinction between the notions of state sovereignty and the function of international organizations. §378. A number of organs have rules governing the size of delegations. Behind such a rather down to earth issue are the sometimes opposing interests of the sending states, the host state, and the organization. For example, the sending state might wish to send a very large delegation to a meeting of a particular organ, in order to exert as much influence as possible. The host state might fear, rightly or wrongly, that large delegations from particular states might not only enter its territory to attend the meeting of the organ in question, but also to engage in other, possibly illegal, activities. It will be in the interest of the organization that the size of delegations is related to the purpose of the meeting or the structure of the organ (e.g. the UN General Assembly has six plenary committees, some of which sometimes meet at the same time). Rules on the size of delegations balance the interests in this triangular relationship. A general rule on this matter has been formulated in Article 46 of the 1975 Vienna Convention on the Representation of States in Their Relation with International Organizations of a Universal Character (not yet in force): “the size of the delegation shall not exceed what is reasonable and normal, having regard, as the case may be, to the functions of the organ or the object of the conference, as well as the needs of the particular delegation and the circumstances and conditions in the host state”. The concept of function is reflected in “the functions of the organ or the object of the conference”, but state sovereignty explains why not only the interests of the sending state, but also those

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of the host state have to be taken into account. A similar rule is laid down in Article 14 of the 1975 Vienna Convention concerning permanent missions accredited to the organization.531 §379. A second example relates to the status of the people comprising an international organ. Should they be representatives of the member states or individual experts? It is widely recognized that the most appropriate composition of an organ depends on its task. Sometimes states seem to have actually applied this criterion (which, of course, reflects the function of the organization). An example concerns the supervisory body of the 1966 UN Covenant on Economic, Social and Cultural Rights. Originally, supervision of the implementation of this Covenant was carried out by an ECOSOC working group, composed of government representatives. But the functioning of this supervisory organ was not considered to be satisfactory. Therefore, since 1987 it has been replaced by a committee of independent experts, and this change has had remarkable consequences for the quality of supervision.532 Another example of an organ, the composition of which is determined by its task, is the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. Among the members of this organ are medical doctors, psychiatrists, experts in human rights, and former members of parliament.533 But states seem regularly to have ignored this criterion, which therefore offers only a limited explanation for the actual composition of organs. While organs performing judicial functions should, in view of their task, preferably be composed of individual experts, in practice these organs are sometimes composed of representatives of states. This can usually be explained by the sovereign wish of the member states to remain in control of the activities of the organ in question, and prevent it from taking decisions which are not considered to be in the member state’s interest. In other cases, compromises are reached between the two extremes, i.e. the function of the organ requiring individual experts and state sovereignty being in favour of government representatives. For example, the members of the Textiles Monitoring Body – created to supervise the implementation of the textiles and clothing agreement of the GATT Uruguay Round – are govern-

531. See also UNJY 1986, at 319-321; UN Doc. A/CN.4/L.383 and Add. 1-3, at 180-181, concerning the number of representatives of non-governmental organizations participating in the 12th Special Session of the General Assembly (1985). 532. See S. Leckie, An Overview and Appraisal of the Fifth Session of the UN Committee on Economic, Social and Cultural Rights, 13 Human Rights Quarterly 545-572 (1991); P. Alston and B. Simma, 81 AJIL (1987), at 747-756, and 82 AJIL (1988), at 603-615. 533. See A. Cassese, The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment Comes of Age, in N. Blokker and S. Muller (eds.), Towards More Effective Supervision by International Organizations, Essays in Honour of Henry G. Schermers, Vol. I (1994), at 115-125.

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ment representatives which have to discharge their function on an ad personam basis.534 Another example of such a compromise is offered by the ILO. As early as 1926, it was decided to create a Committee of Independent Experts to examine reports submitted by the member states. The conclusions drawn by this independent body are not final, however; they are subsequently discussed by a tripartite Committee of the International Labour Conference. Compromises like these are middle courses between state sovereignty, which explains why states do not always want to compose international organs of independent experts, and the function of the organization, which explains why states have ever occasionally built such ‘independent elements’ into international organs. §380. A third example concerns the attribution of seats in non-plenary organs to members with the greatest interest in such seats. Often, objective criteria are used to define which states may occupy these seats: the members of chief industrial importance (ILO), the states of chief importance in air transport (ICAO), states with the largest interest in providing international shipping services (IMO), etc. These are criteria which relate to the function of the organization and of the organ in question. However, state sovereignty explains why conflicts so easily arise as to which states actually fall within the privileged group selected to occupy a seat in the non-plenary organ. If such conflicts arise, a judicial organ may perform the important task of giving an appropriate interpretation of this functional criterion.535 Otherwise the laws of the jungle may have to determine the solution; this might lead to oblique interpretations as evidenced by the ILO in 1980, when the US returned to the ILO’s Governing Body and Brazil, which had occupied the vacant seat since the US left the ILO in 1977, preferred to stay (see above, §282). §381. A fourth and final example are the privileges and immunities of international organizations. The notion of function is omnipresent in this field, the doctrine of functional necessity explaining why and what privileges and immunities should be granted to whom, when they should be waived, etc. State sovereignty, however, explains why states might come to rather unfunctional interpretations of privileges and immunities, as has been demonstrated in the Mazilu Case. This case again proves the important role of judicial organs, in preventing states from abusing their sovereignty, and enabling international organizations to perform their functions.

534. Art. 8.1 of the textiles and clothing agreement. This body is modelled on the Textiles Surveillance Body, created in the Multifibre Arrangement (see GATT Doc. COM.TEX/2, at 5), which has been in operation between 1974 and 1995. 535. As has been demonstrated by the International Court of Justice, in its 1960 Advisory Opinion on the constitution of the Maritime Safety Committee of the Intergovernmental Maritime Consultative Organization, ICJ Rep. 1960, at 150.

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§382. While the notions of function and state sovereignty to some extent explain aspects of the composition and functioning of international organs, they are crucial for our understanding of the powers of international organs, the most fundamental part of this chapter. The doctrine of attributed competences starts from the assumption that states have a plenitude of powers at their disposal. The state is still the supreme form of political organization in the world. This is reflected in the political and legal concept of state sovereignty. Almost opposed to this formal state of affairs are the present-day facts of life. State sovereignty, symbolizing the highest centre of authority internally as well as externally, is facing attacks from the outside as well as from the inside. States have imploded following the end of the Cold War, self determination being the battle cry in new wars of independence. From the outside, technological developments have made it impossible for states to carry out national policies independently in a large number of fields; the concept of interdependence is a better representation of the current state of affairs than the idea of state independence. And yet. When states imploded, what is the aim of the new freedom fighters? Like their predecessors, the ultimate goal is self determination in the form of a new state, which is considered the best possible guarantee for a people to control their own destiny. At the same time, among the first acts of the new state is usually a request for admission to the United Nations. This is conclusive proof of the awareness not only of the attributes of independence, but also of the demands of interdependence. The end of the Cold War led to an increase of uncertainty in international relations and to a renewed search for “stabilizers”. This is one explanation for the revival of the state and the concomitant concept of state sovereignty.536 The reality of interdependence compels states to renounce some of their plenitude of powers. International organizations have been created to carry out a number of functions which can no longer be discharged effectively by states alone. But states remain sovereign, having a plenitude of powers, of which only some have been attributed to international organizations. The competences of international organizations (and, thus, of their organs) are related to the specific functions for which these organizations have been established. Organs employ their powers to realize this function in a rapidly changing world. Rules on decision-making (partly) determine to what extent member states can control this process. But before we will examine these rules (Chapter Six), we should first have a closer look at policy-making and administrative organs (Chapter Four) and next, at supervisory and advisory organs (Chapter Five), to be more familiar with the institutional apparatus created to substantiate the functions of international organizations.

536. See for example the Agenda for Peace, prepared by UN Secretary-General Boutros Ghali, UN Doc. A/47/277 and S/24111 (1992).

Chapter 4

Policy-making and administrative organs

§383. In the previous chapter we discussed in some detail rules on the institutional aspects of international organs in general. It appeared that organs of an international organization have aspects in common, for they all exercise functions attributed to them by states, they must all be composed in a certain way, and they all require rules for their functioning. But this does not alter the fact that these organs perform different tasks within the organization and so require rules to this end. Thus, while we have focused in the previous chapter on institutional similarities, we shall now concentrate on the dissimilarities in order to do justice to the wide variety of tasks performed by the organs of an organization. We begin by dissecting the creatures that are international organizations, to lay bare the organs and their tasks. In doing so, we shall see that different organs within one organization perform different functions. At the same time however, we see large similarities when comparing the functions of some of the organs to those of organs of other organizations. Thus while there is diversity within an organization, there is resemblance between organs of different organizations. There is unity in diversity. Organizations usually have at least one plenary organ, composed of representatives of all member states. Almost all organizations have a secretariat. Most organizations have a non-plenary, executive organ. Some organizations have parliamentary or judicial organs. In this chapter and in Chapter Five we shall compare these organs. However, first some attention shall be devoted to the problem of the classification of international organs and the structure of our analysis shall be explained.

I.

Classifying international organs

§384. Different criteria might be used in order to classify international organs. The most fundamental criteria are the function of the organs and the status of their members (government representatives or independent members).1 Employing the latter criterion would essentially result in comparisons of organs

1.

See more extensively on the problem of classification: Z.M. Klepacki, The Organs of International Organizations 1-18 (1978).

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independent of the member states, of organs composed of government representatives, and of all kinds of “intermediate” organs. But the composition of organs depends to a large extent upon their function (see above, §267-271), which seems therefore to be the most basic criterion. Moreover, we shall learn more about the architecture of international organizations when using this criterion because the status of the members of organs indicates only which organs are and which organs are not independent of the member states. Furthermore, by looking at the functions of international organs we will better understand the development of the structure of international organizations. However, although we shall adopt the function of organs as a basic criterion, the status of their members is still highly relevant. Policy-making organs may be composed of government representatives as well as independent persons. Therefore to an extent we shall also use the status of members criterion in order accurately to reflect current practice.2 §385. If we use these criteria and look at the development of the institutional structure of international organizations, we can see that policy-making and administrative functions were attributed to the early international organs. For example, the Universal Postal Union (created in 1874; called the General Postal Union between 1874 and 1878) originally had two organs: a Congress (a policy-making organ) and a Bureau (Secretariat). The Congress was composed of representatives of all member states. The periodicity of this organ was in fact the only difference between this organ and traditional diplomatic conferences (the UPU Congress met – and continues to meet – every five years). The Bureau was created to administer the operation of the organization: to collect, publish and distribute information, circulate proposals, publish a journal, etc. The International Telegraph Union, established in 1865, had a similar structure.3

The institutional structure of international organizations becomes more complex when, alongside the plenary policy-making organ, it was felt necessary to create a third, non-plenary organ having a policy-making function but meeting

2.

3.

Klepacki, op. cit. note 1, at 2, has criticized this approach, because of the simultaneous or alternating use of criteria. In our opinion, however, this is justified because in practice these criteria are used simultaneously. Organs performing the same function (e.g. policy-making functions) may be composed of government representatives as well as independent persons. Organs composed of independent persons may perform completely different functions (international secretariats, judicial organs). If one wants to do justice to the nuances of practice, it is inevitable to use different criteria at the same time. Therefore, it is not surprising that this is in fact also done by Klepacki. In his chapter on the functions of international organs (Chapter IV) a classification is made on the basis of legal status of the members. Paragraph 2 of this chapter deals with “organs of international functionaries (officials)”, and is divided into sub-paragraphs on the basis of the function of the organ (executive-governing, administrative, dispute settlement). See L.S. Woolf, International Government 186-216 (1916). Formally, a third organ (the Conference) was included in the institutional structure of UPU; however, this organ met only once (in 1876), and played no role subsequently.

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more frequently than the plenary organ. This organ was usually charged with carrying out the daily business of the organization between the sessions of the plenary organ and also with overseeing the secretariat. And thus we come to the elementary triad which remains the basic institutional structure of most international organizations. An example of an early organization having this basic structure is the International Bureau of Weights and Measures, created in 1875 to supervise the agreed standards of the meter and the kilogram. Alongside a General Conference (composed of representatives of all member states, meeting every four years) and a Bureau, a non-plenary International Committee was established which meets annually and is charged with executive tasks. This Committee is now composed of eighteen members.4

A further development came with the creation of parliamentary and judicial organs, performing advisory and supervisory functions. Such organs have been included in the structure of newly created organizations in particular since 1945. The first truly international judicial organ was the Permanent Court of International Justice, created in 1920.5 The first international parliamentary organ was established in 1949: the Council of Europe’s Consultative Assembly (now: Parliamentary Assembly), composed of members of parliaments of the member states of the Council of Europe.

It should be emphasized that the institutional development outlined above is not at all of a linear nature. Today most organizations have no parliamentary or judicial organs. There are still many organizations having only a plenary policy-making organ and a secretariat. Simple and complex organizations – as far as their institutional structure is concerned- exist side by side. §386. Most organs are created by the constitution of an international organization or subsequently by organs of the organization. There is however another way in which organs may be created and incorporated in an international organization. This is done by treaties separate from the constituent instrument of the organization. Often these organs are so closely linked with the organization that they are considered organs of it.6 In view of their different origin, they are called treaty organs. Since they often have no legal personality and no secretariat of their own they have been called ‘incomplete international

4. 5.

6.

G.J. Mangone, A Short History of International Organization 83-84 (1954); see also www.bipm.fr. To some extent, the Permanent Court of Arbitration (created in 1899) may be considered as a judicial organ. It certainly has judicial functions. However, this Court is in fact a list of arbitrators and not a permanent court. See memoranda of the UN Office of Legal Affairs, inter alia UNJY 1969, at 207-210 and UNJY 1976, at 200-201.

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organizations’,7 or ‘international organizations manquées’.8 There are some specific problems connected with the establishment and functioning of such organs. Within the United Nations in particular several conventions have been concluded which create such organs. Examples are the International Narcotics Control Board created by the Single Convention on Narcotic Drugs of 1961,9 the Committee on the Elimination of Racial Discrimination established by the International Convention on the Elimination of All Forms of Racial Discrimination,10 the Human Rights Committee created by the International Covenant on Civil and Political Rights,11 the Preparatory Commission for the International Sea-Bed Authority and for the International Tribunal for the Law of the Sea,12 the Preparatory Commission for the Organization on the Prohibition of Chemical Weapons,13 and the Preparatory Commission for the International Criminal Court.14 Other examples existed within the framework of GATT, in which numerous so-called side agreements have been concluded, creating organs such as the Committee on Anti-Dumping Practices, the Committee on Subsidies and Countervailing Measures and the Textiles Committee.

Treaty organs may have a variety of tasks. Some have policy-making functions, but most have supervisory tasks. Some treaty organs are composed of government representatives, others of independent experts. We shall not discuss these organs separately. A few aspects of treaty organs relating to the definition of international organizations have been discussed in Chapter 1. Depending on their function, treaty organs are addressed in this chapter or in Chapter Five. Nevertheless, a few general remarks are appropriate. §387. Treaty organs usually function as organs of an organization. They are served by the secretariat and they are subject to the general budgetary and administrative authority of the organization, subject to the caveat that no resolution of another organ can amend the treaty which created a treaty organ. Provisions concerning treaty organs which are incorporated in the treaty cannot be set aside. Until such a treaty is amended, resolutions of the organization

7. 8. 9. 10. 11. 12.

13. 14.

ILA Committee on Accountability of International Organizations, First Report (February 1998), at 5. P.C. Szasz, The Complexification of the United Nations System, in 3 Max Planck UNYB (1999), at 18. 520 UNTS 151, Art. 11(2). Adopted by GA Res. 2106 (XX). Adopted by GA Res. 2200 (XXI). Created in 1982 by Res. I of the Third UN Conference on the Law of the Sea (this resolution is included in Annex I to the Final Act of this Conference). It is not established as a UN subsidiary organ, but serviced and financed by the UN. See UNJY 1982, at 171-172. Created by a resolution annexed to the Final Act adopting the Convention. See UN Doc. A/47/27, at 275 ff. (1992); see also Res. 47/39 of the UN General Assembly. Created by Resolution F adopted by the UN diplomatic conference of plenipotentiaries on the establishment of an International Criminal Court, annexed to the Final Act of this conference (UN Doc. A/Conf.183/10).

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which conflict with them have no legal effect in respect of the treaty organ concerned.15 Thus, for example, the General Assembly of the UN could not reduce the number of sessions of the International Narcotics Control Board from two sessions a year to one, two sessions being provided for in the Single Convention on Narcotic Drugs.16 This illustrates the sort of technical problems which may be caused by treaty organs beyond those concerning their tasks and competences. If the treaty provides detailed rules for the functioning of the organ, general rules of the organization cannot be applied and the organ may not fit comfortably into the structure of the organization. If, for example, a treaty provides that voting in the treaty organ shall be either by show of hands or by roll-call, confusion would be created should the organization introduce mechanical voting (see below, §870). Or, if the treaty enumerated the languages in which the treaty organ is to operate, problems arise when the organization adds a new official language or deletes an existing one.17 To prevent too great an increase in the number of international organizations it is certainly useful that treaties which create organs should place these organs within existing organizations. These treaties should, however, accept the existing and future rules for such organs within the existing organizations and provide as little as possible in the treaties on the functioning of such organs. §388. This chapter will discuss organs which perform the most basic functions of international organizations: policy-making and administrative functions. Advisory and supervisory organs, which provide international organizations with a more complex structure, will be analyzed in the following chapter. In practice, these distinctions are of course far from absolute. Administrative organs, parliamentary organs, and even judicial organs perform policy-making functions in varying degrees. Nevertheless, we think that the classification explained above is the most helpful in view of our purpose of comparing institutional rules of organs of different organizations performing similar functions. The remainder of this chapter is divided into four sections. Section II is devoted to policy-making organs. Section III discusses the secretariat of international organizations. Since secretariats often perform policy-making functions in international organizations, they are discussed in this chapter together with policy-making organs stricto sensu. It is difficult accurately to place the European Commission in this classification. On the one hand, if one looks at its tasks, it seems basically to be a policy-making organ. On the other hand, like international secretariats, it is composed of independent civil servants. In view

15. UNJY 1976, at 200-201. See for a specific example UNJY 1981, at 164-165. 16. See UNJY 1976, at 200-201. 17. See for problems which arose in practice: UNJY 1978, at 169-172; UNJY 1982, at 171-172; UNJY 1983, at 185-186; UNJY 1985, at 134; UNJY 1986, at 302-303.

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of its special character, very different from both policy-making and administrative organs, the Commission will be discussed separately (Section IV). In Section V some general conclusions will be drawn.

II.

Policy-making organs

§389. A distinction can be drawn between plenary and non-plenary policymaking organs. Part II will be devoted in the first place to plenary organs (II.A): the general congress (with full powers in all fields in which the organization operates); junior congresses (limited powers in all fields); specialized congresses (full powers in some fields) and plenary commissions (limited powers in some fields). Subsequently (II.B) we shall discuss non-plenary organs some of which (the governing boards) may have full powers in certain fields, but most have only a subsidiary function. A.

Plenary policy-making organs

1.

General congress or council of ministers

a.

Denomination

§390. All public international organizations have a supreme organ in which all member states are represented. We shall designate this organ the general congress. Although not officially used by international organizations, the term seems sufficiently clear to indicate the supreme organ with overall powers. In closed organizations such as the European Union, however, the choice of this term to refer to the main organ of government representatives might seem very unusual. Thus when referring to the general congresses of closed organizations we may employ the term council of ministers. In practice, international organizations adopt a large variety of terms for their general congress. For the UN it is General Assembly, for other organizations General Conference,18 Conference,19 Congress,20 or Assembly.21 In closed organizations Council22 or Committee of Ministers23 is often used. Financial organizations usually employ the term Board of Governors.24 We avoid “Assembly” for the general congress since

18. 19. 20. 21. 22.

ILO, UNESCO, IAEA. FAO, OAS. WMO, UPU. ICAO, IMO, WHO, OAU, AU. NATO, League of Arab States, OECD, European Union (Council of Ministers and European Council), EFTA, Cartagena Agreement, LAIA, many commodity agreements (for example, the 1992 International Sugar Agreement). 23. CoE, Benelux. 24. IMF, World Bank, EBRD, EIB; an exception is MIGA (‘Council of Governors’).

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it is used in some closed organizations for parliamentary organs. The word “Conference” suggests an ad hoc gathering of government representatives rather than an organ.

b.

Task

§391. The general congress usually ranks second after the entire membership acting in common agreement (see above, §162). Many constitutions expressly recognize it as the main organ,25 or expressly reserve important powers to it.26 Others empower the general congress to supervise the other organs. These other organs are often required to deliver reports to the general congress which the general congress has a right to criticise or even amend. However, the general congress does not have the power in all international organizations to act alone on behalf of the entire organization and to overrule all other organs. Its powers are sometimes restricted by the conferral by the constitution of specific functions to other organs. There may be three reasons for limiting the overall powers of the general congress: (1) Most general congresses adopt decisions according to the “one state, one vote” principle. For this reason, the stronger or most interested states sometimes refuse to attribute specific powers to general congresses. As a result, these powers may be given exclusively to non-plenary organs, in which seats or votes are distributed in accordance with the power and interests involved (e.g. the UN Security Council; see above, §282). (2) The governments of the member states decide how the votes are cast in the general congress. For the European Communities, it was feared that too much power would be concentrated in the hands of governments if supreme powers were given to the Council of Ministers. An attempt was made to reduce the powers of the governments by creating additional autonomous organs, such as the Commission and the European Parliament. (3) A third reason stems from the functioning of almost any international organization: the complexity of the subject matter or the need for speedy action may require a shift of power from the slow moving general congress to smaller and more efficient organs. In the World Bank, for example, the de facto influence of the President and staff is such that the plenary organ does not in fact play the most important role.27 In some organizations the general congress is reluctant to delegate powers to other organs.28

25. IMF, Art. XII, Section 2; World Bank, Art. V, Section 2; UPU, Art. 14, para 1; WMO, Art. 7(a); World Tourism Organization, Art. 9; OAS, Art. 53; OECD, Art. 7; AU, Art. 6.2. See also K. Zemanek, Das Vertragsrecht der internationalen Organisationen 35-36 (1957). 26. See J. Gold, Voting and Decisions in the International Monetary Fund 10-14 (1972). 27. R. Barents, De Wereldbank, in P. VerLoren van Themaat, Studies over internationaal economisch recht, Vol. 1, 3(b) (1977), at 37-38. 28. This was the case, for example, in the early years of the OAU; see F. Borella, Le systeme juridique de l’O.A.U., 17 AFDI 137 (1971).

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§392. Within the European Union there are two general congresses: the Council of Ministers and the European Council. Originally, each of the three European Communities had its own Council of Ministers. These three general congresses were merged with the entry into force of the 1965 Merger Treaty. The Council of Ministers is, inter alia, one of the principal decision-making bodies of the Communities.29 In the event, the need was felt to create a higher body to decide on the most difficult intra-Community political issues and for consultation on and coordination of foreign policy matters. Created in 1974 (the Paris Summit), the European Council was superimposed on the existing institutional structure.30 A treaty basis was given to this body in the 1986 Single European Act. The European Council was further upgraded in 1992 by the Treaty on European Union when it became the cornerstone of the EU’s institutional structure. It is separate from and superior to the Council of Ministers. The European Council is composed of the heads of state or government of the member states and the President of the Commission. Its task is to “provide the Union with the necessary impetus for its development and shall define the general political guidelines thereof”.31 It is “an intergovernmental organ par excellence with no supranational features”,32 which has become “a focal point for the major political decisions on the unification of Europe”.33 Within the framework of the Agreement on Andean Subregional Integration (Cartagena Agreement) the Presidents of the member states (Bolivia, Colombia, Ecuador, Peru and Venezuela) decided to promote and deepen subregional integration by taking over direct leadership of the process. In their Declaration of Caracas (February 1989), a commitment was made to meet every six months so as to review and promote the integration process. These meetings were institutionalized in 1990 through the creation of the Andean Presidential Council as the supreme body of the Andean integration system.34

2.

Junior congress

§393. Some constitutions require that the general congress be composed of cabinet ministers (see above, §243-247), although this may prevent frequent

29. M. Westlake (ed.), The Council of the European Union (1995); F. Hayes-Renshaw and H. Wallace, The Council of Ministers (1996). 30. See on the European Council J. Werts, The European Council (1992); H.-J. Glaesner, The European Council, in D. Curtin and T. Heukels (eds.), Institutional Dynamics of European Integration, Essays in Honour of Henry G. Schermers, Vol. II (1994), at 99-113. See on European Political Cooperation (the process by which the member states of the European Union coordinate their foreign policies) S.J. Nuttall, European Political Cooperation (1992). 31. TEU, Art. 4. 32. D.M. Curtin, The Constitutional Structure of the Union: a Europe of Bits and Pieces, 30 CMLRev. 26 (1992). 33. Glaesner, op. cit. note 30, at 113. 34. YIO 2002-2003, Vol. 1, at 94.

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meetings. For items on the agenda which are not of primary importance the organization then needs another plenary organ, composed of lower ranking national delegates. All international organizations with strict requirements as to the composition of their general congress have another plenary organ to which such requirements do not apply. If provision is not made for this other plenary organ in the constitution – as in the case of the Council of Europe – it is established by a later mutual agreement between the member states.35 Even organs in which the member states are represented by high-ranking national officials may be unable to convene as frequently as their work demands. This is also a case where a second plenary organ, composed of civil servants of lower rank, may be necessary. In some cases there may even be three levels.36 We shall designate such plenary organs (secondary, and possibly tertiary) junior congresses. In principle, a junior congress is empowered to take certain decisions by itself. That and its wider field of competence distinguish it from congressional commissions, which merely prepare congress decisions in specific fields (see below, §401-403). In the European Union, however, the Council of Ministers cannot delegate any of its powers to the junior congress (the Committee of Permanent Representatives).37 In this case the task of the junior congress is strictly limited to the preparation of the decisions to be taken by the Council of Ministers. In practice however the Committee of Permanent Representatives comes very close to making decisions independently: the items on which it agrees are placed under heading A on the agenda of the Council and are usually adopted by the Council, at the beginning of its meeting, without discussion (so-called A-points). The issues on which the Committee of Permanent Representatives was not unanimous are subsequently discussed by the Council under heading B of its agenda. Since the end of 1990, the same system of A- and B-points is used by the Benelux Committee of Ministers.38

35. The Committee of Ministers’ Deputies of the CoE is established by decision of the Committee of Ministers at its fifth session (August 1950). See A. H. Robertson, The Council of Europe 30 (2nd ed. 1961); M. Virally, P. Gerbet, J. Salmon, Les Missions Permanentes auprès des Organisations Internationales 397-399 (1971); G. De Vel, Le Comité des Ministres du Conseil de l’Europe (1994), at 18-23. 36. OPEC, OAPEC, CIPEC. See G. Fischer, Les associations de pays exportateurs de produits de base, 22 AFDI 548 (1976). 37. On this committee see E. Noël, The Committee of Permanent Representatives, 5 JCMS 219-251 (1966); M.H.C.J. Rutten, Het samenspel tussen Commissie en Raad bij de besluitvorming in de Europese Gemeenschappen 43-62 (10 Europese Monografieën 1968); F. Hayes-Renshaw, Chr. Lequesne, P. Mayor Lopez, The Permanent Representations of the Member States of the European Communities, 28 JCMS (December 1989), at 119-137; most extensively: J. W. de Zwaan, The Permanent Representatives Committee: Its Role in European Decision-making (1995); D. Bostock, Coreper revisited, 40 JCMS (2002), at 215-234. 38. C.L.G. Buggenhout, A la recherche du Benelux perdu (unpublished thesis, Leiden University, August 1992), at 91-92 (information obtained from the Benelux Secretariat).

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The Latin American Integration Association (LAIA) has a committee of permanent representatives operating as a junior congress. Its powers are specified in the constitution.39 In the Agreement on Andean Subregional Integration (Cartagena Agreement) a junior congress has been modelled on the Committee of Permanent Representatives of the European Union. Its powers have been restricted to the giving of advice.40 The constitutions of the International Energy Agency and of the Economic Community of West African States also provide for junior congresses.41 The constitutions of the OAS and the former Council for Mutual Economic Assistance (CMEA) contain no formal requirement as to the composition of the general congress. Nevertheless they provide for junior congresses.42 This provision was intended to nurture the tradition whereby the member states send high-ranking delegations to the general congress and delegations of a lower level to the junior congress.

§394. Junior congresses are usually composed of diplomats. If the general congress is at the level of Heads of State or Heads of Government the first junior congress may be composed of Ministers of Foreign Affairs.43 They again may be unable to meet frequently, which may lead to the creation of further junior congresses. §395. It may be difficult to convene a congress for reasons other than a formal requirement for the presence of high national officials. No such requirement exists for a session of the General Assembly of the UN. In practice however high-ranking delegates come to New York from all over the world. All UN member states maintain a permanent mission at UN headquarters. It is much easier for their permanent representatives to meet than it is for ad hoc delegations sent by the member states. But, even for special sessions, the tradition and supreme character of the General Assembly does not permit the organ to be composed of these permanent representatives. To prepare its sessions and to settle urgent business between sessions the General Assembly created an Interim Committee.44

39. 40. 41. 42. 43.

LAIA, Art. 35. Agreement on Andean Subregional Integration. Arts. 19-21, Peaslee I, at 52. IEA, Art. 53; ECOWAS, Arts. 4-6. OAS, Art. 61; CMEA, Arts. 7 and 8. E.g. OAU, Arts. 12-15 (Council of Ministers); AU, Art. 10. Before the amendment made in Buenos Aires (1967) the OAS Meeting of Consultation of Ministers of Foreign Affairs acted as a junior congress – the general congress (the Inter-American Conference, which met every five years) was usually composed of the Heads of State. Since then the Conference has been replaced by an annual General Assembly. Delegations to the Assembly are usually headed by the Ministers of Foreign Affairs. See US Department of State, Background Note on the OAS (May 1993), at 6. 44. GA Res. 111 (II).

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The Interim Committee was originally intended to function until the opening of the third session. At this session it was renewed.45 During the fourth session it became a permanent organ.46 The original purpose was to study various matters and to report thereon to the General Assembly. This would relieve the General Assembly of some of its preparatory work. Later, further tasks were delegated to the Interim Committee. Some of these went beyond the scope of a mere “study” committee.47 The Interim Committee is authorized to request advisory opinions from the International Court of Justice,48 and to utilize, with certain limitations, the Peace Observation Commission.49

The Interim Committee still exists, but has not discussed substantive issues since 1951 and has not met since 1961. The General Assembly therefore did not pursue its initiative of creating a junior congress which would operate between its sessions. One reason for this has been that many member states, in particular the Eastern European states, contested the legality of the Interim Committee on the ground that it would infringe the powers of the Security Council.50 Regular sessions of the General Assembly normally take place between the third Tuesday of September51 and Christmas. However, in the absence of a junior congress the Assembly has often decided not to close, but rather to suspend its annual session in December and to resume deliberations the next year (often for a few days, sometimes for a few weeks), between January and the opening of the next regular session.52 3.

Specialized congresses

§396. Some organizations perform very different specific tasks. In all of them a plenary organ must plan the policy to be adopted. So, member states are required to send larger delegations containing at least one specialist for each specific task. The general congress will then proceed by grouping the specialists together in plenary commissions (see below, §404-405) which can attend to all preparatory work. However thorough the preparation, it falls to the general congress itself ultimately to discuss the results and take decisions. This can

45. 46. 47. 48. 49. 50. 51.

GA Res. 169 (II). GA Res. 295 (IV). See GA Resolutions 111 (II), 193 (III), 195 (III), 289 A(IV). GA Res. 196 (111). GA Res. 377 A(V). See also UN Rep. of Practice (1955 I), at 714-715. See B. Simma (ed.), Charter of the United Nations (2nd ed. 2002), at 378. In recent years often earlier: e.g. 9 September 1998, 5 September 2000. See the overview in Simma, op. cit. note 50, at 391-395. In 2003, the General Assembly amended Rule 1 of its rules of procedure to read: “The General Assembly shall meet every year in regular session commencing on the Tuesday of the third week in September, counting from the first week that contains at least one working day” (GA/Res/57/301; see also UN Doc. A/INF/58/1 for the list of opening dates of the 59th to 63rd regular sessions). 52. See the table with precise dates of sessions of the General Assembly in Simma, op. cit. note 50, at 391-395.

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mean that all the other delegates’ time is wasted, where the substance is so technical that only one particular expert in the delegation can participate in the discussions. In order to prevent this it seems advisable to take highly technical subjects off the agenda of the general congress and to put them before a separate plenary organ operating on the same level. A good example of this can be found in the ITU, an organization responsible for very different technical activities ranging from international frequency registration (necessary for the prevention of mutually harmful interference by radio broadcasts) to the automation of international telephone calls and the facilitation of worldwide standardization of telecommunications. It would make little sense to determine the policy regarding all these activities in the same general congress. The ITU constitution therefore provides for specialized congresses (‘conferences’, such as world or regional radiocommunication conferences and world telecommunication standardization conferences) competent to discuss specific telecommunications matters. Decisions must be in conformity with the Constitution and Convention of the ITU.53 For these items the specialized congresses act as supreme organs of the organization. The Council of the European Union is formally a general congress. Most Council meetings however concentrate on specific policy fields, and member states send specialized representatives of ministerial rank to these meetings (e.g. agriculture ministers are sent to Council meetings devoted to agricultural policies). Although formally there is one Council, in practice there are meetings of e.g. the ‘Agriculture Council’ or the ‘Budget Council’. In its different compositions the Council therefore in practice often functions as a specialized congress.

§397. Specialized congresses may also be required for matters falling within the responsibility of specialized ministers. It is often more effective to assemble these ministers, or their representatives, in one special organ than to require them to take part in a delegation headed by the Minister of Foreign Affairs or his representative. We find provision for five specialized commissions in the constitution of the OAU.54 Two more were added in 1964. For financial reasons the number was reduced to three in 1966. Only the Economic and Social Commission, the Educational and Cultural Commission and the Defence Commission remained.55 However, these commissions never met.56 In 2001 the African Union was created to replace the OAU. The AU constitution establishes seven plenary “specialized technical committees” composed of ministers or senior officials responsible for the sectors for which these specialized congresses are competent (Article 14). In the OAS Special Conferences may be convened for specific technical matters.57 Several other international organizations have special-

53. ITU Constitution, Arts. 13.4, 22.4, 25.2. 54. OAU, Art. 20. 55. A.N. Wachuku, Decision-making in the principal organs of the OAU (Univ. of Michigan Law School, 1969 (not published)), at 2. 56. Borella, op. cit. note 28, at 239; J. Woronoff, Organizing African Unity 168-175 (1970). 57. OAS, Arts. 127-128.

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ized congresses.58 The constitution of the Council of Europe does not provide specifically for specialized congresses, but in practice such organs have been formed by, for example, the Ministers of Education and by the Ministers of Justice of the member states.59 Both meet periodically with the administrative support of the Council of Europe, but outside Strasbourg. Their resolutions take the form of recommendations to the Council, the importance of which is no less than that of the resolutions of the Committee of Ministers. The legal programme of the Council is strongly stimulated by the Ministers of Justice; the Committee for Legal Cooperation was established at their instigation (recommendation of October 1962). When in 1974 the Intergovernmental Maritime Consultative Organization (IMCO; the predecessor of IMO) decided to open the Maritime Safety Committee to all member states of IMCO it actually transformed this closed commission into a specialized congress.60 The same happened to the Technical Assistance Board of the United Nations Conference on Trade and Development in 1977.61

§398. A specialized congress may come close to being an independent organization. It has its own task and is not accountable to any other organ. The only difference between a specialized congress and an international organization lies in the constitutional provision by which it is established (see above, §34-43). An organization is founded upon a separate agreement between governments. A specialized congress is established within the legal order of an international organization. A comparison between the European Conference of Ministers of Transport (CEMT) and the former European Nuclear Energy Agency (ENEA) shows how little substantial difference there is. The CEMT was formed at the initiative of the Organization for European Economic Cooperation (OEEC) in 1953. It was intended to perform a specific task in the field of transport, but would be administratively supported by the OEEC Secretariat. As it was based on a separate treaty it should be considered as an independent organization. The ENEA was established as a specialized congress of the OEEC to perform a specific task in the field of nuclear energy. For both organs, the secretariat functions were taken over by the OECD when this organization succeeded the OEEC, and the name of the ENEA was changed to “Nuclear Energy Agency”. In both organs, only some of the member states of the OECD participate.

§399. A general congress may on an ad hoc basis turn into a specialized congress by restricting its agenda to a specific group of items, such as the special sessions of the General Assembly of the UN.62

58. See e.g. ECOWAS Art. 9; Caricom, Art. 10; IEA, Arts. 54-58. 59. See De Vel, op. cit. note 35, at 116-122 and Annex V. 60. IMCO, Art. 28 (which entered into force in 1978). See also J. Dutheil de la Rochère, Une institution spécialisée renaissante: la nouvelle organisation maritime internationale 22 AFDI 461 (1976). For other specialized congresses in the maritime field, see IMO Constitution, Arts. 32-36 and 37-41. 61. GA Res. 31/2. 62. For example the 27th Special Session (May 2002), devoted to children.

§400

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Plenary commissions

§400. If we regard the general congress as the supreme organ of the organization, competent across the whole range of the organization’s activities, then junior and specialized congresses each have one aspect in common with the general congress: the former has its wide range of activities, the latter the supremacy over its own (restricted) field of competence. Organizations often require plenary organs which are neither autonomous nor competent to discuss a vast variety of items. They need (secondary) organs to do preparatory work on specific topics. Such organs may either work during the sessions of the general congress (as session commissions of the general congress or congressional commissions) or independently thereof (plenary functional commissions). a.

Congressional commissions

§401. Before a decision can be taken by a general congress, preparation must be made in two areas. First, the organ requires information on the issue involved. It wants to know the possible solutions to a problem. Larger organizations usually refer this sort of preparation to non-plenary organs (see below, functional commissions). Second, the possible chances of success of, and political support for, each solution must be considered. The delegations want to know each other’s opinions, and for this purpose debates are necessary. These occupy most of the time of each general congress. Delegations will usually distribute the items on the agenda among their members, particularly if these items concern a wide variety of subject matters. The preliminary debates will then be of particularly interest to the specialists concerned. They will be able to keep the other delegates adequately informed. The organization can save considerable time by allowing these specialists to discuss ‘their’ respective agenda items simultaneously. Only small delegations will be at a disadvantage with such a procedure, but they can select meetings which interest them most by carefully studying the agenda and the summary records of each meeting. The separate debates on different agenda items take place in congressional commissions, in which all delegations may, and usually do, participate: the larger ones by appointing a member of the delegation to each congressional commission, the smaller ones by attending the most important meetings. One and two-man delegations may have to rush from one commission to another. For their sake the conference officials should coordinate the agendas in order to prevent important phases in different commissions from coinciding.63 This

63. Cf. GA Res. 45/45, Annex, para. 5: “The General Committee should consider, at the beginning of each session of the General Assembly, recommending that certain Main Committees should meet in sequential order, taking into account such matters as the number of meetings required for the consideration of the questions with which they are charged at

299

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may lead to the postponement of one commission’s work until another has settled a particular problem. §402. Before the opening of a session it should be decided which congressional commissions will be created so that the member states may be allowed to compose their delegations in such a way as to be able to participate in each commission. Usually the different tasks of a general congress indicate which different commissions will be established. The UN General Assembly in each session divides its agenda items between six congressional commissions (the Main Committees):64 Disarmament and International Security Committee (First Committee); Economic and Financial Committee (Second Committee); Social, Humanitarian and Cultural Committee (Third Committee); Special Political and Decolonization Committee (Fourth Committee); Administrative and Budgetary Committee (Fifth Committee); Legal Committee (Sixth Committee).65 The General Assembly originally had six committees. There were so many political questions however that an additional “Special Committee on Palestine” was established in 1947. This committee later became permanent and was named Special Political Committee. In 1993, the Assembly decided to merge the Special Political Committee and the Fourth Committee into a new Fourth Committee (“Special Political and Decolonization Committee”).66 Other general congresses follow a similar pattern, which was originally developed by the League of Nations.67 The UPU Congresses have congressional commissions inter alia on letter post, parcel post, air conveyance and quality control.

§403. The value of these congressional commissions lies not only in the timesaving. For the sake of decision-making it is useful to include two consecutive stages in the procedure. In the first stage the opinions of the different delegations are brought to life and the proposals’ chances of success may be evaluated. Congressional commissions close their proceedings by submitting a report to the general congress. All projects for decisions are voted upon. Before discussion in the general congress the delegations know how many extra votes are required for particular proposals. They can try to persuade other delegations or they can make concessions. In order to profit from the procedural advantage gained by this two-stage discussion, international conferences

64. 65. 66. 67.

that session, the organization of the work of the whole session, and the problem of participation of smaller delegations”. See also UN Doc. A/BUR/57/1, at 5, and UN Doc. A/BUR/ 58/1, at 3. See A/520/Rev.15/Amend.2. At times, joint meetings of two main committees have been held. See UNJY 1978, at 166-167. See M. Ahsen Chaudhri, Origin, Composition and Function of the Sixth Committee, 29 REDI 211-232 (1973). See UN Doc. A/47/L.64. M. Burton, The Assembly of the League of Nations 135-174 (1974).

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working on a single topic sometimes create one congressional commission (commission of the whole) rather than starting discussion immediately in the plenary organ.68 The position of such a commission approximates that of a junior congress (see above, §393). b.

Plenary functional commissions

§404. Many preparations for congress decisions need not take place during congressional sessions. A plenary commission therefore may also be established for preparing the decisions of the general congress between its sessions. Most international organizations have created functional commissions for this purpose. In the universal organizations they are usually not plenary organs. As small organs are less costly and work more quickly, specific tasks are usually delegated to non-plenary functional commissions (see below, §422-423). In some cases, when the subject is considered to be very important or when it seems useful to consider the opinions of all member states in a preliminary stage, a universal organization may create a plenary functional commission. An example is the Disarmament Commission of the General Assembly of the UN. The Open-ended Working Group on the Question of Equitable Representation on and Increase in the Membership of the Security Council (see below, §420) may also be classified as a plenary commission.

§405. In closed organizations functional commissions are more often plenary commissions. They are distinguished from sessions of the general congress or of a specialized congress by the lower level of their representatives. Usually the member states are represented by officials of the ministry responsible for the subjects concerned. Their main task is not only to find possible solutions for specific problems but also to find those solutions that are acceptable to all member states. In this respect they are very similar to congressional commissions. The European regional organizations do most of their work in plenary functional commissions. The sessions of their general congresses therefore take relatively little time. Agreements reached between the officials of the ministries responsible usually include agreements between the ministers themselves. Discussion in the general congress (council of ministers) will then be focused on the items on which the officials failed to reach agreement. In most cases plenary functional commissions are established by the general congress as and when the need arises. In Benelux they are expressly listed in the constitution.69 Benelux works through its functional commissions more than any other organization.

68. E.g. at the UN Conference on the Law of Treaties (Vienna 1968, 1969), and at the 1998 Rome Conference on the Establishment of an International Criminal Court. 69. Benelux, Arts. 28-29.

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Special types of functional commissions are the Management Committees of the EC (see above, §275) and the many special committees of civil servants advising the Commission. Rather more independent are the Action Committees of the Latin American Economic System (SELA).70 B.

Non-plenary policy-making organs

1.

The need for non-plenary policy-making organs

§406. Most large international organizations make use of non-plenary organs for the performance of specific tasks. Some organizations do so more frequently than others. In the African region there is a clear inclination to use plenary organs, perhaps because the younger states are rather jealous of their sovereignty. The European states are more willing to accept delegation to smaller organs in which not each of them is represented.71 §407. There are at least three reasons why international organizations delegate powers to organs in which not all member states take part: (1) Decision-making in a large plenary organ is a slow and cumbersome process. Meetings of more than twelve people rarely work efficiently. Assembling a large number of highly qualified representatives for a conference is a costly affair, not only financially (see above, §313) but also in irreplaceable man-power. Many states are unable to afford long absences of their top experts. A general congress may save much time by delegating minor decisions and preparatory work for important decisions to other organs. It may often delegate work to the secretariat of the organization, but some tasks may be too technical or too controversial for a rather small and nonpolitical body. (2) Some states may be greatly interested in particular decisions that are of lesser or no importance to others. In that case it might be advisable to grant the interested members a larger share in their preparation (see above, §280-281). (3) For certain tasks an organ of government representatives is insufficiently objective (see above, §267). A compromise solution, which is usually the result of bargaining between government representatives, is not always the best. Arbitration and the gathering of expert opinions are traditional examples of functions better performed by organs composed of independent persons. Experience in the EC also shows that some political tasks can be better delegated to non-governmental organs. In this case the organ need not necessarily be smaller than the general congress. §408. Organizations will generally use advisory organs for the preparation of decisions. For the taking of decisions they may require a second policymaking organ: a board.

70. SELA, Art. 20 (15 ILM 1092 (1976)). 71. Borella, op. cit. note 28, at 235.

§409

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The board

§409. Using different names such as “Executive Board”,72 “Council”,73 “Governing Body”74 or “Executive Committee”,75 all universal organizations, and many regional organizations, have policy making organs, composed of a limited number of member states. We shall style these organs “boards”. Some organizations, like the UN and the IMO, have several boards for different functions. The tasks and competences of these boards vary greatly. In principle we can distinguish between two types of boards: executive boards, which play a secondary role under the authority of the general congress, and governing boards, which have their own independent powers. In practice many boards have some features of both. a.

Executive board

(i)

Task

§410. Executive boards prepare the agenda of the general congress and execute its decisions. They usually supervise the secretariat and the budget of the organizations and often decide on current affairs when the general congress is not in session, but they do so subject to the final authority of the general congress. An example of such an executive board is the board of the UPU, established in 1964.76 The constitution may indicate which power the general congress may confer upon an executive board.77 The need for delegation depends largely on the frequency of congressional sessions. Most universal organizations leave the greater part of their secondary functions to the board. The UN General Assembly, on the other hand, delegates few of its functions to the two boards under its authority (the ECOSOC and the Trusteeship Council). It prefers to delegate to its own plenary committees or to functional committees, such as the Advisory Committee on Administrative and Budgetary Questions.

§411. The frequency of executive board meetings varies a great deal. Some executive boards meet only once or twice a year,78 others – particulary those that have governing as well as executive tasks – meet more often or may even

72. 73. 74. 75. 76. 77.

E.g. WHO. E.g. FAO. ILO. E.g. WMO. UPU, Art. 17. Some constitutions forbid the delegation of particular powers, see e.g. World Bank, Art. V, Section 2(b); UNIDO, Art. 8 para. 4. 78. E.g. the board of WMO.

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stay permanently in session.79 In the latter case the role of the board comes closer to that of the Secretary-General of the organization and many governments may be unable actively to follow its work. For the performance of political tasks a second executive board meeting less frequently may then be needed.80 (ii)

Composition

§412. There should be close liaison between a general congress and an executive board. The board must prepare and pursue the policy of the general congress. Initiatives of the board, however useful and well prepared they may be, will not succeed if they fail to correspond to the opinion of the general congress. In order to establish the greatest degree of conformity between both organs, executive boards are generally formed of government representatives, selected in such a way that all important interests within the general congress are represented on the executive board. This method of composition of the executive board enables the member states to know from the preparatory discussions in the board what the views of the general congress will be and ensures that later execution by the executive board will be in line, as much as possible, with previous decisions of the general congress. §413. The transformation of the boards of FAO and UNESCO from organs of individual experts to organs composed of government representatives (see above, §267) is probably due largely to the fact that these boards proved to be more executive in character rather than governing boards or committees of experts. When it was realized how close was the bond between the general congress and the executive board it was considered appropriate to change the composition into one of government representatives. §414. The size of executive boards is approximately one-fifth to one-third of the membership of the organization (see above, §237). As membership of many international organizations has grown rapidly over the last fourty years, many constitutions required frequent amendment in order to retain this proportion. The constitutions of some modern international organizations avoid this problem by providing that the number of board members will be a certain percentage of the total membership of the organization.

79. E.g. the boards of the World Bank, IMF and ICAO. On the advantages and disadvantages of such permanent sessions, see Gold, op. cit. note 26, at 85-87. 80. See the 1976 amendment of the IMF constitution, 22 AFDI 625 (1976). The amendment entered into force in April 1978.

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In the World Tourism Organization board membership is one-fifth of total membership.81 The Economic and Social Council of the UN (191 members) has 54 members; the executive boards of the FAO (183 members) had 49 members, that of UNESCO (188 members) 58, ITU (189 members) 46, ICAO (188 members) 33, WHO (192 members) 32, WMO (179 members) 36.82 The board of ILO (175 members) numbering 56 members was larger as a consequence of the general structure of this organization in which workers and employers are also represented. Only half of the members of the ILO board are nominated by governments of member states.83 Most international organizations increased the number of their board members following the rise of the total number of members of the organization. To illustrate how strong the pressure to enlarge these organs can be, it may be noted that the only amendments to the UN Charter which were ever passed were those to enlarge the number of members of the Security Council from 11 to 15 and the ECOSOC from 18 to 27, and later to 54.

b.

Governing board

(i)

Task

§415. A governing board has its own task, independent of the general congress. Particular functions of the organization are entrusted to it and it performs them on behalf of the whole organization. Apart from the UN Security Council and the Junta of the Cartagena Agreement,84 these boards operate in a narrow field of activity. The Radio Regulations Board of the ITU (previously Frequency Registration Board) performs an important independent governmental duty in the assignment and utilization of radio frequencies.85 The International Narcotics Control Board performs an independent role within the UN system in the field of narcotic drugs. It has its own secretariat, distinct from the Division of Narcotic Drugs of the UN Secretariat. It is to be consulted on the appointment of the head of that secretariat. Its budget constitutes a separate unit and its records are kept separately.86

81. World Tourism Organization, Art. 14. In 1989 this Article has been amended, to the effect that the host state of the organization shall have a permanent additional seat on the board. This amendment has not yet entered into force. 82. Data taken from the websites of these organizations and from the United Nations Handbook 2002 (published by the New Zealand Ministry of Foreign Affairs and Trade). 83. In 1986 an amendment was adopted, increasing the number of members of the board to 112. This amendment has not entered into force. 84. W.P. Avery and J.D. Cochrane, Innovation in Latin American Regionalism: The Andean Market, 27 International Organization 201-205 (1973). The Junta plays an important role in the preparation and execution of legislative acts. 85. ITU Constitution, Art. 14. 86. ECOSOC Res. 1196 (XLII), YUN 1967, at 474-476.

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Policy-making and administrative organs

§416

§416. In many cases boards combine executive and governing functions. The boards of organizations such as the IAEA, the IMO, the ICAO and the financial specialized agencies perform many independent functions while at the same time they are executive boards. The board of ICAO (the Council) has vast powers in the regulation of air navigation. The rules of the air, which are obligatory over the high seas for aircraft of all ICAO members,87 are in practice made by the Council. A majority of ICAO members can collectively veto such rules within three months. To date this not happened.88 The boards of the financial agencies (Executive Directors) may interpret the constitutions of these organizations (see below, §1356). Since they are free to construe the provisions according to their own discretion, the power to interpret has a legislative element.89

All boards which have powers defined in the constitution contain some elements of governing boards. It would be pointless to make constitutional provision for the allocation of functions or distribution of seats if the organ concerned had no independent powers.90 §417. The UN Charter (Article 24.1) confers on the Security Council primary responsibility for the maintenance of international peace and security. When the Security Council exercises its functions in this field the General Assembly may not make recommendations thereon.91 Several specific powers are granted to the Security Council in fields relating to its principal task.92 The Charter empowers the Security Council to act on behalf of the member states, which have pledged to accept and carry out its decisions.93 A weak accountability mechanism is laid down in Article 24.3 of the Charter, according to which the Council shall submit annual and, when necessary, special reports to the General Assembly for its consideration.94

87. ICAO, Art. 12. 88. On the legislative powers of ICAO see E. Yemin, Legislative Powers in the UN and Specialized Agencies 114-160 (1969). 89. A. Broches, International Legal Aspects of the Operations of the World Bank, 98 RdC 313 (1959 III); E.P. Hexner, The Executive Board of the International Monetary Fund: a Decision-making Instrument, 18 International Organization 74, 82 (1964). 90. See Lino di Qual, Les effets des résolutions des Nations Unies 36-40 (1967). 91. UN Charter, Art. 12. See also GA Res. 377 (V) “Uniting for Peace” and for a survey of the legal force of that resolution R. Zacklin, The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies 186-188 (1968); Simma, op. cit. note 50, at 288-298. See further UNJY 1991, at 289-290 (practice of the General Assembly according to which the Assembly is not precluded from discussing issues before the Security Council or from adopting any resolution relating to such an issue). 92. UN Charter, Chapters VI, VII, VIII, XII. 93. UN Charter Arts. 24, 25. 94. Member states and the General Assembly have repeatedly requested the Council to include more information in its report to the Assembly, but Security Council members, particularly the five permanent members have regularly rejected such requests. See e.g. GA Res. 51/193

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However important the task of the Security Council may be, it is limited to an area which would in any event be dominated by the major Powers. The five permanent members which control the Security Council by their power of veto (see below, §813) would – if they were to agree upon a particular problem – have a decisive influence on the maintenance of international peace and security even in the absence of the UN. (ii)

Composition

§418. Governing boards are generally composed of government representatives. The execution of their tasks has only exceptionally been entrusted to experts, not under government instruction. The Radio Regulations Board of the ITU (previously: Frequency Registration Board) is composed of nine independent members (“custodians of an international public trust”) elected for at least four years, and is assisted by a specialized Secretariat.95

§419. The Security Council of the UN is composed of government representatives of fifteen member states. It is charged with a certain amount of supervision of the member states and it would be desirable for it to discharge this function with a view to international rather than national interests. Why, then, have there never been serious proposals for the Security Council to be composed of independent individuals of high standing like the European Commission? The answer to this question lies principally in the implementation of the Security Council’s decisions. Resolutions made with the unanimous support of the five principal states have a reasonable chance of being put into effect. There is strong pressure derived from the unanimity of the great powers supported by at least four smaller ones (which offers some guarantee that the decisions will not benefit the great powers alone). The authority of decisions of an organ of independent experts would probably be insufficient, notwithstanding its high reputation and whatever binding character a constitution could confer upon them. This reflects the pre-eminence still enjoyed by the state in the current international order. Precisely because important powers have been vested in the Security Council, the most powerful states want to control it and insisted on their permanent seat and right of veto in the Council. This special position would make little sense if the superpowers could not have their own representatives on the Council.

– four permanent members voted against this resolution. See M.C. Wood, Security Council Working Methods and Procedure: Recent Developments, 45 ICLQ 150-161 (1996), in particular at 157-158. 95. ITU Constitution, Art. 14.3 (1); ITU Convention, Art. 10.1. For comment on this board see D.M. Leive, International Telecommunications and International Law: The Regulation of the Radio Spectrum (1970), at 25-28, 78-80, 246-264.

307

Policy-making and administrative organs

§420

§420. Originally, the Security Council was composed of eleven members. The process of decolonization resulted in a large increase of the number of member states of the UN, which in turn necessitated an increase of the number of members of the Security Council. In 1963, an amendment of the Charter was adopted to enlarge the Council to fifteen members.96 Subsequently, repeated calls have been made to further adjust the composition of the Security Council,97 because a large number of new members have been admitted to the UN since 1965, and because the Council was no longer considered as being representative of total UN membership.98 However, until the 1990s these calls did not lead to a general agreement among the member states – notably among the five permanent members of the Security Council whose approval of any Charter amendment is required – on the need to start negotiations on this issue.99 Only the end of the Cold War and the concomitant vigorous role played by the Council have created a favourable climate for discussions concerning a second adaptation of the composition of the Council to the changed international environment.100 In 1992, the General Assembly requested the Secretary-General to invite member states to submit written comments on a possible review of Council membership, referring to “the increasingly crucial role of the Security Council in maintaining international peace and security” and to “the changed international situation and the substantial increase in the membership of the United Nations”.101 A large number of member states presented their views on this matter.102 Some countries were in favour of a small increase in membership,103 while others favoured more fundamental changes.104 Generally, developing countries favoured a more substantial increase of Council members than developed countries, which emphasized the

96. 97. 98.

99. 100.

101. 102. 103. 104.

This amendment entered into force in 1965; as of 1 January 1966, the Council met in its new composition. E.g. UN Doc. A/35/L.34/Rev. 2. Cf. Art. 24.1 of the Charter: “In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf” (emphasis added). UN Charter, Art. 108. See I. Winkelmann, Bringing the Security Council into a New Era, in Max Planck UNYB Vol. 1 (1997), at 35-90; B. Fassbender, UN Security Council Reform and the Right of Veto – A Constitutional Perspective (1998); D. Annousamy, Recasting the Security Council, 40 IJIL (2000), at 538-546. GA Res. 47/62. See UN Doc. A/48/264 and Add. 1-10. E.g. Belgium, which proposed to add two permanent members and one non-permanent member (id., at 12). E.g. Malaysia, which proposed to abolish the veto power in the long term (id., at 58-59).

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need for the Council to operate effectively.105 As opposed to the 1963 amendment, an enlargement of not only the number of non-permanent, but also that of permanent seats in the Council is now under consideration. Most often, Germany and Japan have been mentioned as candidates for a future permanent membership of the Council. In 1993, the Assembly decided to establish the Open-ended Working Group on the Question of Equitable Representation on and Increase in the Membership of the Security Council, “to consider all aspects of the question of increase in the membership of the Security Council, and other matters related to the Security Council”.106 In 1994, this working group presented its first report to the Assembly, in which it was observed that “while there was a convergence of views that the membership of the Security Council should be enlarged, there was also agreement that the scope and nature of such enlargement require further discussion”.107 The subsequent annual reports of this working group demonstrate how difficult it is to agree.108 While there is general agreement that an increase of membership is necessary, there continues to be general disagreement on the size of the increase. Most proposals suggest a number of members that vary from 20 to 26. 3.

Commissions and committees

§421. Within certain limits (see above §224-230) all international organizations may create non-plenary commissions and committees for the performance of specific functions. Different names are used for commissions and committees, though often not to identify different types of organs. As a rough distinction we may say that a commission is larger or more important than a committee, and that a committee is superior in turn to a working party. We shall refer to them all as “commissions”. We shall discuss five types of commissions in the present chapter. They are all involved in the policy-making process, albeit usually in an advisory capacity. Commissions for arbitration, meditation and fact-finding will be dealt with in the following chapter, together with the judicial organs (see below, §648-669). Commissions supervising the execution of decisions will be dealt with in Chapter Ten, with the enforcement of the legal order (see below, §1404(3)-1410, 1415 ff.).

105. A number of developing countries (e.g. Antigua and Barbuda; Chili; Costa Rica; India) proposed that the enlarged Council should have 25 members. Developed countries such as Denmark, France, and the Netherlands emphasized the need to operate effectively, as laid down in Art. 24.1 of the Charter (“In order to ensure prompt and effective action...”). 106. GA Res. 48/26. 107. UN Doc. A/48/47, at 2. 108. See e.g. UN Docs. A/53/47, A/54/47, A/55/47 and A/56/47.

309

a.

Policy-making and administrative organs

§422

Functional commissions

§422. The preparation of decisions in a given field is often attributed to a commission specifically designed to cover that field. The commission will have particular competence for a particular function. It therefore bears the name “functional commission”. A functional commission has a preparatory role (otherwise it would be a governing board or – if plenary – a specialized congress) and is more or less permanent (it is constantly available for a specific function of the organization). In practice, many functional commissions enjoy relative independence. Commissions of the UN, such as those on Statistics or Narcotic Drugs, operate officially under the supervision of the ECOSOC. In practice however they are so technical in character that the ECOSOC has little control over them. The superior organ will exert more control if the task is less specialized, as in the case of the ECOSOC Commission on Human Rights or the ECOSOC Commission on Sustainable Development. §423. The best composition of functional commissions is often one of independent experts (see above, §267-274) who are usually better able to handle the specific subjects concerned. If, however, the function is very specialized, and therefore subject to minimum control from higher organs, governments may wish for greater influence in the commission itself by drawing its members exclusively from government representatives. In practice, functional commissions are often composed, in whole or in part, of government officials chosen in their personal capacity. This involves the government in the work of the commission while at the same time the organization is assured of the expert representation it needs. Functional commissions of closed organizations are usually plenary organs (see above, §404-405). b.

Consultative commissions of interest groups

§424. It is sometimes considered useful to confer advisory powers upon representatives of interest groups. This may be achieved by admitting these representatives, in an advisory capacity, to the meetings of the organization (see above, §188-195). Some organizations, however, prefer to channel all opinions of interest groups through a specific organ made up of their own representatives. Interest groups usually enjoy a wealth of expertise but lack impartiality. Unless all interests can be equitably represented, organs made up of representatives of interest groups ought not to possess decision-making power of their own, although their expertise may make a valuable contribution to the decisions of other organs. For that reason some organizations bring the representatives of interest groups together in consultative commissions. The European Community and Euratom share an Economic and Social Committee composed of 222 representatives of the various categories of economic and social activity, in particular, representatives of producers, farmers, carriers, workers, dealers,

§425

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craftsmen, professional occupations and representatives of the general public.109 The Economic and Social Committee may be consulted by the Council and the Commission in all cases in which they consider it appropriate. It must be consulted in a number of cases that are specifically mentioned in the Treaties. It may also issue an opinion on its own initiative in cases where it considers such action appropriate.110 The 1992 Treaty on European Union created a new consultative commission for the European Community: the Committee of the Regions, composed of 222 representatives of regional and local bodies. Its powers are similar to those of the Economic and Social Committee.111 The European Commission has established a number of consultative committees for relations with interested parties. In the agricultural field such a committee exists for each regulated product. Half of the members are from producers and cooperatives, a quarter from industries manufacturing agricultural products and a quarter from associations of employees and consumers. Since 1961 the EFTA has had a consultative committee comparable to the Economic and Social Committee of EC and Euratom.112

§425. Consultative commissions may have a function other than that of participating in the preparation of decisions. By involving interest groups in their decision-making process international organizations accept a certain degree of control. The interest groups may be more critical of final decisions if their recommendations are not adopted. They may appeal to public opinion or to a parliamentary body and initiate political control of the decision-making organs. c.

Ad hoc advisory commissions

§426. Functional commissions prepare, on a relatively permanent basis, decisions of an international organization in a particular field. Occasionally however organizations require preparatory work to be done before taking decisions in a field where no functional commission operates. The subject matter may either be too specific, even for a functional commission, or perhaps such issues arise so infrequently that the establishment of a permanent functional commission cannot be justified. The specific question can then be sent to an advisory commission, formed on an ad hoc basis. Such an advisory

109. EC, Art. 257, Euratom, Art. 165. On the Economic and Social Committee see: G. Zellentin, Der Wirtschafts- und Sozialausschuss der EWG und Euratom (1962); G. Zellentin, The Economic and Social Committee, 1 JCMS 22-28 (1962); N. Bernard, C. Lavel, A. Nijs, Le Comité économique et social, Institute d’Etudes Européennes (1973); D. Sidjanski and J. Condomines, Le profil du Comité économique et social des Communautés européennes en 1982-1983, 7 Revue d’Intégration Européenne 9-41 (1983). See for further references: K. Schwaiger, in: Von der Groeben, Thiesing, and Ehlermann (eds.), Kommentar zum EU-/EG-Vertrag (5th ed. 1997), at 4/1158-1177. 110. EC, Art. 262, Euratom, Art. 170. 111. EC, Arts. 263-265. 112. EFTA, Third Annual Report, at 15; www.efta.int.

311

Policy-making and administrative organs

§427

commission may develop into a functional commission if questions on the same subject matter are increasingly referred to it. d.

Procedural committees

§427. In order to facilitate the functioning of an organ separate committees are often required for procedural purposes. A credentials committee will advise on the validity of credentials (see above, §258). Drafting committees are often established during sessions in order to formulate the agreement which is reached at the meeting. An important procedural committee is the general committee or bureau, usually composed of the president and vice-presidents and charged with the supervision of the agenda and the proceedings of the organ (see above, §365). Procedural committees ought to reflect as closely as possible the parent organ. They should therefore be staffed by that organ’s participants. e.

Regional commissions and regional groups

§428. Many universal organizations have regional commissions, charged with the organization’s task in a specific region. The best known are the regional economic commissions of the UN, operating under supervision of the ECOSOC: the Economic Commissions for Europe (ECE), for Latin America and the Caribbean (ECLAC), for Africa (ECA), and the Economic and Social Commissions for Asia and the Pacific (ESCAP) and for Western Asia (ESCWA).113 Other universal organizations also have their own regional commissions. These regional commissions enjoy relative independence in discussing matters of only regional concern. Superior organs will rarely interfere if a regional commission favours specific solutions for regional problems. The independence of regional commissions is emphasized by the existence of their own separate secretariats in the region (see below, §489). For the adoption of decisions, however, they normally require the approval of the general congress. In one case a regional office is so independent that it almost ceased to belong to the organization: the regional function of the World Health Organization in the Americas is exercised by the Pan American Sanitary Bureau of the Pan American Health Organization which is a specialized agency (specialized congress) of the OAS.114

§429. Since the task of regional commissions is usually to coordinate the policies of the governments in particular regions they are always composed of government representatives of the member states in the region. Sometimes

113. For references, see the Annex (selected bibliography). 114. For the relation between the UN and the OAS, see below §1511. The staff of the Pan American Health Organization cannot be considered as staff of WHO, ILO Administrative Tribunal, Judgment No. 137 (3 November 1969), UNJY 1969, at 198-199.

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interested member states from other regions may be members as well.115 Often other member states of the organization, or those having a particular interest in the region, are admitted in an advisory capacity. If this arrangement is permanent they may be called associate members of the regional commission, since they have the same rights in the regional commission as associate members of an international organization enjoy in the main organs of the organization (participation without vote, see above, §166-168). For the composition of regions, see above, §277. The Latin American Integration Association (LAIA) permits “agreements of partial scope” concluded among some of the LAIA members only, as did its predecessor, the Latin American Free Trade Association (LAFTA). These agreements aim at a closer cooperation by groups of members of the organization on the subjects covered by LAIA. Under the LAFTA constitution they required the approval of LAFTA’s Standing Executive Committee.116 The first such approved agreement was the agreement of 16 August 1967 between Colombia, Chile, Equador, Peru and Venezuela.117 The LAIA constitution does not require such approval; it stipulates only that these partial agreements are governed by a number of “general norms”, inter alia: “they must contain provisions which tend to stimulate convergence so that their benefits extend to all the member countries” (Article 9.b.). Since these partial agreements are based on a separate international treaty, the organizations created by these agreements are separate organizations, not organs of LAIA. They are related to LAIA in a manner similar to the place of Benelux in the European Community. Examples are the Andean Common Market and MERCOSUR.118

§430. Whether a delegation of tasks to regional commissions is advantageous is debatable. Several functions can be better performed at a regional level, but on the other hand certain duplication in headquarters and regional offices are apparent, resulting in increases in costs and administrative inefficiency. Furthermore, coordination between international organizations is complicated by regional commissions, particularly since the regions do not always correspond and the powers of regional offices differ. According to an early study, the WHO has been the most successful, probably because there was complete agreement as to its regional functions from the outset.119

115. See UNJY 1971, at 206-211. 116. LAFTA Res. 202 (CM-II/VI-E) published by M.S. Wionczek, Economic Co-operation in Latin America, Africa and Asia 88 (1969). 117. LAFTA Res. 203 (CM-II/VI-E) published by Wionczek, op. cit. note 116, at 89. See also Instruments of Economic Integration in Latin America and the Caribbean, InterAmerican Institute of International Legal Studies (1975). 118. See for the Andean Common Market: YIO 2002-2003, Vol. I, at 91-92; for MERCOSUR (establishing a common market between Argentina, Brazil, Uruguay and Paraguay), see 30 ILM 1041 (1991). 119. Jackson Report, A Study of the Capacity of the United Nations Development System, UN Doc. DP/5, Vol. II, at 456-462.

313

Policy-making and administrative organs

§431

§431. Apart from regional commissions, which usually meet within the regions concerned, we should mention regional groups operating within many international organizations. Such groups are formed by delegations from the regions, present at a meeting of a larger organ. Usually regional groups are not instituted as organs of the organization; they meet only informally.120 Their main purpose is coordination of the positions of groups of states, especially in the decision-making process of the organizations. We shall therefore discuss these groups in Chapter Six (see below, §763-765). 4.

President of the organization

§432. Some international organizations have a president who is at the same time head of the secretariat.121 We shall discuss his position together with that of the secretariat (see below, §434-545). The presidents of organs are discussed above (§354-360). Some organizations have a president who has separate functions. A good example is the President of the WMO.122 He presides over the sessions of the general congress and of the board. He determines the place and the date of the sessions of the board123 and, together with their chairmen, also those of the regional associations.124 Together with the two vice-presidents of the organization, he may convene an extraordinary session of the board.125 He supervises the Secretariat126 and may issue directives to the Secretary-General. He guides and coordinates the activities of the organization and its various bodies and he may take preliminary action on behalf of the board in urgent matters.127 This could even include matters of a legislative character.128 Other specific duties may be attributed to him.129 His power to invite any director of a meteorological service or any other person to the general congress was of political importance.130 Using this power he could invite directors of the meteorological service of countries such as former Eastern Germany or China which were at the time not recognized as states by most member states. The 1963 session of the general congress curtailed this power.131 A comparable function exists in the ICAO. In this organization the president of the board (Council) has somewhat wider powers.132

120. See R.O. Keohane, Political Influence in the General Assembly, 557 Int. Conc., at 6-11; M. Virally, L’Organisation mondiale 280-293 (1972). 121. See e.g. World Bank, Art. V, Section 5. 122. WMO, Art. 4(b). 123. WMO, Art. 15(a). 124. WMO, Art. 18. 125. WMO, Art. 15(b). 126. WMO, Art. 22(a). 127. General Regulation 9. 128. Yemin, op. cit. note 88, at 170. 129. General Regulation 9. 130. WMO (1959), Art. 6b. 131. WMO, Art. 7c. 132. ICAO, Art. 51.

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In several international organizations, inter alia OPEC, the chairman of the general congress performs functions between congress sessions. In OPEC he presides over any consultative meetings (junior congresses) held between sessions. He may call such meetings in cases of urgency.133 All International Fisheries Councils have elected presidents, competent to perform tasks between sessions.134

§433. Would it be advisable to introduce the same officer in other international organizations? It might be useful in organizations where the executive organs meet only rarely. A president could then take urgent decisions as appropriate between sessions. But the proposal seems neither necessary nor practical. All duties which are conferred on the President could also be entrusted to the secretariat of the organization or to its head, the Secretary-General.

III.

Secretariat

A.

Description

§434. In the past states participating in international conferences were themselves responsible for the secretarial services. In the 19th century permanent organs (the “bureaux”) were created to administer international organizations. These early international secretariats were usually placed under the supervision of one of the member states.135 Such bureaux were created, for example, for the UPU, the International Telegraph Union and also for the 1883 Paris Convention for the Protection of Industrial Property and the 1886 Berne Convention for the Protection of Literary and Artistic Works. The latter two Bureaux were under “the high supervision” (haute surveillance) of the government of Switzerland, which in 1893 united them; they were placed under the same director and had the same staff. This situation continued until 1970 when the United Bureaux were succeeded by the World Intellectual Property Organization.136 Until then, all staff, including the Director, was appointed by the Swiss government. They were mostly

133. F. Rouhani, A History of OPEC 122 (1971). 134. A.W. Koers, International Regulations of Marine Fisheries 133-134 (1973). 135. For example, the International Bureau of the UPU was maintained under the supervision of the Swiss Postal Union at Berne. A number of secretariats of other organizations were also placed under the supervision of Swiss authorities; for example, the secretariats of the ITU, the 1883 Union for the Protection of Industrial Property, the 1886 International Copyright Union and the 1890 Convention on Railway Transport. Others were placed under the supervision of the Belgian authorities (the International Bureau for the Publication of Customs Tariffs) and the French authorities (the Metric Union). See also J. Lemoine, The International Civil Servant – An Endangered Species (1995), Chapter 2. 136. A. Bogsch, Brief History of the First 25 Years of the World Intellectual Property Organization 7-10 (1992).

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of Swiss nationality. Of the directors, only the last (the Dutchman Bodenhausen) was not.137

In some international organizations national offices still perform most of the secretarial work. In many international fishery organizations the secretariat is provided by a bureau of a ministry for fisheries of one of the members.138 The Association of South East Asian Nations (ASEAN) originally had a national secretariat in each member country “to carry out the work of the Association on behalf of that country and to service the annual or special meetings”.139 In 1976 a treaty was concluded to create a separate ASEAN Secretariat. This treaty was amended on several occasions, in particular in the 1992 Manila Protocol.140 §435. The first international secretariat in the present sense dates probably from 1905, the year of the establishment of the International Institute of Agriculture at Rome. The civil servants of this institute were in the service of the organization and were not permitted to take instructions from their governments.141 However they were not appointed without prior approval of their governments142 (most international organizations still request the opinion of the national governments prior to important nominations). The name “secretariat” and its present structure as an independent body stem from the League of Nations. It was chosen intentionally to indicate a purely administrative, secondary organ. The founders did not want the Secretariat to perform independent functions, but merely to assist the activities of the principal organs. In contrast to the Director of the International Labour Office (the ILO Secretariat), the Secretary-General of the League of Nations was not to direct any organ. Gradually, however, the functions of “Secretariat” and “Secretary-General” became of greater importance. At present the post of Secretary-General is a higher rank than that of Director-General. Secretariats have become central organs in all international organizations.143 Loveday compares them with national ministries, an analogy which

137. WIPO, The Paris Convention for the Protection of Industrial Property, from 1883 to 1983 (1983), at 86-96. 138. See Koers, op. cit. note 134, at 144-147. 139. ASEAN Declaration Art. 7(d), 6 ILM 1235 (1967); (Peaslee I, at 146). 140. See YIO 2002-2003, Vol. 1, at 127-129; www.aseansec.org; A. Yusuf, Association of Southeast Asian Nations, in R. Blanpain (general ed.), International Encyclopaedia of Laws, Vol. 1, M. Eyskens and K. Wellens (eds.), Intergovernmental Organizations (suppl. 8, June 2001), at 66-68. 141. J. Gascon y Marin, Les Transformations du Droit Administratif International, 34 RdC 53 (1930 IV); G. Langrod, The International Civil Service 42 (1963). On the history of international secretariats, see also J. Siotis, Essai sur le secretariat international (1963). 142. International Institute of Agriculture, Statute, Art. 27. 143. For literature on the Secretariat of the UN, see the Annex (selected bibliography); on the Secretariat of the Council of Europe, see C. Melchior de Molenes, Croissance d’un organe international: le Secrétariat général du Conseil de l’Europe, 75 RGDIP 446-460 (1971). See in

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seems sound, provided it is remembered that international organizations have much less power than national governments. The responsibilities of the individual members of an international secretariat may be more extensive than those of national civil servants in one respect, since there is no permanent control comparable to that of a national council of ministers or parliament.144 Supervisory bodies of the secretariats of international organizations are less concerned with the political supervision of the secretariats than with administrative control. §436. Most international organizations have one unified secretariat, subdivided in Departments or Directorates and Offices or Services, such as the Legal Service.145 The UN Secretariat consists of various offices and departments, which are organized into divisions, services, sections, branches, and units.146

§437. Only a few international organizations have no secretariat of their own. The African Civil Aviation Commission, the European Civil Aviation Conference and the Latin American Civil Aviation Commission make use of the ICAO Secretariat.147 The International Development Association uses the Secretariat of the World Bank for which the Bank is remunerated.148

In the European Communities each of the institutions (Council, Commission, Parliament, Court of Justice and Court of Auditors) has its own staff.149 The same is true of the ITU, in which the Radiocommunication Sector, the Telecommunication Sector and the Development Sector have specialized secretariats (“Bureaux”) of their own. It has been questioned whether this decentralization in the ITU is efficient.150 When the UN was established, a deliberate choice was made in favour of one secretariat for all principal organs, as opposed to different secretariats for each principal organ. The latter possibility was rejected

144. 145. 146. 147. 148. 149.

150.

general J. Schwob, Les organes intégrés de caractère bureaucratique dans les organisations internationales. Essai de typologie des organes administratifs et exécutifs (1987). A. Loveday, Reflections on International Administration 23-30 (1956). On the legal services of a number of international organizations, see H.C.L. Merillot (ed.), Legal Advisors and International Organizations 51-113 (1966). See Simma, op. cit. note 50, at 1194. YUN 1992, at 1146. Barents, op. cit. note 27, at 33. All staff members are, however, members of the Communities’ personnel. Though the Commission is an independent political organ there is no reason why its administrative staff should not be considered as an International Secretariat, see J. Siotis, Some problems of European Secretariats, 2 JCMS 222-250 (1963) and D. Sidjanski, Some Remarks on Siotis’ Article, 3 JCMS 47-61 (1964). On the Council Secretariat (“General Secretariat”, Art. 207.2 EC), see A. Egger, Das Generalsekretariat des Rates der EU (1994). See UN Doc. A/7765 (Report of the ACABQ on the ITU), GA 24th session, Agenda item 81, at 4-6, 10, 16.

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in view of the risk of divided loyalties, undesirable rivalry and the danger of an overlapping of spheres of responsibility among the individual secretariats.151 §438. Following the use of the term in the UN we shall speak of “secretariat” and “Secretary-General” even in relation to administrative organs and heads of secretariats which officially have a different name, such as “Bureau”, “International Labour Office” or “President”. In relation to the specialized agencies we shall also use the name Director-General so that a clear distinction is drawn with the Secretary-General in the UN. B.

Tasks and influence of the secretariat152

§439. The tasks and influence of secretariats vary, of course, with the tasks and influence of the organizations themselves. Their influence depends furthermore on the following factors.153 (1) The powers granted by the constitution of the organization provide the boundaries within which the secretariat must operate. (2) The financial means offered to a secretariat will greatly influence its quality. Rich secretariats can attract more qualified staff. (3) A large degree of homogeneity and common interest within the organization will enable a secretariat to follow a policy which is closely affiliated with that of all member states. When the membership is not homogeneous tensions will arise more easily. (4) The quality of the personnel involved is decisive in all organs. Secretariats led by competent people have always functioned better than those headed by weaker personalities. The competence of personnel depends largely on their terms of appointment. Nobody is fully effective during his first year of service. §440. For the sake of continuity and leadership Secretaries-General should be appointed for a reasonable period of time. In the UN the appointment is for five years. In the FAO appointment was originally for four years which could be extended for a maximum of two two-year periods.154 In 1971 this was changed into one fixed appointment of six years which could not be

151. Simma, op. cit. note 50, at 1194. 152. The influence of the secretariat depends to a considerable extent on the personality of the Secretary (Director)-General, see R.W. Cox, The Executive Head, An Essay on the Leadership in International Organization, 23 International Organization 205-230 (1969). See also A.K. Bhattacharya, The influence of the international secretariat: UNCTAD and generalized tariff preferences, 30 International Organization 75-90 (1976); M. Doxey, The Commonwealth Secretary-General: Limits of leadership, 55 Int. Aff. 67-83 (1979); J. Schwob, Le role du chef de l’exécutif de l’organisation, in: Société Française pour le Droit International, Les organisations internationales contemporaines (1988), at 339-358. 153. B. David Meyers, The OAU’s Administrative Secretary-General, 30 International Organization 509-520 (1976). 154. FAO, Art. 7 para. 1.

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extended.155 Since 1977 re-election is again possible.156 The frequent changes demonstrate the continuous tension between the wish for stability and that for change and political influence.157

For political reasons some organizations have a rotating Secretary-General. In OPEC until 1970 the Secretary-General was appointed for one year from among the nationals of the members by alphabetical order. From 1970 until 1988 the term of office was two years. Since 1988 the OPEC Secretary-General has no longer been appointed on a rotational basis, but on the basis of merit. The OPEC Statute only provides for the original rotation in case no unanimous decision can be obtained. In such a case – which so far has not occurred – the Secretary-General “shall be appointed on a rotational basis for a term of two years without prejudice to the required qualifications”.158 §441. In performing their functions secretariats are answerable to expressly assigned organs of the organization, usually the board and the general congress. This means that other organs, such as regional commissions, may not supervise the secretariat.159 1.

Functions

a.

Administrative and clerical functions

§442. All international secretariats have many administrative duties. They provide rooms for meetings; facilities for reproduction and translation of documents; they pay additional interpreters, typists and ushers who are needed for large conferences and they often pay for travel and living expenses of delegates and experts. That such functions should be performed well is a prerequisite of the smooth functioning of any organization. As a rule administrative and clerical functions can be regulated beforehand and delegated to different departments of the secretariat. Few discretionary decisions need to be taken. Only in certain cases may the policy of the organization be influenced by value judgments or by a decision to supply or withhold administrative services.

155. FAO Res. 12/71. 156. FAO Res. 17/77. 157. See also F.W. Hoole, The appointment of executive heads in UN treaty-based organizations, 30 International Organization 91-108 (1976). 158. Rouhani, op. cit. note 133, at 124; OPEC Statute, Art. 28.A.; information obtained from the OPEC Secretariat. 159. See UNJY 1973, at 159-160.

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Value judgements are required when rules must be interpreted. The Secretariat of the UN, for example, interprets the UN Charter when, in roll-call votes, it does not call out the names of member states whose contributions are in arrears.160 The decision of the secretariat of UNCTAD to render administrative assistance to the meetings of the group of developing countries greatly assisted this group to formulate a common policy at the conference. The first Secretary-General of UNCTAD, Raul Prebisch, played an important role in uniting the (then) 77 developing states in the 1960s. There is an example of a secretariat decisively influencing the policy of an organ by withholding administrative and clerical support.161 The African Low Frequency/ Medium Frequency Broadcasting Conference of the ITU was convened on 12 October 1964 as an administrative conference (specialized congress) of ITU. On 13 October it was proposed to exclude Portugal and South Africa from the conference. A minority of the conference considered this proposal inadmissible, maintaining that it was not within the competence of the conference.162 The conference nevertheless decided to put the proposal to a vote and subsequently adopted it by 27 votes to 9 with 2 abstentions, while 13 countries considered the voting illegal and refused to participate. The representatives of South Africa and Portugal shared this last opinion and continued to attend the conference after the adoption of the proposal. The chairman asked the Secretariat to ensure that they would not be admitted to the meeting hall the following morning. On the morning of 14 October the secretary of the conference announced that he had been unable to comply with these instructions which he considered contrary to the ITU constitution. Article 2 of that constitution gives all member states a right to participate with voting rights in the sessions of the congress and in all specialized congresses. After the secretary’s statement the general body of African delegations left the meeting hall. Subsequently 24 delegations, including those of Portugal and South Africa, withdrew from the conference on the ground that it had violated the constitution by excluding two member states. As soon as the Portuguese and South African delegations had left, the other African delegations returned, wishing to continue with the conference. The Deputy Secretary-General of the ITU then addressed a letter to the conference chairman, stating that the decision to exclude two ITU members was in contravention of the provisions of the constitution and that therefore the conference now meeting could no longer be considered as that convened under Article 7 of the constitution. He proposed to continue the conference under Article 44, which permits restricted conferences but only at the financial cost of the states concerned. The delegations rejected this proposal and wished to proceed in the capacity in which they were called to Geneva, as an Administrative Conference under Article 7 of the constitution. The ITU Secretariat then withdrew the services of the conference secretariat. The remaining delegates tried for several days to continue the conference but were unable to do so without the support of the Secretariat. The Conference was suspended sine die on 19 October. The capacity in which the delegates met after the services of the Secretariat were withdrawn on 15 October is not entirely clear. In its report to the general congress the

160. See YUN 1968, at 859-864, for an example and for objections against this policy. 161. YUN 1964, at 556-557. 162. In 1965 an express provision was added to Art. 7, providing that the decisions of specialized congresses should be in conformity with the provisions of the ITU constitution.

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board states that the conference was adjourned on 19 October.163 In 1965 the general congress of ITU adopted a resolution excluding South Africa from the regional conferences for Africa.164 The African Low Frequency/Medium Frequency Broadcasting Conference assembled again in Geneva in the autumn of 1966 without South African representation. Portugal was represented, but this caused no further problems.165

b.

Budget

§443. The secretariat is always charged with the preparation of the budget of the organization. It collects the necessary data and estimates the costs. In preparing the budget the secretariat can take some initiative by proposing the allocation of funds for new activities (see below, §1105). After the approval of the budget it is again the secretariat which controls the spending of funds. It has some power to transfer funds from one article of the budget to another (see below, §1097).166 c.

Information

§444. Three types of information are made available by international secretariats. (1) Information concerning the organization to the outside world. By providing this information the secretariat influences public opinion and therefore, indirectly, the support the organization will receive. The larger international organizations have separate officials, or even a separate department, dealing with information. Usually documents concerning the organization are distributed free of charge. Often press releases, film and radio broadcasts are also made available. The UN Secretariat has a Department of Public Information, established by GA Resolution 13(I).167 The European Union has a central information service.168

(2) Information to the outside world regarding the field covered by the organization. The officials of an international secretariat become experts in the matters within the auspices of the organization. This expert knowledge is often

163. Report by the Administrative Council to the Plenipotentiary Conference, Montreux (1965), at 12. 164. ITU Res. No. 44 (1965), UNJY 1965, at 143; YUN 1965, at 775. 165. Regional Agreement for the African Broadcasting Area, Protocol, Final Protocol, Resolutions, published by ITU (1966). 166. See on the budgetary functions of the UN Secretary-General UNJY 1982, at 194-196. 167. Text in YUN 1946-47, at 83-85. On this department, see L. Gordenker, Policy Making and Secretariat Influence in the UN General Assembly: The Case of Public Information, 54 APSR 359373, also published in R.W. Gregg and M. Barkun, The United Nations System and its functions 136-154 (1968). 168. See the annual General Reports on the Activities of the EU, published online at www.europa.eu.int/abc/doc.

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used for the benefit of the member states. The opinions of the legal department of the UN Secretariat carry great weight in the development of international law.169 Some international organizations send out members of their staff to disseminate know-how. (3) Information to members of the other organs. Delegations of member states and individual experts serving the organization are not always well informed about all the items on the agenda. This is especially so when the agenda is large and the delegation small, and it may well be that the delegates require more information in order to define their position. This information is provided by the secretariat in written form (surveys, reference papers), either to all delegations or to those delegates who request it. Information to members may also be provided between sessions. There is little doubt that this information influences delegates’ positions. The staff of an international organization will have its own views on many important issues and the information they provide, if not merely factual, will be coloured by these opinions. Information to delegations may easily grow into further assistance to them.170 d.

Recording

§445. Closely related to information is the recording of the work of the organization. This is intended not merely to inform others of what the organization has done but principally to record it in order to enable the organization to build on previous achievements. Recording should be as accurate as possible.171 The secretariat does not always record meetings (see above, §321). Often a meeting appoints one of its members as rapporteur (see above, §366). The secretariat usually assists the rapporteur and may even write the greater part of his report. An important task of the secretariat is the preparation of an annual report on the work of the organization. This report is a factual account of what has happened during the year. In presenting this account the secretariat may draw particular attention to specific problems. e.

Collection of reports from member states

§446. Some organizations require reports on the method by which the member states fulfil their obligations. This reporting forms part of the supervision of compliance with the law of the organization (see below, §1402-1405). Since

169. See for an early study: O. Schachter, The Development of International law through the Legal Opinions of the United Nations Secretariat, 25 BYIL 103 (1948). A selection of legal opinions, memoranda, etc. of the UN Secretariat’s Office of Legal Affairs is published in the United Nations Juridical Yearbook. 170. See Battacharya, op. cit. note 152. 171. Deletion of statements from the records is undesirable, see UNJY 1969, at 212-213.

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the reports must be written by the member states themselves, the secretariat has no influence over their contents. In some cases, however, the secretariat is instructed to draft forms according to which the reports are to be written and to call on member states which are late in submitting reports. In discharging these instructions the secretariat may have some discretionary power. The secretariat may also be instructed to prepare summaries of the member states’ reports which may offer an opportunity to draw additional attention to specific facts.172 f.

Collection of information from member states

§447. Many secretariats collect information from the member states in the field in which the organization operates. The UN Secretariat has inherent powers to engage in fact-finding activities, providing that the governments concerned have consented.173 Several secretariats can carry out inquiries on the implementation of the law of the organization within all the member states, or within one or more specific member states. By seeking information from the member states secretariats exert some influence upon them. On the basis of Article 52 of the European Convention on Human Rights, the SecretaryGeneral of the Council of Europe has usually requested information from all the member states. In 1999 for the first time, the Secretary-General requested information specifically from one member state, the Russian Federation, on the human rights situation in Chechnya.174

g.

Coordination

§448. In large organizations many organs discuss related subjects. Well over one hundred commissions operate within the UN.175 The secretariat serves all of them. This makes it the appropriate organ to advise on the division of labour.176 Should a committee of experts propose that a subject related to its task be studied, the secretariat ought to draw its attention to any work of another organ already done in the area. Alternatively, an enumeration of the tasks not discharged by other organs may stimulate an organ to tackle them. In this way the secretariat may exert considerable influence on an organ in the delimitation of its tasks. It may influence the work of the organization by

172. See e.g. ECOSOC Res. 624 B.l (XXII) of 11 August 1956. 173. See UNJY 1973, at 162-163. 174. See S. Rabiller, Le pouvoir d’enquete du secretaire general du Conseil de l’europe, RGDIP (2001), at 965-984. See also below, §1402. 175. See for overviews of the most important commission the annual publications YUN (Appendix III) and UN Handbook (published by the New Zealand Ministry of Foreign Affairs and Trade). 176. This has been explicitly recognized in Benelux, Art. 36.

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its decision as to which organ it will encourage or discourage to do a particular job. An organization usually strives to achieve an equitable distribution of chairmanships throughout the different regions. The secretariat can encourage the election, for example, of an African chairman, by noting that other commissions have recently elected chairmen from the other regions. §449. As an organ for liaison between the member states of the organization, the secretariat may also help in coordinating national activities of member states. In addition, the secretariats play an important role in the coordination of organizations. Within the UN family, the UN System Chief Executives Board for Coordination (CEB) – formerly the Administrative Committee on Coordination (ACC) – discusses all questions of coordination within the competence of the secretariats. This covers not only administrative questions such as staff matters; the CEB may also embark upon matters of substance (see below, §1717). In 1964 the ACC was of the opinion that the UN ad hoc Committee on Coordination of Technical Assistance Activities had made recommendations which differed from some of the policies laid down by the main organs of certain of the participating organizations. It therefore put forward several complementary recommendations for consideration by the ECOSOC. The UN Secretary-General even submitted two draft resolutions to the ECOSOC.177

h.

Representation of the organization

§450. In many cases the secretariat represents the organization. This will be so in particular in private law matters. The secretariat will buy, rent, borrow and pay on behalf of the organization. It will appear in court, if necessary.178 The secretariat also has representative functions in public law. The Secretary-General may bring an international claim against a government on behalf of the organization.179 Furthermore, it may represent the organization in appearing as amicus curiae before a domestic court.180 Agreements between international organizations and agreements with member states – such as headquarters agreements and agreements on privileges and immunities – are usually made by the Secretary-General. All agreements

177. YUN 1964, at 230-231. 178. In most cases the European Communities are represented by the Commission; see EC, Art. 211; Euratom, Art. 185. See Salmon and Torrelli, La représentation juridique des Communautés européennes, 11 RMC 815-822 (1968). 179. After the opinion of the ICJ that the UN had capacity to bring such claims (see below, §1660), the GA empowered the Secretary-General to do so; A.J.P. Tammes, Internationaal Publiekrecht 75 (2nd ed. 1973). 180. See for example UNJY 1980, at 224-242.

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relating to peacekeeping forces have been concluded by the Secretary-General of the UN or under his authority.181 Many of the agreements between organizations provide that representatives of one organization attend meetings of the other (see above, §185-187). §451. The Secretary-General issues credentials to representatives of the organization. In the case of the UN he issues a laissez passer to staff members which fulfils the same function as a passport (see below, §1863-1866). When missions are accredited to an international organization the Secretary-General usually receives the credentials of members of such missions.182 The most important exception is in the European Union, where credentials are presented both to the president of the Council and to the president of the Commission. §452. On many minor issues the secretariat may have to take action on behalf of the organization for the simple reason that it is the only permanent organ.183 For the same reason this may be useful when the secretariat develops close links with outside institutions operating in the field of the organization.184 §453. As far as the UN Secretariat is concerned, it has been noted that during the 1970s the UN has increasingly been represented at meetings by representatives of the member states – members of organs such as the UN Council for Namibia and the Committee on the Exercise of the Inalienable Rights of the Palestinian People -, and not by Secretariat officials. “Presumably the justification for these arrangements is that the very purpose of sending the representatives of these United Nations organs is political, and that the task of these delegations can thus better be performed by the representatives of committed states than by neutral Secretariat officials”.185 i.

Assistance to members

§454. Secretariats often render technical assistance to member states. Most large secretariats organize training courses for civil servants of the member states. Such courses are particularly valuable in the secretariats of technical organiza-

181. F. Seyersted, United Nations Forces in the law of peace and war 99 (1966); R.C.R. Siekmann, National Contingents in United Nations Peace-Keeping Forces (1991). 182. The Secretary-General may delegate the competence to accept credentials; see UNJY 1986, at 272. 183. I. Seidl-Hohenveldern and G. Loibl, Das Recht der Internationalen Organisationen, einschliesslich der Supranationalen Gemeinschaften 124-126, No. 1005 (7th ed. 2000). 184. Report of the Group of Experts on the Structure of the UN System, 28 May 1975, UN Doc. E/A, 62/9, at 21; GA Res. 32/197. 185. UNJY 1982, at 197-198.

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tions for the technical training of persons as well as for their future cooperation with the organization. §455. In 1947 the ECOSOC instructed the Secretary-General of the UN to establish machinery within the secretariat designed to render assistance to member states, particularly in the form of teams of experts.186 A large amount of expert assistance was given to the Congo by staff members of the UN and the specialized agencies shortly after its independence (see below, §1833). The administrative experience of the UN Secretariat has sometimes been used for conferences, even outside the direct field of operation of the organization.187 The UN Secretariat does not second or loan staff members to governments, including the national government of a staff member. Staff members on secondment or loan would retain their status as a staff member of the UN and, as such, remain subject to the Staff Regulations, providing inter alia that they may not accept instructions from any government. Programmes administered by the UN for assistance to governments use personnel having the status of independent contractors; it is expressly stated that these contractors are not UN staff members.188 j.

Observation of elections

§456. A number of organizations have been asked to send observers in order to monitor elections in member states. With regard to the UN, the general rule is that the Secretary-General does not perform this task, “because this would infringe upon Article 2.7 of the Charter”.189 The Secretary-General may participate in such monitoring activities only if the Security Council and/or the General Assembly authorize him to do so.190 k.

Depositary of treaties191

§457. Many secretariats perform the functions of treaty depositary (see below, §1867). Those functions used to be performed by one of the treaty-making states, but are gradually being taken over by the secretariats of the organizations involved in the drafting of the texts of multilateral conventions.

186. ECOSOC Res. 51 (IV), UN Doc. E/423. 187. See e.g. GA Res. 31/145 on the assistance to a conference for the peoples of Zimbabwe and Namibia or 19 AFDI (1973) on assistance to the International Vietnam Conference in Paris (1973). 188. See UNJY 1990, at 284-285. 189. UNJY 1990, at 254-255. 190. Id. See also UNJY 1982, at 188-189. 191. See also S. Rosenne, The Depositary of International Treaties, 61 AJIL 923-945 (1967); T. Modeen, The Deposit and Registration of Treaties of International Organizations (1971);

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This is illustrated by the fact that the Secretary-General of the UN acted as depositary for the amendments of the UN Charter even though ratifications of the Charter itself are deposited with the Government of the US.192 The depositary functions of the UN are performed by the Office of Legal Affairs for over 500 treaties.193

Treaty-makers may not unilaterally charge international organizations with depositary functions. Nor may secretariats independently accept such functions. They require the authority of the general congress or the board of the organization.194 The depositary function includes the keeping of the authentic text and the acceptance of ratifications and reservations. This function may lead to political complications, particularly when a reservation by a state is unacceptable to one or more of the other states (see below, §1308-1310). Within the UN, the Office of Legal Affairs has dealt with a number of problems regarding the depositary’s duties.195 In executing the function of depositary, secretariats are usually guided by rules of the organization,196 and also by Articles 76-80 of the Vienna Convention of the Law of Treaties. §458. International organizations may also register treaties made between their members. The ICAO registers all aeronautical treaties, makes them available to the public, publishes summaries of them, and registers them with the UN.197 The Secretariat of the UN performs a specific function with regard to all treaties concluded between states.198 It registers, translates, and publishes them in the United Nations Treaty Series (UNTS). This is a mainly administrative function which was performed by private persons before the

192.

193.

194. 195. 196. 197. 198.

M. Tabory, Recent Developments in United Nations Treaty Registration and Publication Practices, 76 AJIL 350 (1982); Treaty Handbook (published in 2001 by the UN, prepared by the Treaty Section of the Office of Legal Affairs); UN Secretariat, Multilateral treaties in respect of which the Secretary-General performs depositary functions (published every 6 months). E. Schwelb, Amendments to Articles 23, 27 and 61 of the Charter of the United Nations, 59 AJIL 845 (1965); UNJY 1964, at 249; see also UNJY 1966, at 261, and UN Doc. ST/LEG/7. For the UN acting as depositary for the constitutions of specialized agencies, see UNJY 1964, at 249-250. See Treaty Handbook, op. cit. note 191, at 56. For the sort of treaties involved, see the UN publication Multilateral Treaties Deposited with the Secretary-General, or www.un.org/Depts/Treaty. See UNJY 1972, at 186-188. See, inter alia, UNJY 1977, at 233-235; UNJY 1978, at 196-200; UNJY 1979, at 195-197; UNJY 1980, at 207-209; UNJY 1981, at 149-152; UNJY 1984, at 181-184. See GA Resolutions 97 (I), 364 B (IV), 482 (V), 33/141 A. See ICAO Doc. 9460 LGB/382 Aeronautical Agreements and Arrangements, Tables of Agreements and Arrangements Registered with the Organization (1989). UN Charter, Art. 102. On the application of this article, see Simma, op. cit. note 50, at 1277-1292. See also UNJY 1966, at 261-262. Up to October 2000, approximately 50,000 treaties and international agreements and a similar number of certified statements had been registered (Simma, at 1284).

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League of Nations took it over.199 Registration with the UN, however, has legal consequences (see below, §1869). l.

Executive functions

§459. In several international organizations the Secretary-General is charged with executive functions. In the OECD the Secretary-General presides over the Council sessions at non-ministerial level;200 in NATO he presides at the ministerial level as well;201 and he is president of the board in the IMF and the World Bank.202 In all the above-mentioned organizations the Secretary-General plays a leading role in the decision-making process. These organizations take important, often binding, decisions and they must decide by unanimity. This means that compromises have to be found between divergent views of member states. It may be difficult to reach such compromises when they must be negotiated by the interested parties alone. A neutral negotiator of high standing may then render great assistance.203 §460. The ILO Secretariat may collect and distribute information on all subjects relating to the international adjustment of conditions of industrial life and labour.204 This may cause the organization to act on it. The more complex the issues the more likely it is that powers will be delegated to the secretariat, other organs being insufficiently structured to cope with complicated matters. In fact, the influence of the staff of organizations such as the World Bank is enormous. In practice they decide most of the current issues. The greater the powers of a secretariat the greater the risk that there will be conflicts with the governments of the member states. This may be illustrated by the growing resistance of the USSR to Dag Hammarskjöld as Secretary-General of the UN205 and perhaps even more by the curtailing of the powers of the Secretary-General of the OAU.206 Although the European Commission

199. 200. 201. 202. 203.

The best known publication is that by De Martens. OECD, Art. 10, para. 2. NATO, Facts and Figures 157 (1969). IMF, Art. XII, Section 4; World Bank, Art. V, Section 5. See L. Schaus, Le Conseil de l’Atlantique Nord, son fondement et ses structures, ses compétences et ses missions, 24 Chr. Pol. ét 345-346 (1971). On the influence of NATO’s Secretary General, see also R. Jordan and P. Newman, The Secretary-General of NATO and Multinational Political Leadership, 30 Int. Jl. 732-757 (1975). 204. ILO, Art. 10, para. 1. 205. M.-C. Smouts, Le Secrétaire générale des Nations Unies 279 (1971). See also J. Barros, Betrayal from within; Joseph Avenol, Secretary-General of the League of Nations 1933-1940 (1969). 206. J. Woronoff, op. cit. note 56, at 183-192.

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is not exactly a secretariat, the same phenomenon occurred with regard to its early presidents Hallstein (EEC) and Hirsch (Euratom).

m.

Right of initiative

§461. In most international organizations members of the secretariat will be able to initiate new activities by persuading national delegations that they are necessary. It may well be part of their duties to draw the attention of the governing organs to issues related to their fields of responsibility, especially in the field of coordination with other international organizations.207 In some organizations the Secretary-General is empowered to make proposals.208 Under the UN Charter (Article 99), the Secretary-General may “bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security”. He exercised this right with regard to the Congo crisis (1960), Iran (1979), and the situation in Lebanon (1989). Several resolutions of the General Assembly have been initiated by the UN Secretariat. Examples are the resolutions made at the twenty-fourth session on the interpretation of the Geneva Protocol of 1925,209 those made on an appeal to the governments of the US and the USSR to agree to a moratorium on further testing and deployment of new weapon systems210 and to declaring the 1970s to be a decade for disarmament.211 On some issues in the IMF decisions can be taken only at the initiative of the Secretariat.212

n.

Good offices, mediation, conciliation, arbitration

§462. Its multinational composition and its independence of national governments qualify the secretariat for good offices, intermediary, conciliatory and arbitration functions. “Impartiality is [...] the heart and the soul of the office of the Secretary-General.”213 In some instances a secretariat has been charged with conciliation.214 Even without express authorization secretariats fulfil intermediary and conciliatory functions. When important meetings cannot

207. Report of Group of experts on the Structure of the UN system, 18 May 1975, UN Doc. E/AC, 62/9, para. 52; GA Res. 32/197. 208. Inter alia: FAO, Art. 7, para. 5; UNESCO, Art. 6, para. 3; OECD, Art. 10, para. 2; Benelux (Decision M(75) 13 of 21 October 1975, Décisions ministerielles, 83e suppl. Textes de base). 209. GA Res. 2603 (XXIV). 210. GA Res. 2602 A (XXIV). 211. GA Res. 2602 E (XXIV). See also publication No. 96 of the Netherlands Ministry of Foreign Affairs, at 39. 212. J. Gold, Voting and Decisions in the International Monetary Fund 179-180 (1972). 213. J. Pérez de Cuéllar, The Role of the UN Secretary-General, in A. Roberts and B. Kingsbury (eds.), United Nations, Divided World 70 (1988). 214. GA Resolutions 511 (VI) and 1237 (ES III). See also P. Dailler, L’intervention du Secrétaire Général des Nations Unies dans la procédure consultative de la Cour Internationale de Justice, 19 AFDI 376-410 (1973).

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reach agreement, members of the secretariat often suggest compromises or try to reconcile opponents. It would not be going too far to submit that this forms part of the task of the secretariat. Its primary function is to serve the organization. This involves an active policy to improve the working climate in the organs. A secretariat which is too passive may further the disintegration of the organization in times of crisis. §463. In some cases secretariats also promote relations between member states of the organization outside the organs. The UN Secretary-General, in particular, because of his unique position, is often requested to perform conciliatory tasks.215 In order to facilitate this dispute settlement role, the suggestion has often been made – but not materialized – to authorize the UN SecretaryGeneral to request advisory opinions of the International Court of Justice, on the basis of Article 96.2 of the UN Charter.216 When Cambodia and Thailand asked for the help of the Secretary-General of the UN in order to reduce tension between the two states, Secretary-General U Thant designated Ambassador Herbert de Ribbing as his Special Representative to the two states. He acted on his own authority, merely informing the members of the Security Council of the action envisaged.217 Only the USSR contested the competence of the SecretaryGeneral so to act in this case. In their submission, the maintenance of peace and security was involved and so only the Security Council was competent to act. We would be inclined to interpret the conciliatory powers of secretariats rather widely. Their competences are limited by their lack of capacity to engage in new expenditure on behalf of the organization. In the case of Cambodia and Thailand both states had agreed to share the expenses. Another example of mediation by the UN Secretariat was in the dispute between Bahrain and Iran in 1970.218 An example of arbitration by the UN Secretary-General is the “Rainbow Warrior” dispute between New Zealand and France.

215. See, e.g., V. Pechota, The Quiet Approach. A Study of the Good Offices Exercised by the United Nations Secretary-General in the Cause of Peace, UNITAR PS No. 6 (1972) (also published in K. Venkata Raman (ed.), Dispute Settlement through the United Nations 577-684 (1977); H. Wege, Rechtliche Legitimation eigenständiger streitschlichtender Aktivitäten des UN General Sekretärs in Friedensbedrohenden Konfliktsituationen, 19 GYIL 379-404 (1976); R. Krys, The Secretary-General’s political role of peacemaker, 23 Revue de Droit Militaire et de Droit de la Guerre 325 (1984). 216. See the 1990 Annual Report by Secretary-General Pérez de Cuéllar; S.M. Schwebel, Authorizing the Secretary-General of the United Nations to Request Advisory Opinions of the International Court of Justice, in J. Makarczyk (ed.), Essays in Honour of Manfred Lachs (1984), at 519-529; UNJY 1992, at 443-445; C.-A. Fleischhauer, The Constitutional Relationship between the Secretary-General of the United Nations and the International Court of Justice, in Boutros BoutrosGhali Amicorum Discipulorumque Liber – Peace, Development, Democracy (1998), at 451474. 217. UN Doc. S/7462; YUN 1966, at 162-163. 218. See H. Al-Baharna, The fact-finding mission of the UN Secretary-General and the settlement of the Bahrain-lran dispute, 22 ICLQ 541-552 (1973).

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Secretary-General Pérez de Cuéllar played an important role in finding a solution to this conflict.219 A final example is the mission by Secretary-General Kofi Annan to Baghdad undertaken in February 1998 to avert a military conflict in the light of Iraq’s refusal to permit the UN Special Commission (UNSCOM) to conduct further inspection activities. Even though in December 1998 such inspections were refused again and the US and the UK took limited military action, the mission by the Secretary-General was generally considered a success. A Memorandum of Understanding was signed and subsequently endorsed by the UN Security Council, and UNSCOM inspections resumed in March.220

o.

Performance of instructions

§464. Apart from its other tasks, specific duties may be allocated to the secretariat by the principal organs of the organization or by other organs expressly empowered to do so. Secretariats are often charged with collecting information or preparing reports on specific subject matters. The expert knowledge of the staff may make the secretariat the most appropriate organ for drafting technical reports for the other organs of the organization and sometimes even for organs of other organizations.221 Secretariats are often instructed to prepare decision-making. Such preparations may influence the final decision. The Secretariat of the UPU, for example, arranges all proposed amendments to UPU conventions and classifies them as to substance or form. Finally, there may be specific tasks in the field in which the organization operates. The Secretary-General of the UN, for example, is charged with the registration of all objects sent into outer space.222 By virtue of this duty he had registered some 1,438 objects from 15 September 1975 to 31 October 1986.223

2.

Powers

§465. In many of the above mentioned functions the secretariat may exert power. It can influence the functioning – or non-functioning – of an inter-

219. See for this case and others T.M. Franck, The Good Offices Function of the UN SecretaryGeneral, in Roberts and Kingsbury (eds.), op. cit. note 213, at 79-94. On the Rainbow Warrior dispute, see J. Scott Davidson, The Rainbow Warrior Arbitration Concerning the Treatment of the French Agents Mafart and Prieur, 40 ICLQ (1991), at 446-457; C. Chatterjee, The Rainbow Warrior Arbitration between New Zealand and France, 9 Journal of International Arbitration (1992), at 17-28. 220. YUN 1998, at 240, 252-253; UN Doc. S/1998/166; SC Res. 1154. 221. The Arrangement between the CoE and the OECD of 1962 (CoE Committee of Ministers, Resolution (62) 4) permits the parliamentary committees of the CoE to consult the staff of the OECD (Arrangement paras. 6, 22; see also paras. 30-34). 222. GA Resolutions 1721B (XVI) and 3235 (XXIX), Art. II(I). 223. YUN 1987, at 105. See for more recent data: www.un.or.at/oosa/.

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national organization to a great extent. The secretariat’s position is particularly strong in large, technical organizations. By their expert knowledge staff members often succeed in persuading delegates to accept a particular point of view. For the further development of international organizations it is of the greatest importance to have skilful and committed staff members and, in particular, to have a competent Secretary-General. International secretariats tend to become new centres of power. In his study of the organizations of the UN family Jackson demonstrates how important are the vested interests of international organizations and how difficult it is to reduce the field of competence of any of them. It is owing largely to the secretariats that a total revision of the UN system seems impossible.224 In Europe, as well, developments show how difficult it is to chip away at the functions of an international secretariat. Whenever political developments reduce the role of an international organization (Western European Union, Council of Europe), other tasks are discovered. The development of centres of power in international secretariats on the one hand creates an international force to balance national forces. It represents a stabilizing factor in international relations. The existence of international secretariats makes an abrupt reduction of international cooperation more difficult. On the other hand, the lack of democratic control entails risk in creating such new centres of power. International secretariats are bureaucracies subject to no direct parliamentary supervision. 3.

Delegation of tasks; outside experts

§466. The tasks of a secretariat need not be performed by the staff of the organization. In many cases it may be cheaper or more efficient to employ outside agencies. Before the World Bank can make a loan it must make detailed studies of the projects for which the loan is requested. These projects may cover such a wide variety of fields that the creation of an expert staff of its own would hardly be possible. The Bank therefore employs consultants or consulting firms. Other organizations do likewise. §467. Secretariats cannot have experts in all fields in which the organization has occasionally jurisdiction. For ad hoc functions, use must be made of outside experts.225 They are not members of the staff but are hired for a specific project or for a specific period of time. The internal requirements of international organizations for hiring experts are usually less stringent than those for staff members, as there is less pressure for equitable geographical distribu-

224. UN Doc. DP/S. 225. See P. Morpurgo, The role of outside expertise, 29 Int. Soc. Sci. J. 46-57 (1977). See also Report on the Use of Experts and Consultants in the UN, UN Doc. JIU/REP/73/3 or A/9112 (July 1973). Add. l (7 Dec 1973) and add. 2 (15 July 1974).

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tion226 and budgetary control is less specific. International organizations are therefore tempted to use outside experts occasionally for normal functions which could be performed equally well by staff members. As international secretariats are complicated bodies in which different branches must cooperate, and therefore be familiar with each other, where traditions and routines must be adhered to, outside experts can neither be used for all positions nor can there be too many within one office. If used carefully, outside experts are extremely valuable. They provide flexibility, independent judgement and skill and bring a fresh approach to the secretariat.227 To a large extent the advantages and disadvantages of temporary appointments also apply to outside experts (see below, §518-522). Retired international civil servants are often available as outside experts. Many governments are willing to provide personnel as experts. It is the responsibility of the management of the organization (SecretaryGeneral plus the organs supervising him) to decide whether staff personnel should be appointed for a particular task or whether an outside agency or expert ought to be used. In either case, the responsibility of the SecretaryGeneral remains the same. This responsibility may not be delegated to others (see above, §224-230). In 1977 the UN General Assembly noted with concern that the costs of experts and consultants totalled $ 11.4 million for the biennium 1978-1979, compared with $6.8 million for 1974-1975. It requested the Secretary-General to achieve savings in this expenditure.228

§468. The UN makes a distinction between consultants who are engaged in an individual capacity and may or may not be remunerated, experts who are engaged in a personal capacity to serve in an ad hoc expert group and are not remunerated, and contractors who are engaged for the performance of a specific task against payment of an all-inclusive fee.229 C.

Seat

1.

Requirements

§469. The city in which the secretariat is established is usually called the “seat” of the organization. Experience has shown that no international organization of importance can function without a permanent secretariat, and, therefore, without a seat.230 The decision as to where the seat of the organization is to be is always taken by the member states, not by the organization itself. Since

226. 227. 228. 229. 230.

There is some pressure, see UN Doc. A/C.5/31/10, para. I(C) and Add. 1, Annex II. Morpurgo, op. cit. note 225, at 56. GA Res. 32/209. See UN Doc. A/C.5/31/10/Add. I para. 2. C. Wilfred Jenks, The Headquarters of International Institutions 9ff. (1945).

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there are as yet no international organizations which have territorial sovereignty, the seat must be established within the territory of a state. There is one example of an international organization having its seat on the border between two states. The European Organization for Nuclear Research (CERN), originally established alongside the French border in Switzerland, later extended its seat into French territory. Special arrangements were made with both governments which led, inter alia, to the following provisions: the national law of each state applies in its part of the seat; the entrance on the French side is closed; there may be no building on or near the borderline.231

§470. Generally states are quite willing to play host to international organizations on their territory; an established headquarters spends money. Such willingness was already perceptible when after the end of the First World War a choice had to be made for Brussels or Geneva as the city where the League of Nations would be established. In the end Geneva was chosen, inter alia because of Woodrow Wilson’s preference for this city and Switzerland’s “entrenched neutrality made for an atmosphere free of passions of the First World War and conducive to the reconciliations of the Wilsonian vision”.232 In 1964 Stoessinger estimated that $60 million a year flowed into the economy of New York City as a result of the presence of the United Nations. On the other hand, it also led to extra costs for the city (more police required) and to a loss of income (the headquarters district is exempted from taxation). Stoessinger estimated that, overall, the city probably breaks even in terms of receipts and expenditure.233 Furthermore, another $20 million flowed into other areas of the US. No extra expenditure was required to maintain this flow.

Apart from financial advantage the host state enjoys other benefits. Its relations with the organization are easier and closer than those of any other state. The headquarters may make the seat the centre of the activity concerned, which attracts other activities thus enhancing prestige and contributing to the economy of the host state. §471. States often provide special facilities for the establishment of international headquarters in their territory. Such facilities may be offered in the process of competition between states to become the host state of a new organization.

231. For a study of the special situation of the CERN Headquarters see A.H. Zarb, Unité du domaine public d’une organisation internationale et souverainité territoriale de deux Etats, 15 AFDI 550-593 (1969). 232. J. Lemoine, The United Nations System: a Geneva Perspective, in M.A. Boisard and E.M. Chossudovsky (eds.), Multilateral Diplomacy – The United Nations System at Geneva – A working guide (2nd rev. ed. by J. Lemoine, 1998), at 259-260. 233. J.G. Stoessinger, Financing the United Nations System 72-75 (1964). Id., in M. Waters (ed.), The United Nations International Organization and Administration 241-242 (1967).

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For example, in November 1977 the United Kingdom and the IMCO (the predecessor of IMO) agreed on a new building to serve as the headquarters of IMCO in London. The UK would acquire the site, erect the building, and provide agreed fixtures and fittings. The organization would provide furniture, furnishings and equipment (including interpretation and public address equipment and telephone apparatus).234 The Netherlands has placed an office building at the disposal of the Preparatory Commission for the Organization for the Prohibition of Chemical Weapons, free of charge (for a maximum period of five years). Subsequently, the OPCW was housed in a new building in The Hague. For a period of three years, the Netherlands paid for the offices of the organization in this building. Thereafter the organization rented these offices at a price of $250 per square metre.235 In 1994, Bonn and Geneva competed for the headquarters of the World Trade Organization. In this competition, Germany offered, inter alia, to pay for the moving of the GATT Secretariat to Bonn, free diplomatic missions for the least developed countries, more possibilities for tax-free shopping. Switzerland presented a number of more or less similar offers. In addition, Switzerland offered to permit diplomats from Islamic countries to register two wives.236 In July 1994, it became clear that about 90% of the GATT members preferred Geneva, and Germany withdrew its candidacy.237 Negotiations on the creation of the Organization for the Prohibition of Biological Weapons have not been completed. Nevertheless, already in the years 2000 and 2001 a fierce competition took place between Geneva and The Hague to become the future host city of this organization.

The question raised by Kelsen as to whether or not states are obliged to provide hospitality to international organizations of which they are a member is therefore in practice rarely relevant.238 The cooperation of the host state is so essential that establishment in the territory of a state which does not wish to assist is bound to lead to difficulties. When in 1967 France refused the North Atlantic Treaty Organization (NATO) further hospitality, no legal obligation was canvassed in order to coerce that country into retaining the headquarters of the organization on its own soil. NATO headquarters were simply transferred to Brussels.

234. Cf. Res. A.402(x) of the IMCO Assembly. Other examples: the French and Swiss proposals to the WMO in: First Congress of the World Meteorological Organization (1951), Vol. III Documents, WMO Doc. No. 1, III R.C. 1 annexes AV; Denmark’s offer to the WHO in Proceedings of the International Health Conference (1946), Official Records WHO, No. 2, annex 3. 235. Information obtained from the Dutch Ministry of Foreign Affairs. See for the Organization for the Prohibition of Chemical Weapons, 32 ILM 800 ff. (May 1993). 236. NRC-Handelsblad, 16 June and 16 July 1994. See the WTO headquarters agreement, reproduced in WTO Doc. WT/GC/1, at 21. 237. Europe No. 6279, at 15 (23 July 1994). 238. H. Kelsen, The Law of the United Nations 98 (1964). See on this question also UNJY 1969, at 217-218.

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§472. In order to prevent jealousy between their members, several international organizations have established their seat within the territory of a non-member.239 §473. In 1944 some former officials of the League of Nations drafted a report in which they made proposals, based on their personal experiences, for the setting-up of international secretariats.240 Although the report concerns mainly the secretariat of the universal political organization (UN), it also applies to the secretariats of other international organizations. Many of the following remarks are derived from this report.241 §474. Should a secretariat be established in a small state or within the boundaries of one of the major powers? An argument in favour of the latter is the possibility that the powers may show greater interest and more active cooperation than they would do otherwise. The presence of the secretariat in a country engenders public interest in the organization. An argument against establishment within a major power is the danger that it might acquire too much influence in the organization. The host state, more than any other, will exercise influence in an organization. The atmosphere in which the delegates meet influences their attitudes. The staff of the organization will, perhaps unconsciously, be influenced by their personal contacts in the host state and by its national press. The influence of a major power is considered to be more detrimental to the independence of an organization than that of a small state. The establishment of the secretariat in the territory of a major power might also reduce the interest of other major powers. The report prepared by the officials of the League of Nations favours the establishment of secretariats in small states.242 The founders of the IMF and the World Bank, on the other hand, clearly preferred a close link with – and the strong influence of – their largest member. The constitutions of both organizations provide that their principal offices shall be located in the territory of the member having the largest financial interest.243 §475. Another problem is the choice between large and small cities. Jenks prefers a relatively small city as the headquarters of an international secretariat; delegates and secretariat officials would then be able to have close contact

239. An examples is OPEC which has its headquarters in Vienna (Austria). See Fischer, op. cit. note 36. 240. The International Secretariat of the Future, published by the Royal Institute of International Affairs (1944); see also Jenks, op. cit. note 230. 241. The International Secretariat of the Future, op. cit. note 240, at 47-49. 242. See also Loveday, op. cit. note 144, at 81. For another consideration of the pro’s and con’s for establishment on the territory of a major power, see YUN 1946-47, at 41-42 (deliberation on the headquarters of the UN). 243. IMF, Art. XIII, Section 1; World Bank, Art. V, Section 9.

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and no time would be lost in the daily travelling of long distances.244 Ranshofen Wertheimer prefers a large city.245 His preference is based mainly on the argument that in a large city the danger of a “Utopia sphere” in the secretariat is smaller, as there is more contact with political reality. This argument applies particularly to political organizations. §476. In choosing the seat of an international organization the following circumstances should be taken into account:246 (1) The host state must be willing to grant all necessary privileges and immunities. Non-officials, such as journalists, must be able to attend the meetings of the organization. In 1965 the Organization of Petroleum Exporting Countries (OPEC) moved from Geneva to Vienna as the Swiss government was unwilling to grant diplomatic immunity and tax exemptions to OPEC staff on the grounds that the organization’s membership was closed and that its objective was commercial.247

(2) Delegates and journalists can fulfil their tasks with proper regard for the organization only if there is an efficient, world-wide network of communications at their disposal. (3) Outside the secretariat the staff of the organization will have to use the language of the host country; their children will often go to school there; lowergrade employees will have to be recruited locally. This is considerably easier when one of the official languages of the organization is spoken in the host country. Schools are a problem for many international organizations. The European Union as well as the UN have set up international schools.248

(4) The existence of adequate office space. Not only accommodation for the organizations’s secretariat is needed but also hotel accommodation for delegates to meetings, observers and journalists.

244. Jenks, op. cit. note 230, at 34. 245. E.F. Ranshofen Wertheimer, The International Secretariat 424 (1945). 246. The International Secretariat of the Future, op. cit. note 240, at 47-49; Jenks, op. cit. note 230, at 22-35; Ranshofen Wertheimer, op. cit. note 245, at 410 ff.; Report by the Executive Committee to the Preparatory Commission of the United Nations, Doc. PC/EX/113/Rev. 1, 12 November 1945, at 115-132. 247. Z. Mikdashi, The Community of Oil Exporting Countries 98 (1972). 248. See e.g. UN Doc. A/8856.

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To attract international organizations some states have erected enormous buildings. For the European Parliament, for example, both Luxembourg and Strasbourg have provided facilities. Austria provides office space to the IAEA and UNIDO.249

(5) The climate must be suitable for delegates and officials from all member states. Their productivity appears to be partially affected by the weather. In addition, bad weather may hinder communications – especially by air – with the outside world. (6) The city must offer the organization’s personnel the possibility of recreation. Both attractive countryside in the surroundings of the city and cultural activities within it contribute to morale. (7) A country where prices are low is able to accommodate a secretariat more easily. Every international organization spends a large part of its budget on salaries and buildings. The amount involved in these budget items is closely related to the cost of living in the host country. Other expenditure (transport, printing costs, etc.) are also influenced by it. (8) As the organization spends a substantial part of its resources in the host country, the currency of that country should be easily available. The collection of contributions in the currency of the host country is easier if that currency is not in great demand. One of the greatest disadvantages of establishing secretariats in the US immediately after the War was the difficulty in converting members’ contributions into dollars.250 (9) The population must be willing to play host to the secretariat. A city with political tensions, in which strikes paralyze the traffic or which is ambivalent to foreigners socially, is not a suitable base for an international secretariat.251 A racially prejudiced population, or one which discriminates against nonnationals, creates an atmosphere which is conducive neither to the efficiency of a secretariat nor to the success of meetings which the organization must normally hold at its headquarters. In New York the safety of personnel from socialist and Arab countries has often been a cause for concern with the UN. Members of missions have been harassed to such an extent that they could hardly perform their duties, and occasionally even their lives have been endangered.252 These problems are continuously discussed in the Committee on Relations with the Host Country.253 The US changed its laws to meet some of these problems.254

249. Sec UN Doc. A/C.2/276 of 27 October 1972. 250. Chapter 5 of the report of the fifth session of the FAO congress; Jenks, op. cit. note 230, at 33. 251. Loveday, op. cit. note 144, at 8. 252. See e.g. YUN 1974, at 860; GA Res. 3498 (XXX), 13 UN Monthly Chronicle (1976) No. 1, at 71; No. 4, at 52 or No. 5, at 37. 253. For its reports see YUN and e.g. UN Doc. A/47/26. 254. See UNJY 1974, at 11-17.

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§477. The above mentioned circumstances determine to a large extent whether the organization will be able to perform its tasks effectively and independently. In this context, Jenks has referred to the need of “functional independence” for international organizations.255 In view of their lack of territorial sovereignty international organizations have to use territory of states to establish their seat. The resulting dependence on these host states must be minimized as far as possible: not to make the organization totally independent, but to give it the independent position it requires for the performance of its functions, so that it can belong “to all nations and to none”.256 2.

Centralization

§478. Should international organizations choose one city or is a certain distribution preferable? The concentration of the headquarters of international organizations facilitates contact between the staffs of the secretariats, an important factor, particularly for projects embracing the activity of more than one organization. Another advantage is the possibility of cooperation between the different services.257 The organizations could have a common library for their general literature or, at least, use each other’s libraries. In times of great pressure, for instance immediately before or during sessions of the general congress, it will be easier to exchange personnel such as interpreters, typists and stenographers. During sessions of their general congress they could also use each other’s buildings. Cooperation in printing and purchasing materials will promote savings. The officials will switch more easily from one organization to another if they do not have to move to another town. Such transfers are useful (see below, §506-507). A city which houses many international organizations would specialize in international activities. More hotels would be built, contacts all over the world improve as more newspapers establish agencies,258 and extra telegraph and telex communications with that city would be worthwhile. More international traffic (passengers and mail) would be attracted to this centre. An argument against centralization is that the distribution of headquarters among different states would stimulate public interest in international organizations. The ideals might be better understood in cities where the population witnesses the work more closely.259

255. Jenks, op. cit. note 230, at 35-44. 256. J. Lorimer, The Institutes of the Law of Nations, Vol. II 266 (1884); quoted in Jenks, op. cit. note 230, at 90. 257. Letter of the Secretary-General to the WMO Records of the 27th meeting of the first WMOcongress; Annual Report of the WMO 1956, WMO Doc. No. 57, RP 22, at 12. 258. See declaration of P.J. Noel-Baker at the fourth meeting of the first session of the Economic and Social Council of the UN of 5 February 1946, Records of the first session of the Council, at 49. 259. Loveday, op. cit. note 144. See also Ranshofen Wertheimer, op. cit. note 245, at 419.

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§479. Many people regret the geographical distribution of the UN and the specialized agencies. When the UN was established centralization was considered desirable.260 Many delegates to the first session of the Economic and Social Council of the UN insisted on concentrating the headquarters of the specialized agencies.261 When the FAO discussed plans for the permanent establishment of its headquarters, the Secretary-General of the UN wrote a letter to the Director-General of the FAO in which he pressed for the establishment of the FAO Secretariat in New York.262 When the WMO hesitated in choosing between Switzerland and France the Secretary-General of the UN intervened urging it to choose Geneva (the European office of the UN) as its seat.263

§480. The failure to concentrate the UN and the specialized agencies in the same city was due in part to the delay in choosing New York as seat of the UN.264 If the location of the headquarters of the UN had been known immediately after the Second World War, some specialized agencies might also have chosen that city for their headquarters.265 But by the time New York was eventually chosen, they had already established their headquarters elsewhere. Furthermore New York is less suitable than Geneva as a centre for international organizations.266 While Geneva fulfils nearly all the abovementioned requirements, New York has great disadvantages. New York is situated in the territory of the member which contributes by far the largest share of the funds of the organizations of the UN family. The influence of the US is feared, more than that of Switzerland. The US offers less in the way of facilities to international organizations than does Switzerland. During the early post-war years life in the US was more expensive than in Switzerland; only more recently has this changed. Geneva is nearer to most capitals than New York. The climate in Geneva is more palatable. Accommodation in New York is more difficult to find than in Geneva. Delegations of some countries are not well received in New York.267 Some organs of the UN are established elsewhere, for example UNCTAD and the High Commissioner for Refugees in Geneva, UNEP in Nairobi.

260. Report by the Executive Committee to the Preparatory Commission of the United Nations, Doc. PC/EX/113/Rev. 1, 12 November 1945, at 117; Lemoine, op. cit. note 135, at 262-263. 261. Official Records of the first session of ECOSOC, at 48ff. 262. Report of the fourth session of the Conference of FAO, at 75. 263. Documents First Congress WMO, Final Report, Volume III (WMO Publication No. 1, III RC, 1), annex AV-VIII. 264. For the reasons for the choice in favour of New York, see Lemoine, op. cit. note 135, at 261. 265. Art. 32 of the FAO Rules of Procedure provided until November 1949 that the seat of the FAO should be established in the same city as the UN Headquarters. 266. Loveday, op. cit. note 144, at 9. 267. On the political disadvantages of New York, see above §476(9), and also S. Hazzard, Defeat of an Ideal 81-82 (1973).

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No other organization of the UN family has chosen New York. ILO, WHO, WMO, ITU, WIPO and the WTO established themselves in Geneva; the IMF, the World Bank, IDA, the IFC and MIGA in Washington, FAO and IFAD in Rome, UNESCO in Paris, ICAO in Montreal, UPU in Bern, IAEA and UNIDO in Vienna, IMO in London and the World Tourism Organization in Madrid. The commodity councils have their seats in London.

§481. More recently the UN has no longer strived for centralization. Since the late 1960s there has been a clear wish to decentralize and to transfer activities of the UN to other continents.268 The UN and most specialized agencies may relocate their seats by a decision of their general congresses. In some cases the seat has been established by the constitution of the organization.269 At the same time, while the UN prefers decentralization, it is sometimes considered useful to centralize specific sorts of organizations. The UN food and agriculture organs and organizations (such as FAO, IFAD, WFP) are based in Rome. The Hague has been named ‘the legal capital of the world’ due to the presence of the ICJ, ICTY, ICC, PCA and claims tribunals such as the Iran US Claims Tribunal. §482. In Europe, Strasbourg was chosen as the seat of the Council of Europe in 1949. This mixture of a French and a German town would be most suitable as a European “capital”, symbolizing the union of the two European states which have been most antagonistic during the past century. Although this town has some advantages and is very cooperative, it is not ideal in all respects. Notwithstanding its central position, it is difficult to reach; its facilities for accommodation and recreation are limited and it is situated within the territory of a major European power. The founders of the European Coal and Steel Community (ECSC) could not agree upon its seat. Saarbrücken was considered, another “in-between” town of Germany and France, but at that time it was not acceptable to Germany. Germany aside, all states wished to have the seat. Eventually it was provisionally decided that the parliamentary organ (the present European Parliament) should meet in Strasbourg, where the facilities of the Council of

268. See e.g. YUN 1973, at 870; UN Doc. A/8783 and Addenda (on the location of the environment secretariat) and the discussions thereon in the Second Committee of the General Assembly on 11 Nov. 1972. See also the 1992 JIU report on decentralization of organizations within the United Nations system (JIU/REP/92/6), which strongly favours decentralization of staff and delegation of authority from the organization’s headquarters to the field level. The ACC has criticized this report, arguing that “the report does not present any convincing arguments, either substantive or financial, for changing the present pattern. In the view of ACC members, the relocation of agencies would disrupt their operations for a long period of time and would be very costly” (UN Doc. A/48/78/Add.1, at 3, para. 8). 269. UPU, Art. 5; ITU Constitution, Art. 30, IMF, Art. XIII, Section 1; World Bank, Art. V, Section 9; MIGA, Art. 36 (a); ICJ, Statute, Art. 22; ICC, Statute, Art. 3.1. See also OAS, Art. 126.

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Europe could be used and a link could be maintained with that organization. The ECSC itself would be seated provisionally in Luxembourg.270 It was later demonstrated how difficult it is to remove a provisional seat from a very small state. It is so important to the economy of the entire nation that a proposed transfer will always meet strong resistance.

§483. For the European Economic Community and Euratom it was also impossible to reach agreement upon the seat. The preparatory discussions on the establishment of these organizations were held near Brussels (Val Duchesse), principally because they were presided over by the Belgian Minister Paul Henri Spaak. Many Luxembourgers were not enthusiastic to accommodate these organizations in addition to the ECSC, as they feared that the influx of many foreigners in their capital might jeopardize their national identity. The Councils and Commissions of EEC and Euratom stayed provisionally in Brussels until an agreement could be reached. The parliamentary organs of the new Communities were merged with that of the ECSC, so that the European Parliament met in Strasbourg, while its Secretariat was situated in Luxembourg. The Court of Justice, which was also merged from the beginning, remained in Luxembourg. §484. In 1965 it was agreed that the ECSC High Authority would have to leave Luxembourg in order to be merged with the Commissions of EEC and Euratom, which had by then established a vast administrative network in Brussels. This created problems for Luxembourg. Finally some compensation was found by moving several departments of the merged organs – inter alia the Bureau of Statistics and the European Investment Bank – to Luxembourg.271 Brussels became (still provisionally) the main seat of the Commission and the Council, subject to the condition that Council meetings in April, June and October would be held in Luxembourg.272 §485. Since then, on a number of occasions the European Parliament has taken decisions to have activities mainly in Brussels, such as the decision to have a new building constructed and the decision to expand its information services. Luxembourg and France challenged some of these decisions before the EC Court, arguing that Parliament had acted ultra vires, infringing the decisions of the governments of the member states on the provisional seat of the institutions by altering its places of work. The European Parliament contended that

270. D. Vignes, La Communaute du Charbon et de l’Acier 20-21 (1956); European Parliament Doc. No. 13 (1958). 271. Decision of the representatives of the Governments of the member states concerning the provisional seat of several institutions and services of the Communities, 8 April 1965, Arts. 2, 5, 7, 8, 9. 272. Id., Art. l; see P.H.J.M. Houben, The Merger of the Executives of the European Communities, 3 CMLRev. 67-70 (1965-66).

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it is within its power to take decisions on its internal organization. The Court concluded that there is “a duty incumbent on the Parliament, in exercising its power to determine its own internal organization, to have regard to the powers of the governments of the member states to establish the seat of the institutions and to the decisions taken provisionally in the mean time”, as well as “the duty of the member states, in taking these decisions, to respect the aforesaid power of the Parliament and to ensure that such decisions did not stand in the way of the proper functioning of that institution”.273 The Court has dismissed a number of applications by France and Luxembourg, and has annulled some decisions of the European Parliament. §486. In December 1992 the European Council, meeting in Edinburgh, took a decision on the location of the seats of the institutions and of certain bodies and departments of the Communities. This decision formalized the status quo.274 Subsequently its substance was annexed to the EU and EC Treaties.275 §487. The distribution of the Community seat to Brussels, Luxembourg and Strasbourg is a handicap for the Communities.276 It causes great problems for the secretariats. Coordination between different departments is hampered. A great deal of time and money is wasted on travelling. The relations between the European Parliament and staffs of the Commission and the Council would be closer if both worked in the same city. Other private and public international organizations, as well as states, could maintain contact more easily with all organs of the Communities if they all shared the same seat. In the 1993 budget, the extra costs of the European Parliament for its divided seat were estimated at 87,750 million ECU per year (some 108,170 million $). This is 15% of the 1993 budget of the Parliament.277

273. See for example Joined Cases 358/85 and 51/86, France v. Parliament, ECR 1988, at 4856. The other cases are Case 230/81, Luxembourg v. Parliament, ECR 1983, at 255; Case 108/83, Luxembourg v. Parliament, ECR 1984, at 1945; Joined Cases C-213/88 and C-39/89, Luxembourg v. Parliament, ECR 1991, at 5643; Case C-345/95, France v. Parliament, ECR 1997, at I-5215. 274. See for the text of this decision, Europe No. 5878BIS (Sp. Ed.; second part), at 9. See further Neville Brown, The Grand Duchy fights again: comment on joined cases C-213/88 and C-39/89, 30 CMLRev. 599-611 (1993). 275. Protocol no. 12 to the 1997 Amsterdam Treaty (Protocol on the location of the seats and of certain bodies and departments of the European Communities and of Europol). As opposed to the 1992 decision on the location of the seats, this protocol can only be amended through the procedure for amendment of the Treaties. 276. See also M. Lagrange, Le Processus d’élaboration des décisions dans les Communautés Européennes: théorie et réalité, 10 Europese Monografieën (1968), at 24-25; R. Bieber, Die Gemeinschaft ohne Hauptstadt, Rechtsfolgen eines Provisoriums 168, 176 EUR (1974); Special Report of the Court of Auditors on accommodation policies of the institutions of the European Communities, OJ 1979, C 221. 277. Data obtained from the Information Office of the European Parliament in The Netherlands.

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§488. The American states expressly agreed not to concentrate the secretariats of inter-American organizations, preferring an equitable geographic distribution.278 Whatever the advantages may be, coordination between the specialized organizations of the OAS will not gain from this decision. 3.

Decentralization: regional offices

§489. Centralization of seats of international organizations may be desirable for various functions, while others may require some decentralization among regions. Many activities can operate more effectively on a regional level than from one central office. For this reason, several international organizations have created regional offices, branches of the secretariat, having some autonomous functions. Over the last decades a clear trend is visible in the direction of decentralization. It has been estimated that the number of employees of organizations of the UN family working not at the headquarters but “in the field” has risen from 10 percent to 60 percent in some 40 years as a proportion of total personnel of the UN family.279 The regions served by regional offices, and their tasks, vary widely. The WHO has six regional offices, the UN and the FAO have five (those of the UN cover the regions of its regional economic commissions (see above, §428). The ILO has five regional offices and some 40 field offices). The UNDP has field offices in many states – the offices of the resident representatives (see below, §1820-1828) – which perform secretariat functions in only one state or in a small area.280 The World Bank has six regional offices (Africa; East Asia and Pacific; South Asia; Europe and Central Asia; Middle East and North Africa; Latin America and the Caribbean) which are all situated at headquarters in Washington.281

§490. To achieve proper coordination it would be desirable to establish regional offices of different organizations in the same town, which would then become a regional centre for international organization. At present this is not the case; regional offices are scattered throughout the regions. D.

International civil servants282

§491. The backbone of every international organization is its civil service, the staff working for the organization.

278. OAS, Art. 135. 279. A. Plantey, International Civil Servants Employed in the Field, in C. de Cooker (ed.), International Administration; Law and Management Practices in International Organizations II.7/4 (1990). 280. For further information see the Jackson Report, UN Doc. DP/5, Vol. II, at 455-470. 281. YIO 2002-2003, Vol. I, at 1376. 282. There is a substantial amount of literature on the international civil servant. Important books are: S. Basdevant, Les fonctionnaires internationaux (1931); E.F. Ranshofen Wertheimer, op. cit. note 245; G. Langrod, op. cit. note 141; M. Bedjaoui, Fonction publique

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An international civil service is quite similar to a national civil service in purpose and structure, although there are important differences. The multinational composition and often divided loyalties create problems which national administrations do not encounter. Although the variety of background and the lack of tradition may make it possible to find new solutions to old questions, they also hamper the creation of a good administrative system.283 1.

Appointment

§492. As a rule, international civil servants are appointed by, or on behalf of, the Secretary-General of the organization. The Secretary-General himself, and often assistant Secretaries-General and Directors-General, are elected by the general congress of the organization,284 by its board,285 or by congress and board together.286 Normally appointment is for a limited period.287 The appointment of the Secretary-General is an important political decision for which wide support of the members of the organization is necessary. As the independence of a secretariat of an international organization is fundamental for the functioning of the organization (see below, §524 ff.), constitutions usually do not contain provisions creating the possibility to remove the Secretary-General from office.288 In case members are dissatisfied with the

283. 284. 285. 286.

287. 288.

internationale et influences nationales (1958); A.M. Euler, Europaisches Beamtenstatut, 3 Volumes (1966); M.B. Akehurst, The law governing employment in international organizations (1967); D. Coombes, Towards a European Civil Service, PEP, European Series, No. 7 (March 1968); D. Ruzié, Les fonctionnaires internationaux (1970); R.S. Jordan (ed.), International Administration (1971); H. Getz and H. Jüttner, Personal in internationalen Organisationen (1972); T. Meron, The United Nations Secretariat (1977); A. Plantey, Droit et Pratique de la Fonction Publique Internationale (1977); T. Meron, Status and Independence of the International Civil Servant (1981); Y. Beigbeder, Threats to the International Civil Service; past pressures and new trends (1988); H.-J. Priess, Internationale Verwaltungsgerichte und Beschwerde ausschüsse (1989); De Cooker, op. cit. note 279; D. Rogalla, Dienstrecht der Europäischen Gemeinschaften (2nd ed. 1992); A. Pellet and D. Ruzié, Les fonctionnaires internationaux (1993); C.F. Amerasinghe, The Law of the International Civil Service (as applied by international administrative tribunals), 2 Volumes (2nd ed., 1994); Lemoine, op. cit. note 135; D. Spence, Staff and personnel policy in the Commission, in G. Edwards and D. Spence (eds.), The European Commission (2nd ed. 1997), at 68-103. For literature on the Secretariat of the UN, see also the Annex (selected bibliography). See C. de Peretti, Institutions Internationales et bureaucratie, 74 RGDIP 988-1011 (1970). E.g. FAO, Art. 7; WMO, Art. 21; OAS, Art. 113. E.g. ILO, Art. 8; IMF, Art. XII, Section 4. E.g. UN, Art. 97; UNESCO, Art. 6; WHO, Art. 31; IMO, Art. 22; IAEA, Art. 7; UNIDO, Art. 11 (2). A special case is the Benelux constitution, providing that the Secretary-General of Benelux is to have the Dutch nationality (Art. 34.1). See e.g. UNIDO, Art. 11 (2). Exceptions are IFAD, Art. 6, Section 8(a); the Andean Subregional Integration Agreement (Cartagena Agreement), as amended by the Protocol of Trujillo (1996), Art. 33; the 1997 Agreement on the establishment of the International Network for Bamboo and Rattan, Art. 12.1.

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performance of his duties, they will usually wait until his term is completed and then decide not to reappoint him. This happened for example when in 1996 a recommendation to reappoint Boutros-Ghali as Secretary-General of the UN was vetoed by the US in the Security Council.289 An exceptional case of ‘premature dismissal’ (a decision to oust a Secretary-General before his term is completed) is the decision of the general congress of the Organization for the Prohibition of Chemical Weapons (OPCW) to terminate the appointment of Director-General Bustani. Bustani was originally appointed in 1997. In 2001 he was reappointed by consensus. Soon after his reappointment however, the US called upon him to resign, referring to Bustani’s “polarizing and confrontational conduct, his mismanagement of the OPCW, and his advocacy of inappropriate roles for the OPCW”.290 At a special session of the OPCW’s general congress – the Conference of the Parties – the organization’s legal adviser concluded that Bustani could not be removed from office, inter alia because the Conference lacked the power to do so and because of the independent position of the Secretariat. Nevertheless, on 22 April 2002, the Conference decided to terminate Bustani’s appointment with immediate effect.291 This decision was set aside by the ILO Administrative Tribunal (see below, §544).

The election of officers other than the Secretary-General weakens the position of the latter. In the ITU the position of the Secretary-General as head of the administration was seriously impeded by the election of seventeen other officials under the 1947 constitution. Under the 1965 constitution eight officials, apart from the Secretary-General, were elected.292 Since the 1992 Constitution this number is thirteen (the Deputy SecretaryGeneral, the Directors of the three Bureaux and the nine members of the Radio Regulations Board).293

§493. Most international organizations are free to recruit their staff directly. Approval or consultation of the national governments concerned is not required.294

289. 290. 291. 292.

See Simma, op. cit. note 50, at 1204. See 96 AJIL (2002), at 711-712. Id. H.K. Jacobson, ITU: A Potpourri of Bureaucrats and Industrialists, in R.W. Cox and H.K. Jacobson (eds.), The Anatomy of Influence 77 (1973). 293. ITU Constitution, Art. 8.2 (g and h). 294. UNJY 1969, at 228-229; cf. also UNJY 1983, at 203, and UNJY 1986, at 334-337; UNJY 1987, at 209-210 (an obligation under national law that requires all locally recruited officials to obtain work permits from the municipal authorities may not impede the exercise of the UN Secretary-General’s exclusive authority to appoint his staff under Art. 101 of the Charter).

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The personnel of the Bureau of the International Institute of Agriculture (1905) was not appointed without prior approval of the government of their country of origin.295 This provision, unique in the history of international organizations and subject to severe criticism,296 nevertheless provided an example to those organizations still asking – unofficially – for the opinion of national governments prior to important appointments. The Council for Mutual Economic Assistance was the most important international organization appointing its staff upon recommendation of the member governments.297

§494. Recruitment procedures require particular care. Selection of people from very different backgrounds is particularly difficult and pressure for appointment of “representatives” of governments must be avoided. For a proper, homogeneous civil service it is essential that recruitment should be at the lower level and that vacancies in the higher positions should be filled by promotion from inside the service. Several statutes of personnel contain express provisions to this effect.298 In practice, however, pressure from governments and the need for equitable geographical representation often lead to appointments from outside. To some extent this may be useful. Fresh people from outside may stimulate the work, and bring new ideas. Too many appointments from outside however spoil the careers of civil servants as they block normal promotion. §495. Different methods of recruitment may be used. In most international organizations vacancies will be announced first to the staff of the organization itself, subsequently often to staff of other organizations of the same family (see below, §1691). Candidates may then be solicited either with the help of member governments or through public announcements. Some organizations periodically organize entrance examinations. For some time after such examinations vacancies can be filled by offering posts to those candidates who obtained the best results in the examination.299 Since 1974 the UN has recruited young professionals through competitive examinations which are held in different towns.300 The European Union institutions also organize periodic competitive examinations.

295. IIA, Art. 27. 296. Basdevant, op. cit. note 282, at 153. 297. E. Ustor, Decision-making in the Council for Mutual Economic Assistance, 134 RdC (1971 III), at 255. 298. See e.g. EC Staff Regulations, Art. 29; UN Staff Regulation 4.4. 299. See in general Pellet and Ruzié, op. cit. note 282, at 31-36. For further details of the recruitment procedure in individual international organizations, see Getz and Juttner, op. cit. note 282, at 245-261; Plantey, op. cit. note 282, at 304-311; M. Bertrand, The Recruitment Policy of United Nations Staff, in De Cooker, op. cit. note 279, at II.2./1-9. 300. YUN 1974, at 879. See also UN Documents A/C.5/40/39, A/C.5/47/5 and GA Res. 47/226.

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§496

Number of international civil servants

§496. The number of international civil servants has grown enormously. Before the Second World War their total number was never higher than 1,500.301 A very rough estimate is that there are now between 110,000 and 130,000 international civil servants, of whom between a third and a half work in policymaking functions (the professional category, see below, §506-507).302 To put these figures in some perspective: in 1996, the city of Amsterdam had some 24,000 civil servants.303 The exact numbers of civil servants are difficult to establish. Some figures do not include project staff and staff members holding appointments of less than one year. Unless otherwise mentioned the figures given below have been taken from the Yearbook of International Organizations 2001-2002, Volume I. UN, 33,037;304 ILO, 2,259; FAO, 3,641; UNESCO, 2,142; WHO, 4,000; IMF, 2,700; World Bank and IDA, 6,800; ICAO, 759; UPU, 193; ITU, 756; WMO, 368; IMO, 300; WIPO, 750; IFAD, 290; UNIDO, 1,354; IAEA, 2,212; WTO, 500; World Tourism Organization, 90. The total number is 62,151. Again, it should be emphasized that this is a rough estimate, since the way of calculating the number of staff varies from organization to organization. In the regional organizations, within the European Union 19,561 staff members work for the Commission, 2,500 for the Council, 3,519 for the European Parliament, 940 for the Court of Justice, and 552 for the Court of Auditors.305 The secretariats of the other regional organizations are smaller. The Council of Europe has 1,500 staff members; EFTA, 60; Benelux, 56; League of Arab States, 460; OAS, 582; LAIA, 100; the Caribbean Community, 223; the Economic Community of West African States, 200. Figures for some other organizations are: NATO, 2,640; EBRD, 1,207; CERN, 2,754; European Patent Office, 4,713; European Space Agency, 1,700.

§497. The size of a secretariat depends first on the number of tasks it has to carry out. In addition, such administrative factors play a role as the number of official and working languages (see above, §367-375).

301. Ranshofen Wertheimer, op. cit. note 245, at 240. 302. For example, on 31 December 1992, the total number of UN staff was 14,212. Of these, 4,929 were in the Professional and higher categories, and 9,283 were in the General Service, Manual Worker, and Field Service categories. 303. NRC-Handelsblad, 19 December 1996, at 29. 304. YIO 2002-2003, Vo. I, at 2453. Of this total number of UN staff, 13,543 are assigned to the UN Secretariat and 19,494 to the secretariats of UN subsidiary organs (e.g. UNDP, UNICEF, UNHCR). 305. YIO 2002-2003, Vol. I.

§498

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Qualifications

§498. For the position of Secretary-General an experienced politician and administrator, acceptable to the vast majority of the member states, is needed.306 Few international organizations impose strict conditions on the appointment of the Secretary-General. After some experience the Organization of Petroleum Exporting Countries decided in 1970 that the Secretary-General must be over 35 years old, have an appropriate university degree and some 15 years of relevant experience.307 §499. The function of an international civil servant requires personal qualifications and an international attitude.308 For the professional posts (the administrative ranks) a university degree is normally required.309 The question as to which institutions in a particular state are to be recognized as universities is determined by the government of that state. Most international organizations also require practical experience.310 In many of their tasks international civil servants will be expected to know how particular problems are solved in their own country. Practical experience will increase that knowledge and will provide the civil servant with contacts who may provide information. Furthermore, candidates for posts in international organizations should have linguistic ability. In most international organizations there is one dominant language which must be known, even if there are other official languages. Good knowledge of a second language is usually required.311 Apart from professional qualifications nationality plays an important role (see below). Most international secretariats have also been urged to recruit more women.312 Further schooling is provided within most international organizations particularly in languages.313 In the past, the Secretary-General

306. See also Cox and Jacobson, op. cit. note 292, at 397-400. There is no legal requirement to rotate the position of UN Secretary-General among regions. Nevertheless, following the election of Perez de Cuellar in 1981 the African states claimed that the next SecretaryGeneral should be an African. Their political pressure to appoint Boutros Ghali was based largely on this claim. See P.C. Szasz, The Role of the UN Secretary-General: Some Legal Aspects, 24 Journal of International Law and Politics (1991), at 168-170. See also B. Urquhart and E. Childers, A World in Need of Leadership: Tomorrow’s United Nations (1990). 307. Mikdashi, op. cit. note 247, at 99. 308. See T.G. Weiss, International Bureaucracy 49-105 (1975). 309. Getz and Juttner, op. cit. note 282, at 331. 310. Id, at 333-338. 311. For a survey of the languages required in practice, see Getz and Juttner, op. cit. note 282, at 344-346. 312. See e.g. GA Res. 3352(XXIX), YUN 1974, at 667, GA Resolutions 32/17, 47/93 and 47/226. See also UN Doc. A/47/30, at 81-88, and UN Doc. A/49/587. For the European Communities, see Rogalla, op. cit. note 282, at 250-252. 313. See further UN Doc. A/C.5/47/9 (training programmes in the UN Secretariat).

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of the UN has made several proposals for the creation of a UN Staff College, but these proposals have not been accepted.314 4.

Geographic distribution315

§500. As the member states may exert no influence over the officials who are their own nationals, and as international officials may not favour their own country, there ought in principle to be no reason for taking nationality into account when appointing staff members. As a body, a secretariat will be stronger, however, if composed of officials from all members (see above, §276). Furthermore, a secretariat needs the full confidence of all members, which could be jeopardized if its officials were recruited from only a few of them. Many constitutions therefore provide that appointment to the secretariat must be made on a geographical basis which is as equitable – or “as large” – as possible.316 Partly for this reason the UN has established the policy that persons in permanent residence are generally ineligible for appointment as internationally recruited staff, and that internationally recruited staff members who wish to change to permanent resident status must obtain permission from the Secretary-General to sign the waiver of rights, privileges, exemptions and immunities for the acquisition or retention of permanent resident status. This permission is rarely granted.317 In view of the requirement of geographical distribution, changes were introduced in the composition of international secretariats following the admission to international organizations of former colonies. One study concerning changes in the composition of the UNESCO secretariat has demonstrated that, between 1972 and 1984, overall staffing quotas and shares of posts shifted appreciably to the disadvantage of Western and Soviet bloc states and in favour of the third world, notably the African states. However, Western nationals continued “to dominate the staffing of UNESCO in hierarchical and strategic terms”.318

314. See UN Documents A/8829: A/8935; A/8980 (Chapter III A, §90); E/5133 and Corr. 2; YUN 1972, at 689-690; YUN 1973, at 829; YUN 1974, at 730-731; YUN 1975, at 725; YUN 1976, at 661-663. 315. See Meron, op. cit. note 282, at 666-675; M.J. Peterson, The General Assembly in World Politics 165-173 (1986). For the geographical distribution of the UN officials, see UN Documents A/6860 and A/7334; YUN 1967, at 781-782, YUN 1968, at 867; UN Doc. A/33/ 176; YUN 1991, at 891-892. For the European Communities, see Rogalla, op. cit. note 282, at 66-68. 316. See e.g. UN Charter, Art. 101; FAO, Art. 8, para. 3; WHO, Art. 35; UNESCO, Art. 6, para. 4; World Bank, Art. V, Section 5; OAS, Art. 125. 317. See UNJY 1986, at 297-298. In 1986 the World Bank decided to allow its staff to apply for US permanent resident status without prior approval, and suggested that the same measures be taken by the UN. See id. 318. C. Wells, The UNESCO Secretariat ’decolonized’? Geographical distribution of the staff, 1972-1984, in D. Pitt and T.G. Weiss (eds.), The Nature of United Nations Bureaucracies 137-164 (1986), at 152-153.

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Although the member states may derive no advantage from it, many governments support the appointment of their own nationals to international secretariats. This facilitates informal contact with the secretariat which is of value both to a government and to delegations it sends to meetings of the organization. Many international civil servants themselves also appreciate the presence of their compatriots in the secretariat.319 §501. If governments insist too much on the appointment of their nationals to a secretariat, the “equitable representation of all regions” principle may result in a general distribution of the available secretariat posts among the members of the organization. This is objectionable for two reasons: (1) The most suitable people are not always available within a particular state or even within a particular region. “There have been too many instances in which political pressures have led to appointments inspired by considerations of nationality rather than competence”.320 (2) National claims to certain posts hinder the functioning of a secretariat. If senior posts are invariably or frequently filled from outside the service, it will prove impossible to retain first class people in the lower ranks, since they will invariably seek careers elsewhere which offer better prospects of advancement.321 When those who are less qualified are nominated as heads of departments, they will be resented by people in the departments. §502. Equitable geographical distribution of staff members does not mean that an equal number must be appointed from each region. In practice, the number of staff members from a specific state is usually related to the contribution paid by that state to the organization. In the UN a limited group of the staff (posts in the professional and higher categories funded under the regular budget) is covered by a system of “desirable ranges” used as a guideline for estimating the comparative representation of the nationals of each member state. (Excluded is, inter alia, staff which serves in the secretariats of a number of UN subsidiary organs, staff in certain language posts and staff with appointments of less than one year.) The system of desirable ranges has been established by the General Assembly on the basis of three factors: membership, contribution and population. In 2000, 2,389 of the 33,049 staff from the Secretariat and other entities fell within this system.322

319. See further Lemoine, op.cit. note 135, at 54-60. 320. Quoted from Jackson Report, UN Doc. DP/5, Vol. II, at 345. 321. Jackson Report, UN Doc. DP/5, Vol. 11, at 350. Cf. GA Res. 46/232, recommending that “as a general rule, no national of a member state should succeed a national of that state in a senior post and there should be no monopoly on senior posts by nationals of any state or groups of states”. See also C.F. Amerasinghe, Problems Relating to Promotion in the Law of the International Civil Service, 51 ZaöRV 923-937 (1991). 322. UN Doc. A/55/427, at 7ff. See for details on this system of “desirable ranges” UN Doc. A/53/375, at 18-19.

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§503. Many international organizations attempt to mitigate the disadvantages of over-emphasizing the requirement of equitable distribution of staff members by expressly providing in the constitution or in staff regulations that competence and integrity are the primary considerations, and that nationality is to be of only secondary importance.323 Alternatively, there may be a provision that no post may be designated for nationals of a particular member state.324 The organ which is competent to appoint the staff (in most cases the SecretaryGeneral) may use such provisions to counteract government pressure for the appointment of their nationals. The Court of Justice of the European Communities annulled an appointment based on nationality in the Lassalle case.325 In this case the European Parliament had required that the candidate for a certain post have complete mastery of the Italian language. Its intention was to limit the selection to Italians in view of the equitable geographical distribution of its personnel. Claude Lassalle, who considered himself eligible for the job in question, although he was not Italian, sought and obtained annulment of the announcement of the vacancy. The Court considered that the nationality of an applicant may not be a condition for application; neither may it appear in a disguised form by requiring the applicant fully to have mastery of a particular language if this is not necessary to the job in question. In principle each function must be open for nationals of all member states. Only when different candidates of equal competence apply for the same job should the administration permit the criterion of nationality to prevail at the selection.326 Lassalle concerned a promotion. In Serio the Court decided that the Euratom Commission had been correct in appointing a Belgian in preference to an Italian even though the Italian had been classified higher in the entrance examination; as three of the six main positions at the office concerned were already filled by Italians.327 In 1992 a UN member state offered the UNHCR a donation for the establishment of a trust fund for scholarship assistance for refugee students from and in third world countries. One of the conditions linked to this donation was the obligations for the UNHCR to assign a national of the donor state to administer the trust fund. The UN Office of Legal Affairs advised that this condition “would seriously interfere with the obligation imposed on the Secretary-General” under Article 101.3 of the Charter (to treat as the paramount consideration in the employment of staff the necessity of securing staff of the highest standards of efficiency, competence and integrity).328 At the same time however, this UN Office also advised the following: “[w]e consider that a provision whereby a candidate for the post in question would be required to have perfect command of the written and spoken language of the country concerned and intimate familiarity with its educational institutions would result in nationals of that country receiving the most serious consideration for appointment, but would preserve the discretion of the Secretary-General, and would therefore be legally unobjectionable. However, a provision which would expressly exclude consideration of nationals of

323. 324. 325. 326. 327. 328.

See e.g. UN Charter, Art. 101; UNESCO, Art. 6, para. 4; IAEA, Art. 7 D; OAS, Art. 125. Staff Regulations of the European Communities, Art. 27. Case 15/63, Lasalle, ECR 1964, at 31-59. Id., at 38. Case 62/65, Serio, ECR 1966, at 569. Cf. also the Case 17/68, Reinarz, ECR 1969, at 72. UNJY 1992, at 445-446.

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other countries possessing the required qualifications would be objectionable …”.329 This is a very practical advice circumventing the prohibition to appoint staff of one particular nationality only. If close familiarity of the language and educational institutions is indeed a necessary requirement for the post, this solution is in line with Article 101.3, as it does not exclude the possibility that nationals of other states than the donor state are appointed. Nevertheless, the UN seems to be more flexible in this case than the EC Court in the above mentioned Lasalle case. In 1993 the Court of First Instance of the European Communities concluded that even for recruitment for A.1 and A.2 positions (the highest grades in the EC), such positions may not be reserved for persons from specific member states. A German and a Dutchman held A.3 positions in the European Commission. They applied for two A.2 vacancies, but they were informed that they did not meet the requirements. A Spaniard and an Italian were appointed. The German and the Dutchman took the view that they stood no chance from the outset, because the two vacancies seemed “reserved” for Spain and Italy. Their claim was sustained by the Court of First Instance, despite remarks by the Commission that the Court should not “close his eyes for certain political realities”.330

§504. International organizations rarely recruit personnel from non-member states. In 1977 the UN had forty-six staff members in professional and higher level posts from such states. Twenty-nine were from Switzerland, six were stateless.331 Civil servants from third countries may be useful for information and documentation or for language departments (before British accession the European Communities employed some people from Britain for linguistic purposes). Apart from exceptional cases the staff of the IMF must be nationals of members. But when member states leave the IMF their nationals are not dismissed.332 In 1996 a Brazilian national applied for the post of a senior physiologist within the European Space Agency. Brazil is not a member of ESA. The advertisement for this post did not mention ‘nationality of an ESA member state’ as a criterion for selection. The applicant from Brazil was nevertheless rejected because “the rules of this organization do not normally allow us to recruit personnel other than citizens of the fourteen European member states except in areas where such expertise is not availaible in those states”. He subsequently initiated proceedings before a quasi judicial body in the Netherlands (the Commissie Gelijke Behandeling (Equal Treatment Commission)). Under Dutch law discrimination on the basis of nationality is prohibited unless such discrimination is based on a binding rule of international law. The Brazilian

329. Id., para. 4. 330. Case T-58/91, Booss and Fischer v. Commission, ECR 1993, at II-147. An earlier, similar case is Case 85/82, Schloh v. Council, ECR 1983, at 2105. More recent cases are Case T-158/01, Tilgenkamp, judgment of 9 July 2002, not yet reported, and Case T-73/01, Pappas, judgment of 18 Sept. 2003, not yet reported. See on these cases NRC Handelsblad, 19 Sept. 2003, at 1. The judgment in the Pappas case was welcomed by the trade union federation as a judgment against the system of ‘jobs for the boys’ (see Europe No. 8545, at 17). 331. UN Doc. A/32/146, Annex, at 11. 332. See J. Gold, Membership and Nonmembership in the International Monetary Fund 397 (1974).

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candidate claimed that there is no such binding rule. The Commissie Gelijke Behandeling however concluded differently.333 International organizations may require candidates for vacant posts to have the nationality of one of the member states and reject applications that do not fulfil this requirement. ESA was therefore allowed to reject the application for this reason. The Commissie Gelijke Behandeling also recommended ESA to explicitly mention the nationality requirement in its future vacancy announcements.

§505. Equitable geographical distribution is particularly important for professional and senior posts. The appointment of lower-grade employees is not usually subject to this condition; they are often recruited locally. It would be too expensive to recruit cleaners from other member states and it would serve little purpose. In the medium ranks some attention is paid to geographical distribution.334 The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) employs about 22,650 locally recruited Palestinians, mostly Palestinian refugees. No rules of geographical distribution are applied with regard to these employees.335 5.

Conditions of employment

§506. The position of international civil servants in different organizations is by and large similar. Most organizations have interpreters, personnel departments, conference officers, etc., who do almost identical work in each organization. Large differences in salary and conditions of service would create tensions and dissatisfaction. To prevent this, international organizations are active in harmonizing their staff regulations and salary levels. Although sometimes large differences continue to exist in practice,336 they have to some extent succeeded in obtaining uniformity.337 That is no mean achievement, when taking into account that the common system covers more than 50,000 staff members at over 600 duty stations in some 180 countries and territories.338

333. Commissie Gelijke Behandeling, Oordeel 98/81 of 8 July 1998. When this case was brought before the Commissie Gelijke Behandeling, ESA could have invoked its immunity from jurisdiction, which also applies to quasi-judicial bodies (see §1610). However, in this case ESA preferred to obtain an opinion from the commission on the substance of the complaint. 334. See UNJY 1974, at 199-203. 335. YIO 2002-2003, Vol. I, at 2480. See E.R. Buehrig, The UN and the Palestine Refugees. A Study in Nonterritorial Administration 89 (1971). 336. E.g. between different ‘families’ of organizations (see §1691-1701), such as the UN family, the European Coordinated Organizations (Council of Europe, WEU, NATO, OECD and the ECMWF) and the EU. 337. Nevertheless, sometimes organizations depart from norms of the common system. See for example UN Doc. A/46/30, at 4-11. 338. D.J. Goossen, The International Civil Service Commission, in De Cooker (ed.), op. cit. note 279, at II.1.

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The specialized agencies have concluded agreements with the UN in which the parties “recognize that the eventual development of a single unified international civil service is desirable from the standpoint of effective administrative coordination, and, with this end in view, agree to develop common personnel standards, methods and arrangements designed to avoid serious discrepancies in terms and conditions of employment, to avoid competition in recruitment of personnel and to facilitate interchange of personnel in order to obtain the maximum benefit from their services”. Within the scope of these agreements, the Administrative Committee on Coordination pays constant attention to the harmonization of working conditions. The Advisory Committee on Administrative and Budgetary Questions of the General Assembly (ACABQ) does the same. Gradually, what has become known as the “common system of salaries, allowances and related benefits” has developed.339 Currently, 15 organizations of the UN family participate in this common system. IMF, World Bank, IFC and IDA have opted for a somewhat different system. They attract their personnel from the financial and banking sectors, and their budgets are financed from the income of their capital, not from annual contributions by the member states.340 When the WTO was created in 1994, its Secretariat fell under the common system. In 1998 however the WTO decided – after four years of negotiations – that the Secretariat would become independent of the common system as from 1999.341 An important step to further uniformity was made in 1975 when the International Civil Service Commission was installed and vested with wide powers concerning the conditions of employment of civil servants of the organizations of the UN system which have accepted its statute.342 In 1963 the Committee of Ministers of the Council of Europe set up a Governmental Conference on the European Civil Service in order to draft model staff regulations for European civil service on the basis of preparatory work done by the Council of Europe between 1955 and 1962. The Conference held fifteen sessions from November 1963 to July 1967 and recommended Model Staff Regulations for European institutions. The Model contains detailed rules in 93 articles on duties, status, ranks recruitment, assignment, leave, discipline, remuneration, social security, etc.343 States and international organizations should adopt the provisions of that model as much as possible whenever staff regulations for international organizations are established or modified.

§507. Apart from such institutional efforts to harmonize the working conditions of international civil services, contacts between organizations tend to have a harmonizing effect between organizations. Staff regulations of other organizations are usually consulted when new regulations are made.

339. UN Doc. A/5599, at 13. 340. Cf. J. Tassin, Administrative Coordination in the United Nations Family, in De Cooker (ed.), op. cit. note 279, at I.2/5. 341. WTO Focus, October 1998, at 2. 342. See GA Res. 3357 (XXIX), YUN 1974, at 875-878; D. Zavala. La Commission de la Fonction publique internationale, 22 AFDI 499-527 (1976); Y. Beigbeder, Management Problems in United Nations Organizations 79-94 (1987); A. Ali, The International Civil Service: The Idea and the Reality, in De Cooker (ed.), op. cit. note 279, at I.1/3-20. See for an official review of the functioning of this Commission: UN Doc. A/46/275; for comments by the Commission on this review: A/46/30, Vol. II. 343. Final Act of the Governmental Conference on the European Civil Service (Strasbourg, 6 July 1967).

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Such harmonization should be stimulated not only in order to prevent tension and dissatisfaction among staff members but also to promote the exchange of personnel from one organization to another. Such exchanges are valuable for the development of mutual relations between the organizations (see below, §1736) and for formulation of an appropriate personnel policy. Equitable geographic distribution of staff posts often restricts the possibility of promotion to nationals of particular states (see above, §501). If such nationals are not available within the organization itself they should be recruited from other organizations in preference to new recruits. Recruitment from another organization would thereby create a vacancy and might thus facilitate another promotion. a.

Grades

§508. All international organizations have different categories of personnel. The highest category is that of the professional staff, engaged in managing, in administrative planning or research duties, for which an education of university standard is required. The highest professional staff member is the Secretary-General or Director-General. In the UN there are three categories of professional staff members: Under SecretariesGeneral; Assistant Secretaries-General, Directors and Principal Officers; Professional Officers. The middle group is subdivided into the ranks D2 (Directors) and Dl (Principal Officers). The last mentioned category includes Senior Officers (P5), First Officers (P4), Second Officers (P3), Associate Officers (P2) and Assistant Officers (Pl). In most cases the letter codes are used to indicate the grades. The grades in the specialized agencies are essentially the same as those in the UN.344 There are differences, however, particularly in the classification of function for which each rank is used.345 Within the UN family, the International Civil Service Commission endeavours to make and keep the organization of the professional staff of the UN and the specialized agencies as uniform as possible.

§509. In the European coordinated organizations such as the Council of Europe there is one category of professional staff (Category A, of which A. 1 is the lowest), headed by a Secretary-General. In the European Communities each institution has its own staff, by far the largest of which is the Commission (see above, §496).346 There is one category of professional officers (Category A) in the staff of the Commission. The grade within the category is again indicated by a number. These numbers,

344. UN Doc. A/5599, at 16. 345. For further details see Th. Meron, The United Nations “Common System” of Salary, Allowance and Benefits, 21 International Organization 284-305 (1967). The differences are decreasing, see id., note 257. 346. See Rogalla, op. cit. note 282 at 32-41.

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however, are in reverse order to those employed in the UN and the coordinated organizations such as the Council of Europe. A.1 is the highest professional staff number (Director-General) and A.8 the lowest.

§510. Besides professional staff, most international organizations have a category of staff engaged in linguistic duties. Their remuneration is equal to that of the professional staff (except to that of Directors and higher officers). In the UN and the specialized agencies all other civil servants comprise the category “General Service Staff”.347 The European organizations distinguish between three further categories: Class B (higher secondary school standard required) for executive and supervisory duties, Class C (lower secondary school required) for clerical and craftsman duties and Class D (primary school required) for manual and house duties.348 In the UN in particular there has been considerable criticism of too strong a compartmentalization of the staff. As the General Service Staff is not influenced by geographic distribution it functions more effectively and often does most of the work, as a result of which these staff members consider themselves underpaid.349 A person has a right to the grade corresponding with the function he performs. An organization may not classify him in a lower grade for budgetary reasons (see below, §1112). However, in practice some organizations disregard this rule and do appoint civil servants at a lower level, offering promotions at a later stage. b.

Remuneration

§511. Payment of salary by an international organization safeguards the independence of the international civil servants. The level of their salary will depend on international norms. No organization wishes to offer higher salaries than necessary, but the salary must be at a level which is attractive even to civil servants from rich countries. The attraction of the international salary will inevitably vary from country to country. A salary which fails to tempt a Swede or a German may be exorbitantly high for a national of a poorer country. The European Communities intended to remunerate the members of the directly elected European Parliament. As a salary which was reasonable for a German or a Dutchman was out of proportion for a member of the British Parliament, the Council could not reach agreement on any remuneration and decided that members of the European Parliament should be remunerated according to national scales. This means that members from different countries receive very different salaries, although they do the same work. Thus in 2001, an Italian member of the European Parliament received a gross

347. UN Doc. A/5270, at 14. 348. Model Staff Regulations (see above, §506), Art. 20. 349. Hazzard, op. cit. note 267, at 87-114.

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monthly salary of 10,643 Euro, a member from the Netherland 6,708 Euro, and a member from Ireland 4,025 Euro.350

§512. The United Nations have followed the so-called “Noblemaire principle”, which means that the level of remuneration is established by comparison with that of the national civil service with the highest pay levels. Hitherto, the UN has used the model of the Federal Civil Service of the US.351 In addition to salary, international organizations pay allowances for living abroad and for support of a family (family allowance). In many international organizations a portion of the salary is deducted for taxes (see below, §10701072). In some cases civil servants working in cities with a high standard of living receive extra payment. This may be arranged by means of a special allowance or a favourable rate of exchange.352 §513. In 2000 the annual salaries for professional staff in the UN ranged from $ 158,132 gross (net between $ 108,242 for dependents and $ 97,411 for singles) for an Under Secretary-General to $ 38,988 gross (net between $ 31,071 for dependents and $ 29,310 for singles) for P-1.353 In the European Communities this range varied from 11,492 Euro per month for A 1 to 3,849 Euro per month for A 8. These are basic monthly salaries, not including (often considerable) allowances.354 §514. Of increasing importance with regard to salaries are the problems of the currencies in which they are paid. Usually this is the currency of the host country, where most of the salaries will be spent. Many organizations have their budgets, and therefore the level of their salaries, expressed in another currency, usually the US dollar. This causes problems when the rate of ex-

350. Information obtained from the Information Office of the European Parliament in the Netherlands. 351. See the annual reports of the Civil Service Commission to the General Assembly, for example UN Doc. A/33/30, at 16, A/47/30, at 28-29, A/48/30, at 24-47, and in particular A/44/30, at 22-45. See further Lemoine, op. cit. note 135, at 278-281. Georges Noblemaire has been Chairman of a League of Nations Committee of Experts, which had recommended salary levels for the League staff to be based on salaries of the highest paid civil service of the world. While the Noblemaire principle is generally used for the professional and higher categories of staff, its equivalent for the so-called General Service and related categories is the Flemming principle. 352. This used to be the case in IMCO (the predecessor of IMO) which used salary scales in pounds sterling and used to pay to its officials in New York a larger amount of US dollars than the normal exchange rate would indicate. 353. UN Doc. ST/SGB/2000/7, at 17. For the conditions of service and compensation for members of the International Court of Justice, see UN Doc. A/C.5/53/11. In this report of the Secretary-General of the UN, the emoluments of ICJ members are compared to those of UN Secretariat officials, full-time members of UN subsidiary bodies, officers of national judiciaries, the EC Court, the European Court of Human Rights and the Iran-US Claims Tribunal. 354. OJ 2000, L 326/4. See also Rogalla, op. cit. note 282, at 152-184.

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change is altered. The organizations must adapt their budgets or the salaries in local currency become unstable. Even when salaries are expressed in local currencies, problems will arise. Some civil servants work in other countries and most pensioned staff members return to their home countries. It is very difficult continuously to adapt pensions to fluctuations in rates of exchange. In 1976 a case was brought before the ILO Administrative Tribunal of a retired staff member of the European Organization for the Safety of Air Navigation (EUROCONTROL) whose pension had fallen from 34,100 to 24,431 Belgian francs because of the devaluation of the pound sterling in which the pensions were expressed.355

To a large extent increases in salaries have protected the remuneration of international civil servants against currency devaluation, but the salaries of civil servants have lagged behind in cities such as Geneva and Vienna where the rate of inflation was modest but the appreciation of the local currency in relation to the dollar was very strong.356 c.

Pension and social security

§515. Originally international organizations had neither pension schemes nor provisions for the social security of their civil servants. Civil servants were required to make their own provisions privately. When leaving the organization a civil servant received a grant, the amount of which depended on the rank and often on the years of service. This grant was to compensate for the absence of further provisions.357 For a proper pension scheme a rather large staff is required in order to ensure the necessary stability. The UN has created a pension system for the staff of all the organizations of the UN family in 1948;358 the Council of Europe followed suit in 1966 and created a pension system to which the OECD, the WEU and NATO subsequently adhered.359 A third large pension system is that of the European Union.360 To all these pension systems the civil servants and also the participating organizations pay contributions. Apart from pensions, social security schemes of international organizations cover medical care in particular.361 Usually, these schemes do not cover risks

355. 356. 357. 358.

Judgment No. 385, UNJY 1976, at 157-158. See Report of the International Civil Service Commission, UN Doc. A/33/30, para. 35. Plantey, op. cit. note 282, at 361-363. GA Res. 248 (III). See W. Zyss, La Caisse Commune des Pensions du Personnel des Nations Unies, in Les Agents Internationaux (Société Française pour le Droit International, Colloque d’Aix-en-Provence 1985), at 379-412; Y. Beigbeder, Management Problems in United Nations Organizations 95-109 (1987). 359. Plantey, op. cit. note 282, at 366. 360. See Rogalla, op. cit. note 282, at 190-199. 361. See J Moussé, Le droit à la santé des fonctionnaires internationaux, in G. Hafner et al. (eds.), Liber Amicorum Professor Ignaz Seidl-Hohenveldern – in honour of his 80th birthday (1998), at 475-494.

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of unemployment and partial invalidity, but this has not caused much difficulty in practice.362 While international organizations are free to determine their social security arrangements and cannot be subjected to the legal requirements of national schemes of the host state, the position of staff members is different.363 Whether they are covered by national schemes depends largely on the policy of the host state. Some host states insist on coverage of their nationals and of permanent residents (e.g. the UK), while others permit exemption from such schemes on condition that the civil servants in question enjoy comparable coverage under the schemes introduced by the organization (e.g. Austria).364 d.

Obligations

§516. The obligations of international civil servants are laid down in the constitutions of international organizations and in more specific staff regulations and rules.365 Civil servants of international organizations must exercise their functions with all loyalty, discretion and conscience and with the interest of the organization only in view.366 In the organizations of the UN family they are required to take an oath or make a solemn promise to this effect.367 Some regional organizations lay down the same requirement,368 others do not.369 For the legal position of the civil servant this makes no difference.370 Civil servants are exclusively subject to the authority of the Secretary-General. According to UN Staff Regulation 1.2 (c), “Staff members are subject to the authority of the Secretary-General and to assignment by him or her to any of the activities or offices of the United Nations”. The Secretary-General may therefore assign staff to any UN activity or office without obtaining the prior consent of the staff member. In practice however, “on the basis of due process concerns and the need to deal fairly with staff,

362. F. Morgenstern, Social Security Problems in International Organizations, in De Cooker, op. cit. note 279, at IV.1/1-31. 363. See UNJY 1986, at 339-340. 364. Morgenstern, op. cit. note 362. 365. E.g. UN Charter, Art. 100.1; UN Staff Regulations and Rules. See C.F. Amerasinghe, Principles of the Institutional Law of International Organizations 338-340 (1996). All UN staff members receive a copy of the ‘Secretary-General’s Bulletin’ on the Status, Basic Rights and Duties of United Nations Staff Members. See UN Doc. ST/SBG/1998/19. 366. Plantey, op. cit. note 282, at 104-107; Pellet and Ruzié, op. cit. note 282, at 63-71; UN Staff Regulation 1.2(e). 367. For the text, see Getz and Juttner, op. cit. note 282, at 152; Amerasinghe, op. cit. note 282, at 1049; UN Staff Regulation 1.1(b). 368. E.g. Council of Europe, Art. 36(e); for the text see Pellet and Ruzié, op. cit. note 282, at 63. 369. E.g., European Communities. Cf. Rogalla, op. cit. note 282, at 132-134. However, an exception is made for the President and the members of the Commission, who are required to make a ‘solemn declaration’ before the Court of Justice. See for the text of this declaration, Europe No. 6405, at 7. 370. Getz and Juttner, op. cit. note 282, at 153; Plantey, op. cit. note 282, at 107.

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the administration would be obliged to consider any objections of a staff member to such an assignment”.371 An example of a case in which loyalty obligations were at stake is the Connolly case. Bernhard Connolly was an official of the European Commission.372 He was head of Unit 3, European Monetary System, within the Directorate-General for Economic and Financial Affairs. In 1995 he received permission for a three months’ unpaid leave on personal grounds. During this leave he published a book entitled “The rotten heart of Europe – The dirty war for Europe’s money”, without asking prior authorization. The requirement that staff members may not publish books or articles without prior authorization is a usual requirement in international organizations.373 According to Connolly, the central thesis of his book is that ERM (the Exchange Rate Mechanism) and EMU (the Economic and Monetary Union) are not only inefficient but also undemocratic: a danger not only to our wealth but to our four freedoms and, ultimately, our peace. On three earlier occasions, Connolly had submitted draft articles, inter alia on the development of the European Monetary System, but permission for publication had been refused. In January 1996 Connolly was removed from his post. It was considered that Connolly “could not have failed to be aware that the publication of his book reflected a personal opinion that conflicted with the policy adopted by the Commission in its capacity as an institution of the European Union responsible for pursuing a major objective and a fundamental policy choice laid down in the Treaty on European Union, namely economic and monetary union”.374 In addition, it was considered that, “in disregard of his duties of good faith and loyalty to the institution, Mr. Connolly at no time advised his superiors of his intention to publish the book even though he was still bound, as an official on leave on personal grounds, by his duty of confidentiality”.375 It was concluded that Connolly’s conduct, “on account of its gravity, involves an irremediable breach of the trust which the Commission is entitled to expect from its officials, and, as a consequence, makes it impossible for any employment relationship to be maintained with the institution”.376 Connolly did not accept the decision to remove him from his post and initiated proceedings before the Court of First Instance and subsequently the Court of Justice. His claims were rejected.

§517. International civil servants are not entitled to seek or accept instructions from any government or other authority outside the organization, nor may they hold any salaried office from any government.377 They may vote in national elections; they may belong to a political party and they may pay

371. UNJY 1992, at 446. 372. Information taken from two judgments of the EC Court: Case 273/99 P, ECR 2001, at I1575, and Case 274/99 P, ECR 2001, at I-1611. Cf. also Case T-203/95 R, Order of the President of the Court of First Instance, ECR 1995, at II-2919, in which the Commission was asked to take the measures necessary to ensure that no information on Connolly’s career, personality, opinions or health, likely to harm his personal or professional reputation, was divulged by its staff in contacts with the press or by any other means. 373. See e.g. for the UN: UNJY 1992, at 449-451. 374. Case 274/99 P, para. 19. 375. Id. 376. Id. 377. Plantey, op. cit. note 282, at 110 (No. 294); Rogalla, op. cit. note 282, at 134-137.

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contributions to political parties,378 but they may not actively campaign in national elections.379 In general they should abstain from active political involvement.380 Usually, they may not accept honours, decorations, awards, etc.381 A number of organizations have been confronted with individual cases of fraud and corruption by their staff members; usually thorough action is undertaken in such cases in order to prevent that the standing of the organization is affected.382 The rules of the organization usually indicate general and specific activities that are considered incompatible with the status of staff member. In cases of doubt, it is for the organization to decide.383 e.

Permanent or temporary employment

§518. Each international organization attaches great value to a qualified, independent secretariat. This can be achieved most effectively if at least a significant proportion of the staff is appointed on a permanent basis. For the civil servants in permanent employment the secretariat is a career position to which they can fully devote themselves. Their legal position is secured, they receive a pension from the organization. In his thorough report on the United Nations Development System, Jackson concludes that only a career service can provide the proper framework for an efficient UN development staff. “Development planning and administration demand skill which can best be acquired by sustained, in-service training and development by long practical experience. Any other approach would lead to waste and inefficiency.”384 The example of the League of Nations, which created an independent staff in permanent employment,385 was followed by most international organizations.

378. Plantey, op. cit. note 282, at 109 (No. 290); Getz and Juttner, op. cit. note 282, at 154-155. 379. Plantey, op. cit. note 282, at 109 (No. 291). 380. See for specific examples UNJY 1976, at 207-208; UNJY 1979, at 177-178; UNJY 1986, at 337-339; UNJY 1990, at 282-284. 381. UN Staff Regulation 1.6; see UNJY 1982, at 202-204, UNJY 1984, at 179, and UNJY 1990, at 269-270; UNJY 1987, at 194 (a UN staff member can only accept the nomination of ‘Chevalier de la Légion d’Honneur’ by a government after leaving the organization; there is no discretion for the UN Secretary-General for approval of such acceptance). See also Lemoine, op. cit. note 135, at 50-54. 382. E.g. in 1998 the World Bank suspended three of its staff members on suspicion of corruption (NRC Handelsblad, 17 July 1998). In 1995 the European Commission was confronted with the ‘tourism scandal’ involving fraud by three European officials; see Europe No. 6431, at 8. Cf also S. White, Proposed Measures Against Corruption of Officials in the European Union, 21 ELR (1996), at 465-476. 383. See e.g. UNJY 1992, at 433-435 and 449-451. See 37 ILM 12 (1998) for the text of the 1997 EU Convention on the Fight against Corruption involving Officials of the European Communities or Officials of Member States of the European Union. 384. UN Doc. DP/5, Vol. II, at 346. 385. Ranshofen Wertheimer, op. cit. note 282, at 80.

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There are exceptions however. An example is the Organization for the Prohibition of Chemical Weapons (OPCW). This is a ‘non-career’ organization: the total length of service of Secretariat staff is in principle seven years. In 2003 it was decided that the starting date for this seven-year period would be 2 July 1999.386 In the period in between 2003 and 2009 some fifty staff members have to be replaced each year. It is expected that the implementation of this policy will negatively affect, inter alia, staff morale; that it will encourage qualified staff to accept employment elsewhere (possibly well before the end of the seven-year period); and that it will make it difficult to find qualified new staff members. It is therefore not surprising that it was decided in 2003 to authorize the Director-General “as an exceptional measure so as not to compromise the financial stability and operational effectiveness of the Organization, […] to grant contract extensions or renewals which would result in a total length of service in excess of the seven-year limit”.387 In the future further exceptions to the strict implementation of this limit may prove to be necessary in order not to unduly hamper the OPCW’s functioning.

§519. In nearly all international organizations there are temporary appointments in addition to the permanent appointments. These temporary appointments have the following advantages:388 (1) Easier dismissal. When officials are incompetent, when new authorities within the organization seek a new composition of their staff, or when new member states have been admitted to the organization from which staff members must be nominated, the organization may wish to release staff members. After a temporary contract has ended dismissal will follow automatically. The organization will take the necessary measures to keep the official longer only if he is specially required. (2) Better contact with the outside world. Officials in temporary employment return to their country after having acquired extensive knowledge of the organization. Many are employed in national governmental services, and they may more readily take the interests of international organization into account in national policy-making. Temporary international officials in higher office are often recruited from the national civil service. This also favours mutual contact. The official is aware of those at home most willing to listen to his problems. He will probably obtain a greater degree of cooperation from his national authorities than an outsider. Both the organization and the civil servant should prevent that loyalty obligations become an issue in the relationship between the civil servant and his national authorities.

386. See decision EC-M-22/DEC.1 of the Executive Council (28 March 2003) and decision C-SS2/DEC.1 of the Conference of the States Parties (30 April 2003). 387. Decision C-SS-2/DEC.1 of the Conference of the States Parties (30 April 2003), para. 1(b). 388. On the advantages and disadvantages of temporary appointments see also D.A. Kay, Secondment in the United Nations Secretariat: An Alternative View, 20 International Organization 63-75 (1966), and H. Reymond, The Staffing of the UN Secretariat, 21 International Organization 751-767 (1967).

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(3) Temporary appointments mean a more rapid turnover of personnel. This is an advantage for the equal geographical distribution of the staff, especially in senior positions. Moreover, a more rapid circulation of personnel prevents a secretariat from becoming rigid, and enhances its dynamics and initiative. (4) Some governments prefer appointments for a short period, fearing that otherwise civil servants might become too divorced from their own country. There are two entirely different reasons for this. On the one hand member states may wish to exert influence on the international administration. Their influence will be greater in the case of temporary appointments. The civil servant who has recently left his own country will be better informed of the national interests of his state and of the persons in the national administration with whom he can discuss them. On the other hand, national administrations may wish to be influenced by the international civil service. They will benefit from the schooling, knowledge and information which a civil servant receives in an international secretariat when he returns to his country. This argument is especially valid for the developing countries. (5) In some positions only temporary civil servants are useful, in particular for temporary and specialist functions. §520. Against the advantages of temporary appointments there are some important drawbacks. (1) There are fewer candidates. A qualified person will not usually give up a national career for a temporary position. It is often impossible to obtain leave of absence from an important post for a long period of time. Governments may send those who are less qualified.389 In practice there are three main groups from which temporary civil servants can be recruited: young people, those who have failed elsewhere, and the civil servants of national departments who can obtain a leave of absence. Those who have failed elsewhere are not wanted by an international organization; young people can be of use only in lower grades. For temporary appointments to high positions the international secretariats employ a substantial number of national civil servants who are granted leave of absence.

(2) Temporary personnel are less independent. Owing to the nature of their experience temporary officials will depend mainly on their national governments for a future career (see also below, §524-528). (3) The effort required for recruitment is considerably greater in the case of temporary personnel, unless the person in question is known for his specific expertise.390

389. R.S. Jordan, The Nato Staff/Secretariat 1952-57 (1967), at 116. 390. Reymond, op. cit. note 388, at 760.

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(4) New civil servants require some time to familiarize themselves with their functions. Short-term temporary appointments may lead to replacement shortly after such time as the civil servant has become fully productive. §521. The most important international secretariats considered the drawbacks of temporary personnel to be so great that they appointed only a minority of their staff on the basis of temporary contracts. The League of Nations even attempted to have permanent appointments only. The UN appointed temporary personnel for a maximum of five years.391 In 1966 about 30 percent of the UN staff was appointed on temporary contracts.392 Partly because of budgetary problems this situation has now changed in the UN and hardly any new permanent contracts are issued. Instead, extendable fixed-term contracts are now standard. In 2000, approximately 50% of the staff of the UN Secretariat was employed on the basis of a permanent contract.393 The specialized agencies394 and the European Union395 also employ a small number of temporary personnel in their staff. §522. Some organizations “borrow” officials from national civil services. Those officials are on leave from their national service, to which they return later. This can be done in one of two ways. (1) The civil servants are “on loan”, in which case they continue to be subject to the general terms and conditions of employment of the present employer, unless otherwise agreed. Only the administrative rules of the service and the supervision of the organization apply to them. (2) The civil servants are “on secondment”, which means that they are completely covered by the rules of the organization for the period of employment. But they retain the right to return to their national civil services. Borrowed personnel are less independent of national governments than other temporary staff (see below, §525-526). Moreover, problems arose in practice, for example when “seconded” agents wished to stay in the secretariat at the end of their term instead of returning home. The administrative tribunals of the ILO and of the UN have delivered numerous judgments on secondment. ILOAT has consistently condemned secondment, but UNAT generally did not dare to go so far on this sensitive issue. This case law of UNAT has even been referred to as “the saddest chapter of the history of international administrative jurisprudence”.396 The UN General Assembly,

391. 392. 393. 394. 395. 396.

Staff rule 104.12(b). UN Doc. A/6487, at 7. UN Doc. A/55/427, at 25 (also containing more specific figures). See e.g. WMO Staff Regulations, Art. 4.5 (Basic Documents, ed. 1991, at 114). Cf. OJ 1994, L 34/143. P. Pescatore, Two Tribunals and one Court, in N. Blokker and S. Muller (eds.), Towards more effective supervision by international organizations, Essays in Honour of Henry G. Schermers, Vol. 1 (1994), at 217-237.

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not surprisingly, has stated that secondment does not conflict with the Charter.397 In the Organization of Petroleum Exporting Countries all staff is appointed for a short period and in practice they are seconded from their national services. Staff members are appointed for a period of two years, with the possibility of two extensions of three years, i.e. a maximum of eight years. The short terms of office have been a handicap for the proper functioning of the secretariat.398 For the OPEC Secretary-General, see §440. The Secretariat of EFTA borrows, in principle, all professional higher level staff (P-3 to P-5) on secondment for terms of four to six years.399 In NATO, a considerable proportion of the civilian staff, and almost all military staff, is on secondment, normally for periods of three to six years.400 Originally, in ASEAN all staff members were on secondment from the members for a period of three years. The constitution of ASEAN expressly provided that during this period they shall not lose their seniority or promotional prospects in the home service.401 However, in 1992 the ASEAN Heads of Government agreed that the professional staff of the ASEAN Secretariat be appointed on the principle of open recruitment and based on a quota system.402

f.

Internships

§523. The League of Nations invited persons (calling them “Temporary Collaborators”) during the sessions of its general congress (Assembly) to study the structure of the League over some weeks. They were selected by the Information Section from all professions, but mainly from the media sector (journalists, authors). Their salary was sufficient to cover their travelling expenses and a part of their additional costs. The name “collaborator” was misleading as they did no work for the Secretariat. They could attend meetings, contact civil servants and experts, and attend special lectures organized for them. Between 1926 and 1938, 340 persons spent several weeks in Geneva under this scheme.403 Many international organizations have followed this example and created an opportunity for outsiders to become acquainted with the work of the secretariat.

397. GA Res. 45/239 (A II); see also the subsequent report by the Secretary-General, UN Doc. A/C.5/46/9. 398. Mikdashi, op. cit. note 247, at 98-99. Information obtained from the OPEC Secretariat (Sept. 1994). 399. J.S. Lambrinidis, The Structure, Function and Law of a Free Trade Area 58 (1965); information obtained from the EFTA Secretariat (September 1994). 400. Jordan, op. cit. note 389, at 115-116; NATO Handbook (1998), Chapter 10. Further information obtained from NATO (Sept. 1994). 401. ASEAN, Art. 4 (4). 402. Information obtained from the ASEAN Secretariat (October 1994). 403. Ranshofen Wertheimer, op. cit. note 245, at 342.

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The UN and the main specialized agencies offer training courses,404 most of which are designed for specialists. For students or those who have just graduated the UN Student Intern Programmes offer summer courses in New York and Geneva. The programmes include briefings by senior members of the UN Secretariat, panel discussions, the provision of selected documents and publications, and attendance at meetings of UN bodies in session during the period. In addition, participants in New York are assigned to work individually with UN staff members in various departments according to their respective fields of study; alternatively, they may carry forward work on relevant individual research projects begun at university. There are no fees for the Intern Programmes. Travelling and subsistence expenses are paid by the participants. Practical work in the European Union may be done for a period of three to six months by nationals of the member states, under 30 years of age, who have had at least three years of university training.

6.

Independence

§524. The independence of the international civil service, together with the principles of impartiality and loyalty to the organization, is fundamental for the functioning of international organizations. This principle of independence is not absolute, but functional. The independence of staff members must be protected in the performance of their official tasks.405 As stated by the ILO Administrative Tribunal in the Bustani case, “the independence of international civil servants is an essential guarantee, not only for the civil servants themselves, but also for the proper functioning of international organizations” (see below, §544). a.

Relation with the national governments

§525. As is the case with most other organs, secretariats can be composed of government delegates or individual experts (see above, §267-272). Before 1900, international secretariats consisted of government delegates. The “bureaux” of the technical organizations were under the supervision of one of the governments, which was entirely responsible, even if some staff came from other member states.406 The secretariats of the political conferences consisted of personnel of the member states’ delegations to those conferences. Modern international secretariats are usually composed of independent experts. An exception used to be the Central Office for International Carriage by Rail,

404. See UN Doc. UNITAR/BT/3. 405. See S. Tarassenko & R. Zacklin, Independence of International Civil Servants (Privileges and Immunities), in De Cooker (ed.), op. cit. note 279, at III.1/13; G. Grabowska, Independence of the international civil servants, 17 PYIL 61-73 (1988); P. Sands and P. Klein, Bowett’s Law of International Institutions (5th ed. 2001), at 309-314. 406. Langrod, op. cit. note 141, at 38.

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which until 1985 was under the auspices of one of the members (Switzerland).407 There are also examples of relationships between governments and international civil servants. In ASEAN, the Secretary-General was originally appointed for two years by the ASEAN Foreign Ministers upon nomination by a member state on a rotational basis in alphabetical order.408 In 1992 this link with the member states was abolished; the SecretaryGeneral is now “appointed by the Heads of Government on the basis of merit” for a period of five years.409 In the East African Common Market (now inactive), all posts in the Secretariat used to be distributed among the member states. There were “Uganda-posts”, “Tanzania-posts” and “Kenya-posts”. If a government failed to appoint someone to “its” post, others could not fill the vacancy. This carving-up of posts badly affected the functioning of the Secretariat.410 Eurocontrol started with a Secretariat composed of national civil servants but changed its rules after a short period in order to obtain a more independent Secretariat.411 NATO recruits part of its staff from national civil services, often on appointment by the member states.412

§526. An unofficial relationship may exist when international officials are temporarily appointed and expect to return subsequently to their national government service (see above, §521-522). Formally such officials are in the same position as others, but in practice they are less independent. Some states grant leave of absence to their civil servants who join the staff of an international organization. When leaving the organization these civil servants may return to their national departments; their years of service in the organization are added to their seniority privileges, any promotion to which they would have been entitled in the meantime is effected on their return, and they may be entitled to a national pension. This policy makes it easier for national officials to join international secretariats, but it prejudices their independence. In the League of Nations, employees from Germany, Italy and Japan enjoyed unlimited leave of absence, to which other member states objected, although in vain. It was even the case that national officials were sent to the League under pressure to support

407. International Convention concerning the Carriage of Goods by Rail, Art. 58 and Annex 2 (as in force until 1985). See Z. Mátyássy and G. Mutz, La Convention relative aux transports internationaux feeroviaires (COTIF) du 9 mai 1980, in 89 Bulletin des transports internationaux par chemins de fer No. 1/2 (1981), in particular at 9-10. 408. Art. 3 of the Agreement on the Establishment of the ASEAN Secretariat (1976). In 1985 the term of office was extended to three years. 409. Art. 3.1 of the 1992 Protocol Amending the Agreement on the Establishment of the ASEAN Secretariat. 410. A. Kiapi, Distributing the Gains From Integration in East Africa, 7 JWTL (1973), at 342-343. 411. See I. Seidl-Hohenveldern, Die Abstellung nationaler Beamter zu Internationalen Organisationen, in: Festschrift für Rudolf Kirchschläger 211-220 (1990), at 212. 412. Id.

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national political objectives. The German Under Secretary-General of the League was – justifiably – so distrusted that he was never permitted to see the most confidential documents.413 Needless to say, cooperation within the Secretariat was most unsatisfactory in those circumstances.

§527. When the officials of some nationalities are dependent on their governments while others are not the harmonious and homogeneous functioning of a secretariat is hampered; this is true as much for the European Commission as it is for the secretariat of other international organizations.414 In addition, the (sometimes erroneous) impression that some officials are dependent on their governments may encourage others to establish closer contacts with their own governments in order to offset this presumed disadvantage. The most striking example of discrepancy among civil servants in relations with their governments appeared in an Italian (fascist) law of 16 June 1927. While other international civil servants were independent from their governments, the Italian law required Italian nationals wishing to enter the service of an international organization to obtain the permission of the Ministry of Foreign Affairs, or of a competent diplomatic authority, and to abandon such service on the order of the government.415 Infringement was heavily punished: fines, imprisonment of up to one year, loss of the right to serve in public functions and of civil rights (rights of citizenship).416 The German Nazi regime never went this far, but de facto it exercised a similar influence on its nationals.417 The German and Italian Under Secretaries-General of the League of Nations considered themselves the direct chiefs of all German and Italian staff members respectively and exercised a special supervision over them.418 As they ignored the normal hierarchy their action was bound to lead to severe tensions within the Secretariat. At the conference establishing the UN, Yugoslavia proposed to require that the appointment of officials of the Secretariat should be made with the consent of the member government of which the candidate is a national. This proposal was defeated by a large majority.419 Between 1949 and 1954 in particular, the US Government exerted great influence on the secretariats of the organizations of the UN family to expel, or not to nominate, staff members who might have communist sympathies.420 The former Soviet Union has always seen its nationals in the UN Secretariat as its representatives, not independent civil servants. Moreover, it has been estimated that at least half of the Soviet nationals in the Secretariat were in fact KGB or GRU

413. Ranshofen Wertheimer, op. cit. note 245, at 343. 414. See H. Herzog, Doppelte Loyalität. Ein Problem für die zur Europäischen Gemeinschaft entsandten Beamten der Mitgliedstaaten (1975). 415. M.O. Hudson, The Permanent Court of International Justice 1920-1942, A treatise (1943), at 331. 416. J. Gascon y Marin, Les fonctionnaires internationaux, 41 RdC (1932 III), at 771. 417. Ranshofen Wertheimer, op. cit. note 245, at 246. 418. Id., at 57. 419. See Meron, op. cit. note 345, at 9-10; Lemoine, op. cit. note 135, at 111-112. 420. On the damage thus caused to Secretariat morale, see Hazzard, op. cit. note 267, at 14-69. See further Lemoine, op. cit. note 135, Chapter 7.

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(military intelligence) professionals. When in 1973 A. Shevchenko became Under Secretary-General, Gromyko instructed him as follows: “Never forget, Shevchenko, you’re a Soviet ambassador first, not an international bureaucrat”. Duties and rules governing Soviet nationals in the UN Secretariat were defined in detail in a special document, and the Soviet mission in New York maintained full control over the daily work of Soviet nationals in the Secretariat. In addition, each month Soviet employees had to hand over the money they earned at the UN to the USSR mission; they would then be paid their “salary” according to the scale established by the Soviet government (which could be less than half of the official UN salary).421

§528. States may not require staff members or advisors lent to international organizations to sign declarations under national state security acts.422 Some international officials work in a field in which they have access to confidential information. They are not entitled to pass such information on to unauthorized people.423 Confidence may nonetheless be betrayed if such officials enter into national governmental service immediately on retirement from their international position. Governments should not, therefore, offer them any governmental position in the same field. The officials themselves should refrain from accepting any such position.424 b.

Privileges425

§529. Like the organizations themselves (see below, §1606-1612), the delegations to their organs (see above, §323-326) and permanent missions of member states (see below, §1811), staff members should not fall completely within the legal order of the host, or any other, state. In order to enable them to carry out their functions independently, they require certain privileges and immunities. Such privileges and immunities have been laid down in numerous conventions, headquarters agreements and other instruments.426 Several questionnaires and two studies prepared by the UN Secretariat give an impression of the

421. See A.N. Shevchenko, Breaking with Moscow (1985), at 132, 218 and 221. See also Lemoine, op. cit. note 135, at 107-109. 422. UNJY 1973, at 166-167. 423. UN Staff Regulation 1.5. 424. The UNGA made this provision for the Secretary-General in Res. 11 (I). For the personnel of the EC see Staff Regulations of the EC, Art. 16. 425. For the definition used for privileges and for references to treaties, agreements and literature, see above, §323. 426. For example the Conventions on the Privileges and Immunities of the UN and of the Specialized Agencies (1 UNTS 15 and 33 UNTS 261) and the Protocol on Privileges and Immunities of the EC (Published in B. Rudden and D. Wyatt (eds.), Basic Community Laws 125 (2nd ed. 1986).

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practice followed by organizations of the UN family and by regional organizations.427 In the context of privileges and immunities, the notion “staff member” is wider than that of the statute of personnel. It also covers temporary staff which may fall outside the statute.428 Often, for example in the UN, it also includes those who are recruited locally, with the exception of local staff assigned to hourly rates.429 Furthermore, privileges and immunities are accorded to so-called experts on mission.430 In cases where in early international organizations privileges and immunities were given to staff of the organization, it was common to extend diplomatic privileges and immunities to them. However, it was soon recognized that the position of diplomats is fundamentally different from that of international civil servants.431 For example, diplomats have a sending state and usually work in a receiving state for a few years only. Staff members of an international organization are usually not sent by a state which they represent, and they may be employed by the organization for a long number of years. These and other differences are now generally recognized, as is reflected in many ways in the conventions, headquarters agreements and other instruments laying down privileges and immunities of staff of international organizations. At the same time however, some of these instruments give diplomatic privileges and immunities to the highest officials of the organization.432 And in practice host states do not always recognize the different status of diplomats and international civil servants.

427. The two studies prepared by the UN Secretariat are included in UN Documents A/CN.4/ L.118 and Add. 1 and 2 (1967), and A/CN.4/L.383 and Add. 1-3 (1985). These studies refer to most questionnaires. The questionnaire for regional organizations was sent in 1984; copies of the replies are included in UN Doc. ST/LEG/17 (1987). On privileges and immunities of the staff of the European Communities, see Rogalla, op. cit. note 282, at 48-52. 428. See GA Res. 3188 (XXVIII), YUN 1973, at 794; UNJY 1990, at 282. 429. GA Res. 76(I). See also UNJY 1990, at 306-307 and 309-310. 430. Section 22 of the UN Convention on Privileges and Immunities. An extensive interpretation of who is to be considered an expert on mission has been given by the ICJ in the Mazilu Case (Advisory Opinion, ICJ Rep. 1989, at 194; this interpretation has also been used in the 1999 Cumaraswamy Advisory Opinion, ICJ Rep. 1999, at 82-83). In practice, the status of expert on mission has been given to, inter alia, members of the ILC, the ACABQ and the Human Rights Committee. Experts on mission enjoy privileges and immunities during the whole period of the mission which they perform, whether or not they travel, and these privileges and immunities may be invoked also against the state of nationality or of residence of the expert. See also UNJY 1990, at 295-297 and 305-306. 431. See e.g. C. van Vollenhoven, Diplomatic prerogatives of non-diplomats, 19 AJIL 469-474 (1925). See, more recently, the Separate Opinion by Judge Weeramantry in the 1999 Advisory Opinion of the ICJ in the Cumaraswamy case, ICJ Reports 1999, at 92-98. 432. For example, Art. 18.2 of the OPCW headquarters agreement provides, inter alia, that “officials having the professional grade of P-5 and above […] shall be accorded the same privileges and immunities, exemptions and facilities as the Government accords to diplomatic agents of comparable rank of the diplomatic missions established in the Kingdom of the Netherlands, in conformity with the Vienna Convention”.

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The US once introduced additional criteria in its immigration laws for the issuance of G-4 visas to the immediate family of staff members. As of January 1991, close family members would, inter alia, have to be recognized as dependents by the sending government. The UN Secretariat indicated that the enforcement of requirements such as this one “eliminates any chance for staff members to enjoy the possibility of reuniting with close relatives”. It sent a Note to the Permanent Representative of the US to the UN indicating the differences between diplomats and UN staff members and concluding: “the requirements applicable to foreign government officials cannot all be applicable to United Nations staff members”.433

(i)

Exemption from taxation434

§530. There are at least three reasons for exempting the remuneration of civil servants from all national taxes. (a) Independence of international civil servants. This independence would be jeopardized if a government were able to impose an arbitrary tax on his salary.435 This danger is insignificant in a state which has fixed tax rates so that an objective statement is made on the overall flat rate of taxation. Exemption is usually unnecessary to protect the independence of international officials. A comprehensive regulation to prevent double taxation (by the civil servant’s own state and the host state) and judicial control over the application of tax laws would help to avoid practical difficulties. The independence is only endangered if, either in the host state or in the international official’s state of origin, there is no objective regulation for taxation.

(b) The principle of equality of states. According to generally valid rules of fiscal law, taxes would be imposed in the country where the international official lives and earns his salary. Other countries lack the actual power to collect the taxes. All civil servants of a secretariat would therefore pay taxes to the host state. The host state usually benefits greatly from having an international organization on its territory. (The secretariat and its officials spend money, as do governmental delegates who attend meetings.) It would be unjust, and contrary to the principle of equality of states, to permit the host state to receive a substantial amount of income in taxes, drawn from the common funds. (c) Equal treatment of staff. If, notwithstanding the rule mentioned under (b) above, staff members were to be taxed not by the host state but by the “sending” state, it is likely that staff of the same rank would be taxed differently.

433. See UNJY 1991, at 331-333. 434. See J.H. Christiaanse, De inkomstenbelastingvrijstelling voor de internationale ambtenaren (1960); S. Muller, International Organizations and their officials: To Tax or not to Tax?, 6 LJIL 47-72 (1993). 435. Cf. judgment no. 2032 of ILOAT (2001), para. 17: “[e]xemption from national taxes is an essential condition of employment in the international civil service and is an important guarantee of independence and objectivity”.

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As a result staff of the same rank might earn the same gross salary, but might end up with widely diverging net incomes. For example, Burkina Fasso enacted a law which stipulated, inter alia, that all employees of international organizations having its nationality must pay one twelfth of their annual salary and 20 percent of their indemnities as a special contribution in 1985. The UN Legal Office informed Burkina Fasso that application of this provision to UN staff members would violate Section 18(b) of the UN Convention on Privileges and Immunities.436 If this provision were to be applied to UN officials from Burkina Fasso, their colleagues of the same rank but of different nationality would earn more for the same job.

There are some disadvantages in exemption from taxation. In many international organizations these difficulties have led the organization to impose its own taxes (see below, §1070-1072). §531. The scope of the exemption from national taxes is more limited for staff members (apart from a few high rank officials) than for the organization itself. While the organization’s assets and property is usually exempt from tax, the exemption for staff is generally confined to “salaries and emoluments”.437 Within the UN family, there is no uniform interpretation of what should be considered as “salaries and emoluments”. For example, some states exempt from tax a pension paid to former employees, while others do not.438 Taxes which are not taxes on “salaries and emoluments” are generally permitted. For example, in the Netherlands and Luxembourg staff members of international organizations must pay real estate taxes on their private homes.439 May the tax free income of the official be taken into account when calculating the level of the tax on other sources of income? Taxation authorities in some states used to do so, not only because it was more favourable for them but also because they thought it fairer. Tariffs are based on the taxpayer’s capacity. International officials do not belong to the group of “needy” whose income must be subject to a low tax rate; they are able to pay the same tax for their additional income as any taxpayer with a similar salary would pay for his additional income. The EC Court decided differently in the Humblet case when it held that the Protocol on privileges and immunities of the Coal and Steel Community prohibited taking the

436. UNJY 1985, at 153-154. 437. Muller, op. cit. note 434. See for the rules and practice of regional organizations UN Doc. ST/LEG/17, at 222-228. 438. See The Practice of the United Nations, the Specialized Agencies and the International Atomic Energy Agency concerning their Status, Privileges and Immunities: Supplementary Study prepared by the Secretariat, UN Doc. A/CN.4/L.383 Add.2, at 37, which includes more examples of different interpretations of “salaries and emoluments”. 439. Muller, op. cit. note 434. See for the practice of regional organizations UN Doc. ST/LEG/17, at 242-249.

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tax free income of the international official into account when the tax rate is determined.440 The Secretariat of the UN takes the same position.441 However, in some recent headquarters agreements (UK/European Bank for Reconstruction and Development, Japan/International Tropical Timber Organization) the host state has been authorized to take exempted salaries and emoluments into account when assessing the tax for income from other sources.442

§532. Problems may arise when international civil servants perform their functions outside the territory of the member states. Before British entry into the European Atomic Energy Community (Euratom) some Euratom officials were seconded to work on a project within the United Kingdom. A dispute arose concerning their liability to UK income tax. In arbitration it was held that the officials were not exempt from UK tax under the relevant international agreements, but that they could claim reimbursement from the Community under their conditions of service. Under the terms of the agreement governing the project for which the officials were in the UK the Community could in turn claim reimbursement from the UK authorities.443 The net result, therefore, was the same as if no taxes had been paid. (ii) Other privileges §533. In addition to exemption from taxation international officials enjoy certain other privileges, necessary for the independent execution of their function in a state, which, in most cases, is a foreign state. They may freely enter the territory of the seat of the organization444 and may freely import and export their furniture when they take up and leave their post; they and their family are exempted from immigration restrictions and from military service.445

440. Case 6/60, Humblet, ECR 1960, at 559-593. In the subsequent Van Leeuwen case the EC Court restricted this interpretation to general taxes. It decided that for the amount of the level of a retribution (school fee) the level of the salary could be taken into account (Case 32/67 ECR 1968, at 43-53). See for further references to case law of the EC Court: Muller, op. cit. note 434. See also UNJY 1966, at 10. 441. UNJY 1969, at 226-228; also at 239-240 (Netherlands’ Van Vloten Case) and UNJY 1972, at 193-194, 208-209; UNJY 1973, at 168-169; UNJY 1983, at 216. 442. Muller, op. cit. note 434. 443. Commission of Euratom v. UK Atomic Energy Authority, Hambro sole Arbitrator, 25 Feb. 1967, 44 ILR 409 (1972). 444. See L.Kr. Tobiassen, The Reluctant Door: The Right of Access to the United Nations, (1969), on the problems involved. See also UNJY 1985, at 152-153. 445. For an enumeration of these other privileges, consult the texts of the conventions on the privileges and immunities. Convention on the Privileges and Immunities of the UN, Art. 5; Convention on the Privileges and Immunities of the Specialized Agencies, Art. 6; General Agreement on Privileges and Immunities, Council of Europe, Arts. 16-19; Protocol of 8 April 1965 on the Privileges and Immunities of the EC, Arts. 12-16; Agreement on Privileges and Immunities of the OAS, 15 May 1949, Arts. 10-12. See for examples from UN practice: UNJY 1980, at 203-204; UNJY 1981, at 162-164; UNJY 1986, at 322; UNJY 1987, at 210-213; UNJY 1990, at 310. See for the practice of the specialized agencies and IAEA: UN Doc. A/CN.4/L.383 and Add. 1-3, at 203-205. See for the practice of regional organiza-

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In the case of some countries it is important that the international officials have the same rights as diplomats in the exchange of currencies and in repatriation (in times of political tensions). c.

Immunity from jurisdiction

(i)

Immunity for official acts

§534. The independence of an international official would be prejudiced if a government were able to prosecute him for his work for the international organization - for example, for drafting a report which a government considers insulting. The activities of the official cannot be allowed to be influenced by fear of prosecution in the country concerned. Each international official needs immunity from prosecution for his official functions. He is afforded such immunity in most international organizations.446 It may not always be clear whether certain activities are carried out by officials as part of their official acts. In cases of doubt, it is for the organization – usually for the Secretary-General - to decide whether the activities concerned are official acts.447 This was one of the main issues in the 1999 Advisory Opinion of the International Court of Justice in the Cumaraswamy case.448 Cumaraswamy, a Malaysian jurist, was the Special Rapporteur on the Independence of Judges and Lawyers of the UN Commission on Human Rights. In 1995 he gave an interview to a magazine in which he commented on certain litigations that had been carried out in Malaysian courts. Some companies asserted that the article based on this interview contained defamatory language and therefore filed suits for damages against Cumaraswamy in Malaysian courts. As a Special Rapporteur, Cumaraswamy had the status of ‘expert on mission’ under the

tions UN Doc. ST/LEG/17, at 250-281. See also on EC practice: H. Henrichs, Die Vorrechte und Befreiungen der Beamten der Europäischen Gemeinschaften, in 22 Europarecht (1987), at 82-88. 446. An exception is Benelux. Apart from the Secretary-General, staff members of this organization do not have any privileges or immunities. See J. Karelle & F. de Kemmeter, Le Benelux Commenté 159 (1961). See for specific examples where immunity from legal process was at stake: UNJY 1977, at 246-248 and 257-260; UNJY 1978, at 191-192; UNJY 1983, at 214-215; UNJY 1984, at 186-187; UNJY 1986, at 330-331. See also UN Doc. A/CN.4/L.383, at 170-172. See for the practice of regional organizations: UN Doc. ST/LEG/17, at 208-221. See on EC practice Henrichs, op. cit. note 445, at 78-82. On the notion of official act, see J. Salmon, Immunités et actes de la fonction, 38 AFDI 1992, at 314-357. Cf. also W. Lubin, Towards the International Responsibility of the United Nations in Human Rights Violations During “PeaceKeeping” Operations: The Case of Somalia, The Review (publication by the International Commission of Jurists) No. 52 (1994). 447. E.g. within the UN, as a general rule, travel between home and office is not in itself considered to be an official act within the meaning of Article V, Section 18 of the 1946 Convention on the Privileges and Immunities of the UN; there may be exceptions to this general rule. See UNJY 1992, at 481-483. 448. Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion of 29 April 1999, ICJ Rep. 1999, at 62.

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1946 Convention on the Privileges and Immunities of the UN, and enjoyed immunity from legal process “in respect of words spoken or written and acts done by them in the course of the performance of their mission”.449 On several occasions, the UN Secretary-General informed the Malaysian authorities that the interview given by Cumaraswamy had been part of his official activities. However, court proceedings in Malaysia continued and a difference evolved between the UN and Malaysia, which finally resulted in the request for an advisory opinion from the ICJ. The ICJ inter alia observed: “[i]n the process of determining whether a particular expert on mission is entitled, in the prevailing circumstances, to the immunity provided for in Section 22 (b), the Secretary-General of the United Nations has a pivotal role to play. The SecretaryGeneral, as the chief administrative officer of the organization, has the authority and the responsibility to exercise the necessary protection where required”.450 The Court concluded “that the Secretary-General correctly found that Mr. Cumaraswamy […] was acting in the course of the performance of his mission as Special Rapporteur of the Commission”.451 The Court did not qualify such a finding by the Secretary-General as a binding decision for the member state concerned; it stated that such finding “creates a presumption which can only be set aside for the most compelling reasons and is thus to be given the greatest weight by national courts”.452

In 1980, concerned by reports alleging that privileges and immunities of officials of the UN and the specialized agencies had not been respected, the UN General Assembly requested the Secretary-General to submit a report on such cases.453 Since 1981 the Secretary-General has submitted such reports annually.454 (ii)

Immunity for other acts

§535. If an international official could be prosecuted for private acts, the host country would hold special powers over him. In the first place it might interpret the concept of private acts broader than the official himself or his organization. In this way the state might influence some semi-official activities. In the second place, it may harass an official who displeases it by arresting him for some alleged offence or other. In order to avoid such risks, the heads

449. 450. 451. 452.

Section 22 (b) of Art. VI of this convention. Para. 50 of the Advisory Opinion. Para. 56 of the Advisory Opinion. Para. 61 of the Advisory Opinion. See on this issue also the separate opinion by VicePresident Weeramantry, ICJ Rep. 1999, at 92-98. At 95: “If domestic courts can make their rulings without regard to the opinion of the Secretary-General, the lack of uniformity among these rulings, and the different principles and standards thereby applied in different countries would impede both the fairness of international administration and the evolution of a uniform system of international administrative law”. 453. GA Res. 35/212. 454. See for example UN Documents A/C.5/46/4, A/C.5/52/2, A/53/501 and A/55/494. These reports contain lists of staff members under arrest and detention or missing. Many of the cases relate to locally recruited staff members of the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).

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of secretariats have usually been granted the same immunity as that bestowed on the diplomatic service. Secretaries-General enjoy complete immunity for non-official, as well as for official acts. Immunity for non-official acts is generally open to objection and contrary to the functionality principle, which underlies all international immunities. It may be acceptable for diplomats to protect them against illegal pressure from the receiving states in cases where relations are extremely strained. But in the case of international organizations it is hardly conceivable that the host state will try to exert pressure on staff members by illegally prosecuting them for alleged crimes. When relations sink to this level it would be better for the organization to move shop. There is yet another reason why an absolute immunity of international officials is more objectionable than immunity of diplomats: diplomats are liable to be recalled by the sending government and punished at home. The receiving state could even request such punishment. International civil servants cannot be punished anywhere else for illegal acts. For the above reasons immunity for non-official acts is usually not granted to the vast majority of international civil servants.455 The case of IMF staff member Hong Yang illustrates which difficulties may arise from the absence of immunity for non-official acts.456 In March 1995 Mr. Hong (a Chinese national) became staff member of the IMF. He was nominated as a candidate for the post by the Chinese authorities. Within the IMF Hong worked in the Central Asia Department and participated in a consultation mission to China in December 1995. The Chinese authorities had asked the Fund to put Hong on this mission. During the second week of the consultation discussions Hong was arrested and charged for having taken a bribe early 1993. On 28 June 1996, the Beijing Court found Hong guilty of taking a bribe of Y100.000 (about US$ 12,000) in 1993 and sentenced him to eleven years imprisonment. On appeal, the Beijing Superior Peoples’ Court upheld the verdict of the lower Court on August 23, 1996, but the sentence was reduced from eleven to five years. The reduction was decided because of ‘special circumstances’ in Hong’s case. The Chinese authorities asserted that Hong enjoyed no immunity from the charges made against him since they related to events that occurred before he joined the Fund and not to his duties as a Fund employee. They regarded the case as a domestic matter to be handled strictly according to the applicable Chinese laws. Although indeed customary international law and an interpretation of the relevant IMF rules do not provide for an immunity from personal arrest and detention for nonofficial acts which took place before the staff member concerned was employed by the organization, at the same time there is a general obligation for member states of an international organization to cooperate with the latter. It follows from this obligation

455. For an example within the UN, see UNJY 1956, at 207-208. See further K. Ahluwalia, The Legal Status, Privileges and Immunitites of the Specialized Agencies of the United Nations and Certain Other International Organizations (1964), in particular at 112-113. 456. The description of the Hong case is taken from N.M. Blokker and H.G. Schermers, Mission impossible? On the immunities of staff members of international organizations on mission, in G. Hafner et al. (eds.), Liber Amicorum Professor Seidl-Hohenveldern – in honour of his 80th birthday (1998), at 37-54.

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that member states should not interfere with staff members on mission without consulting the organization. In this case China should have discussed Hong’s case with the IMF instead of acting unilaterally. By not informing the IMF of the charges against Hong, China allowed the IMF to include Hong in the consultation mission even though, subsequently, Hong could no longer function as a mission member. By acting in this way, China violated its obligations under the general law of international organizations.

(iii)

Waiver of immunity

§536. Immunity is given to protect international officials from prosecution but it does not exempt them from local law. Apart from their legal relationship with the organization, international officials are bound to the rules regulating society in the same way as all other citizens. The impossibility of bringing them before a national court may impede the application of the law and should therefore be restricted as much as possible. Immunity should be invoked only when the interests of the organization so require. If an international civil servant violates the law by an act for which he enjoys immunity, the state in question may ask for a waiver of immunity. This will often be granted. In 1995 the European Commission lifted the immunity of the head of its tourism unit and two other officials who were suspected of having received bribes. The procedure for lifting their immunity was begun by Belgium’s public prosecutor. Advice was given by the Commission’s legal services, and a final decision was taken by the College of Commissioners.457 Another example is the waiver of the immunity of former Commissioner Edith Cresson in 2000 in order to allow the Belgian judicial authorities to conduct an investigation into accusations that Cresson had committed fraud.458

It is in the interest of the secretariat that violations of local laws be adjudicated whenever this would not prejudice the functioning of the organization. Nevertheless it also happens that international organizations refuse to waive immunity even in obvious cases of traffic violations. Only after waiver of the immunity can the international official be prosecuted. Usually the SecretaryGeneral can waive the immunity of the staff. When an act of the SecretaryGeneral is at stake the general congress may waive the immunity, or the board of the organization. International officials may not themselves waive their own immunity.459 Waiver of immunity for traffic offences is of interest not only for a proper administration of justice, but also for third parties who may have suffered injury in traffic acci-

457. See Europe, 2 March 1995, at 8. See also Europe, 6 January 1996, at 11; Europe, 14 November 1997, at 14. 458. See NRC Handelsblad, 15 February 2000. 459. See UNJY 1975, at 191, and UNJY 1976, at 236-239. See in general for the relevant practice of the UN family UN Doc. A/CN.4/L.383 and Add. 1-3, at 177-179 and 205-206; for the practice of regional organizations, see UN Doc. ST/LEG/17, at 315-338. See on EC practice Henrichs, op. cit. note 445, at 88-91.

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dents. Many international organizations require their staff to be insured against third party liability,460 but some insurance companies only pay when their clients have been found guilty before a court.461 In 1946 in Westchester County on Complaint of Donnely v. Ranollo,462 the UN did not waive the immunity of the chauffeur of the Secretary-General charged for exceeding the legal speed limit. The US Court considered that the principle of immunity in such a case “would in effect create a large preferred class within our borders who would be immune to punishment on identical facts for which the average American would be subject to punishment. Any such theory does violence to and is repugnant to the American sense of fairness and justice and flouts the very basic principle of the UN itself”. Notwithstanding the absence of a waiver the court did not recognize the immunity. However misguided this judgment may be, it shows how unpopular is immunity for traffic violations is.463

§537. The UN refuses to make a general waiver for traffic violations.464 In some other organizations these violations may be excluded from the immunity.465 7.

The safety of personnel

§538. In 1994 the UN General Assembly adopted the Convention on the Safety of United Nations and Associated Personnel, mainly as a consequence of the increasing number of UN peace-keeping operations, the more active role played by these UN forces (see below, §1495-1512), and the resulting more vulnerable position of the personnel involved. Pursuant to this convention, the parties have a duty to ensure the safety and security of UN personnel (Article 7), and a duty to release or return personnel captured or detained (Article 8). A number of crimes against UN personnel are specified and must be made crimes

460. See e.g. GA Res. 22 (I) E of 13 February 1946. 461. See H.G. Schermers, L’immunité devant le droit pénal, en particulier en ce qui concerne les infractions aux règles de la circulation, in: Le droit pénal international, Receuil d’Etudes en Hommage à J.M. van Bemmelen (1965), at 185. 462. ILR 168-171 (1946); 67 NYS 2d.31. 463. See on this case C. Wilfred Jenks, International Immunities 119 (1961), and K. Ahluwalia, The Legal Status, Privileges and Immunities of the Specialized Agencies of the UN and certain other International Organizations, 110-111 (1961). For another example of that unpopularity, see UNJY 1966, at 263-264. 464. See UNJY 1974, at 144-145; UNJY 1992, at 481-483. 465. See e.g. African Development Fund (Trb. 1973, 51), Art. 58. In most headquarters agreements, concluded between the Netherlands and international organizations, immunity is not extended to motor traffic offences and to civil actions by a third party for damage arising from an accident by a motor vehicle. See for example the Agreement between the Netherlands and the Common Fund for Commodities concerning the Headquarters of the Fund (Trb. 1992, 8), Art. 15.1 (c); Agreement between the Netherlands and the International Nickel Study Group (Trb. 1991, 96), Art. 12.1 (a); Agreement between The Netherlands and the International Tea Promotion Association concerning the headquarters of the Association (Trb. 1980, 49), Art. 12.1 (b).

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by the state parties under their national laws (Article 9); alleged offenders must be prosecuted or extradited (Articles 13-15).466 8.

Legal position

a.

Law governing the service467

§539. There is no national legal system regulating the relationship between the official and the organization. Originally the contract of service was the only set of rules. This contract cannot provide solutions for all problems and is not always sufficient basis for a function of public law. The League of Nations soon drafted “Staff Regulations” including more detailed rules for its officials. Today each international organization has its own legislation for its personnel, embodied in a statute or in staff regulations, sometimes in other decisions of the organization.468 This legislation is binding on all new officials of the organization and includes a fairly extensive regulation of their legal position. A headquarters agreement between the Government of Senegal and the UN concerning a UN subsidiary body located in Dakar contained a provision according to which locally recruited personnel “shall be subject to the rules of the United Nations […] to the extent that these rules do not conflict with the Labour Code of Senegal, which shall continue to apply to such personnel”.469 This is an exceptional provision. The terms of appointment of UN staff (including locally recruited personnel if not assigned to hourly rates) are normally governed by UN rules. When the fixed term contracts of a number of locally recruited staff members were not extended these staff members appealed against that decision and relied on rules in the Labour Code of Senegal, referring to the above mentioned provision in the headquarters agreement. The UN Joint Appeals Board unanimously found that the UN was bound by this provision and recommended

466. UN Doc. A/49/22; GA Res. 49/59. On this convention, see C. Emanuelli, La convention sur la sécurité du personnel des Nations Unies et du personnel associé: des rayons et des ombres, RGDIP (1995), at 849-880; M.-C. Bourloyannis-Vrailas, The Convention on the Safety of United Nations and Associated Personnel, 44 ICLQ (1995), at 560-590. Cf. also UN Doc. A/55/637 (proposal by the UN Secretary-General to prepare a protocol to extend the application of this convention to all UN operations and associated personnel and humanitarian personnel not presently covered); UN Doc. A/57/300. 467. C. Wilfred Jenks, The Proper Law of International Organizations 64 (1962); M.B. Akehurst, Unilateral Amendment of Condition of Employment in International Organizations, 40 BYIL 1964, at 286-335; id., The Law governing employment in International Organizations (1967) (the latter work to be quoted as “Akehurst”); F. Morgenstern, The Law applicable to International Officials, 18 ICLQ 739-756 (1969); C.F. Amerasinghe, Principles of the Institutional Law of International Organizations (1996), at 323-367. On the law applicable when a function had ended, see J. Salmon, La “Beneficiary Form”, 7 AFDI 524-535 (1961). 468. See e.g. Staff Regulations UN; Staff Regulations WHO (reproduced in WHO Basic Documents); Staff Regulations WMO (reproduced in WMO Basic Documents); Staff Regulations of the European Communities (OJ 1973, C 12). See in general Amerasinghe, op. cit. note 467, at 340-343. 469. UNJY 1992, at 455-458 (emphasis added).

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reinstatement of the staff members in question. Subsequently the UN Department of Administration and Management requested the opinion of the UN Office of Legal Affairs. This Office disagreed with the report of the Appeals Board and concluded that this Board “exceeded its authority in directly applying the Labour Code of Senegal, to justify the Appellant’s claim”. The Board must apply the relevant UN rules and “could not take cognizance of Article 35 of the Labour Code of Senegal and base its recommendations upon it”.470 While this may be the correct point of view from an internal UN perspective, it may also amount to a violation of the headquarters agreement by the UN for which it is responsible towards Senegal.

The staff regulations and the letter of appointment, however, do not comprise a complete legal system. In practice there is a third source of law concerning the international official: the general principles of law.471 These include the general principles of administrative law applied in the member states and in the case law of international tribunals. From the whole set of staff regulations, labour contracts and general principles of law the legal position of the international civil servant will usually be clearly defined. A conflict between these sources of law will not be easily apparent. The general principles of law yield to the written sources.472 In his contract the official submits himself to the statute and the staff regulations. Difficulties may arise if a contract pre-dates the staff regulations. In general it is assumed that the contract prevails in that case. Staff regulations which have been drafted subsequently cannot affect rights already acquired.473 In special cases it may be necessary to modify the law governing international officials without regard to acquired rights. In 1939 the League of Nations dismissed a number of officials by emergency decisions. This possibility of dismissal was not foreseen in the contracts which dated from before 1931. Most civil servants accepted these emergency decisions; fourteen of them did not. The question was submitted to the Assembly of the League, which concluded that the League had sovereign powers over its officials including the power to derogate from the contract,474 a conclusion which subsequently met with a considerable amount of criticism.

470. 471. 472. 473.

Id. See Akehurst, op. cit. note 467, at 72-93. Id., at 80. Staff Regulations of the UN, Art. 12.1; H.W. Baade, The Acquired Rights of International Public Service, 15 AJCL (1966-67), at 251-300; M. Schröder, Die “wohlerworbenen Rechte” der Bediensteten in der Rechtssprechung des Gerichtshofes der Europaischen Gemeinschaften (1969). This has been confirmed in numerous judgments of Administrative Tribunals; see for references UNJY 1986, at 298-299. Cf. also UNJY 1977, at 201-212 and 205-207. See also C. Apprill, La notion de “droits acquis” dans le droit de la fonction publique internationale, 87 RGDIP 315-358 (1983); A. Grisel, Les droits acquis des fonctionnaires internationaux, in: Im dienst an der Gemeinschaft, Liber Amicorum Schindler 61-74 (1989); C.F. Amerasinghe, Supervision by Administrative Tribunals of Legislative Acts of International Organizations in Relations with their Staff, in Blokker and Muller (eds.), op. cit. note 396, at 239-254 (1994). 474. League of Nations, Official Journal, Special Suppl. No. 194, at 262. See also Jenks, op. cit. note 467, at 65-66.

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§540. In modern law concerning international officials “statutory” provisions are distinguished from “contractual” ones. The former regulate the service in general and may be altered by the organization unilaterally. The latter concern the civil servants individually (such as the provisions on salary and rank) and may be altered only by mutual agreement.475 The law governing international officials does not substantially differ from one international organization to the other. The League of Nations, the ILO and the UN have been examples for the other international organizations and hence have had a harmonizing influence. The differences which exist may be found not only in the written rules but also in the general principles of law complementing these rules, which may vary in different regions. Some rules of law have developed within international organizations, such as the right to establish trade unions. This right is not accepted in all national civil services. The right to create a committee of the personnel was recognized in the League of Nations and has since become a vested right in all international organizations.476 Trade unions, based on voluntary participation, and of a more political nature than committees of the personnel, have gradually been accepted in more recent times.477 §541. Another right not enjoyed by all national civil servants is the right to strike. Originally international civil servants were not entitled to do so. Influenced by staff members from countries where civil servants may strike, and by a growing conviction that the right to strike is a basic human right, it has gradually been recognized as legitimate for the civil servants of most international organizations.478 In 1962 the staff of the ILO went on strike for half a day. The staff of UNESCO followed suit in the same year; and in 1964 the civil servants of the European Communities and of the OECD went on strike. Strikes of international civil servants have since become

475. Kaplan Case, UNAT Judgment No. 19, at 71-75; Jenks, op. cit. note 467, at 67; Baade contests the correctness of the distinction, op. cit. note 473, at 298-299. 476. Plantey, op. cit. note 282, at 139-140. On the right of association of international civil servants, see Y. Beigbeder, La représentation des personnel à l’Organisation Mondiale de la Santé (1975); Pellet and Ruzié, op. cit. note 282, at 58-62. 477. For a survey, see YUN 1973, at 171-174. See also UNJY 1978, at 192-195; UNJY 1987, at 191-193. See in general I. Seidl-Hohenveldern, Activities of Staff Unions in International Organizations, in E.Yakpo & T. Boumedra (eds.), Liber Amicorum Mohammed Bedjaoui 603-614 (1999). 478. See A. Pellet, La grève des fonctionnaires internationaux, 79 RGDIP 932-971 (1975). See also Ruzié, op. cit. note 282, at 59-60; G. Vandersanden, Le droit de grève des fonctionnaires communautaires, 14 RMC 465-475 (1971); Y. Beigbeder, La grève dans les institutions des Nations Unies, 11 RBDI 120-128 (1975); Court of Justice of the EC, Cases 44, 46, 49/74, ECR 1975, at 383; GA Res. 31/193 BII; Plantey, op. cit. note 282, at 150-156; Rogalla, op. cit. note 282, at 238-243; I Seidl-Hohenveldern, La grève dans le droit des organisations internationales, notamment dans celui d’Eurocontrol, in P.B. Casella (ed.), Dimensão internacional do direito – Estudos em Homenagem a G.E. do Nascimento e Silva (2000), at 435-452.

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quite a common phenomenon. Almost 87 percent of the staff of the OECD participated in the first two strikes organized by its staff association.479

b.

Legal protection

§542. Even if the legal position of the civil servant is well regulated, conflicts within the staff will arise in every organization. In such a case administrative appeal to the next senior head of the service is usually possible. But such an appeal is not always satisfactory, as the senior officer himself may be too closely involved in the dispute. It would be detrimental for the official concerned, as well as for the organization, not to resolve a conflict. When civil servants feel that they have been, or are likely to be, treated unjustly, working conditions will suffer. Within each international secretariat organs have been created to defend the interests of the civil servants.480 There are, in the first place, staff committees composed of staff representatives. They safeguard all interests of the staff in general. The Staff Association of the UN is consulted on matters of internal administrative policy.481 The Staff Committee of each EU institution serves the interests of the staff of the institution and maintains continuous contact with it. It contributes to the proper functioning of the service by hearing and advancing the opinion of the staff.482 It is elected for a period of two years by a secret vote of an assembly of the civil servants of the institution.483

§543. As a rule there are other organs for the solution of conflicts, such as the Joint Appeals Board of the UN, the Appeals Board in UNESCO, the Joint Committee in the ILO,484 and the joint committees in the EU.485 These are composed of representatives of the Secretary-General and the staff. All above-mentioned organs have an advisory task. Since the SecretaryGeneral is responsible for the secretariat he must have the power to take the final decisions. But it would be unsatisfactory to leave all final decisions with the Secretary-General, even when a conflict on the rights of an official is involved. In conflicts with the organization the official requires – and will accept only – an impartial decision, in particular from a judicial organ. However, owing to the immunity from legal process enjoyed by most international organizations, the courts of the member states (in particular the host state of

479. H.J. Hahn and A. Weber, Die OECD Organisation für wirtschaftliche Zusammenarheit und Entwicklung 153 (1976). 480. See C. de Cooker, Pre-Litigation Procedures in International Organizations, in De Cooker (ed.), op. cit. note 279, at V.6/1-21. 481. Akehurst, op. cit. note 467, at 11. 482. Staff Regulations, Art. 9, para. 3 (OJ 1972, C 100). Cf. Rogalla, op. cit. note 282, at 232 ff. 483. Id., Annex 11, Art. 1. 484. Akehurst, op. cit. note 467, at 11-12. 485. Staff Regulations, Annex II, Art. 2 (OJ 1972, C 100).

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the organization) usually cannot meet this need (it has nevertheless been tried, but in most cases unsuccessfully).486 The League of Nations permitted an appeal to the Council by officials in the event of their dismissal after appointment for five years or more.487 But the Council as a political body was not equipped to solve conflicts on the law governing officials. For final resolution of that appeal it deferred to a committee of jurists.488 §544. The League of Nations created a judicial organ to resolve conflicts between the organization and its staff. Many international organizations have followed suit (see below, judicial organs, especially §602, 642-647). In the European Union, the Court of Justice has jurisdiction over staff cases.489 In 1988 it was decided to create a Court of First Instance, which started to function in 1989; one of its tasks is to deal with staff cases at first instance. Under Article 49 of its Statute, appeals may be brought from the Court of First Instance to the Court of Justice. Such appeals may deal with points of law only.490 It appears from an early comparative study by Schechter491 that three important administrative tribunals (those of the ILO and the UN and the EC Court) in general provide effective protection for the interests of international officials. When the annulment of a decision found to be wrong might give rise to practical difficulties, a sum is determined to be paid as compensation for the injury. The execution of decisions of administrative tribunals may give rise to problems.492 In the Mayras and Zoppino cases the plaintiffs had succeeded in their actions for indemnity payment. The League of Nations Tribunal had held that the dismissal should be effected according to the Staff Regulations in force at the time of appointment. The 1939 amendment, reducing the indemnity for dismissal from one year’s to three months’

486. UNJY 1980, at 224-242 (Broadbent et al. v. OAS, in which the UN has appeared as amicus curiae); UNJY 1981, at 177-178 (Tuck v. Pan American Health Organization). See also below, §544A. See further A. Reinisch, International Organizations Before National Courts (2000), in particular at 206-211 and 267-313. 487. Assembly Res. of 17 December 1920. Acts of the first Assembly, Plenary sessions, at 663664; Akehurst, op. cit. note 467, at 13. 488. Akehurst, op. cit. note 467, at 13. 489. Art. 179 EC. 490. See D. O’Keeffe, The Court of First Instance of the European Communities, in De Cooker, op. cit. note 279, at V.5/1-20. Until the creation of the Court of First Instance, staff cases represented 16% of the total number of cases brought before the Court of Justice. Indeed, one of the main reasons for creating the First Instance Court was the burden of staff cases on the Court’s workload (another main reason being “the incongruity of entrusting staff cases at first instance to what was clearly developing as a European constitutional court”; id., at V.5/2). See also Rogalla, op. cit. note 282, in particular at 209-227. 491. A.H. Schechter, Interpretation of ambiguous documents by international administrative tribunals (1964). 492. Cf. Amerasinghe, op. cit. note 467, at 464-465.

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salary, should not be applied since the original Staff Regulation did not permit such amendments. The Assembly of the League of Nations overruled the decision of the Tribunal in 1946. It considered that the Tribunal had not been entitled to question the validity of amendments in the Staff Regulation made by the Assembly, a legislative organ of superior power. Payment was refused.493 Under the Statute of the Administrative Tribunal of the UN the International Court of Justice, however, came to the opposite conclusion. It was of the opinion that the General Assembly of the UN had no right to refuse to give effect to an award of compensation made by the Administrative Tribunal in favour of a staff member.494 In nomination procedures problems may arise when, at the instance of an applicant for a post, the appointment of someone else is annulled. The EC Court in particular has done this repeatedly.495 The nomination procedure should then be held again. If this leads to the nomination of the claimant, then the organization in practice finds some other post for the person who had been illegally nominated. Basic rights of international civil servants, such as the right that normally salaries are not diminished,496 and the right not to be dismissed without good cause,497 are usually well protected.

An important and hotly debated judgment of the ILO Administrative Tribunal (ILOAT) in which it unquestionably demonstrated its independence is its July 2003 judgment in the Bustani case.498 This exceptional case of the dismissal of the Director-General of the Organization for the Prohibition of Chemical Weapons (OPCW) has been mentioned above (§492). In particular the US called upon Bustani to resign. He refused and was dismissed in the end through a decision by the general congress of the organization. Bustani challenged his dismissal before ILOAT. The Tribunal decided in his favour. It concluded that the dismissal violated the terms of Bustani’s contract of employment and contravened general principles of the law of the international civil service. Before the Tribunal the OPCW contested that ILOAT had jurisdiction in this case: the Director-General was not subject to the relevant staff regulations and rules, and his letter of appointment did not designate the Tribunal as the competent organ to deal with disputes. In addition, the decision to dismiss Bustani was a political decision, not an administrative decision for which the Tribunal would have been competent. However, ILOAT ruled that it had jurisdiction. On the basis of an analysis of the relevant

493. Akehurst, op. cit. note 467, at 210-214. 494. Effect of Awards of compensation made by the UNAT, Advisory Opinion, ICJ Rep. 1954, at 62. 495. See e.g. Cases 29/74, De Dapper, and 77/74, Küster, ECR 1975, at 35 and 949. 496. See EC Court in Case 81/72, Commission v. Council, ECR 1973, at 575. But see also ILOAT opinion of 16 May 1978, regarding a possible decision of the Governing Body to moderate staff salaries unilaterally, without prior consultations with the staff union. Cf. UNJY 1977, at 201-212. 497. See e.g. ILO Administrative Tribunal, Case 195 (AFDI 1972, at 376), and Case 260 (AFDI 1975, at 443) and the problems in ILO when the US had withdrawn, ILO Documents GB 201/PFA/4/17, §35-37 and GB 205/PFA/6/5. 498. ILOAT judgment no. 2232, 16 July 2003. Available from www. ilo.org/public/english/tribunal.

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rules of the OPCW it concluded that Bustani was an official within the meaning of the Tribunal’s Statute, and a staff member for the purposes of the organization’s submission to the Tribunal’s jurisdiction. Furthermore ILOAT ruled that “a decision terminating the appointment of an international civil servant prior to the expiry of his/her term of office is an administrative decision, even if it is based on political considerations”.499 On substance the Tribunal concluded that the dismissal of Bustani “violated the terms of his contract of employment and contravened the general principles of the law of the international civil service”.500 The Tribunal referred in particular to the principle of due process and to the independence of international civil servants as an essential guarantee, not only for the civil servants themselves, but also for the proper functioning of international organizations. It set aside the 2002 dismissal decision of the OPCW and awarded substantial material and moral damages.

§544A. However, not all international organizations have created judicial organs to deal with conflicts of staff with the organization. In such cases, do staff members consequently not have a legal remedy? Or can they bring their complaint before national courts notwithstanding the organization’s immunity from jurisdiction? There is no general answer to these questions, but it is certainly not excluded that the ‘right to a remedy’ in such cases prevails over the organization’s immunity. An important judgment in this context is that by the European Court of Human Rights in the Waite and Kennedy case. In this case the Court found that “a material factor” in determining whether immunity from jurisdiction from the national court was permissible under the European Convention of Human Rights was whether the individuals concerned “had available to them reasonable alternative means to protect effectively their rights under the Convention”.501 National courts have followed this line of reasoning when confronted with complaints by staff of international organizations.502 Waite and Kennedy had a labour conflict with a Centre (based in Germany) of the European Space Agency (ESA). They initiated proceedings before German courts. These courts found that ESA validly relied on its immunity from jurisdiction. Thereupon Waite and Kennedy brought a complaint against Germany before the European Court of Human Rights, claiming that their ‘right to a court’ pursuant to Article 6.1 of the European Convention of Human Rights was violated. The European Court found that

499. Id., para. 10. 500. Id., para. 16. 501. Case of Waite and Kennedy v. Germany (Application no. 26083/94), Judgment of 18 February 1999 (quotation at para. 68). The same conclusion was reached by the Court in another judgment delivered the same day: Beer and Regan v. Germany (Application no. 28934/95). 502. See e.g. the Hague District Court, judgment of 13 February 2002 (no. 01/136, Baur, Perreijn and Sheridan v. International Service for National Agricultural Research; the individuals concerned had access to the ILO Administrative Tribunal, the organization successfully invoked its immunity from jurisdiction); the Hague District Court, judgment of 27 June 2002 (no. 262987/02-3417, Pichon-Duverger v. International Bureau of the Permanent Court of Arbitration; the staff member concerned had no legal remedy, the organization could not successfully invoke its immunity from jurisdiction).

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this right is not absolute but may be subject to limitations. It pointed out that “the attribution of privileges and immunities to international organizations is an essential means of ensuring the proper functioning of such organizations free from unilateral interference by individual governments”. However, at the same time it found that it “would be incompatible with the purpose and object of the Convention […], if the Contracting Parties were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution. […] For the Court, a material factor in determining whether granting ESA immunity from German jurisdiction is permissible under the Convention is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention”. The Court came to the conclusion that ESA provided for such means. Accordingly, it found that there was no breach of Article 6.1 of the Convention.503

§545. Apart from administrative tribunals some international organizations (for example WHO, UNESCO, IMF, World Bank) have ombudsmen to settle disputes within the staff through mediation and conciliation. Experience so far seems to be positive.504 According to Beigbeder, “the appointment of an ombudsman can be perceived as a sign of good will on the part of the head of the secretariat and of the administration, if they will ensure that the ombudsman’s advice and recommendations will be effectively applied in good faith, whether they concern individual cases or general rules and directives. The ombudsman needs the full support of the secretariat head, since in his work the ombudsman interferes with the responsibilities and authority of administrators and supervisors”.505 In large bureaucracies in general, the creation of ombudsmen is useful for the purpose of confidential counselling and thirdparty intervention in conflicts; more specifically, they may fill a need in international secretariats, where expatriation, cultural, educational and linguistic factors may cause or aggravate bureaucratic squabbles.506 §546. [deleted]

IV.

The European Commission

A.

Task

§547. On 1 July 1967 the High Authority of the European Coal and Steel Community (ECSC) and the Commissions of the European Economic Community (EEC) and the European Atomic Energy Community (Euratom) were

503. Case of Waite and Kennedy v. Germany, Application no. 26083/94, Judgment of 18 February 1999 (quotations at paras. 63, 67 and 68). On this judgment, see A. Reinisch in 93 AJIL 933-938 (1999). 504. See Y. Beigbeder, L ’Ombudsman du personnel des Nations Unies, 21 AFDI 632-645 (1975). See also UN Doc. A/C.5/41/14. 505. Y. Beigbeder, Management Problems in United Nations Organizations 114 (1987). 506. Id.

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replaced by a single Commission of the European Communities.507 The Commission has no single general task, which it can implement at its own discretion. Instead, a large number of specific tasks are enumerated in the EC treaties. These can be summarized under four headings:508 (i) The Commission is the watchdog, or guardian of the Treaties. It has to ensure that EC law is applied. For example, if it considers that a member state has failed to fulfil any of its obligations under EC law it may bring an action before the Court of Justice.509 The importance of this task of the Commission lies in its ability to take the initiative. Other international organs charged with ensuring that the member states fulfil their obligations510 may normally take action only at the instigation of a member state. (ii) The Commission is a legislative organ. The ECSC Treaty (which expired in 2002) imposed on the Commission a general duty to ensure that the treaty’s objectives were attained.511 To discharge this responsibility the Commission was accorded legislative powers in several specific fields. So far as the EC and Euratom Treaties are concerned, a distinction must be drawn between binding and non-binding decisions. Non-binding decisions (recommendations and opinions) can be adopted on matters dealt with in these treaties, if they expressly so provide or if the Commission considers it necessary. So far as binding decisions are concerned (regulations, directives and decisions stricto sensu), the Commission enjoys the exclusive right of initiative in the process of decision-making. Without its initiative there can be no decision, and the Commission may always alter (or withdraw) its proposal, as long as the Council has not acted (see below, §744). (iii) The Commission is the executive power of the Communities.512 In a number of fields the Commission has an executive power by virtue of the Treaties.513 Further executive powers have been delegated to the Commission by the Council. In practice most secondary decision-making is delegated to the Commission. This secondary decision-making is of substantial importance owing to the great breadth of the organization’s field of operation and the binding force of its decisions. For this reason the Council has reserved the right, in many cases of delegation, to exercise directly implementing powers itself if it does not agree to the Commission’s decisions (see above, §275). This is one of the (by now almost classical) bones of contention between the Com-

507. Treaty establishing a Single Council and a Single Commission of the European Communities, 1965 (Merger Treaty). 508. See more extensively H. Schmitt von Sydow in Groeben, Thiesing, Ehlermann, op. cit. note 109, at 4/260-4/294; P.J.G. Kapteyn and P. VerLoren van Themaat, Introduction to the Law of the European Communities 202-209 (3rd ed., edited and further revised by L.W. Gormley, 1998). 509. EC, Art. 226, Euratom, Art. 141. 510. E.g. organs of the ILO. 511. ECSC, Art. 8. 512. See C. Docksey and K. Williams, The European Commission and the Execution of Community policy, in Edwards and Spence (eds.), op. cit. note 282, at 125-154. 513. For example, with regard to the application of safeguard clauses such as Art. 134 EC.

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mission and the Council (and, thus, the member states), since it prevents the Commission from becoming a true executive power of the Communities. (iv) The Commission is the Community’s negotiator in external relations (Article 300 EC).514 For example, it conducts trade negotiations within the framework of directives issued by the Council (Article 133.3 EC). §548. Most of these tasks of the Commission are not entirely unique. For example, another international watchdog composed of independent persons is the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment, which may visit all places in the countries party to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in which persons are deprived of their liberty by a public authority (for example police stations, detention centres, psychiatric institutions).515 Law making independently of the general congress of the organization is rare but occurs in some technical organs, such as the UPU.516 Other examples of executive international organs are the executive boards of specialized agencies, such as the ILO’s Governing Body. Another example of an independent international negotiator is the UN SecretaryGeneral (see above, §462-463).

The European Commission is unique in having all four capacities simultaneously and across broader fields than any other international organ. In fulfilling its vast duties the Commission operates from a different standpoint than the Council (general congress) of the European Union in which the national interests are represented. In his farewell address in the European Parliament Mr. Hallstein, the president of the former EEC Commission, stated: “In all its proposals and initiatives the Commission had to take the Community interest as a basis. It could not therefore judge the suitability of a given solution from the angle of technical fitness alone - that the solution should meet the technical requirements of its own field of application was something that went without saying. The Commission always had to consider whether the solution would further integration, whether it would weave a new thread into the fabric of links between the member states. Such a solution often went considerably further than the lowest common denominator of the standpoints of the member states. Our job was to point the way. The Commission therefore had to be an ‘idealist’.”517

514. See M. Smith, The Commission and external relations, in Edwards and Spence (eds.), op. cit. note 282, at 264-302. 515. On this Committee, see A. Cassese, The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment Comes of Age, in: Blokker and Muller (eds.), op. cit. note 396, at 115-125. 516. See Chapter Eight, §1323. 517. EEC Bulletin 1967, No. 7, at 7.

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§549. The Commission has not been entirely successful in preserving its independent powers against continuous pressure from national governments intent on retaining their powers. Although it is formally independent of the member states, it can function effectively only if it retains their confidence.518 For most activities the Commission in fact needs the full support of the Council.519 The creation of a “European Council” of Heads of State and Government with virtually unlimited powers has further weakened the position of the Commission. B.

Composition

§550. The European Commission, charged with representing the interests of the Union as a whole, must be composed of independent individuals of high standing. The Commission presently consists of twenty members (‘Commissioners’). It has long been discussed to reduce the number of Commissioners,520 in particular within the context of expansion of membership of the Union and the expected concomitant expansion of the number of Commissioners. The 2001 Treaty of Nice provides that the first Commission formed after 1 January 2005 will include one national of each of the member states. Subsequently, when the Union will consist of 27 member states, the number of Commissioners shall be less than the number of member states, in accordance with a rotation system. The precise number has to be set by the Council acting unanimously.521 Commission members are chosen on the grounds of their general competence; their independence must be beyond doubt.522 Commissioners “shall, in the general interest of the Community, be completely independent in the performance of their duties”; they shall “neither seek nor take instructions from any government or from any other body”.523 In practice, the members

518. See also T.C. Hartley, The Foundations of European Community Law 16 (4th ed. 1998). 519. See further S. Rometsch and W. Wessels, The Commission and the Council, in Edwards and Spence (eds.), op. cit. note 282, at 213-238, who conclude (at 235) that “the Commission’s role in relation to the Council has evolved beyond a mere technocracy to become one of a co-player with political ambitions”. 520. Reports of the Three Wise Men and of the Spierenburg Commission. 521. Art. 213 EC (as amended by the 2001 Treaty of Nice). 522. Partly for this reason European Commission President Santer stated early 1998 before the European Parliament that not only the exercise of a national elective mandate of Commissioners runs counter to the EC Treaty, but also a local elective mandate. The issue was raised when Commissioner De Silguy intended to stand for regional elections in Brittany. De Silguy finally decided not to stand. See Europe, 29 January 1998, at 4. 523. Art. 213.2 EC. When in 1995 the German Justice Minister expressed the hope that the two German Commissioners would vote against a certain proposal discussed within the Commission, President Santer reminded the German government that it is prohibited for governments to give such ‘voting instructions’, recalling the Treaty provisions on the independence of European Commissioners. See Europe, 4 August 1995, at 5.

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of the Commission are chosen from different political groups.524 The Commission itself decides how to distribute the portfolios.525 The 1997 Amsterdam Treaty and the 2001 Nice Treaty have strengthened the position of the President of the Commission. The Commission “shall work under the political guidance of the President, who shall decide on its internal organization”.526 The President has to structure and allocate the Commission’s responsibilities among its members.527 In addition, a Commissioner “shall resign if the President so requests, after obtaining the approval of the College”.528 The High Authority of the ECSC and the Commission of the EEC were originally composed of nine members, the Euratom Commission of five. After the entry into force of the Treaty establishing a Single Council and a Single Commission of the European Communities (Merger Treaty) on 1 July 1967, the Commission had fourteen members until 1 July 1970.529 The number was then reduced to nine, to be raised to thirteen with the accession of the United Kingdom, Ireland and Denmark on 1 January 1973, to seventeen with the accession of Greece, Portugal and Spain, and to twenty with the accession of Austria, Finland and Sweden. The number of members of the Commission may be amended by a unanimous decision of the Council.530

Until the entry into force of the 2001 Treaty of Nice (1 February 2003), the members of the Commission were appointed by mutual agreement (“by common accord”) of the governments of the member states.531 This provision emphasized that the Commission was not subordinate to the Council - an impression which might have been given if the Council had elected the members of the Commission. The 1992 Treaty on European Union amended the procedure for appointing the Commission so that, inter alia, approval was required from the European Parliament before the appointment of the new

524. See K. V. Miert, The Appointment of the President and the Members of the European Commission, 10 CMLRev. 257-273 (1973); J.-V. Louis, La designation de la Commission et ses problèmes, in J.-V. Louis and D. Waelbroeck (eds.), La Commission au coeur du système institutionnel des Communautés Européennes 9-23 (1989). 525. Nevertheless, in 1994, governments of the member states tried to interfere in this Commission competence (see e.g. Europe No. 6332). See for the attribution of portfolios within the Santer Commission appointed in Jan. 1995, Europe Documents No. 1921, and more in general G. Edwards and D. Spence, The Commission in Perspective, in Edwards and Spence (eds.), op. cit. note 282, at 1-32, in particular at 36. 526. Art. 217.1 EC. 527. Art. 217.2 EC. 528. Art. 217.4 EC. 529. Merger Treaty, Art. 32. 530. Art. 213.1 EC. 531. Art. 214.2 EC. See for example the decision of 23 January 1995 appointing the President and the members of the Commission, OJ 1995, L 19/51.

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Commission.532 All members sit for the same term of five years. As they are eligible for re-nomination there is little risk of an entirely new Commission being formed (see above, §300). The 2001 Treaty of Nice contains further amendments of the procedure for the appointment of the Commission.533 In particular, the Commission will now be appointed by the Council, acting by a qualified majority. Member states therefore were no longer afraid to create the impression of a hierarchical relationship between the Council and the Commission. Furthermore, decision-making is facilitated as a unanimous vote is no longer required.

V.

Concluding observations

§551. This and the following chapter aim to provide greater insight into the structure of international organizations. While there is no one basic structure which is used by all or most organizations, there are remarkable similarities in the specific structures of individual organizations. Organizations generally have at least a plenary organ, composed of representatives of all member states. Almost all organizations have a secretariat. Most organizations have a nonplenary, executive organ. These organs, found in the large majority of organizations, have been discussed in this chapter. The next chapter is devoted to parliamentary and judicial organs, which have been created in only a small minority of organizations. §552. The structure of most organizations consists of an elementary triad: general congress, non-plenary executive organ and secretariat. How to explain this prototype of the structure of international organizations? Our brief excursus into the history of international organizations in the beginning of this chapter has shown the structures created for the early, 19th century international organizations such as UPU and the International Bureau of Weights and Measures. These new structures resembled the existing structures for international cooperation. In fact these organizations, having general congresses meeting each five or six years, represented no real break with past practice of diplomatic conferences. What has remained the same is that representatives of states meet and discuss matters which they consider to be of common interest. What has changed is the institutional framework for these

532. Art. 214.2 EC. This “vote of confidence” procedure was applied for the first time to the Commission which took office in January 1995 (Art. 158.3 EC). Hearings of designated commissioners took place before the Committees of the European Parliament (see Europe Documents No. 1919), prior to the vote in plenary (see Europe No. 6401). In July 1994, the appointment of Jacques Santer as President of the Commission was approved with a bare majority of 260 to 238, with 23 abstentions. (According to Rule 32.2 of the Rules of Procedure of the European Parliament, a majority of the votes cast was required.) See Europe No. 6279 (1994) and Edwards and Spence, op. cit. note 525, at 34-35. 533. Art. 214.2 EC (as amended by the Treaty of Nice).

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discussions. Thus, there are some differences with the past, notably the periodicity of the general congresses, but much has remained the same. In other words, plus ça change, plus ça reste la même chose. Even in the 19th century technological developments internationalized daily life. What used to be national affairs increasingly ceased to fall under the exclusive control of the sovereign state, and the notion of absolute state sovereignty became obsolete. And, more and more, the traditional instrument of diplomatic negotiations was considered inadequate to meet the need of regular consultations. The New World was in need of new structures for international cooperation, with a more permanent, less ad hoc character. International organizations were created. The only difference between the plenary organs of these organizations and the traditional diplomatic conferences lies in the periodicity of the former. For example, the UPU Congress met - and still meets - every five years. As a result of this periodicity, international cooperation became more structured; no longer did it take place in ad hoc meetings between ad hoc coalitions of states at alternating places and times. A sense of permanence was also given to international organizations by the creation of secretariats. Originally secretarial functions were carried out by, or under the supervision of, the host state, just as the secretarial functions of traditional diplomatic conferences. Gradually, the modern, independent international secretariat developed. It became the face of the international organization.534 Monnet always emphasized the importance of independent institutions. “Only institutions grow wiser: they accumulate collective experience”.535 This is particularly true for international secretariats. §553. If we take a closer look at the organs discussed in this chapter it appears that the notions of function and state sovereignty assist in explaining the development of the structure of international organizations. The notion of function explains why, and to what extent, states have agreed to renounce complete authority over matters over which the organization is declared competent. Specific or more general state functions could no longer be carried out effectively by individual governments in splendid isolation. International coordination and cooperation became inevitable. But while states had no alternative but to renounce exclusive authority over certain specific affairs, they preferred to keep a finger on the pulse, and as much as possible control policies agreed upon within the organization. State sovereignty explains why in almost every organization the general congress is the supreme organ, competent to take the most important decisions. In this organ all members are represented and have the possibility of persuading the others of what is in their view in the common interest. All member states can influence policymaking in this organ, depending on their power and on the organ’s decision-

534. Cf. I. Claude, Swords into Plowshares 191 (4th ed. 1971). 535. J. Monnet, Memoirs 393 (1978; English translation of the original French edition, published in 1976).

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making procedures. While no member state can alone determine policies as if it were domestic policies, they can all play a role in shaping the policy of the organization. §554. This is different for non-plenary organs and the secretariat. Again, the notions of function and state sovereignty help us explain their development. International developments had made clear that specific important state functions could not be carried out in isolation, and the creation of plenary policy-making organs only was considered insufficient to structure international coordination and cooperation. Although member states wish to control policy-making in their organization as much as possible, a long-term trend can be seen in the direction of attributing powers to non-plenary organs composed of government representatives, to international secretariats, and even to independent supranational bodies. Only the atrocities of the Second World War can explain how it was possible, fifty years ago, that such extensive powers were given to the Security Council, in which most UN member states have no say and only five possess the right of veto. Only the imperative of closer cooperation within Western Europe explains how it was possible that extensive powers were given to the European Commission which escapes the direct control of even the most powerful member states. These examples have in common that new centres of policy-making have been created which evade the direct control of most or all member states. As perceived by the member states, their common interest was better served by vesting powers in these bodies than in plenary organs in which they would all have a say, but which were considered inadequate to meet the needs of modern times. Not surprisingly, since in the non-plenary policy-making organs usually only one-third to one-fifth of the member states have a voice, but the decisions taken are presumed to reflect the interests of membership as a whole, the issue of representativeness of non-plenary organs is considered so important, in particular by the member states which are not member of such organs. The more powers these organs exercise, the stronger the requirement of representativeness. This is true for the UN as well as for the EU. The main reason for the decreasing relevance of ECOSOC as the main UN organ for the coordination of socio-economic policies is that the developing countries felt under-represented in this organ. The two extensions of membership came too late, and developing countries sought and found other fora (UNCTAD, General Assembly). More recently, the extensive use of powers by the Security Council after the end of the Cold War has led to renewed discussion for changes in the composition of this organ. Within the European Union, the perspective of further accessions has led to discussions on institutional changes. One of the issues is the idea of creating a “Directorate” of the most powerful member states, to which the less powerful are opposed because they fear that their role in policy-making will become less important.

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§555. Finally, beyond the control of every member state, at least in theory, is the international secretariat, with its staff which is usually required to be independent and which must be loyal to the organization alone. But in practice states have often viewed their nationals as representatives of the national, not the common, interest.536 The notions of function and state sovereignty explain why most international secretariats select their staff on the basis of not only competence and integrity; due regard is usually paid to the requirement of geographic distribution, particularly for senior posts. But these notions are also useful to understand the position of the secretariat in general. On the one hand, it is the servant of the member states; on the other, it does not have to serve them at any price.537 Rather, it has an independent responsibility in the pursuance of the objectives of the organization.538 In this respect, international secretariats indeed have to belong “to all nations and to none”.539 States rarely attribute substantial powers to international secretariats, which for the most part are required to carry out administrative tasks. This is why the position of the European Commission is so unique, and why it represents a further development in the structure of international organizations: not because it has an independent position vis-à-vis the member states; nor because it has far-reaching policy-making powers. The European Commission is unique because it has both extensive policy-making powers and an independent status. Without these powers it would have been nothing more or less than any international secretariat. Without its independence it would be

536. Nevertheless, one should never forget that, while states may select certain individuals to work in an international secretariat on the basis of their loyalty to the state in question, the same individuals might develop into the Shevchenko’s of the UN (see above, §527) and the Cockfield’s of the EC. (Lord Cockfield became a member of the Commission in 1984, as one of Thatcher’s protégés. But he soon seized being among her protégés and was not re-appointed after the successful launching of the Commission’s 1992 programme, for which Cockfield was mainly responsible. See M. Thatcher, Downing Street Years, 19791990 (1993), at 547; S. Weatherill and P. Beaumont, EU Law (3rd ed. 1999), at 48, footnote 9. 537. See in this context the judgment by the ILO Administrative Tribunal in the Bustani case (op. cit. note 498, para. 16): “To concede that the authority in which the power of appointment is vested [...] may terminate that appointment in its unfettered discretion, would constitute an unacceptable violation of the principles on which international organizations’ activities are founded [...], by rendering officials vulnerable to pressures and to political change”. 538. See in this context the statement made by UN Secretary-General Hammerskjöld before the Security Council during the Suez crisis, in which he declared, inter alia: “As a servant of the organization, the Secretary-General has the duty to maintain his usefulness by avoiding public stands on conflicts between member nations unless and until such an action might help to resolve the conflict. However, the discretion and impartiality thus imposed on the Secretary-General by the character of his immediate task may not degenerate into a policy of expediency. He must also be a servant of the principles of the Charter, and its aims must ultimately determine what for him is right and wrong. For that he must stand.” (SCOR 31 October 1956, 751st meeting.) 539. J. Lorimer, The Institutes of the Law of Nations, Vol. II 266 (1884); quoted in Jenks, op. cit. note 230, at 90.

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nothing more or less than any other, plenary or non-plenary policy-making organ.

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Chapter 5

Advisory and supervisory organs

§556. In the previous chapter various kinds of organs that contribute to the formulation of decisions of international organizations were described. Chapter Six will focus on the decision-making process. It should not be forgotten however, that, in order to be effective, the decision must be executed. This does not mean that all international organizations need their own police forces, since it may be possible to use national organs for the effective execution of decisions formulated by international organizations (see below, §1518-1548). A pre-condition for this is confidence in the wisdom and legality of the decisions made. However good decisions may be, they will not be followed if they are not supported either by an enforcement mechanism or by confidence. An important means of increasing confidence in a given decision-making process is the addition to the organization’s structure of independent organs for advice or control. Confidence in the political desirability of decisions will be strengthened if these decisions are supported by an organ elected by those to whom the decisions will apply. Confidence in the legality and fairness of decisions will be propagated by the possibility of judicial control by a court. Uncontrolled powers lead to a dangerous bureaucracy, technocracy or autocracy. Organs for advice and control are necessary, particularly when policymaking organs have the power to take binding majority decisions. As long as member states can not be outvoted, there can be at least meaningful indirect control of their performance in the organization. The national parliament of a member state may require its government to vote against a proposed decision, and thus block decision-making. However, if majority decisions can be taken, national organs cannot make such an order. In such cases, control has to take place at the international level. Otherwise a “democratic deficit” emerges, to coin the phrase used in the context of the European Union. §557. This chapter is divided into two sections. Section I is devoted to the parliamentary organs of international organizations, which mostly have advisory tasks, and only exceptionally are organs for political control. Section II is devoted to judicial organs. Apart from parliamentary and judicial organs, separate supervisory organs have often been created for financial control

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(audit). These will be discussed below in the chapter on financing (Chapter Seven).

I.

Parliamentary organs

A.

Need for parliamentary organs

§558. A policy-making organ can never fully supervise and correctly evaluate all interests affected by a particular decision. Most civil servants are inclined to overestimate the importance of the subject-matters falling within their competence. While heads of civil service departments will usually strike a more accurate balance between different interests, they also risk paying more attention to interests which are defended by officials in their own departments, than to other interests. In addition, many departments have adopted guiding principles such as “grandeur”, independence, sovereignty, which may be helpful in some instances but which in other situations may obstruct efforts to reach a fair solution. These inevitable shortcomings of all policy-making organs both dilute the quality of the decisions made and undermine the confidence of those who are governed. But these adverse effects can be limited if an organ, related as closely as possible to those who are governed, participates in the decisionmaking process. An elected parliament that controls the policy-making organs, performs this function in many states. §559. In many states, national parliaments exert a substantial influence on their national governments.1 They possess strong powers, mainly in four fields. (1) Several parliaments have the power to require the government to resign. This obliges a government to take account of the wishes of the parliament, since a major conflict between the two may lead to the overthrow of the government. (2) The approval of the parliament is generally required for the fixing of the budget. In this way, a limitation is imposed on the freedom of the governments to spend taxpayers’ money. (3) Important binding rules often need parliamentary approval, without which the government cannot make laws. (4) Many parliaments can amend draft legislation. Additionally, they often have the right to initiate legislation. §560. Formerly, it was not considered necessary that parliamentary control be extended to cover foreign affairs, since these relations had no direct implication for the citizen, being the exclusive concern of the government. More recently, however, this has changed. In smaller states in particular, a relatively large part of decision-making occurs in the context of international agreements.

1.

“Government” is used in the sense of “executive branch of the government” (see above, §58).

399

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§561

This is particularly the case in the European Union where an increasing amount of legislative power is being transferred to organs of the Union. The scope for national legislation on, inter alia, imports and exports, competition, farm subsidies, indirect taxation, food and drugs control, company law, social security, environmental protection is decreasing correspondingly. At the same time, this brings with it a limitation of national parliamentary control in these areas and therefore constitutes a threat to democratic values. Parliaments cannot, and should not, accept a continuous diminution of their influence on rules binding the population. The position of the national parliament has been reinforced in most parliamentary democracies by the establishment of the rule that no treaty (at least no important treaty) can enter into force without prior parliamentary approval. A treaty establishing and conferring powers on an international organization will require the prior approval of the national parliaments concerned. Decisions of international organizations, however, require no ratification and therefore remain outwith the direct reach of national parliaments, which can only call the government to account for its position vis-à-vis (draft) decisions of the organization. §561. The more important these decisions, the stronger the need for pressure of national parliaments in order to exert some influence on them. This is done in several ways. (a) Parliaments may issue instructions or directives to their governments before international decisions are adopted. Article 2 of the Act by which the Federal Republic of Germany approved the Treaties establishing the EEC and Euratom forms a good example in this context. According to this provision, the Federal Government must keep the Bundestag and Bundesrat informed of the developments in the EEC and Euratom Councils of Ministers. In so far as a decision of one of these Councils requires domestic German legislation or creates law which is directly applicable within the Federal Republic of Germany, such notification must be given before the decision is taken by the Council.2 On 2 February 1965, the Dutch parliament adopted a resolution in which it laid down that as long as the European Parliament did not participate in establishing the budget, the EEC could not obtain its own financial resources by virtue of Article 201 of the EEC Treaty (now Article 269 EC). The problem of independent financial resources was subsequently discussed by the Council that was in the process of deciding on the method of financing the common agricultural policy. To prevent a later conflict with parliament, the Dutch delegation to the Council was obliged to take account of the parliamentary resolution during the Council debates. In the United Kingdom, the Select Committee on European Secondary Legislation of the House of Commons and a similar select committee of the House of Lords are

2.

See the translation of this act by E. Stein and P. Hay, Law and Institutions in the Atlantic Area 211 (1967).

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informed of proposals for decisions of the European Communities and try to exert influence on their content.3

This method of exerting parliamentary influence may prejudice the functioning of an international organization. National delegations to international meetings may be unable to discuss a subject fully or to attempt a compromise solution if they are bound by national parliamentary instructions. The national instructing parliaments are often insufficiently receptive to the interests of other states and to general international interests, the responsibility of each being limited to a strictly national field. Since members of parliament do not themselves participate in the international organization, they cannot be persuaded by arguments brought up during the debates. (b) Another method by which the influence of national parliaments may be extended is the inclusion of members of parliaments in national delegations (see above, §251-252). Although this may improve the understanding of individual members of parliament, it does not give them any independent control. Delegations operate under the aegis of the government. (c) Finally, parliaments control some aspects of financing. Most international organizations derive their income from government contributions. In order to raise the money for these contributions, governments require parliamentary approval. This gives national parliaments some power over international organizations. During national budgetary proceedings, they may discuss the functioning of the organizations. They may even threaten to withhold financial support, although they are not permitted to carry out their threat, since the member states are legally obliged to pay their contributions. Failure to supply funds would constitute a wrongful international act.4 The degree of influence of national parliaments on the budget of international organizations varies. In some respects international organizations do not depend on national financial support. Apart from government contributions, all international organizations have their own resources (see below, §1040-1090). Usually only modest amounts are obtained from the sale of documents, gifts and the taxation of staff. Some organizations obtain larger amounts for services rendered,5 others are largely financed from their own financial resources.6 There is no parliamentary control by national parliaments

3.

4. 5. 6.

On the role of the national parliaments in decision-making in the European Communities, see C. Sasse, Governments, Parliaments and the Council of Ministers, in C. Sasse, E. Poullet, D. Coombes, and G. Deprez, Decision Making in the European Community 3-126 (1977); in the French edition, Le processus de décision dans la Communauté Européenne 45-72 (1977); in the German edition, Regierungen, Parlements, 76-127 (1975). See also J. Dutheil de la Rochère, Le Parlement brittanique et les Communautés européennes. Note sur les “Select Committees on the European Parliament”, 14 RTDE 595-601 (1978). The US Senate refused to approve the US contribution to the ILO in 1970. This delayed but could not prevent payment (see below, §1011). See e.g. IAEA, Art. 14. E.g. IMF and World Bank.

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Advisory and supervisory organs

§562

over the budgets of the latter group of organizations but their budgets, except in the case of the European Union, are moderate.7 §562. Unofficially, members of national parliaments may collect all the information that they require from the secretariats of international organizations. The Administrative Committee on Coordination of the UN agreed that executive heads of organizations, bodies and agencies of the UN family, in agreement with the respective governments, should supply parliamentary commissions with all relevant information regarding their activities.8 §563. In view of the inefficiency of these controls over international decisionmaking, national parliaments may become reluctant to transfer further powers to international organizations. Nevertheless, they often recognize the need for such a transfer of powers. Thus parliaments have not usually been too inflexible in approving treaties establishing international organizations. They cannot, however, be expected to continue to permit parliamentary control to be limited by allowing a transfer of powers from controlled to uncontrolled organs. Since international organizations cannot be controlled effectively by national parliaments, the only conceivable solution is the establishment of international organs with the task of exercising political control over the executive. Not only would national parliaments become uneasy at the lack of any parliamentary control over international legislation, other national organs may insist on the same requirement. A judicial organ might not recognize decisions made without parliamentary cooperation. The constitution of the Federal Republic of Germany provides that all public authority (Staatsgewalt) emanates from the people and that it shall be exercised by the people by means of elections and voting and by separate organs for the legislative, executive and judicial functions.9 Laws cannot be overruled by decisions of the executive. The Financial Court of Rheinland-Pfalz once considered the treaty establishing the EEC unconstitutional since the lawmaking function was exercised by the executive without there being adequate parliamentary control.10 The German supreme courts have not followed this reasoning.11 In 1993, the German Constitutional Court (Bundesverfassungsgericht) decided that the amendments to the German constitution introduced as a consequence of the Treaty on European Union did not violate the German constitution.

7.

For example, the 2002 budget of the WTO was 143 million Swiss francs (see further §928930). 8. Annual Report of the ACC for 1978-79, UN Doc. E/1979/34, para. 33. In 2001 the ACC’s name was changed into ‘the UN System’s Chief Executives Board for Coordination’ (CEB). 9. Federal Republic of Germany, Constitution, Art. 20, para. 2. 10. Decision of 14 November 1963, 1 CMLRev. 463 (1963-1964); 3 CMLR (1964), at 130. 11. See on this question L. J. Brinkhorst and H. G. Schermers, Judicial Remedies in the European Communities (2nd ed. 1977), at 181-191. See also H.G. Schermers and D. Waelbroeck, Judicial Protection in the European Union (6th ed. 2001), at 167-173..

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In particular, the Court concluded that that Treaty did not encroach upon the competences of the German parliament to such an extent that it violates the constitution.12

B.

International organizations with parliamentary organs13

§564. The creation of parliamentary organs to influence the decision-making process of international organizations was long an almost exclusively European endeavour and dates from the post-war years. The only important earlier attempt to strengthen the confidence and influence of those affected by the working of an international organization proceeded along different lines: When the ILO was established, representatives of the workers and employers sat in the policy-making organs of the organization. They did not supervise decision-making, but participated in it. The desire for parliaments to cooperate in order to counterbalance increasing intergovernmental cooperation is older still. On 30 June 1889, the InterParliamentary Union (IPU) was founded. IPU members are members of national parliaments. As of June 2003, the IPU had 145 members and 5 associate members.14 According to its Statutes, the Union is “the focal point for world-wide parliamentary dialogue”; it “shall work for peace and cooperation among peoples and for the firm establishment of representative institutions”. Some of its more specific goals are the exchange of experience among members of parliaments, to consider questions of international interest, to contribute to the defence and promotion of human rights, and to contribute to better knowledge of the working of representative institutions.15 The Inter-Parliamentary Union is a private international organization of members of parliaments that cannot bind its members.16 A more recent non-governmental framework for cooperation amongst parliamentarians is ‘Parliamentarians for Global Action’. This is an international network of elected members of national parliaments. Some 1,300 members of parliament of some 100 countries participate in this network.17

12. The judgment has been published in 20 EuGrZ, No. 17 (1993); English translation in CMLR 57-109 (1994). 13. K. Lindsay, Towards a European Parliament (1958); E. Løchen, A comparative study of certain European Parliamentary Assemblies, 4 European Yearbook 150-167 (1956); H.J. Hahn, Constitutional Limitations in the Law of the European Organisations, 108 RdC 219-222 (1963 I); H.-H. Lindemann and C. Walter, International Parliamentary Assemblies, EPIL Vol. III (1997), at 892-904. 14. See www.ipu.org. Associate members are the Andean Parliament, the Central American Parliament, the European Parliament, the Latin American Parliament and the Parliamentary Assembly of the Council of Europe. See on the Inter-Parliamentary Union L. Boissier, L’Union interparlementaire et sa contribution au développement du droit internationaI et à l’établissement de la paix, 88 RdC 163-259 (1955 II, with bibliography); Y. Zarjevski, The People have the Floor – A History of the IPU (1989). 15. Art. 1 of the Statutes. 16. See for the Statutes: www.ipu.org. 17. See YIO 2002-2003, Vol. I, at 2131; www.pgaction.org.

403

Advisory and supervisory organs

§565

A form of cooperation comparable to the Inter-Parliamentary Union can also be found in the following organizations of members of parliaments:18 Asian-Pacific Parliamentarians’ Union, Canada-United States Interparliamentary Group; Mexico-United States Interparliamentary Group. Likewise, parliamentarians of members of some organizations have structured their consultations on the work of the organization without being an organ of the organization – examples are the Parliamentary Network on the World Bank and the Consultative Assembly of Parliamentarians for the International Criminal Court and the Rule of Law.

§565. The first parliamentary organ of a public international organization was established with the Council of Europe on 5 May 1949. This organization is composed of two main organs: an intergovernmental Committee of Ministers (a general congress) and a Parliamentary Assembly composed of delegations from the national parliaments of the member states.19 According to the stated intention of the founders, these delegations should be composed in such a way that they reflect the main political currents in the national parliaments. Thus members of parliament from the opposition should also be represented. §566. Several other parliamentary organs have been formed which are based on the model of the Parliamentary Assembly of the Council of Europe, namely, the European Parliament (the parliamentary organ of the European Union),20 the Consultative Interparliamentary Council of Benelux21 and the Parliamentary Assembly of the Western European Union.22 The Nordic Council is only partly a parliamentary organization. It is composed of 87 members elected by and from national parliaments and some 80 (non-voting) representatives of the governments. It has certainly been influenced by the experiences of the

18. J. Allan Hovey. Jr., The Superparliaments (1966); YIO 2002-2003, Vol. 1, at 166. 19. CoE, Arts. 13-21 (Committee of Ministers) and Arts. 22-35 (Parliamentary Assembly). See G. Adinolfi, Pouvoirs limités mais influence réelle d’un organe consultatif: L’Assemblée Parlementaire du Conseil de l’Europe, 27 European Yearbook 24-54 (1979). 20. EC, Art. 189; Euratom, Art. 107; ECSC, Art. 20; M. Zuleeg, Die Anwendbarkeit des parlementarischen Systems auf die Europäischen Gemeinschaften, 7 EuR 1-15 (1972); S. Patijn, Het Europees Parlement, de strijd om zijn bevoegdheden, (1973); B. Cocks, The European Parliament: structure, procedure and practice (1973); P. Pescatore, Les exigences de la démocratie et la légitimité de la Communauté européenne, 10 CDE 499-514 (1974); Le Parlement Européen: pouvoir, election, rôle future, Colloque Liege (1976); V. Hermann and J. Lodge, Is the European Parliament a parliament? 6 European Journal of Political Research 157-181 (1978); M. Palmer, The European Parliament (1981); J.-P. Jacqué, R. Bieber, V. Constantinesco, D. Nickel, Le Parlement européen (1984); J.-V. Louis and D. Waelbroeck, Le Parlement européen dans l’évolution institutionnelle (1989); F. Jacobs, R. Corbett and M. Shackleton, The European Parliament ( 3rd ed. 1995 . 21. Benelux, Arts. 23-24 (381 UNTS 165); Agreement of 5 November 1955 establishing the Council (250 UNTS 165). See J.A. Winter, Benelux Economische Unie (ed. Schuurmans en Jordens No. 152, 1990), at 171-192; E.D.J. Kruijtbosch, Benelux Economic Union, EPIL Vol. 1 (1992), at 373-377. 22. WEU, Art. 9. See J.-M. le Breton, Une tentative de contrôle international de la défense européenne: les méthodes de l’Assemblée de l‘UEO, 2 RTDE 623-639 (1966).

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Parliamentary Assembly of the Council of Europe.23 Members of parliament from the member states of NATO24 and EFTA have also established international assemblies. Unlike the Parliamentary Assembly of the Council of Europe these assemblies have no formal status as organs of these organizations; they are based on interparliamentary agreements. The same applies to the Parliamentary Assembly established in 1991 within the framework of the Conference on (now: Organization for) Security and Cooperation in Europe.25 The European Economic Area has a parliamentary organ (the Joint Parliamentary Committee), which is required to meet twice a year; its powers are not similar to those of the European Parliament, but resemble the powers of the other international parliamentary organs.26 The Lomé Agreements and the Cotonou Agreement between the European Community and a large number of African, Caribbean and Pacific states created a parliamentary organ (presently named the Joint Parliamentary Assembly).27 The parliamentary bodies created by association agreements concluded between the EC and third countries are similar to this Joint Assembly.28 In the context of a number of other regional organizations similar parliamentary organs have been created. Examples are the Interparliamentary Assembly of the Community of Independent States (founded in 1992), the Parliamentary Assembly of the Black Sea Economic Cooperation (created in 1993),29 the Parliamentary Assembly of ECOWAS (founded in 1993), the Parliamentary Forum of the Southern African Development Community

23. S.V. Andersen, The Nordic Council, A study of Scandinavian regionalism (1967); G. von Bonsdorff, Regional cooperation of the Nordic Countries, 1 Cooperation and Conflict 32-38 (1965); Nordic Council; instruments and achievements: VII International Conference on Regional Cooperation (1979). See also 47 European Yearbook 1999, at NC 1-38. Website: www. norden.org. 24. J. Harned, Atlantic Assembly – a Genesis, 3 JCMS 183-189 (1964); Hovey Jr. (op. cit. note 18); L. Hartley, The North Atlantic Assembly, 13 Atlantic Community Quarterly 486-491 (1975-76); A. Glenn Mower, The Importance of the North Atlantic Assembly, 22 Orbis 89-100 (1978); S. Charman and K. Williams, The Parliamentarians’ Role in the Alliance: The North Atlantic Assembly 1955-1980 (1981); C. Brumter, The North Atlantic Assembly (1986); NATO Handbook (1999), at 347-350. 25. Through a resolution adopted by delegations of the parliaments of countries participating in the CSCE (meeting in Madrid in April 1991). See for the text of this resolution: 30 ILM 1344-1347 (1991). See for further information the OSCE Handbook (1999), at 138-147. 26. Agreement on the EEA, Art. 95 and Protocol 36. The rules of procedure of the EEA Joint Parliamentary Committee are published in OJ 1994, L 247/34. 27. First Lomé Convention, Art. 80; Second Lomé Convention, Art. 175; Third Lomé Convention, Arts. 25 and 276-277; Fourth Lomé Convention, Arts. 32 and 350-351; Cotonou Agreement, Art. 17. 28. For example, the Association Parliamentary Committee established in the 1991 association agreement concluded between the EC and Poland (Arts. 108-110). See for the text of this “Europe Agreement” OJ 1993, L 348. 29. YIO 2002-2003, Vol. I, at 2131. Website: www.pabsec.org.

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(officially launched in 1996) and the Pan-African Parliament (created in 2000).30 In 1979, the Andean Parliament was established.31 In 1987 the Treaty establishing a Central American Parliament (Parlacén) was concluded.32 A Latin American Parliament (Parlatino) which has been functioning since 1964, was given a treaty basis in 1987.33 Finally, in 1995 a Parliamentary Commission was created within the context of Mercosur.34 These developments demonstrate that the existence of such organs is no longer an almost exclusively European affair. §567. According to the original EC treaties the parliamentary organ of the European Communities bears the name “Assembly”. At its meeting of 20 March 1958, it decided to use the name “European Parliamentary Assembly”. The Dutch and German delegations, however, preferred to use their own terms, respectively “Europees Parlement” and “Europäisches Parlement”35 and gradually the name “European Parliament” has become widely accepted. In the 1986 Single European Act (Article 3), the name “European Parliament” was officially included in the treaties. In 1974, the Assembly of the Council of Europe approved the decision of its Standing Committee that henceforth the name “Parliamentary Assembly” should be used, instead of “Consultative Assembly”. It was felt that the new name reflected more accurately the Assembly’s role and composition. In February 1994, the Committee of Ministers of the Council of Europe also decided to use the name “Parliamentary Assembly”.36 The legality of these changes of name may be disputed and it could be argued that the use of the words “Parliament” and “Parliamentary” are inappropriate. Neither of the two organs possess all the powers normally bestowed on a parliament, which may be an adequate reason for not permitting the use of these names. On the other hand it may be wise to describe an organ by giving it the name of that which it is hoped it may become. The name may then function as a stimulus in that direction. It may then be more inclined to use ‘other’ parliaments as models for itself.

30. See Lindemann and Walter, op. cit. note 13, at 903. The Pan-African Parliament was created in the 2000 Constitution of the African Union. Its composition, functions, powers and organization are governed by the Protocol to the Treaty establishing the African Economic Community relating to the Pan-African Parliament (adopted 28 June 2002). 31. 19 ILM 269-272 (1980). 32. See Lindemann and Walter, op. cit. note 13, at 902. 33. Spanish text in Trb. 1990, No. 79. See U. Zelinsky, Das Lateinamerikanische Parlement. Porträt einer fast unbekannten Organisation, 12 Verfassung und Recht in Übersee (Law and Politics in Africa, Asia and Latin America), at 47-59 (1979). Documents on this parliament have been published in J.M. Eastman (ed.), Parlamento Latinoamericano (collected documents, 1980). 34. See Lindemann and Walter, op. cit. note 13, at 904. 35. Handelingen Europees Parlement (Proceedings of the European Parliament), No. I, at 92, 96. 36. Information obtained from the Council of Europe Secretariat.

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Chapter 5

C.

Composition of parliamentary organs

1.

Size

406

§568. As is the case for international organs in general, the composition of international parliamentary organs is essentially determined by their function. The function of international parliamentary organs is generally to act – directly or indirectly – as the vox populi of the members. To determine the distribution of the seats of these organs, two different factors have to be taken into account. (1) The most important national opinions should be heard. (2) The populations of the participating states must be equitably represented. These two factors, taken independently, would not lead to the same composition. The largest political parties in the Netherlands receive fewer votes than some minority groups in Germany and Italy. In Luxembourg, the largest political party in turn receives fewer votes than minority groups in the Netherlands. A European parliamentary organ, solely composed according to the number of votes cast for each party, would either be monstrously large, or would include no members of the Luxembourg parliament and very few for states such as Denmark and Ireland. As long as there are individual states in Europe, a different form of composition must be used which takes account of the situation within these states. Although most international parliamentary organs have a large number of members as a result of the above mentioned two factors, it is also recognized that there are limits to the size of these organs. If they become too large they cannot operate efficiently. For this reason the 1997 Amsterdam Treaty provided for a maximum number of 700 members of the European Parliament.37 However, a few years later it was demonstrated how difficult it is to hold on to such an agreed maximum size, when it was agreed in the 2001 Nice Treaty – in the context of the expected future enlargement of the EU – to increase this number to 732. §569. The Nordic Council pays little attention to balancing the number of members. Apart from Iceland, which sends only seven, each of the parliaments nominates twenty members, notwithstanding the fact that Sweden has twice as many inhabitants as Norway. The same is true for the Pan-African Parliament, in which each member state is represented by five members (at least one of whom must be a woman).38 The Council of Europe draws some degree of distinction between large and small states.39 As of June 2003, the Council’s Parliamentary Assembly had 313 members (representatives) and, in addition, 313 substitutes who play

37. Art. 189 EC (before the Nice amendment). 38. Protocol to the Treaty establishing the African Economic Community relating to the PanAfrican Parliament, adopted 28 June (adopted 28 June 2002), Art. 4.2. 39. CoE, Art. 26.

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an important role in the work of the Assembly.40 The number of representatives varies from two (Andorra, Liechtenstein, San Marino) for the smallest member states to eighteen for the largest ones (Germany, France, Italy, Russian Federation, UK). The Netherlands and Belgium send seven representatives each, Sweden six, Norway and Denmark five. However, the division of seats is not in proportion to the population. The UK has only five times as many seats as Luxembourg or Malta (which have three members each) while it has more than 130 times as many inhabitants as each of these two countries. Belgium and the Netherlands each send 21 members of parliament to the Consultative Interparliamentary Council of Benelux, while Luxembourg sends the remaining 7 members. The other European parliamentary organs have followed the pattern set by the Council of Europe. In the NATO Assembly, the US has 36 members, twice the number allocated to the large European states. The European Coal and Steel Community had originally assigned some extra seats to the smaller member states to allay their fears of domination by the larger powers.41 When the EEC and Euratom were established and the European Parliament was formed to serve the three Communities, the Council of Europe blueprint was again followed, but the number of seats for each participating state was doubled.42 As from June 1979 the European Parliament has been directly elected and considerably enlarged. From 1 January 1995 it has 626 members, and the relative overrepresentation of the smaller countries has been reduced. Before 1979, Luxembourg held 3 per cent of the seats, whereas it now has less than 1 per cent; Belgium, which had just over 7 percent of the seats, now has 4. Another change is that the largest members (Germany, France, Italy and the United Kingdom) no longer have the same number of seats. In December 1992, the European Council decided – on the proposal of the European Parliament – to redistribute the seats, to reflect German unification and in the perspective of enlargement. From the 1994 elections, France, Italy and the United Kingdom each have 87 seats, while Germany has 99.43 The Parliamentary Assembly of the OSCE is composed of 317 members, varying from 17 members of parliament from the US, 15 from Russia and 13 from the largest West European states, to 2 from Andorra, Liechtenstein, Monaco and San Marino.44 Finally, the parliamentary organs of the Cotonou Agreement and the European Economic Area (EEA) are composed of equal representations of the “two sides” involved. Thus, in these organs the number of members of the European Parliament is equal to the number of members of parliament sent

40. 41. 42. 43. 44.

See website Council of Europe: www.coe.fr. ECSC (original text), Art. 21. EC, Art. 190, 2; Euratom, Art. 108; ECSC (as amended from 1 January 1958), Art. 21.2. Europe No. 5878 (Sp. Ed., 1992), at 7, para. 26; OJ 1993, L 33/15. OSCE Parliamentary Assembly, Rules of Procedure (as amended January 15, 1993), Appendix.

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by the EFTA or ACP states. The EEA parliamentary organ has 66 members; that of the Cotonou Agreement 138. 2.

Election of members

§570. Except for the European Parliament (since 1979), parliamentary organs are usually composed of members of national parliaments, elected or appointed by those parliaments.45 The nominations made by national parliaments should reflect their political composition, but this principle is not always adhered to. It was only in 1969 that the first (Italian) communists entered the European Parliament, although they had more than 20 per cent of the seats in the national parliament.46 If international parliamentary organs are considered as representative bodies of the peoples over which the organization has jurisdiction, then it is doubtful whether representation by members of national parliaments is necessarily the most suitable means of serving this end. Members of national parliaments are elected primarily to defend the interests of the national population. Though this may often coincide with that of the population represented by the international organization, in some cases there will be differences. Also, members of national parliaments have to devote a large proportion of their time to national parliamentary affairs, which prevents them from giving full attention to the affairs of the international organization (though, here again, some degree of overlap is present: information obtained for the one may be used for the other). §571. In the European Union, the original composition of the parliamentary organ, drawn from members of national parliaments, was always envisaged as a purely temporary arrangement. The Treaties provided for direct elections even in the original text.47 The first proposal for direct elections was made

45. Before 1970, persons who were not members of national parliaments could also be included in a delegation to the Assembly of the Council of Europe. Parliaments of the members have used this opportunity to permit parliamentarians to remain in the Assembly after they had failed to gain re-election to their national parliaments. In most cases however there was no desire to appoint non-members of national parliaments. The parliamentary organ created under the Lomé Conventions was composed of equal numbers of, on the one hand, members of the European Parliament and of, on the other hand, members of parliament or, failing this, of representatives designated by the ACP states. In practice, ACP countries frequently sent their diplomatic representatives to the Community to meetings of the Lomé parliamentary organ. This has become more difficult with the entry into force of the 2000 Cotonou Agreement. Participation of representatives who are not members of a parliament is allowed “only in exceptional circumstances” and “subject to the approval of the Joint Parliamentary Assembly before each session” (Art. 17 and Declaration III to the Cotonou Agreement, OJ 2000, L 317). 46. See W. Feld, The French and Italian Communists and the Common Market; the Request for Representation in the Community Institutions, 6 JCMS 250-266 (1967); G. Bordu, Parlement Européen; l’activité des Députés Communistes, Cahier du Communisme 1974 No. 2, at 94-102. 47. EEC, Art. 138.3; Euratom, Art. 108.3: ECSC, Art. 21.3.

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as early as 1960,48 but it was 20 September 1976 before the Council of Ministers was finally able to reach the required unanimity.49 The resulting act required approval by the national parliaments. In France, it was even brought before the Constitutional Council, which – with some reservations – accepted that the act was not contrary to the French constitution.50 The first direct elections were held in June 1979. §572. The European Parliament discussed thoroughly the advantages and disadvantages of direct elections when preparing its reports on the subject.51 These will be discussed below; where appropriate some comments from the perspective of today will be added. The main advantages were expected to be: (a) The influence of the European Parliament would increase in its relations with the governments, as would its standing by the general public. It is difficult to ascertain at present whether developments have in fact lived up to this expectation. To the extent that Parliament has gained in influence, it is not clear whether this should be attributed to the direct elections. In any event, since 1979 new powers have been vested with the European Parliament (see below, §576-593). In the negotiations preceding these extensions the European Parliament argued that the electorate would only take it seriously as a parliamentary body if its powers were more extensive. However, these new powers have not brought the European Parliament in a position similar to that of the parliaments of the member states. At the same time – while there is no demonstrable causal connection – enthusiasm for the direct elections has faded. In 1979, 62.5 percent of the electorate participated in the voting; in 1984 this figure was 59.0 percent, in 1989 57.2 percent. In 1994 the average turnout was 56.4 percent (varying from 90 percent in Luxembourg to 35.6 percent in The Netherlands). In 1999 the average turnout was 49.9 percent (varying from

48. Report of October 1960 (Battista, Dehousse, Faure, Schuyt, Metzger). 49. Act of 20 September 1976, OJ 1976, L 278/5. On direct elections see: M. Stewart, Direct elections to the European Parliament, 13 CML Rev. 283-301 (1976); Preparation for direct elections in the member states, 15 CML Rev. 187-206; 321-358; 465-478 (1978) and 16 CMLRev. 119-138 (1979); K.J. Partsch, Das Wahlverfahren und sein Einfluss auf die Legitimation des Europäischen Parlements, 13 EuR 293-310 (1978); T. Läufer, Das Europäische Parlement nach der Direktwahl: Positionsstärkung durch intrakonstitutionellen Wandel? 14 EuR 261-276 (1979); J.-L. Burban, Le parlement européen et son election (1979); V. Herman and M. Hagger (eds.), The Legislation of Direct Elections to the European Parliament (1980); J. Lodge and V. Herman, Direct elections to the European Parliament: a Community perspective (1982); J.P. Sweeney, The first European elections: neo-functionalism and the European Parliament (1984); K. Reif (ed.), Ten European elections: campaigns and results of the 1979/81 first direct elections to the European Parliament (1985); J. Lodge (ed.), Direct elections to the European Parliament 1984 (1986). 50. For the text see 20 CMLR 121 (1977). 51. W. Birke, European Elections by direct suffrage (1961, reprint 1971); F. Dehousse, Collection of Documents on direct elections, published by the Directorate General of Information and Parliamentary Documentation of the European Communities (1969).

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91 percent in Belgium to 24 percent in the UK).52 It can of course not be concluded that the cause of this diminishing turnout is the introduction of direct elections. Nevertheless, it has been claimed that direct elections for this less powerful EU institution having a “heterogeneous and increasingly demanding electorate” have contributed to “popular dissatisfaction” with the European Parliament.53 Furthermore, the directly elected parliament lacks the authority that the previous European Parliament derived from the fact that its members were members of national parliaments with some influence in national politics. In its first proposal for direct elections, the European Parliament proposed to solve this problem by reserving one third of the seats for members of national parliaments, while at the same time enlarging the European Parliament to three times the original number of seats. In the final proposals, and in the Act that was adopted, membership of the European Parliament may be combined with membership of a national parliament (the so-called dual mandate). In the first directly elected European Parliament, 118 of the 410 members were also members of their national parliaments. In 1989 there were only 34 members with a dual mandate.54 In November 1994, this number had been dropped to 20.55 However, at the same time every now and then voices have been heard pointing to the arguments in favour of the dual mandate.56 It is thought that if the most important members of national parliaments were also to participate in discussions in the European Parliament, European political discussions would receive more attention from the electorate. Most members of the European Parliament appear not to be in favour of a dual mandate, arguing that European democracy deserves full-time members of parliament, and that the general public will only pay attention to a European Parliament

52. Jacobs, Corbett, Shackleton, op. cit. note 20, at 29. Figures for 1999 have been taken from A. Guyomarch, The June 1999 European Parliament Elections, 23 West European Politics 161-174 (2000), at 165. 53. J. Mather, The European Parliament – A Model of Representative Democracy? 24 West European Politics 181-201 (2001), at 198. With regard to the 1999 elections, Guyomarch (op. cit. note 52, at 173) suggested that “the most likely explanation of European non-voting in 1999 is that of alienation from the Parliament and the electoral process”. 54. Id., at 46-47. 55. 8 members from Italy, 4 from Ireland, 3 from France, 3 from the UK, and 2 from Denmark. Data obtained from the European Parliament. 56. For example, the Dutch Prime Minister Lubbers, following the outcome of the Danish referendum on the TEU, June 1992 (see NRC Handelsblad 16 June 1992, and also Europe No. 5754 (1992)). In 1993, the Board of the Dutch Socialist Party proposed that Hedy d’Ancona be a candidate for both the European Parliament and the Second Chamber of the Dutch Parliament. But Party Congress declared itself against double mandates in principle and rejected this proposal, following opposition directed by the Brussels branch of the party. See NRC Handelsblad, 11 December 1993.

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with more extensive powers.57 In 2002 the European Parliament recommended to exclude the possibility of a dual mandate.58 (b) A European civic duty to vote would develop a sense of European citizenship. In the election campaign, citizens would be faced with European problems. European-minded citizens, perhaps even of foreign nationality, would inform them of these problems. As long as the powers of the European Parliament remain unchanged, the cogency of this argument may also be doubted. There would be no vivid election campaign since all major European political parties share the same priorities in their programmes: improving European integration and strengthening the position of the European Parliament. The party differences in European politics are small as yet, when compared to those characterizing national politics. For example, only a few antimarketeers participated in the direct elections to the European Parliament in June 1979. (c) European elections would stimulate the formation of European political parties. For example, the Socialists, the Christian Democrats, and the Liberals have formed separate groups within the European Parliament (see below, §574575). Prior to direct elections, however, they were elected to their national parliaments, on quite different issues. For the European elections, these national groups were compelled to draft one single election manifesto. This created a greater unity within the political groups of the European Parliament and at the same time, it may have brought the individual national political parties closer to their counterparts abroad. (d) The members of the European Parliament would be able to attend all sessions of this body and, in the interim, could devote all their time to European affairs. Prior to direct elections, many members of the European Parliament were often absent from Strasbourg when an important debate took place in their national parliaments. The combination of two important parliamentary functions may be too great a burden for one person. In 1967, it was estimated that the work of a member of the European Parliament involved 120-150 working days per year in sessions of the European Parliament, in an average of two of its parliamentary commissions, participation in working sessions of the political group and a minimum amount of preparation.59 Since then, the burden has increased considerably, due both to the entry of new member states and to a gradual rise in the workload. Nevertheless, these members of the

57. Jacobs, Corbett, Shackleton, op. cit. note 20, at 23. See for the Dutch debate on double mandates: NRC Handelsblad, June 1992 and 24 November 1992; more recently Trouw (16 July 2001) and Het Parool (16 July 2001). 58. With exceptions for the UK and Ireland until the 2009 elections. This recommendation related to a draft decision by the Council, recommending to the member states to amend the 1976 Act concerning the election of the representatives of the European Parliament. See EP Doc. A5-0212/2002. 59. K.H. Neunreither, Les rapports entre le parlement européen et les parlements nationaux, 15 European Yearbook (1967), at 63 (English summary, at 78).

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European Parliament also had to keep themselves informed about national developments and consequently they never could fully specialize in European affairs. Since their direct election, the members of the European Parliament can devote all their time and energy to the European cause. Separation of the two parliamentary functions would tend to increase the power of the European Parliament. On the other hand, it would increase the risk of the members of the European Parliament becoming isolated. Membership of a national parliament is time-consuming, but it also keeps members informed of national problems and keeps them in contact with other members of the national parliament (see also above, under (a)). (e) Members of national parliaments should promote national interests. Election by a European electorate might be preferable to the risk of obliging members of parliament to promote national and European interests at the same time, when such interests are not always compatible. This possible advantage of direct elections has not (yet) been realized. There is not yet one uniform electoral procedure. Member states use their own divergent procedures. In the United Kingdom, the district system is used, whereas other member states favour the system of proportional representation. It is still impossible to vote for a candidate from another member state. According to Article 190.4 EC, Parliament is to draw up proposals for elections by direct universal suffrage in accordance with a uniform procedure in all member states. The Council has to adopt these proposals by unanimity. Subsequently, the approved proposals are recommended to member states for adoption in accordance with their respective constitutional requirements.60 (f) Appointment of members of the European Parliament by the national parliaments may lead to an over-representation of majority parties. The percentage of Christian Democrats in the Italian delegation to European parliamentary organs used to be substantially higher than that in the Italian parliament. The Italian communists (about a quarter of the electorate) were not represented in any European parliamentary organ until 1969. The power of a national parliamentary majority to appoint the national members of the European Parliament may be used to apply political pressure. The French UNR threatened to increase the number of their own representatives at the expense of the socialists if they were not recognized as a separate political group in the European Parliament (see below, §575).

§573. The following disadvantages of direct elections may be set against the advantages: (a) It is improper to mobilize citizens for the election of members to an organ that may not even be a real parliament.

60. A number of resolutions have been adopted by the European Parliament dealing with this issue. See e.g. Res. A3-0152/91 (OJ 1991, C 280/141), Res. A3-0186/92 (OJ 1992, C 176/72), and Res. A3-0381/92 (OJ 1993, C 115/121).

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This disadvantage could be overcome by increasing the powers of the European Parliament. For a long time the European Parliament61 has itself proposed this, as did national parliaments.62 Even if no changes occurred, it would not be impossible for a directly elected European Parliament to exercise more power than it has done so far. The treaties offer considerable potential. The European Parliament now has an important say in legislation; it may compel the Commission to resign; it could persuade national parliaments to exert pressure on the ministers who form the Council. The direct elections have given the Parliament a stronger position, and even to some extent impose a duty on it to use these possibilities as much as possible, to prove itself to its electorate. (b) The influence of members of international parliaments might diminish if they were no longer members of national parliaments. The latter function enhances the prestige of members of international parliaments and gives them power to act in the national field on behalf of the international organization. During the parliamentary year 1969-1970, there were 905 interventions in national parliaments concerning the fields of activity of the Council of Europe, including 424 parliamentary questions. Many of these interventions were made or encouraged by representatives who also serve as members of the Assembly of the Council of Europe.63

This argument partly explains the interest of some in the dual mandate (see last paragraph, under (a)). (c) The organization of European elections according to a uniform procedure64 is difficult technically. The traditional election systems in the member states differ widely. Opinions differ, therefore, as to what would be a just and fair procedure. Some states adhere to proportional representation, others accept a regional system. The French are used to elections in two rounds; the Belgians and the Dutch would consider this unnecessarily cumbersome. None of these objections are insurmountable. They did not prevent direct elections taking place from 1979 onwards, every state using its own voting procedure.

61. See already: Report Furler (Doc. 31/1963/64); discussion of this report in the European Parliament on 27 June 1963; Res. of 12 May 1965 after the report Vals (Doc. 34/1965-66); Questions of Mrs. Stobel (OJ 1162/65), Mr. Nederhorst (OJ 1062/64), Mr. Vredeling (OJ 1179/64) and Mr. Martino (OJ 1782/65). 62. See debates in the Dutch Lower Chamber on l0, 11 and 12 January 1967 (Europese Documentatie, Feb. 1967, No. 2, at 64-66). Mr. Bemporad in the Commission of Foreign Affairs of the Italian Chamber of Representatives on 10 January 1967 (Europese Documentatie, Feb. 1967, No. 2, at 62), Mr. Mommer in the German Bundestag on 20 May 1965 (Europese Documentatie, Sept. 1965, No. 9, at 50), Mr. Dehousse in the Belgian Senate in March 1965 (Europese Documentatie, April 1965, No. 4, at 103). 63. See 14th Annual Report on the activities of the Committee on Parliamentary and Public Relations (1970), Consultative Assembly Doc. 2783, at 6-9. 64. Required by EC, Art. 190.4; Euratom, Art. 108.3 (originally also by the ECSC, Art. 21.3).

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(d) In a democratic parliament, every member should represent approximately the same number of voters. This would make representation of Luxembourg voters impossible and would diminish the representation of voters of Denmark and Ireland to such an extent that these countries would consider the procedure unacceptable. Taking into account the specific interests of the peoples of these states in having their own effective representation, the Act on direct elections ensured that these member states retain much of their original degree of representation.65 (e) The French government also claimed that a directly elected parliament should face a government. As long as there is no form of European government, it argued that there cannot be a real European parliament. This argument fails to appreciate European integration as a process. Rome was not built in a day, neither is Europe. Moreover, it would mean that, as long as there is no real government, important governmental powers would be carried out without any parliamentary control at European level. 3.

Parties

§574. The national representations in all European parliamentary organs are composed of members of different political parties. Convinced that they should not represent their states but the principles for which their parties stand, the members of these organs have organized themselves into political groups.66 For some politicians this was relatively easy. All democratic Western European states have a Socialist party. Despite the differences between the programmes of the national parties, there are more than enough similarities to allow the formation of a socialist group in each of the European parliamentary organs. The situation was more difficult for the Liberals, who sometimes have little more in common than their name. The manifestos of the European Liberal parties vary from very conservative to quite progressive. Nevertheless a liberal group can be found in each of the parliamentary organs. The continental national parliaments have strong Christian Democratic parties. The representatives of these parties formed the Christian Democratic group in the European parliamentary organs. This group was particularly strong in the European Parliament before the admission of new member states in 1973. From the entry of the United Kingdom, Denmark and Ireland, until the 1999 elections, the Socialist group has been the largest in the European Parliament. In 1978, when the European Parliament had 198 members, this group had 66 members, the Christian Democratic group 53, and the Liberals

65. On the basis of an earlier draft, the French government raised objections, however. Debré in the French National Assembly in June 1965, Europese Documentatie, July 1965, No. 7, at 125. 66. Cf. Art. 191 EC: “Political parties at European level are important as a factor for integration within the Union. They contribute to forming a European awareness and to expressing the political will of the citizens of the Union”.

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23, while the Communists and the Conservatives both had 18 and the European Democrats for Progress (mainly Gaullists) 16. Four members did not belong to any political group. After the first direct elections in June 1979, the Socialists obtained 111 seats, the Christian Democrats 107, the Conservatives 63, the Communists 44, the Liberals 40 and the European Democrats (Gaullists) 21. The others, 24 of the 410 representatives, did not belong to any political group. Following the 1999 elections the Group of the European Peoples Party (Christian Democrats) and European Democrats occupied 233 seats, the Group of the Party of European Socialists occupied 179 seats, the Group of the Liberal, Democratic and Reform Party 53, the Group of the Greens/European Free Alliance 45, the Confederal Group of the European United Left/Nordic Green Left 44, the Union for Europe of the Nations Group 22, and the Group for a Europe of Democracies and Diversities occupied 18 seats. The 32 others were not attached to a political group.67 §575. The political groups gradually found their place in the oldest international parliamentary organ, the Parliamentary Assembly of the Council of Europe. At first, their activities were directed principally towards the selection of candidates for important posts in the Assembly and its committees, but they now embrace other fields. Chairmen of political groups are invited to attend meetings of the Assembly’s Bureau and Standing Committee in an advisory capacity (regular practice since 1974 and a rule since 1986), and political groups have also been formally represented in Assembly debates.68 The Council of Europe that, since 1958, has made grants available to cover the expenses of political groups also makes facilities including offices and other rooms, interpreters, translators and duplication services available to them.69 As of June 2003, the following political groups were represented in the Assembly: Socialist Group (205 representatives and substitutes); Group of the European People’s Party (160); Liberal, Democratic and Reformers Group (83); European Democratic Group (conservatives, 80); Group of the Unified European Left (37); 32 representatives and substitutes were listed as not belonging to a political group.70 The European Parliament also grants various facilities to its political groups.71 The groups receive financial support and have rooms at their disposal. Their Chairmen are members of the Conference of Presidents which

67. See www.europarl.eu.int. 68. Council of Europe, The Parliamentary Assembly, Procedure and Practice (9th ed. 1990), at 51. 69. Id., at 52. 70. See www.coe.fr (29 members are not yet included in these figures; it was not yet known which group(s) they would join). 71. G. van Oudenhove, The political parties in the European Parliament, the first ten years (1965).

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has some influence on the content of the agenda and the proceedings,72 and they may speak out of turn.73 According to Rule 29.1 of the Rules of Procedure of the European Parliament “[m]embers may form themselves into groups according to their political affinities”. In 1999, 29 members formed a new political group called “Technical Group of Independent Members – Mixed Group”. As opposed to other political groups, members of this group in their ‘rules of constitution’ agreed to function independently from each other – in fact, agreed not to act as a political group – and to form a group only for technical (administrative) reasons. This was rejected by the European Parliament. It adopted the following interpretative note to Rule 29.1: “The formation of a group which openly rejects any political character and all political affiliation between its members is not acceptable within the meaning of this Rule”. A number of the 29 parliamentarians involved requested the Court of First Instance to annul this decision, but this request was rejected. The Court considered, inter alia:74 “[…] the political groups contribute to the attainment of the political objective pursued by Article 191 EC, that is to say the emergence of political parties at European level as a factor for integration within the Union, contributing to forming a European awareness and to expressing the political will of the citizens of the Union. Such a role could not be performed by a technical or mixed group made up of members abjuring any political affinity amongst themselves.” Formerly seventeen members were required to form a political group in the European Parliament.75 The French UNR, which at that time was unable to recruit supporters from other national parliamentary delegations, could not form a group of its own. It was for this reason that, in 1965, the UNR requested that the number be reduced. Most members of the European Parliament were not so much opposed to a decrease in the required number as to a political group of the European Parliament being formed of representatives from only one member state, which it was deemed would run counter to its European character. The European Parliament agreed to the request after the UNR which held a majority in the French parliament threatened to enlarge the UNR share of the French representation to seventeen at the expense of the other French parties. The required number was accordingly reduced to fourteen.76 In 1973 this number was reduced to ten for groups composed of representatives from at least three member states. For other groups it remained fourteen. After the number of members of the European Parliament was more than doubled in 1979, and following the accession of new member states, the numbers have been changed and are at present twenty-three (from two states), eighteen (three states), and fourteen (at least four states). Since 1999

72. European Parliament, Rule 24. 73. Id., Rule 121.3. 74. Joined Cases T-222/99, T-327/99 and T-329/99, ECR 2001, at II-2823 (quotation at para. 148). 75. Id. Rule 36.5 (original text). 76. OJ 282/65.

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it is no longer possible for members from only one member state to form a political group.77

D.

Tasks of parliamentary organs

1.

Control over the executive

§576. Do all these parliamentary organs exert control over executive organs? Does their influence on the policy of the organization balance the influence exercised by the organs composed of government representatives? These questions must be answered in the negative. As a rule, international parliamentary organs do not play a decisive role in international organizations. They offer an opportunity for mutual consultation and cooperation between members of parliaments. This may be very useful – but it does not transform international parliamentary organs into real parliaments. §577. There is one exception: the European Parliament. The President, and subsequently the President and the other members of the Commission as a body, nominated by the governments of the member states, are subject to a vote of approval by the European Parliament.78 Furthermore, Parliament has the power to censure the Commission, and must also approve the budget. The members of the Commission have to resign if the European Parliament adopts (by two-thirds majority) a motion of censure. This power may develop into a real form of control over the Commission. Motions of censure have been tabled on several occasions, but they have never been carried.79 One reason why such motions have never been adopted is that the European Parliament, prior to the entry into force of the Treaty on European Union, had no influence over the appointment of a new Commission after the censure.80 Another reason is that it is usually difficult to blame the Commission for mistakes in the Communities’ policy, since this policy is, for the most part, made by the Council of Ministers. §578. Cooperation with the governmental organs of the organization is often insufficient. It is only in the Nordic Council that many ministers frequently participate (without vote) in the discussions in the parliamentary organ. The governments of the member states restrict most of their attention to governmental cooperation and concern themselves little with the parliamentary

77. European Parliament, Rule 29.2. 78. Art. 214.2 EC. 79. The motion of censure that received the most votes in favour was that rejected on 14 January 1999. There were 232 votes in favour and 293 against (with 27 abstentions). On March 15 of that year the Commission resigned when it became clear that otherwise Parliament would adopt a motion of censure. See Europe Nos. 7383 and 7426; Europe Documents No. 2118; S. Weatherill and P. Beaumont, EU Law (3rd ed. 1999), at 1059-1064. 80. This has now changed; see Art. 214.2 EC.

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organs. Usually members of governments fail to attend their meetings, perhaps because the parliamentary organs lack any real power. §579. In the European Parliament, individual members can influence policy by putting oral or written questions to the Commission and the Council.81 Furthermore, after the accession of the United Kingdom to the European Communities, the European Parliament introduced a question time for oral questions in each meeting.82 The Commission must answer all such questions, which may be rather effective, in particular when it is the Commission’s task to act, for example when a member state fails to comply with its obligations under Community law.83 Most questions are put to the Commission, which disposes of specialized knowledge. Council answers, on the other hand, are given by the President-in-Office of the Council, who is not a specialist and cannot easily take positions on behalf of an organ representing the member states. Usually, draft replies are prepared by the Council Secretariat and circulated to all the permanent representatives of the member states and to the Commission for comments or objections.84 This is why the answers to such questions often take some considerable time and are often evasive. Since 1976, members of the European Parliament are also entitled to put questions to the Foreign Ministers of the member states, meeting in political cooperation. §580. For many years after 1957, the European Parliament organized a colloquy with the Council nearly every year.85 This colloquy gave members of parliament an opportunity to make suggestions to the ministers and to elicit information from them, but was not very efficient. As the subjects were arranged in advance (and most of the speeches previously written, usually by civil servants), it did not offer an opportunity for real discussion between Parliament and Council. The colloquy was discontinued when the Parliament found other means of discussion with the Council. Now the President of the Council (either a Minister or a Secretary of State of the presiding member state) is present on the Tuesdays of the plenary sessions of the European Parliament, which normally last one week. During those Tuesday meetings, members of the Parliament may pose all sorts of questions to the President of the Council. Although it is often difficult to obtain

81. J.J. Schwed, Les questions écrites du Parlement européen à la Commission, 14 RMC 365-368 (1970). 82. L.H. Cohen, The Development of Question Time in the European Parliament, with Special Reference to the Role of British Members, 16 CMLRev. 41-59 (1979). 83. See H.A.H. Audretsch, Supervision in European Community Law l46-148 (1978). For repercussion of a parliamentary question on a national court decision, see 3 NYIL 270 (1972) or 12 CMLR 521 (1973). 84. Jacobs, Corbett, Shackleton, op. cit. note 20, at 267-268, with figures on parliamentary questions by type (written, oral) and by destination. 85. Houben, Les Conseils de Ministres des Communautés Européennes (1964), at 166 ff.; Patijn, Het Europees Parlement, de strijd om zijn bevoegdheden (1973), at 71-76.

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an adequate reply, this discussion offers more opportunities than the colloquy did previously. The Chairman-in-Office of the OSCE regularly addresses the Parliamentary Assembly of this organization and answers direct questions from the floor.86 §581. The Treaty on European Union created an Ombudsman, to be appointed by the European Parliament. The Ombudsman is “empowered to receive complaints from any citizen of the Union or any natural or legal person residing or having its registered office in a member state concerning instances of maladministration in the activities of the Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role”.87 Further regulations and conditions governing the performance of the Ombudsman’s duties were adopted in 1994.88 2.

Control over the budget89

§582. The early parliamentary organs could exercise no influence over the preparation and approval of the budget. Gradually, however, it has become the rule that the parliamentary organs cooperate in preparing that part of the budget relating to their own activities. The degree of cooperation varies however. In the Council of Europe, the role of the Assembly is consultative. The Benelux parliamentary organ (which was established before the Benelux Economic Union)90 has its own independent budget,91 the costs of which are shared by the parliaments of the Netherlands, Belgium and Luxembourg. §583. In the European Communities, the role of the European Parliament – which was originally merely consultative – has gradually become stronger. In 1971, the Council agreed not to modify the Parliament’s estimates for its own expenditure, unless these failed to conform to Community financial rules.92 In 1970 a first Treaty amending certain budgetary provisions of the Community Treaties was adopted, which gave the European Parliament some power of amending the budget.93 A second Treaty amending certain financial provisions of the Community Treaties, adopted in 1975, gave the final right of approval of the budget to the European Parliament.94 Though this right

86. OSCE Handbook, op. cit. note 25, at 140. 87. Art. 195.1. EC. On the European Ombudsman, see E.A. Marias (ed.), The European Ombudsman (1994); K. Heede, European Ombudsman: redress and control at Union level (2000). 88. OJ 1994, L 54/25 and L 113/15. 89. For further details, see I.E. Druker, Financing the European Communities 28-118 (1975); J. Verges, Les Pouvoirs financiers du Parlement Européen, 8 CDE 3-42 (1972). 90. By the Treaty of 5 November 1955. 91. See Rules of Procedure of the Consultative Interparliamentary Council, Rule 35. 92. Druker, op. cit. note 89, at 270; Patijn, op. cit. note 85, at 131-165. 93. OJ 1971, L 2. 94. OJ 1977, L 359/1.

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gives considerable power to the European Parliament, the main budgetary decisions are still taken by the Council. It is the Council which adopts the drafts for the budget, and the Parliament’s right to amend such drafts is curtailed by provisions imposing time limits and laying down requisite majorities. Additionally, a number of restrictions apply to the content of any amendments proposed by the European Parliament. On expenditure necessarily incurred in implementing binding rules of Community law (so-called compulsory expenditure) the European Parliament may make proposals, but the final decision rests with the Council. The European Parliament may reject the entire budget but may not amend these items.95 To date, it has rejected the entire draft-budget on two occasions (in 1979 and 1984), and a supplementary budget was once rejected (1982).96 Finally, while the above-mentioned task relates to the budget for the following year, the European Parliament also has responsibility in relation to the execution of the budget. Under Article 276 EC, it has to discharge the Commission in respect of the latter’s task to implement the budget. To assist it in the performance of this task, Parliament has at its disposal recommendations from the Council and the annual report by the Court of Auditors. So far, Parliament has refused discharge once (in 1984, for the 1982 budget).97 3.

Advisory functions

§584. All parliamentary organs have important advisory functions. In performing these functions, they may exert some influence on the governmental organs. This occurs partly by virtue of their appeal to public opinion, which may indirectly influence the behaviour of governments, and partly as a result of the fact that most of these parliamentary organs are composed of members of national parliaments who, as such, exercise some control over their governments. The Pan-African Parliament has advisory powers only. However, according to the 2002 Protocol laying down its powers, the ultimate aim of this Parliament is “to evolve into an institution with full legislative powers”.98 a.

Advising national parliaments

§585. Although international parliamentary organs rarely offer formal advice to national parliaments, regular meetings between members of parliaments will produce the same effect.

95. EC, Arts. 203 and 203 bis, as amended by the two Treaties amending certain budgetary provisions of the Community Treaties. On the system applicable before 1971, see Druker, op. cit. note 89, at 241-257. 96. See more extensively Jacobs, Corbett, Shackleton, op. cit. note 20, at 239. 97. Id., at 220-222. See also D. Strasser, The Finances of Europe 267-298 (1991). 98. Art. 2.3 and Art. 11.

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Their foreign colleagues influence the members of international parliamentary organs and this influence will in turn be extended to the national parliaments. National parliaments will have a greater understanding both of international problems and of the problems of other countries if they regularly send an important part of their membership to international parliamentary organs.99 In general, members of international parliamentary organs bring their national parliament a broader outlook and more information, if not necessarily increased sympathy with international or regional cooperation. They are less dependent of national sources for their general information on international affairs.100 The Parliamentary Assembly of the Council of Europe created a special committee to foster close relations between the Assembly and the national parliaments. This Committee keeps the national parliaments informed and tries to stimulate national action in support of the activities of the Council of Europe.101 §586. Prior to the direct elections of the European Parliament, the exchange of information between this parliament and the national parliaments was usually assured because the members of the former were also members of the latter. Since the direct elections of 1979, only a small minority of the members of the European Parliament has a dual mandate, and new frameworks for cooperation have developed. For example, in November 1990, a conference of the European and the national parliaments took place (often called the (parliamentary) assizes). It resulted in the adoption of a joint declaration listing expectations from the Intergovernmental Conferences that led to the conclusion of the 1992 Treaty on European Union.102 Subsequently, proposals have been made to continue or institutionalize these joint meetings. The European Parliament has strongly opposed such ideas. A Declaration appended to the Treaty on European Union simply leaves this matter for the parliaments to decide, and merely invites them to cooperate, if necessary as “assizes”.103 b.

Advising international organs

§587. All European parliamentary organs give advice to the non-parliamentary organs of international organizations. This usually constitutes their only official advisory capacity. No European parliamentary organ has the power to advise

99. Neunreither, op. cit. note 59, at 52-81. 100. H.H. Kerz, Jr, Changing Attitudes through International Participation: European Parliamentarians and Integration, 27 International Organization 45-83 (1972). 101. The Committee on Parliamentary and Public Relations was set up by Res. 104 (1956). See also The Parliamentary Assembly, Procedure and Practice 190-192 (1990); A.-C. Kiss, Le Conseil de l’Europe et les suites données par les Etats membres aux textes adoptés par ses organes, 13 AFDI (1967), in particular at 550-557. 102. For the text of this Joint Declaration, see Europe Documents No. 1668 (1990). 103. Jacobs, Corbett, Shackleton, op. cit. note 20, at 285-286.

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the member states directly. Outside the European Communities and the Nordic Council, all decisions, even recommendations, which are to be addressed to the member states have to be formulated by a governmental organ. The parliamentary organs can merely propose that the governmental organ take some form of action. Such advice can be important as an expression of public opinion, but the expression may be weak, since the parliamentary organs are generally not directly elected and do not equitably represent all currents of public opinion. Nevertheless, they are the organs that tend to be the most representative of public opinion. The advice of a parliamentary organ may influence the policy of the governmental organ of the organization. Many of the conventions of the Council of Europe have been established at the initiative of its parliamentary organ. The advisory role of a parliamentary organ need not be limited to the organization to which the parliamentary organ belongs. Several international organizations, even specialized agencies of the UN family, send reports on their European activities to the Parliamentary Assembly of the Council of Europe. On the basis of this information, the Assembly may make recommendations to the Committee of Ministers.104 §588. What is the function of the advisory power of a parliamentary organ? The advice tendered by functional commissions is usually followed since its members are so familiar with the issues that governmental organs will have faith in their opinions. Alternative solutions will be hard to find. The advice of a parliamentary organ on the other hand, will usually not be persuasive on this ground. Ministers have better sources for technical information than members of parliament. For this reason, parliamentary organs should mainly advise on political issues, although it is difficult to guarantee that this sort of advice will be followed. There must be strong arguments in its favour. A parliamentary organ needs some power if its political opinions are to be adopted, and if it possesses no such independent power its influence must be based on the political weight of its members. When national parliaments send their most influential leaders to international parliamentary organs, they may anticipate that careful consideration will be given to the advice of those organs. In practice, however, such persons are rarely sent. c.

Participation in decision-making

§589. To a limited extent, parliamentary organs participate in the decisionmaking process of the organization. With the exception of the European Parliament, this participation is purely consultative; it does not amount to substantial control by the parliamentary organs over the governmental ones. Decisions of the European Communities may bind the citizens directly or may oblige the governments to take measures binding the citizens. Parlia-

104. H. Robertson, Relations between the Council of Europe and the United Nations, 18 European Yearbook 90-91 (1970).

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mentary control is accordingly more important in these circumstances than for decisions of other international organizations. Since the 1990s the powers of the European Parliament in this field have been substantially increased. §590. Traditionally, many regulations are adopted by the Council on the proposal of the Commission. The proposal must be submitted to the European Parliament for advice on the basis of which the Commission may decide to amend its original proposal. The Council of Ministers is in no way bound by the opinion of the European Parliament when it finally formulates the regulations. Nevertheless, the Council can not take a final decision until Parliament has given its opinion. When in 1979 the Council adopted a regulation without having obtained the opinion of the European Parliament, the Court later declared this regulation void, because, inter alia, this consultation: “... is the means which allows the Parliament to play an actual part in the legislative process of the Community. Such power represents an essential factor in the institutional balance intended by the Treaty. Although limited, it reflects at Community level the fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly. Due consultation of the Parliament in the cases provided for by the Treaty therefore constitutes an essential formality disregard of which means that the measure concerned is void”.105

Does this mean that the European Parliament can prevent the Council from lawfully adopting a decision simply by not giving an opinion? In October 1992 the Council requested Parliament to adopt urgently an opinion concerning a draft regulation extending the application of generalized tariff preferences for imports from developing countries in order to enable the Council to adopt the regulation before 1 January 1993. Parliament failed to give its opinion in time; the Council nevertheless adopted the regulation on 21 December 1992. The Court of Justice decided that in this case the Council did not have to wait for Parliament to give its opinion, since the need to adopt the relevant legislation was urgent and Parliament had failed “to discharge its obligation to cooperate sincerely with the Council”.106 In practice, the opinion of the European Parliament is often taken seriously. For example, when six members of the Court of Auditors had to be appointed at the end of 1989, Parliament issued an opinion objecting to the appointment of two of the candidates. Subsequently, one of the two member states concerned agreed to nominate another candidate, who was unanimously approved.107

Much EC legislation is still adopted through the consultation procedure, in particular legislation concerning “economic sectors of special political sensit-

105. Cases 138 and 139/79, Roquette Frères and Maizena v. Council, ECR 1980, at 3360 and 3424. 106. Case C-65/93, Parliament v. Council, ECR 1995, at I-643. 107. Strasser, op. cit. note 97, at 271.

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ivity in the member states or matters felt to impinge directly on their sovereignty”.108 Nevertheless, several amendments of the EC Treaties have significantly increased the powers of the European Parliament in the legislative process. The 1986 Single European Act introduced two new procedures: the assent procedure and the cooperation procedure. The 1992 Treaty on European Union (TEU) has added another: the co-decision procedure. The Amsterdam Treaty (1997) and the Nice Treaty (2001) introduced changes in the modalities of these procedures and their scope of application. These three procedures, which have given the European Parliament a stronger position in decisionmaking, will briefly be examined. §591. The assent of the European Parliament is now required in the procedure for admitting new member states,109 in the procedure for the conclusion of a limited number of agreements between the Community and third states or international organizations (such as association agreements),110 and in the appointment of the President of the Commission and the members of the Commission as a body.111 Thus, in these limited but important areas, the Parliament has been given the right of veto. There is no right of amendment; the Parliament must ‘take it or leave it’. §592. The co-decision procedure has now become the most important legislative procedure. It consists of the following steps.112 The first reading is similar to the consultation procedure: proposal from the Commission, opinion by the European Parliament and decision by the Council. If there is agreement at this stage, the act will be adopted by the Council. However, in most cases there is no agreement at the end of the first reading. In these cases, the decision by the Council is not definite, but is called a “common position”. It is the starting point for the second reading. The common position is communicated to the European Parliament (EP). The EP has three options. First, if the EP approves this common position, or does not take a decision within the prescribed time limit, the Council can definitively adopt the act in question in accordance with the common position. Second, if the EP rejects the common position, the proposed act shalll be deemed not to have been adopted. Third, if the EP proposes amendments to the common position, the amended text shall be forwarded to the Council and to the Commission. If the Council approves the amendments the act may be adopted by the Council acting by qualified major-

108. A. Dashwood, Community Legislative Procedures in the Era of the Treaty on European Union, 19 ELRev. 345 (1994). Examples are Art. 37.2 EC (implementation of the common agricultural policy), Art. 93 EC (the harmonization of indirect taxation), Art. 308 EC (Community action in the absence of specially conferred powers). 109. Art. 49 TEU.On the assent procedure see Jacobs, Corbett, Shackleton, op. cit. note 20, at 211-217; Dashwood, op. cit. note 108, at 363-365. 110. EC, Art. 300.3. 111. EC, Art. 214.2. 112. The precise details of the co-decision procedure are laid down in Art. 251 EC.

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ity if the amendments are supported by the Commission, and acting by unanimity if there is no such support from the Commission. If the Council does not approve all the amendments, the President of the Council, in agreement with the President of the European Parliament, shall within six weeks convene a meeting of the Conciliation Committee. The Conciliation Committee is composed of the members of the Council or their representatives, and an equal number of representatives of the EP; its task is to bridge the different views of Council and EP. If, within six weeks of its being convened, the Conciliation Committee approves a joint text, the EP and the Council each have a period of six weeks to adopt the act in accordance with the joint text. The act shall be deemed not to have been adopted if either of these institutions fails to give such approval within that period, or if the Conciliation Committee is not able to approve a joint text. In the co-decision procedure, Parliament and Council are equal partners. No act can be adopted without the approval of one of these institutions. In spite of its complexity, this procedure has been considered a success. Its scope of application has been extended over time. It is now applicable to acts that are adopted on the basis of a large number of EC Treaty provisions, such as those on the free movement of workers, freedom to provide services, transport policy, social policy, consumer protection, education, culture, health, implementation of environmental protection measures and trans-European networks. §593. The cooperation procedure was introduced in the 1987 Single European Act.113 It was applicable to decisions taken on the basis of a limited number of provisions of the EC Treaty. The 1997 Amsterdam Treaty almost completely removed this procedure from the gamut of decision-making procedures of the EU. At present it is only prescribed for certain decisions relating to the EC economic and monetary policy.114 Under this procedure the position of Parliament is weaker when compared to the position of Parliament under the co-decision procedure since the Council may acting by unanimity adopt a decision against the will of Parliament. E.

Functioning of parliamentary organs

§594. The members of the European parliamentary organs do not live at the seat of the organization. Furthermore, most of them have duties in ‘their’ member states. This makes frequent or prolonged meeting impossible. Of necessity, international parliamentary organs meet less frequently than their national counterparts. The European Parliament meets every month (except during summer recess). Most of these plenary meetings last one week. The Parliamentary Assembly of the Council

113. At present the cooperation procedure is laid down in Art. 252 EC. 114. E.g. Art. 106.2.

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of Europe meets four times a year, in or around January, May, June-July and September. The Committee of Members of Parliament of the EFTA countries meets at least once a year, and more often if necessary.115 The Consultative Interparliamentary Council of Benelux usually meets, in plenary session, three times at changing dates (the commissions of this organ meet more frequently). The members of parliament of NATO member states meet twice a year. The Parliamentary Assembly of the OSCE meets once a year, normally during the first week of July. The Pan-African Parliament meets in ordinary session at least twice a year.116

§595. International parliamentary organs need commissions to help prepare their work for the same reasons as does a general congress (see above, §403). In fact, much of their work is delegated to special commissions with restricted membership, meeting when the plenary organ is not in session. The European Parliament has seventeen standing committees each covering one of the essential functions of the European Union.117 The seats are divided proportionally on the basis of nationality and political party. These committees usually meet in Brussels for two weeks each month. The Council of Europe’s Parliamentary Assembly has thirteen committees.118

§596. Since most international parliamentary organs possess no real power, can they make a substantial contribution to the organizations? The opinion of Haas remains accurate: “They have not meaningfully controlled their various executives, nor have they legislated in any real sense, though they have attempted and partially exercised powers in both these fields. But they have acted as a spur to the formation of new voluntary elite groups across national boundaries – the European political groups – and the interplay among these has produced a type of diplomatic problemsolving”.119

115. For example, six meetings were held in 1991, in view of the negotiations on the European Economic Area. In addition, a number of related meetings took place of the Agenda Committee and the working group on trade in fish and processed food products, as well as joint meetings with EFTA ministers and with the European Parliament. See EFTA, Annual Report 1991, at 47-49. 116. Protocol to the Treaty establishing the African Economic Community relating to the PanAfrican Parliament (adopted 28 June 2002), Art. 14.2. 117. See European Parliament, Rule 150-167 and Annex VI to the Rules of Procedure (14th ed., 1999; see www.europarl.eu.int). Some examples are the Committee on Foreign Affairs, Human Rights, Common Security and Defence Policy, the Agriculture and Rural Development Committee, the Legal Affairs and the Internal Market Committee, the Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs, and the Committee on Constitutional Affairs. 118. See the website stars.coe.fr. 119. E.B. Haas, International Integration, 15 International Organization (1961), at 369.

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Judicial organs

A.

The need for judicial organs

§597

§597. International judicial organs are primarily created to settle disputes between states. They promote friendly cooperation between states by helping them to solve their mutual conflicts. Two kinds of conflicts may be distinguished: (a) disputes concerning the functioning of an organization or the role of a member state as an element of the organization, and (b) disputes concerning matters not directly related to the functioning of international organizations. The latter kind of conflict does not form part of international institutional law and will therefore not be discussed here. §598. Disputes concerning the functioning of the organization or the role of a member state within it are of direct concern to the organization itself. To solve such disputes, international organizations need judicial organs. In the field of international institutional law, international judicial organs perform at least four different tasks, of which the judicial control of the legality of decisions of the organization is by far the most important. Other tasks include administrative jurisdiction over staff members, interpretation of rules to promote their uniform application by national courts and the determination of rules of private law where no national legal system can be applied. 1.

Control of the legality of decisions

§599. In the institutional field, the most important task of a judicial organ is judicial control of the legality of decisions of the organization. The powers of all international organizations are defined by their constitutions. Decisions may be taken concerning particular subjects only, in accordance with the prescribed procedure. States might be more willing to transfer powers to an international organization if some guarantee is given that the constitutional restrictions on the use of these powers would not be violated. Judicial control could offer them such guarantees. Many judicial organs, particularly in Western Europe, were created at a time when one or more parties feared that the powers of international organizations might be abused. In practice, such abuse seldom materialized and a number of the judicial organs never had to meet (see below, §632, 634, 635). The Court of Justice of the European Communities is the only judicial organ that has on many occasions annulled decisions taken improperly (see below, §912-913). The advisory opinions of the International Court of Justice may be used as authoritative interpretations of the legality of decisions of the UN and the specialized agencies (see below, §912). §600. The need for such judicial control is reduced by three factors: (a) Most international organizations cannot take (externally) binding decisions. Member

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states that consider a decision illegal may disregard it without requiring a judicial annulment. (b) Every state feels itself sufficiently protected by its right of veto in all cases where binding decisions require unanimity. (c) According to prevailing international law, every state is in general free to interpret its own obligations. Thus, states assume for themselves the right to designate undesired decisions as illegal on whatever pretext they can find. The transfer to a judicial organ of the right to determine the legality of decisions of international organizations brings about an important restriction on the states’ right of auto-interpretation which many states do not wish to accept. §601. The need for judicial control is strongest where international organizations may take binding decisions by majority vote. This is often the case in the European Union, but it also occurs in other international organizations. For example, most international organizations take binding decisions by majority vote on questions relating to their budget and concerning the share each member state is required to pay. Some UN members considered the UN decisions on peace-keeping operations in the Middle East and in the Congo illegal. They therefore refused to pay that part of their UN contribution which they calculated would be used to finance these operations, which led to a crisis in the UN (see below, §1212-1213). Such problems could be prevented if an organ could decide authoritatively on the legality of the decisions concerned. The Law of the Sea Convention provides that one quarter of the members of the International Sea-Bed Authority can bring a proposal before the Sea-Bed Disputes Chamber of the International Tribunal for the Law of the Sea, for an advisory opinion on its conformity with the Convention. Pending receipt of the advisory opinion, the proposal will not be brought to the vote.120 A special case is the question whether judicial organs, in examining their jurisdiction, may decide whether they have been lawfully created and may therefore review the act of their creation. In the Tadic case before the International Criminal Tribunal for the Former Yugoslavia (see below, §608) the defence claimed that the UN Security Council had improperly established this Tribunal. The Trial Chamber concluded that the Tribunal could not review the decision of the Security Council to establish the Tribunal. The Appeals Chamber however came to the opposite conclusion. It found that the Tribunal has jurisdiction to examine this question, as it is “a necessary component in the exercise of the judicial function”. “In international law, where there is no integrated judicial system and where every judicial or arbitral organ needs a specific constitutive instrument defining its jurisdiction, the first obligation of the Court – as of any other judicial body – is to ascertain its own competence”. According to the Appeals Chamber this so-called Kompetenz-Kompetenz is inherent in the creation of a judicial organ. By creating a tribunal, the

120. UNCLOS, Art. 159.10. See below, §616.

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Security Council gave it the inherent power to examine the question whether it was lawfully established.121 2.

Administrative jurisdiction over staff members

§602. Judicial review should be possible in case of a conflict between a staff member and the organization that employs him (see above, §543-544). Such conflicts occasionally occur in many international organizations and it is in the mutual interest of the organization and its staff to have a judicial review mechanism to deal with them. Moreover, from a human rights perspective, there is support for the view that staff members must have the right to bring a labour dispute before an independent tribunal (see above, §544A).122 Many international organizations do not feel the need for an administrative tribunal of their own; they use the administrative tribunal of another organization. This is quite possible since the relationship between international organizations and their staff is more or less founded on the same principles in all international organizations. 3.

Control of the application of acts within the national legal orders

§603. Legal rules of international organizations may have to be applied within the legal orders of the member states. Usually such rules are laid down in conventions that require separate ratification by the member states; in some cases they are included in binding regulations of the organization. However, being bound by international obligations in this way does not provide a sufficient guarantee for uniform interpretation, especially if such provisions are vague, or contain escape clauses. International courts may give decisive interpretations of rules of the organization, to prevent similar cases being dealt with in different ways by the various member states. The harmonization of national laws by international organizations is still in its early stages. Few organizations have explored the problem to such an extent that they require a judicial organ to guarantee uniform interpretation. More usually, the decision-making organ itself will effect the control by making new rules when the old ones are not (or are no longer) uniformly applied. One method of obtaining uniform application of the legal rules of international organizations by judicial control may be by establishing a supreme court for the organization, empowered to overrule the decisions of the national

121. Case no. IT-94-1-AR72, 2 October 1995 (reproduced in 35 ILM (1996) at 32 ff), quotation from para. 18. The Appeals Chamber took the decision on this question by a 4-1 vote, Judge Li voting against. Some support for Judge Li’s dissent is given in M. Shahabuddeen, The competence of a tribunal to deny its existence, in S. Yee and W. Tieya (eds.), International Law in the Post-Cold War World – Essays in memory of Li Haopei 473-479 (2001). 122. See e.g. two cases decided on 18 February 1999 by the European Court of Human Rights: Waite and Kennedy v. Germany (Appl. No. 26083/94) and Beer and Regan v. Germany (Appl. No. 28934/95).

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supreme courts in matters which have been harmonized. To date, state sovereignty has prevented this. States are generally reluctant to accept a court which ranks above their own supreme courts. A form of binding advice (preliminary ruling), which the international court can give to the national courts, has proved to be a more acceptable solution (see below, §1374-1378). 4.

Private law123

§604. International organizations buy equipment, hire and let conference rooms, buy and sell books and documents, etc. All such actions may lead to legal disputes. Possible questions on the applicable law can usually be settled on the basis of the law of conflicts (private international law). Usually the proper law of the contract or the law where the immovable property is situated will be applied, which can also be used to found jurisdiction. The organization may waive its immunity and appear before the national court concerned. Should the organization not wish to appear before a local court, then it should insert an arbitration clause in the contract. This is usually done in important cases. A special judicial organ is therefore hardly needed. International organizations may cause damage to private citizens. A tort action will require the court concerned to judge a particular activity of the organization. In many cases, an international organization will not accept the judgment of a local court, but will claim immunity, with the result that the action will fail. This may be inequitable for the person concerned, who has no other remedy than to try to persuade his government to take action on his behalf. However, international organizations will usually pay all damages for which they are responsible. Therefore, the need for a special court may be small, although it may still arise. Questions such as those of culpability and the amount of the damage suffered should be settled by a court. The claims for non-contractual liability that have been brought before the EC Court demonstrate the importance of such cases.124

123. See in general on this subject matter the classic study by C. Wilfred Jenks, The Proper Law of International Organizations (1962). See also UN Doc. A/CN.4/L/383 and Add. 1-3 (1985); P. Sands and P. Klein, Bowett’s Law of International Institutions (5th ed. 2001), at 461-464. 124. See H.G. Schermers and D. Waelbroeck, Judicial Protection in the European Union (6th ed. 2001), at 519-571; H.G. Schermers, T. Heukels, P. Mead (eds.), Non-contractual Liability of the European Communities (1988); F. Fines, Étude de la responsabilité extracontractuelle de la Communauté Économique Européenne (1990).

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B.

Existing judicial organs125

1.

Universal judicial organs

a.

The International Court of Justice126

§605

§605. The International Court of Justice (ICJ) is the successor of the Permanent Court of International Justice. In 1945 when the ICJ was created as a principal organ of the UN,127 there were few changes, except for the name.128 The competence of the ICJ is limited. When the League of Nations was founded, international organizations were still underdeveloped. Administrative jurisdiction over staff members or judicial settlement of private law disputes were not considered suitable for a court of public international law. Nor was a need felt for judicial control of the legality of the acts of the organization, or for their uniform interpretation within national legal orders. International organizations were little more than loose groupings of sovereign states. No independent legal personality was accepted. Disputes would therefore be disputes between states. The ICJ is still principally a court for the settlement of disputes between states, before which members and non-members of the UN may appear.129 However, a state cannot always summon another state before the Court in case of dispute. This is only possible if the other state accepts this means of settlement or if it has recognized the compulsory jurisdiction of the Court in a specific declaration.130 Some UN organs (for example, the General Assembly,the Security Council and ECOSOC),131 and almost all international organizations of the UN family

125. For further surveys of existing judicial organs and bibliographies see F.C. Jeantet, International Courts (1958); Sands and Klein, op. cit. note 123, at 337-438; R. Bernhardt, International Gerichte und Schiedsgerichte in der gegenwärtigen Weltordnung, 28 Eur. Arch. 363-372 (1973); C. Philip and J.-Y. de Cara, Nature et évolution de la juridiction internationale, in: Société Française pour le Droit International, La juridiction internationale permanente (Colloque de Lyon) 3-43 (1987); M.W. Janis (ed.), International Courts for the Twenty-First Century (1992); J. Collier and V. Lowe, The Settlement of Disputes in International Law: Institutions and Procedures (1999); P. Sands, R. MacKenzie and Y. Shany, Manual on International Courts and Tribunals (1999). 126. For literature on the International Court of Justice see the Annex (selected bibliography). 127. UN Charter, Art. 7. 128. UN Charter, Art. 92. 129. UN Charter, Art. 93. 130. ICJ Statute, Art. 36. As of 31 July 2002, 63 states had recognized the compulsory jurisdiction of the ICJ; see ICJ Report to the General Assembly (2001-2002), UN Doc. A/57/4, at 13. Several General Assembly resolutions encourage acceptance of the Court’s jurisdiction, see, inter alia: GA Res. 3232(XXIX), 3283(XXIX). See also J.L. Iglesias Buigues, Les déclarations d’acceptation de la jurisdiction obligatoire de la cour internationale de justice: Leur nature et leur interprétation, 23 ÖZöR 255-288 (1972); P.M. Eisemann, Les effets de la non comparation devant la Cour Internationale de Justice, 19 AFDI 351-375 (1973). See more in general R. Szafarz, The Compulsory Jurisdiction of the International Court of Justice (1993). 131. UN Charter, Art. 96.

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may ask for advisory opinions (see below, §1366-1370).132 In the early years of the UN, two subsidiary organs of the General Assembly were authorized to request advisory opinions, but these organs are now inactive.133 To a limited extent, the ICJ also performs a role for international organizations other than the UN.134 This opens some possibility for control of the legality of their acts.135 The Court may exercise such control subject to two important restrictions: a) The legal opinion of the Court can only be given as an “advisory opinion” which has no binding force; b) Questions on the legality of acts may only be asked by the organs themselves. Members and individuals who might suffer from the acts can neither ask for an advisory opinion nor bring the question before the Court in any other manner. §606. In the ICAO, the ICJ has been accepted as court of appeal for decisions of the board. This function was exercised in 1972 in a dispute between India and Pakistan.136 In 1989, a second application of this kind was filed at the Court’s Registry. Iran instituted proceedings against the United States, contending, inter alia, that the ICAO Council had erred in its decision of 17 March 1989 concerning the aerial incident of July 1988.137 The question of judicial review was discussed extensively during the negotiations for the International Trade Organization (ITO). The constitution of this organization was adopted in Havana in 1948, but it has never entered into force. In practice, the GATT soon took the place intended for the ITO. Judicial review was so widely discussed because it was felt that important powers were to be attributed to the ITO, to the extent that it would have borne

132. See also K.J. Keith, The Extent of the Advisory Jurisdiction of the International Court of Justice (1971); T. Furukawa, Le double rôle de la Cour Internationale de Justice à l’égard des organisations internationales: protection et contrôle, in: Mélanges Reuter 293-314 (1981); R. Ago, “Binding” Advisory Opinions of the International Court of Justice, 85 AJIL 439-451 (1991); C.D. Espósito, La jurisdicción consultiva de la Corte Internacional de Justicia (1996). 133. The Interim Committee of the General Assembly (see §395) and the Committee on Applications for Review of Administrative Tribunal Judgments (see §642). It was controversial at the time whether these organs should have such a power themselves or whether it should exclusively be for the Assembly itself to request such opinions. More recently suggestions have been made to give this power to the UN Environment Programme, but so far no authorization has been given. See UNJY 1991, at 303-304. 134. See O. Audéoud, La Cour Internationale de Justice et le règlement des differends au sein des organisations internationales, 81 RGDIP 945-1006 (1977). 135. See further M. Bedjaoui, The new world and the Security Council: testing the legality of its acts (1994); J.E. Alvarez, Judging the Security Council, 90 AJIL 1-39 (1996); K. Zemanek, Is the Security Council the Sole Judge of its own Legality? in E. Yakpo and T. Boumedra (eds.), Liber Amicorum Judge Mohammed Bedjaoui (1999), at 629-645; E. de Wet, Judicial Review of the United Nations Security Council and General Assembly through Advisory Opinions of the International Court of Justice, 3 SRIEL 237-277 (2000). 136. ICJ Rep. 1972, at 46. See Audéoud, op. cit. note 134, at 956-957. 137. See International Court of Justice, Yearbook 1991-1992, at 153-154 (in 1996 this case was removed from the Court’s list, when the parties informed the Court that they had settled their dispute).

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“a closer similarity to federal administrative agencies than is the case with most other international economic organizations”.138 A need for checks and balances was recognized. However, on the other hand, it was preferred that the ITO remain “master in its own house”, and should be competent to take final decisions in complicated economic questions which were not regarded as suitable for judicial review. The compromise was laid down in Article 96 of the ITO constitution, providing that, inter alia, decisions of the plenary organ of the ITO “shall, at the instance of any member whose interests are prejudiced by the decision, be subject to review by the International Court of Justice by means of a request ... for an advisory opinion ...”; “the organization shall consider itself bound by the opinion of the Court”. When the WTO was created in 1994 the possibility of judicial review by the ICJ was not re-introduced. §607. The ICJ has some administrative jurisdiction over staff members. The Statute of the administrative tribunal of the ILO provides for advisory opinions, which may be requested on its decisions.139 However, this possibility of ‘appeal’ to the ICJ is rather limited.140 The staff members concerned may not lodge appeals, which can only be made in the interests of the organization,141 and the request has no suspensory effect.142 According to the Statute of the ILO Tribunal, the advisory opinion of the Court is binding.143 It is not appropriate that the ICJ acts as an administrative tribunal since individuals may not appear before it. In practice, inequality of the parties is avoided as an organization renounces its right to make oral representations and includes the written statement of the civil servant in its own written submissions.144 b.

Ad hoc tribunals on war crimes and the International Criminal Court

§608. In 1993 the International Criminal Tribunal for the former Yugoslavia was created for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former

138. S.J. Rubin, The Judicial Review Problem in the International Trade Organization, 63 Harvard Law Review 78-98 (1949), at 97. See also A. Gros, Le problème du recours juridictionnel contre les décisions d’organismes internationaux, La technique et les principes du droit public, Liber amicorum Scelle 267-274 (1950). 139. Originally the Statute of the UN Administrative Tribunal also provided for such a review mechanism, but this was abolished in 1995. See further §642. See in general K.H. Kaikobad, The International Court of Justice and Judicial Review – A Study of the Court’s Powers with Respect to Judgments of the ILO and UN Administrative Tribunals (2000). 140. Administrative Tribunal ILO, Statute Art. 12. 141. See also ILO Tribunal Decision No. 83 (UNJY 1965, at 212-213). 142. ILO Tribunal Decision No. 82 (UNJY 1965, at 211-212). 143. Art. 12(2). See also Judgments of the Administrative Tribunal of the ILO upon complaints made against the UNESCO, Advisory Opinion of 23 October 1956, ICJ Rep. 1956, at 84. 144. ICJ Rep. 1956, at 84-86.

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Yugoslavia.145 This is the third ad hoc tribunal on war crimes, the first two having been the Nuremberg and Tokyo Tribunals. The Tribunal sits in The Hague and has sixteen permanent and twenty-seven ad litem judges. Ad litem judges serve in the Trial Chambers for one or more trials.146 The Tribunal has three Trial Chambers (three judges each) and one Appeals Chamber (five judges). It is interesting to note that this Tribunal was created by a resolution of the UN Security Council, and not by a treaty. While the former procedure is much faster, a disadvantage could be that this judicial body is a subsidiary organ of a political organ, the Security Council.147 Concluding a treaty may be more time consuming, but it offers more opportunities for guaranteeing the independent position of a Tribunal that is competent to inflict severe penalties. A similar tribunal was created by the Security Council in 1994, for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring states. The structure of this Rwanda tribunal is essentially the same as that of the former Yugoslav tribunal (e.g. three Trial Chambers having three judges each and one Appeals Chamber with five judges).148 The Rwanda Tribunal also has ad litem judges.149 It sits in Arusha (Tanzania).150 These two tribunals deal with the prosecution of individuals. They are not judicial organs of international organizations created to settle disputes concerning the functioning of these organizations. Two of their decisions are of particular interest here as they relate to the judicial review of decisions of international organizations, namely the decisions by which these tribunals were created (see supra, §227B (the Tadic case and the Kanyabashi case)). In 1998 the International Criminal Court was created,151 to exercise jurisdiction over persons for the most serious crimes of international concern (genocide, crimes against humanity, war crimes, the crime of aggression). The

145. UN Security Council, Res. 827. The Statutes of the Tribunal are contained in a report by the UN Secretary-General (S/25704), which was approved by the Security Council in Res. 827. See P. Akhavan, Punishing War Crimes in the Former Yugoslavia: a Critical Juncture for the New World Order, 15 Human Rights Quarterly 262-289 (1993); B. Broms, Security Council Resolution 808 (1993), in O. Bring and S. Mahmoudi (eds.), Current International Law Issues, Nordic Perspectives (Essays in Honour of Jerzy Sztucki, 1994), at 51-64; P. Weckel, L’institution d’un tribunal international pour la répression des crimes de droit humanitaire en yougoslavie, 39 AFDI 232-261 (1993); D. Shraga and R. Zacklin, The International Criminal Tribunal for the Former Yugoslavia, 5 EJIL 360-380 (1994). 146. See ICTY Statute, Art. 13 ter. See on the background of the creation of ad litem judges D.A. Mundis, Improving the Operation and Functioning of the International Criminal Tribunals, 94 AJIL 759-773 (2000). 147. See further A. D’Amato, Peace vs. Accountability in Bosnia, 88 AJIL 500-506 (1994). 148. UN Security Council Res. 955 (the Statute of the Rwanda Tribunal is annexed to this resolution). 149. SC Res. 1431. 150. UN Security Council Res. 977. 151. See for the text of the Statute of the ICC, UN Doc. PCNICC/1999/INF/3.

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ICC Statute entered into force on 1 July 2002. The ICC is not a judicial organ supervising the work of an international organization and will therefore not be discussed here. c.

The Human Rights Committee152

§609. The Human Rights Committee is a treaty organ established by the International Covenant on Civil and Political Rights. It is composed of 18 independent experts and performs a largely judicial function.153 It receives reports from the state parties on the effect being given to the Covenant; the Committee “shall study” these reports and make “such general comments as it may consider appropriate”.154 It may also receive and consider communications from state parties, which claim that other parties are not fulfilling their obligations under the Covenant, provided that the states involved have expressly recognized the competence of the Committee to receive and consider such communications.155 Individuals may also submit written communications to the Committee alleging violations of the rights guaranteed by the Covenant, but only if the state concerned is a party to the optional protocol to the Covenant.156 The Committee is not entitled to issue binding judgments on such state or individual communications. With regard to individual communications, the Committee may only “forward its views to the state party concerned and to the individual”.157

152. E. Schwelb, The International Measures of Implementation of the International Covenant on Civil and Political Rights And of the Optional Protocol, 12 Tex. ILJ 141-186 (1977); M.J. Bossuyt, Le règlement intérieur du Comité des droits de l’homme, 14 RBDI 104-156 (1978-1979); M.J. Bossuyt, Guide to the “travaux préparatoires” of the International Covenant on Civil and Political Rights (1987); M. Nowak, UN Covenant on Civil and Political Rights – CCPR Commentary (1993); D. McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (1991); T. Opsahl, The Human Rights Committee, in P. Alston (ed.), The United Nations and Human Rights, A Critical Appraisal 369-443 (1992); H.J. Steiner, Individual claims in a world of massive violations: What role for the Human Rights Committee?, in P. Alston and J. Crawford, The future of UN human rights treaty monitoring 15-53 (2000). 153. For the text of the Covenant, see GA Res. 2200(XXI), Annex, YUN 1966, at 423-431. As of May 2003, 149 states were party to this Covenant. 154. International Covenant on Civil and Political Rights, Art. 40. See P. Alston, The historical origins of the concept of ‘general comments’ in human rights law’, in L. Boisson de Chazournes and V. Gowlland-Debbas (eds.), The International Legal System in Quest of Equity and Universality – Liber Amicorum Georges Abi-Saab 763-776 (2001). 155. Id., Art. 41. As of 17 June 2002, 48 states had recognized this competence of the Committee; to date, no state complaints have been lodged. 156. Optional Protocol to the International Covenant on Civil and Political Rights, GA Res. 2200(XXI), Art. 1. As of May 2003, 104 states were party to this Protocol. 157. Optional Protocol, Art. 5.4. ‘Views’ are published in the annual reports of the Human Rights Committee to the General Assembly, and in the UN publication ‘Selected Decisions of the Human Rights Committee under the Optional Protocol’.

§610

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The Committee on Economic, Social and Cultural Rights158

§610. Originally, the task of supervising the implementation of the International Covenant on Economic, Social and Cultural Rights was given to an ECOSOC working group, composed of government representatives. In 1985, it was decided to replace this group by a committee of independent experts, an organ of ECOSOC.159 The functions performed by this committee can to some extent be described as judicial. It receives and discusses reports from state parties. It “shall make suggestions and recommendations of a general nature on the basis of its consideration of those reports”.160 Unlike the Human Rights Committee, it has no right to receive complaints from state parties or individuals. The Committee has discussed the possibility of introducing a right of individual complaint, but this has not yet resulted in an optional protocol being attached to the Covenant, opening the possibility for such complaints. e.

The Committee on the Elimination of Racial Discrimination

§611. This treaty organ was created by the International Convention on the Elimination of all Forms of Racial Discrimination (CERD).161 State parties have undertaken to submit reports on the measures adopted to give effect to the provisions of this Convention. These reports are examined by the Committee, which “may make suggestions and general recommendations”.162 If a state party considers that another party is not giving effect to the Convention, it may bring the matter to the attention of the Committee, which may make recommendations. The Committee has the same competence in relation to communications from individuals, but, as opposed to state complaints, only if the “accused” state has declared that it recognizes such competence.163

158. For the text of this Covenant, see GA Res. 2200(XXI). As of May 2003, 146 states were party to this Covenant. See P. Alston, The Committee on Economic, Social and Cultural Rights, in Alston (ed.), op. cit. note 152, at 473-508; S. Leckie, The Committee on Economic, Social and Cultural Rights: Catalyst for change in a system needing reform, in Alston and Crawford (eds.), op. cit. note 152, at 129-144. 159. ECOSOC Res. 1985/17. 160. Id., para. (f). 161. For the text of this Convention, see GA Res. 2106 (XX). See N. Lerner, The UN Convention on the Elimination of all Forms of Racial Discrimination (2nd ed. 1980); K.J. Partsch, The Committee on the Elimination of Racial Discrimination, in Alston, op. cit. note 152, at 339-368; R. Wolfrum, The Committee on the Elimination of Racial Discrimination, in 3 Max Planck UNYB 1999, at 489-519; M. Banton, Decision-taking in the Committee on the Elimination of Racial Discrimination, in Alston and Crawford, op. cit. note 152, at 55-78. As of May 2003, 166 states were party to this Convention. 162. CERD, Art. 9. 163. As of 17 June 2002, 38 states have recognized this competence.

437

f.

Advisory and supervisory organs

§612

The Committee on the Elimination of Discrimination against Women

§612. This treaty organ was created by the 1979 Convention on the Elimination of All Forms of Discrimination against Women.164 It may make suggestions and general recommendations concerning the reports that have to be submitted by the state parties. It may also receive and consider communications by (groups of) individuals.165 g.

The Committee against Torture

§613. This treaty organ was created by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.166 It “may make such general comments (...) as it may consider appropriate” on the reports submitted by the states.167 The Committee may also receive and consider communications by states and individuals, if the “accused” state has recognized this competence. In relation to state complaints, it may submit a report; in relation to communications by individuals, it may forward its views.168 h.

The Committee on the Rights of the Child

§614. This treaty organ was created in the 1989 Convention on the Rights of the Child.169 The Committee may make suggestions and general recommendations on the basis of state reports.

164. For the text of this Convention, see GA Res. 34/180. As of May 2003, 172 states were party to this Convention. See on the functioning of this Committee A.C. Byrnes, The “Other” Human Rights Treaty Body: The Work of the Committee on the Elimination of Discrimination against Women, 14 Yale Journal of International Law 2-67 (1989); R. Jacobson, The Committee on the Elimination of Discrimination against Women, in Alston, op. cit. note 152, at 444-472; M.R. Bustelo, The Committee on the Elimination of Discrimination against Women at the crossroads, in Alston and Crawford, op. cit. note 152, at 79-112. 165. Optional Protocol to the Convention on the Elimination of Discrimination against Women (1999), Art. 2. 166. For the text of this Convention, see GA Res. 39/46. As of May 2003, 132 states were party to this Convention. See A. Byrnes, The Committee against Torture, in Alston, op. cit. note 152, at 509-546; R. Bank, Country-oriented procedures under the Convention against Torture: Towards a new dynamism, in Alston and Crawford, op. cit. note 152, at 145-174. 167. Id., Art. 19.3. 168. As of May 2003, 52 and 51 states respectively had recognized the competence of the Committee to deal with state and individual communications. 169. For the text of this Convention, see GA Res. 44/25. As of May 2003, 191 states were parties to this Convention. See S. Detrick (ed.), The UN Covenant on the Rights of the Child. A Guide to the “Travaux Préparatoires” (1992); G. Lansdown, The reporting process under the Convention on the Rights of the Child, in Alston and Crawford, op. cit. note 152, at 113128.

§615

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The Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families

§615. This treaty organ was created in the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.170 The Committee is competent to deal with state reports and, provided that such competence is recognized by the “accused” state, both state and individual communications.171 j.

The International Tribunal for the Law of the Sea

§616. The 1982 UN Convention on the Law of the Sea (UNCLOS), which entered into force in 1994, provides for the creation of an international tribunal for the law of the sea.172 According to Article 287.1 of this convention, state parties are free to choose between different mechanisms for the settlement of disputes concerning the interpretation or application of UNCLOS: arbitral tribunals, the ICJ or the UNCLOS Tribunal. As far as the deep seabed is concerned, extensive jurisdiction has been given to the Tribunal, including cases involving states, the Seabed Authority and private parties. The 21 member Tribunal is headquartered in Hamburg. 2.

Regional judicial organs173

§617. Regional courts have some advantages over universal judicial organs. Their judges will be better acquainted with the local situation and with the legal notions dominant in the region. Specialized courts may be better able to use their case law to build a legal order appropriate to the organization. The risk that states from outside the region become involved in regional

170. For the text of this Convention, see GA Res. 45/158. The Convention entered into force on 1 July 2003. On this date 21 states were parties to this Convention. 171. Id., Arts. 73-78. 172. See for the text of this convention UN Doc. A/CONF.62/122, or M.H. Nordquist (ed.), United Nations Convention on the Law of the Sea 1982. A Commentary, Vol. I (1985). The text of the Statutes of the Tribunal is in Annex VI of UNCLOS. For further information on the Tribunal, see its annual reports prepared for the Meeting of States Parties, e.g. the annual report for 2002 (Doc. SPLOS/92). See on this Tribunal M.W. Janis, The Law of the Sea Tribunal, in Janis, op. cit. note 125, at 245-251; S. Oda, Some Reflections on the Dispute Settlement Clauses in the United Nations Convention on the Law of the Sea, in J. Makarcyzyk (ed.), Essays in International Law in Honour of Judge Manfred Lachs (1984), at 645-655; A.O. Adede, The System for Settlement of Disputes under the United Nations Convention on the Law of the Sea, A Drafting History and a Commentary (1987); J.R. Stevenson and B.H. Oxman, The Future of the United Nations Convention on the Law of the Sea, 88 AJIL 488499 (1994). 173. For European judicial organs see H. Wiebringhaus, Gerichtshof für Europa? (2nd ed. 1967).

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conflicts is smaller when these conflicts can be settled entirely within the region.174 There are many regional courts and tribunals. The following may be mentioned as the best-known examples. a.

The Court of Justice and the Court of First Instance of the European Communities175

§618. The Court of Justice is first of all the judicial organ of the European Communities. When the EU was established in 1992, most of the new areas of cooperation (second pillar – common foreign and security policy; third pillar – justice and home affairs) remained outside the Court’s jurisdiction. This changed to some extent when the 1997 Amsterdam Treaty extended the jurisdiction of the Court, in particular with regard to the third pillar (renamed into “police and judicial cooperation in criminal matters”).176 In addition, some of the Association Councils based upon the Association agreements concluded between the EC and third countries may submit disputes to this Court.177 The powers of the Court of Justice, laid down in the treaties establishing the Communities, have been extended to other specific subjects by further treaties between the member states.178 The EC Court has more powers than any other international court. It may, inter alia, decide cases between member states179 or between the Commission and a member state,180 and it can determine the legality of Community acts181 (see below, §912-916). It exercises some control over the application of Community law within national legal orders by its right to give preliminary rulings (see below, §1374-1378) and it also functions as an administrative

174. Cf. B. Boutros-Ghali, Les difficultés institutionnelles du panafricanisme 34 (1971). 175. On the EC Court see A. Barav, Contentieux Communautaire (1977); A.G. Toth, Legal Protection of lndividuals in the European Communities (1978); R. Joliet, Le droit institutionnel des Communautés européennes – Le contentieux (1981); G. Bebr, Development of Judicial Control of the European Communities (1981); M. Waelbroeck, J.-V. Louis, G. Vandersanden, La Cour de Justice, Commentaire Mégret 10 (1983); J. Schwarze (ed.), Der Europäische Gerichtshof als Verfassungsgericht und Rechtsschutzinstanz (1983); K.P.E. Lasok, The European Court of Justice, Practice and Procedure (1984); L. Neville Brown and F.G. Jacobs, The Court of Justice of the European Communities (3rd ed. 1989); Schermers and Waelbroeck, op. cit. note 124; A Arnull, The European Union and its Court of Justice (1999). On the Court of First Instance, see Schermers and Waelbroeck, op. cit. note 124, Chapter 7; H.G. Schermers, The European Court of First Instance, 25 CMLRev. 541-558 (1988); T. Millett, The Court of First Instance of the European Communities (1990). 176. TEU, Art. 35. See A. Albors-Llorens, Changes in the jurisdiction of the European Court of Justice under the Treaty of Amsterdam, 35 CMLRev. 1273-1294 (1998). 177. Association Agreement with Turkey, Art. 25.2. 178. See Schermers and Waelbroeck, op. cit. note 124, at 660. 179. EC, Art. 227; Euratom, Art. 142. 180. EC, Art. 226; Euratom, Art. 141. 181. EC, Arts. 230, 232, 241; Euratom, Arts. 146, 148, 156.

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appeal tribunal for the staff of the Communities182 (this function is mainly exercised by the Court of First Instance). Cases on contracts may be brought before the Court by virtue of an arbitration clause in the contract concerned,183 such clauses being common in the contracts in which Euratom delegates research to private firms. Large sums of money may be involved but yet none of these contracts has led to a case before the Court. If no arbitration clause is inserted, cases on contracts must be brought before the national court concerned.184 The Court of Justice has jurisdiction to decide cases relating to the non-contractual liability of the Communities.185 On appeal, it may hear disputes concerning licences granted under the Euratom Treaty.186 For judgment at first instance, an arbitration commission was considered more suitable in this very specialized field. §619. The Court of Justice also has some advisory duties. Under the ECSC Treaty, the Court had to give an opinion with regard to proposed minor amendments to this Treaty.187 The EC can conclude agreements with foreign states or with other international organizations. The European Parliament, the Council of Ministers, the Commission or a member state may, as a preliminary matter, obtain the opinion of the Court on the compatibility with the Treaty of a contemplated agreement.188 In the event that the Court finds that such an agreement is incompatible with the EC Treaty, either the agreement or the EC Treaty must be amended before the agreement can enter into force. The Euratom Treaty allows the member states to conclude agreements with third states, international organizations or citizens from third states, in matters falling within the Treaty’s field of application. Drafts for such agreements must be presented to the Commission, and if the Commission considers that the proposed agreement would impede the application of the Euratom Treaty, the member state may not in fact conclude the agreement. If the member state contests the Commission’s conclusion, it may ask the Court for a ruling as to the compatibility of the proposed agreement with the Euratom Treaty.189

182. EC, Art. 236. See L. Dubouis, Fonctionnaires et agents des Communautés européennes. Commentaire de la jurisprudence de la CJCE, 14 RTDE 469-515 (1978); H. Henrichs, Die Rechtsprechung des Europäischen Gerichtshofes in Personalsachen, 17 EuR 231-253 (1982), 20 EuR 171-190 (1985) and 23 EuR 302-325 (1988). 183. EC, Art. 238; Euratom, Art. 153. 184. EC, Art. 240; Euratom, Art. 155. 185. EC, Art. 235; Euratom, Art. 151. 186. Euratom, Art. 18. 187. ECSC, Art. 95. OJ 1995, L 1/3. 188. EC, Art. 300.6. 189. Euratom, Art. 103.

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Advisory and supervisory organs

§620

§620. At the request of the Council or the Commission, the Court of Justice may compel the retirement of a member of the Commission, if he no longer fulfils the conditions required for the performance of his duties.190 The jurisdiction of the Court of Justice can be further extended. Under the EC Treaty the Council has the power to adopt regulations in which provision is made for sanctions in the event of breach. It can (and should) then confer on the Court full jurisdiction in respect of such sanctions.191 The Council has adopted such regulations and conferred jurisdiction on the Court.192 The caseload of the Court has increased sharply. Since the Court was established in 1952, more than 12,500 cases have been brought before it. In the year 1978, 200 new cases were brought, in 1985 more than 400. In the year 2002 the Court completed 513 cases; 907 cases were pending, 477 cases were submitted. Of the 513 completed cases, 241 cases were references for a preliminary ruling, 215 were direct actions, 47 cases dealt with appeals, and a few others concerned special procedures.193

§621. In the 1970s, the increasing volume of staff cases brought before the Court prompted proposals for the creation of a staff tribunal. At the time, however, no agreement could be reached on the question whether this tribunal should be an essentially judicial or administrative body. Following proposals from the Court, it was agreed in the 1986 Single European Act that a court could be attached to the Court of Justice “with jurisdiction to hear and determine at first instance, subject to a right of appeal to the Court of Justice on points of law only and in accordance with the conditions laid down by the Statute, certain classes of action or proceeding brought by natural or legal persons”.194 This led to the creation of the Court of First Instance in 1988 which started to function on 31 October 1989.195 It was charged to deal with staff and some other cases, in particular actions brought against a Community institution by natural or legal persons pursuant to Article 230, second paragraph, EC and Article 232, third paragraph, EC relating to the implementation of the competition rules applicable to undertakings. Further classes of actions have been brought within the jurisdiction of the Court of First Instance (subject to the restriction that this Court shall not be competent to hear and determine questions referred for a preliminary ruling under Article 234 EC).196 In 1994, the Court of First Instance decided 78 staff cases and 358 competition cases.197

190. 191. 192. 193. 194. 195.

196. 197.

EC, Arts. 213.2 and 216. EC, Art. 229. E.g. Regulation 17 (Anti-Trust); Regulation 11 (Transport Tariffs). These and more detailed statistics are presented on the website of the Court: http:// curia.eu.int. See Arts. 225 EC and 140a Euratom. These provisions have been amended by the TEU. See also D. Wyatt and A. Dashwood, European Community Law 167-178 (3rd ed. 1993), and the discussion paper prepared by the First Instance Court itself, Reflections on the Future Development of the Community Judicial System, 16 ELRev. 175-189 (1991). EC, Art. 225, paras. 1 and 2; OJ 1993, L 144/21. Information obtained from the Court of Justice.

§622

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Benelux Court of Justice

§622. On 31 March 1965, the Benelux established a Court of Justice, which was charged with the uniform interpretation of the common rules of law.198 As a consequence of many recommendations and conventions of Benelux, the three member states have an increasing number of identical national laws. Such was the fear of divergent national interpretations that it was decided to establish a common court, competent to address preliminary rulings to national courts (see below, §1377). It decided its first case on 1 March 1975. The seat of the Court is with the Secretariat of Benelux in Brussels. A chamber of the Court is charged with administrative jurisdiction concerning the staff of Benelux. c.

The EFTA Court of Justice

§623. On 2 May 1992 the Agreement on European Economic Area (EEA) was signed by 19 EC and EFTA states and by the European Commission. On the same day, the EFTA states signed two agreements on the establishment of the EFTA Surveillance Authority and the EFTA Court of Justice, and on a Standing Committee of the EFTA states, as required by the EEA Agreement.199 The EEA Agreement and the two agreements signed on the same day entered into force 1 January 1994. The EFTA Court, having one judge from each of the EFTA states participating in the EEA, was inaugurated 4 January 1994 and decided its first case on 15 June 1994.200 It is in particular competent for: actions concerning the surveillance procedure regarding the EFTA states (e.g. infringement actions brought by the EFTA Surveillance Authority against an EFTA state with regard to the implementation, application or interpretation of an EEA rule); appeals concerning decisions in the fields of competition initiated by the EFTA Surveillance Authority; the settlement of disputes between two or more EFTA states.201

198. Treaty of 31 March 1965, Benelux Publicatieblad 1965-2/3, at 7-38: 13 European Yearbook 259-266 (1965). The treaty entered into force on 1 January 1974. On the Benelux Court see J.W. Schneider, The Benelux Court, 4 NYIL 193-235 (1973); Swartenbroux-Vanderhaelen, De rechtsprekende bevoegdheid van het Benelux-Gerechtshof, RW 1973-1974, Col. 1681; G. Demez, La Cour de Justice Benelux, 12 CDE 149-178 (1976); L. Goffin, Cour de Justice Benelux, 14 CDE (1978), at 123ff.; F. Dumon, La Cour de Justice Benelux (1980); E.D.J. Kruijtbosch, Benelux Economic Union, College of Arbitrators and Court of Justice, EPIL Vol. 1 (1992), at 377-380; F. Dumon, Benelux gerechtshof (1984). 199. See S. Norberg, The Agreement on a European Economic Area, 29 CMLRev. 1171-1198 (1992); C. Reymond, Institutions, Decision-making Procedure and Settlement of Disputes in the European Economic Area, 30 CMLRev. 449-480 (1993). The Rules of Procedure of the EFTA Court have been published in OJ 1994, L 278. 200. OJ 1994, C 250/7. 201.. EEA Agreement, Art. 108.2.

443

d.

Advisory and supervisory organs

§624

The Andean Court of Justice

§624. By agreement of 28 May 1979, the Andean group states (Bolivia, Colombia, Ecuador, Peru and Venezuela) created a Court of Justice for the Andean Common Market.202 The Court was inaugurated at its seat in Quito in 1984. It has five judges and is one of the principal organs of the Andean Common Market. To a large extent, this court used the EC Court of Justice as a model. Many provisions of the Community Treaties were not transposed because they were not deemed suitable for the situation of the Andean Common Market, while others were amended as the experience of the Communities had demonstrated that they were not quite appropriate. The Andean Court followed the EC rules concerning preliminary rulings on interpretation and actions against member states for breach of Treaty obligations. It did not do so for preliminary rulings on validity. The possibility for individuals to challenge acts of the organization is wider than the corresponding EC right and the time-limits for bringing actions before the Court are considerably longer than is the case for actions before the EC Court. The Court has delivered a number of judgments and preliminary rulings. In its case law, in which it has referred to the case law of the EC Court, it has held that Andean community law takes precedence over national law, and that the provisions of directly applicable Andean community law render conflicting national legislation inapplicable.203

e.

The European Court of Human Rights204

§625. The European Convention for the Protection of Human Rights and Fundamental Freedoms – concluded within the scope of the Council of Europe – originally created two special organs for the protection of human rights in Europe: a Commission205 and a Court.206 Following a steep rise

202. Treaty for the creation of a Court of Justice of the Cartagena Agreement, signed at Cartagena on 28 May 1979. See 16 CMLRev. 529-531 (1979) and 18 ILM 1203-1210 (1979). 203. J. Polakiewicz, Andean Common Market, Court of Justice, EPIL Vol. 1 (1992), at 163-164. See further R. Marwege, Der Andengerichtshof: das Rechtsschutzsystem des Andenpaktes mit vergleichenden Bezügen zum Recht der Europäischen Gemeinschaft (1995). 204. For the original text of this Convention, see 213 UNTS at 221; European Treaty Series No. 5. The Convention has been amended several times. See for its present text: www.coe.fr. 205. G.B. Zotiades, Some Aspects of the Functions assigned to the European Commission of Human Rights in the Examination of the Merits of the Case, 22 RHDI 65-91 (1969); A. Glenn Mower Jr, The effectiveness of an international human rights program, 29 International Organization 545-556 (1975); J.T. Wright, The European Commission of Human Rights: An analysis and appraisal, 3 Brooklyn JIL 119-194 (1977); Henry G. Schermers (ed.), The Influence of the European Commission of Human Rights (Mordenate College Publications No. 1, 1992). 206. European Convention on Human Rights, Art. 19; S.A. Cohn, International adjudication of human rights and the European Court of Human Rights: A survey of its procedural and some of its substantive holdings, Georgia Journal of International and Comparative Law, at 315-464

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of the number of complaints207 and a long debate about the future supervisory mechanism of the Convention, Protocol No. 11 was concluded in 1994. This Protocol entered into force 1 November 1998. Under this Protocol a new, permanent Court of Human Rights replaced the European Commission of Human Rights and the old Court. The present Court handles all cases in chambers. The role of the Committee of Ministers under the Convention has been limited to the supervision of the execution of the judgments of the Court. Within this Court, a Grand Chamber is competent to reconsider, “in exceptional cases”, cases decided by the chambers.208 The president of the chamber and the judge elected in respect of the state concerned are ex officio members of the Grand Chamber and therefore participate in the reconsideration of the case. Formally, however, it is not an appeal procedure, but a continuation of the chamber proceedings. One of the reasons for choosing this legal construction may well have been that the drafters wished to avoid an apparent conflict with the case-law of the Strasbourg Court according to which a judge who has heard a case in first instance cannot sit again in appeal.209 Allegations of violations of the Convention by a participating state may be brought before the Court by other participating states and by individuals.210 In practice, almost all cases are brought by individuals. §626. To consider cases brought before it, the Court sits in committees of three judges, in Chambers of seven judges and in a Grand Chamber of seventeen judges.211 The Court first determines whether a case brought before it is admissible.212 If it declares the application admissible, it shall examine the case and place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights.213 If a friendly settlement is effected, the Court shall strike the case out of its list.214 If there is no friendly settlement the Court will deliver a judgment.

(Suppl. 1977). 207. From 404 in 1981 to 2,037 in 1993 and further to 4,750 in 1997. 208. See Arts. 31 and 43 of the European Convention on Human Rights, as amended by Protocol 11. The text of the Eleventh Protocol has been published in European Treaty Series 155 and in 15 HRLJ 86-90 (1994); see also http://conventions.coe.int. On problems facing this new Court, see H.G. Schermers, The European Court of Human Rights after the Merger, 18 ELRev. 493-505 (1993). See further G. Ress, Die Organisationsstruktur internationaler Gerichte, insbesondere des neuen Europäischen Gerichtshof für Menschenrechte, in G. Hafner et al. (eds.), Liber Amicorum Professor Ignaz Seidl-Hohenveldern, in honour of his 80th birthday (1998), at 541-574. 209. Hauschildt judgment of 24 May 1989, Publ. ECHR, Series A vol. 154, paras. 48, 49, 52, 53. 210. Id., Arts. 33 and 34. 211. European Convention on Human Rights, Art. 27.1. See Arts. 28-30, indicating when cases are dealt with by a committee, a Chamber, or the Grand Chamber. 212. For the criteria for admissibility, see the European Convention on Human Rights, Art. 35. 213. Id., Art. 38.1. 214. Id., Art. 39.

445

Advisory and supervisory organs

§627

Judgments of the chambers of the Court are final unless the case is referred to the Grand Chamber.215 Judgments of the Grand Chamber are final.216 The parties to the European Convention have undertaken to abide by a final judgment of the Court in any case to which they are parties.217 In 1960, the Assembly of the Council of Europe proposed to confer upon the Court the competence to give advisory opinions.218 This proposal finally led to the Second Protocol to the Convention219 in which such a competence is granted but only to a very limited extent.220 By the Eleventh Protocol this competence was incorporated in the Convention itself.221 The states concerned wanted to prevent the normal procedure under the Convention from being replaced by an advisory procedure. If unlimited advisory jurisdiction were to be granted to the Court, cases might be brought without a preliminary study by the Commission and the opportunity to strive for a friendly settlement would be lost. The right to request an advisory opinion was therefore given to the Committee of Ministers solely for cases that could not be brought within the normal procedure. The advisory procedure is thus too restricted to offer any serious enlargement of judicial control.

§627. Proposals by the Assembly of the Council of Europe to extend the competence of the Court to other Council of Europe conventions have never yet met with success. For the European Convention on State Immunity, a special tribunal was created, which consists of the members of the European Court of Human Rights. Parties which are not members of the Council of Europe may nominate additional judges (see below, §633).222

§628. In the three years following the entry into force of the 11th Protocol, the number of cases brought before the Court has risen rapidly, from 5,979 in 1998 to 13, 858 in 2001. This resulted in a debate about the future of the Court. In February 2001 the Committee of Ministers of the Council of Europe created an Evaluation Group. This Group adopted a number of recommendations. One recommendation was to allow the Court to decline to examine in detail applications raising no substantial issue under the Convention. Another one

215. 216. 217. 218. 219. 220. 221. 222.

Id., Art. 42. Id., Art. 44.1. Id., Art. 46.1. Consultative Assembly, Recommendation 232 (1960). 3 Yearbook of the European Convention on Human Rights 156-158 (1960). 6 Yearbook of the European Convention on Human Rights 2-5 (1963). Second Protocol to the European Convention on Human Rights, Art. 1. See Arts. 47-49 of the European Convention (following the entry into force of the 11th Protocol). Additional Protocol to the European Convention on State Immunity (European Treaty Series No. 74), Art. 4.

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suggested to examine the feasibility of the creation within the Court of a new and separate division for the preliminary examination of applications. Although this last recommendation does not exactly come down to the re-creation of a European Commission, it does recognize the need to re-introduce a filter in a system that may otherwise become the victim of its own success.223 It is expected that the workload problems of the Strasbourg Court will be addressed in a draft amending Protocol to the European Convention, to be discussed by the Committee of Ministers in 2004.224 f.

American organs for human rights

§629. The Council of the Organization of American States (OAS) in 1960 established the Inter-American Commission on Human Rights, as an autonomous entity of the OAS.225 It is an advisory body which may make recommendations concerning human rights to the OAS as well as to its member states.226 However, it also performs a role very similar to that of the former European Commission of Human Rights. Thus, it may examine complaints by individuals, consider their admissibility and verify the facts. It also places itself at the disposal of the parties with a view to reaching a friendly settlement. If such a settlement is not reached, the Commission draws up a report, which is transmitted to the states concerned, but may not be published. If the state concerned has accepted the jurisdiction of the Court, either the Commission or that member state may subsequently bring the case before the InterAmerican Court of Human Rights. Prior to the creation of the Court, the Commission managed to reach a solution in a substantial number of cases.227 The Inter-American Court of Human Rights was established by the American Convention on Human Rights of 1969 that entered into force in 1978. Only the state parties to the Convention and the Commission have the right to submit a case to the Court, and only after proceedings before the Commission

223. Information taken from the Court's website: www.echr.coe.int. The report of the Group was made public on 10 October 2001. 224. See the Declaration “Guaranteeing the long-term effectiveness of the European Court of Human Rights”, adopted by the Committee of Ministers at its 112th Session, 14-15 May 2003. 225. See L. Ronald Scheman, The Inter-American Commission on Human Rights, 59 AJIL 335-344 (1965); L. Sohn and T. Buergenthal, International Protection of Human Rights (1973), at 1284-1293, 1361-1371; D.L. Shelton, The Inter-American Human Rights System, in H. Hannum, Guide to International Human Rights Practice (2nd ed. 1992), at 119-132; T. Buergenthal, R. Norris, D. Shelton, Protecting human rights in the Americas: selected problems (3rd ed. 1990). For the rules of procedure of the Inter-American Commission, see 40 ILM (2001), at 748 ff (with introductory note by C.M. Cerna). 226. American Convention on Human Rights, Art. 41; Statute of the Inter-American Commission on Human Rights, Art. 9 (texts in L. Sohn and T. Buergenthal, Basic Documents on International Protection of Human Rights (1973), at 222, 196-197; also in Basic Documents Pertaining to Human Rights in the Inter-American System (a publication by the OAS which is updated regularly). 227. Sohn and Buergenthal, op. cit. note 226, at 1293-1356.

447

Advisory and supervisory organs

§630

have been terminated.228 Again, express acceptance of the Court’s jurisdiction is required.229 Furthermore, the Court is competent to render advisory opinions at the request of OAS member states or organs.230 g.

African Commission on Human and People’s Rights and the proposed African Human Rights Court

§630. This eleven member the African Charter on Human and Peoples' Rights created Commission.231 Article 62 of this Charter obliges states parties to submit reports on the measures taken to give effect to its provisions. In addition, the Commission may deal with communications lodged by states and individuals against a state party. In 1998 the OAU general congress adopted the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights.232 The Protocol has not yet entered into force. This Court shall “complement and reinforce the functions of the African Commission on Human and Peoples' Rights”. It will be composed of eleven judges serving for a six-year term. The Court's judgments will be binding, final and without appeal. Individuals and ngo's only have limited access to the Court, one precondition being that state parties must have accepted the jurisdiction of the Court to hear such cases.

228. American Convention on Human Rights. Art. 61. See on this Court T. Buergenthal, The Inter-American Court of Human Rights, 76 AJIL 231-245 (1982); C. Medina, The Inter-American Commission on Human Rights and the Inter-American Court of Human Rights: Reflections on a Joint Venture, in 12 Human Rights Quarterly 439-464 (1990); L.E. Frost, The Evolution of the Inter-American Court of Human Rights: Reflections of Present and Former Judges, 14 Human Rights Quarterly 171-205 (1992); C.M. Cerna, The Inter-American Court of Human Rights, in Janis, op. cit. note 125, at 117-158; J.S. Davidson, The Inter-American Court of Human Rights (1992); C.M. Cerna, The Structure and Functioning of the Inter-American Court of Human Rights, 63 BYIL 135-229 (1992). 229. As of 2001, 21 of the 35 member states of the OAS had recognized the compulsory jurisdiction of the Court. 230. Art. 64 of the American Convention on Human Rights. See on this competence T. Buergenthal, The advisory jurisdiction of the Inter-American Court of Human Rights, in T. Buergenthal (ed.), Contemporary Issues in International Law: Essays in Honor of Louis B. Sohn 127-147 (1984). 231. See on this Commission I. Badawi El-Sheikh, The African Commission on Human and Peoples’ Rights: Prospects and Problems, 7 NQHR 272-283 (1989); F.D. Gaer, First Fruits: Reporting by States under the African Charter on Human and Peoples’ Rights, 10 NQHR 28-42 (1992); C.E. Welch, The African Commission on Human and Peoples’ Rights: A Five-Year Report and Assessment, 14 Human Rights Quarterly 43-61 (1992). 232. See M. Mutua, The African Human Rights Court: a Two-Legged Stool?, in 21 HRQ 342-363 (1999); A. Stemmet, A future African Court on Human and Peoples'Rights and domestic human rights norms, 23 SAYIL (1999), at 233 ff; E. de Wet, The Protection Mechanism under the African Charter and the Protocol on the African Court of Human and Peoples'Rights, in G. Alfredsson et al. (eds.), International Human Rights Monitoring Mechanisms 713-729 (2001).

§631

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Central Commission for the Navigation of the Rhine

§631. The Central Commission for the Navigation of the Rhine is the principal organ of an organization originally established in 1815 to coordinate and improve shipping on the Rhine. Specific national courts have jurisdiction in criminal matters to adjudicate on contraventions of regulations relating to navigation on the Rhine and in all civil matters relating to such navigation.233 Appeal from these national judgments lies to the Central Commission.234 In exerting this power (which it has done in many cases, both penal and civil235) the Commission promotes a uniform interpretation of the law governing navigation on the Rhine throughout the participating states. Theoretically, it could also review the legality of the decisions of the international organization concerned. However, in practice, this is unlikely since the Commission itself made these regulations. The Committee has created a Chamber of Appeal, which is responsible for dealing with appeals against the judgments of the Rhine Navigation Tribunals of first instance.236 This Chamber has decided dozens of cases. i.

Other river commissions237

§632. A Commission similar to that for navigation on the Rhine has been established for navigation on the Moselle.238 Its judicial functions have been attributed to a separate organ, however, which has not yet acted.

233. Revised Convention of Mannheim, Peaslee V at 154-167 (Art. 34). On the Central Commission see H. Walter, Le Statut International de la navigation du Rhin (with summary in English), 2 European Yearbook 3-33 (1954); R. Garnon, La compétence des Tribunaux pour la Navigation du Rhin lorsque les partis sont liées par un contrat, 48 Revue de Navigation 263-266 (1976); W.E. Haak, Experience in The Netherlands regarding the Case-law of the Chamber of Appeal of the Central Commission for Navigation on the Rhine, 19 NYIL 3-51 (1988); F. Meißner, Rhine River, 12 EPIL (1990), at 310-316; A. Bos, Reflections on the Provision of the Act of Mannheim Enshrining the Right of Complaint to the Central Commission for the Navigation of the Rhine, in N. Blokker and S. Muller (eds.), Towards More Effective Supervision by International Organizations, Essays in Honour of Henry G. Schermers, Vol. I (1994), at 205-215. For documentation (in French), see also 2 European Yearbook 258-279 (1954). See for reports of the activities of the Commission: the annual overviews in the European Yearbook, for example 49 European Yearbook 2001 (2003), at CCNR 1-6. 234. Revised Convention of Mannheim, Art. 45(c). 235. Annual overviews are presented in the European Yearbook, e.g. 49 European Yearbook 2001 (2003), at CCNR 6. 236. This Chamber was created in 1967; see 15 European Yearbook (1967), at 127. 237. See C.B. Bourne, Mediation, Conciliation and Adjudication in the Settlement of International Drainage Basin Disputes, 9 CYIL 114-158 (1971); B. Vitányi, The International Régime of River Navigation (1979); T. Maluwa, The Origins and Development of International Fluvial Law in Africa: A Study of the International Legal Régimes of the Congo and Niger Rivers from 1885 to 1960, 29 NedTIR 368-400 (1982); B.A. Godana, Africa’s Water Resources, Legal and Institutional Aspects of the Nile, Niger and Senegal River Systems (1985). 238. See Wiebringhaus, op. cit. note 173, at 39; G. Nolte, Moselle River, in EPIL Vol. III (1997), at 465-468.

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Advisory and supervisory organs

§633

Similar commissions have been instituted for several other rivers,239 such as the Danube,240 the Senegal,241 the Niger,242 the Mekong243 and the Plata.244 j.

European Tribunal on State Immunity

§633. In 1972 the European Convention on State Immunity was concluded within the framework of the Council of Europe.245 An Additional Protocol to this Convention opens the possibility of bringing an action before a special European Tribunal on State Immunity (see above, §627). This Tribunal was inaugurated in 1985.246 No cases have yet been brought before it. k.

Tribunal of the OECD Nuclear Energy Agency

§634. The Nuclear Energy Agency of the OECD is empowered to supervise joint nuclear undertakings of the member states. In this capacity it is able to take decisions which are binding on these undertakings.247 A Tribunal has been set up, which may hear appeals of member governments against these decisions or, where necessary, against the Agency’s failure to take them.248 In addition, the Tribunal may order the Agency to make reparation, at the request of an undertaking which has been caused exceptional damage by an Agency inspection, carried out in order to determine whether the obligations arising from the Convention on the Establishment of a Security Control in the Field of Nuclear Energy have been met.249 To date, no cases have been brought before this Tribunal.

239. See Bourne, op. cit. note 237, at 119 (note 18). 240. See below, §1635 and K. Zemanek, Die Schiffahrtsfreiheit auf der Donau und das künftige Regime der Rhein-Main-Donau Grosschiffahrtstrasse (1976), in particular Part I; I. SeidlHohenveldern, Danube River, in EPIL Vol. I (1992), at 934-937. 241. T. Parnall and A.E. Utton, The Senegal valley authority. A unique experiment in international river basin planning, 51 Indiana LJ 235-256 (1976). 242. G. Vailati, Le régime international du fleuve Niger, 49 RDI 31-33 (1971); G. Ofusu-Amaah, Niger River Régime, in EPIL Vol. III (1997), at 587-589. 243. P. Lawrence, Mekong River, in EPIL Vol. III (1997), at 339-342. 244. L. Frenkel, Le régime juridico-économique du Basin de la Plata, 48 RDI 120-125 (1971); G.J. Cano, Argentina, Brasil, and the De la Plata River Basin: A summary review of their legal relationship, 16 Natural Resources Journal 863-882 (1976). 245. European Treaty Series No. 74; 11 ILM 470 (1972). 246. See C.H. Schreuer, State immunity: some recent developments 126-128 (1988). 247. Convention on the Establishment of a Security Control in the Field of Nuclear Energy (1957), Arts. 3, 5. 248. Id., Art. 13. See also Nuclear Law Bulletin No. 46 (1990), at 78. 249. Id., Art. 13 d.

§636

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Tribunal of WEU

§635. In the Paris Protocols of 3 October 1954, an agency of the WEU was charged with control of armaments in Western Europe. It was foreseen that this agency might cause injury to individuals and a tribunal was established by a later convention to hear their claims.250 This Tribunal has not yet heard any complaint. m.

Tribunal of International Composition in the Saar

§636. This tribunal was established in February 1956. Its task was to settle disputes arising from damage caused to residents of the Saar as a result of political attitudes adopted in relation to the parliamentary elections of 18 December 1955 (on the future status of the Saar).251 The tribunal operated until the end of September 1959.252 n.

Central American Court of Justice

§637. This court was established in 1991 and is part of the Central American Integration System (SICA).253 It was preceded by the Court of the Organization of Central American States (ODECA) which had two main tasks. (1) At the request of both parties, the Court may decide disputes between member states. (2) At the request of the general congress or the board of the ODECA, the Court may give opinions on projects for the unification of Central American legislation.254 These powers were less than those of the former Central American Court of Justice created by the same states in Washington in 1907.255 The current court established in 1991 has broader powers than its predecessor. It has jurisdiction in three types of cases: disputes between states, complaints against states (initiated by state parties, SICA organs and natural or legal persons) and complaints against SICA organs (initiated by a state party and, in limited cases, a natural or legal person). Other powers of the Court include the power to give preliminary rulings comparable to those under Article 234 EC. A number of cases have been submitted to this Court.256

250. Convention of Paris (1957), 5 European Yearbook (1957), at 245ff. 251. For the statute of the Tribunal, see 3 European Yearbook 193-199 (1955). 252. Its president gave an account of the Tribunal’s workings and experiences: E.F.W. Besly, The International Tribunal in Saarland, 8 European Yearbook 106-124 (1960). 253. See Sands and Klein, op. cit. note 123, at 412-413. The Court was established under Art. 12 of the 1991 Protocol of Tegucigalpa of Reforms to the Charter of the Organization of Central American States. Website of the court: www.ccj.org.ni/. 254. ODECA, Art. 15 (Peaslee I, at 1224). 255. 2 AJIL (1908) Suppl., at 231-242. For a comparison between both Courts, see S. Engel, The New Charter of the Organization of Central American States, 58 AJIL 129-131 (1964). See also E. Maza, Le Corte de Justicia Centroamericana, Commentarios, published by ODECA, 4 November 1966. 256. Sands and Klein, op. cit. note 123, at 412-413.

451

o.

Advisory and supervisory organs

§638

Judicial Commission of the OAPEC

§638. One of the organs of the Organization of Arab Petroleum Exporting Countries (OAPEC) is the Judicial Commission, composed of seven judges. It has compulsory jurisdiction in three types of cases. First, disputes relating to the interpretation of the OAPEC agreement. Second, disputes between two or more member states concerning petroleum operations. Third, with the consent of disputing parties, this Commission may also rule on disputes between a member state and a petroleum company operating in its territory or a national oil company of another member.257 The Commission commenced its operations on 6 May 1981. p.

Common Market Tribunal of the East African Community

§639. The treaty for East African Cooperation provides for a Common Market Tribunal. This Tribunal is to ensure the observance of law and the terms of the treaty as well as the interpretation and application of so much of the treaty as pertains to the Common Market.258 Allegations of breach of a treaty obligation, or any action or omission affecting the Common Market, must first be brought before the Common Market Council. Member states may refer the matter to the Tribunal (a) if the Council has not decided upon an allegation within one month, (b) if the Council records that it is unable to agree, or (c) if the Council has issued a binding directive which is not complied with by the Member concerned. By 1 May 1970 two cases had been referred to the tribunal, which had not, however, been fully constituted at that time and therefore had not yet been able to commence its work.259 As a result of the political circumstances surrounding the Amin regime in Uganda, it was impossible for the East African Community to function properly in this period. The Community and the Tribunal are now inactive. q.

Court of Appeal for East Africa

§640. Even before the East African Community was established, a Court of Appeal for Eastern Africa existed. The Court was incorporated into the Community by the Treaty for East African Cooperation.260 It has jurisdiction to hear and adjudicate such appeals from the courts of each member state as their national laws provide.261 It is now however inactive.

257. OAPEC, Arts. 8, 21-25 (see 7 ILM (1968), at 762, 766, 767). See on this Commission S. ElGebali, Die OAPEC als Organisation zur Interessenvertretung der Arabischen Ölländer in den internationalen wirtschaftlichen Beziehungen 94-98 (1981). 258. Treaty for East African Cooperation (1967), Arts. 32-42. 259. Information received from Mr. M. D. Desai, Registrar of the Common Market Tribunal. 260. Treaty for East African Cooperation, Arts. 80, 81. 261. For a judgment of the Court see 9 ILM 561-566 (1970).

§641

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Court of Justice of the Common Market for Eastern and Southern Africa

§641. The 1993 Treaty establishing the Common Market for Eastern and Southern Africa provides for a Court of Justice, which “has to ensure the adherence to law in the interpretation and application of the Treaty”.262 The Court’s jurisdiction includes the possibility for member states to “refer for determination by the Court, the legality of any act, regulation, directive or decision of the Council on the grounds that such act, regulation, directive or decision is ultra vires or unlawful or an infringement of the provisions of this Treaty or any rule of law relating to its application or amounts to a misuse or abuse of power”.263 In addition, legal and natural persons may also bring cases before the Court, provided they have exhausted local remedies.264 Furthermore, courts and tribunals of the member states may request the Court to give a preliminary ruling on “the application or interpretation of this Treaty or the validity of the regulations, directives and decisions of the Common Market”; in final instance, the courts and tribunals are obliged to do so.265 The website of the Court explicitly mentions that this Court “is modelled along the lines of the European Court of Justice”.266 On 29 June 1998 the Court became operational. It has not yet decided any cases. s.

Tribunal of the South African Development Community

§641A. The South African Development Community (SADC) was created in 1992. Article 16.1 of its constitution provides that a Tribunal shall be constituted.267 In August 2000 the Protocol and Rules of Procedure of this Tribunal were adopted. The Tribunal has jurisdiction over disputes between the member states and between natural or legal persons and member states. It may give preliminary rulings and it has exclusive jurisdiction over all disputes between the member states and SADC, and between natural or legal persons and SADC. It may give advisory opinions, and it has exclusive jurisdiction over all disputes between SADC and its staff relating to their conditions of employment.268 As of June 2003, the SADC Tribunal was not yet operational.

262. Art. 7. This Treaty (that entered into force 8 December 1994) has been published in 33 ILM 1067-1123 (1994). 263. Art. 24.2. 264. Art. 26. 265. Art. 30. 266. www.comesa.int. 267. The constitution of SADC is reproduced in 32 ILM (1993), at 116 ff. Website: www.sadc.int. 268. Protocol, Arts. 14-20.

453

Advisory and supervisory organs

3.

Staff administrative tribunals269

a.

The UN Administrative Tribunal (UNAT)270

§642

§642. The UNAT was established on 24 November 1949.271 It has seven members.272 Its jurisdiction covers all personnel273 of the UN and that of two specialized agencies (ICAO and IMO), as well as personnel of all organizations belonging to the UN Joint Staff Pension Fund. Judgments are binding, final and without appeal.274 Its creation proved to be rather difficult. Had it been established earlier and on a clearly permanent basis, UNAT might have become the administrative tribunal for the personnel of more specialized agencies.275 The establishment of UNAT by the General Assembly of the UN provoked some serious problems. In 1953, UNAT had declared a decision to terminate several contracts illegal and had awarded full payment of salary up to the date of the judgment, as well as compensation for the termination of the contract at that date.276 In the General Assembly, the question arose as to whether the UN should appropriate funds necessary for implementing the Tribunal’s judgments. In its advisory opinion of 13 July 1954, the International Court of Justice answered this question in the affirmative.277 This meant that UNAT was not subordinate to the General Assembly, despite having been established by it. Since a form of appeal seemed useful, the General Assembly created a specific committee, empowered to request advisory opinions on judgments of UNAT to which a member state, the Secretary-General or the staff member in question, had objected. This committee in fact decided on requests to lodge an appeal with the International Court of Justice against decisions of UNAT. Three of such requests have

269. M.B. Akehurst, The Law governing employment in International Organizations (1967); W. Choi, Judicial Review of International Administrative Tribunal Judgments, in T. Buergenthal, op. cit. note 230, at 347-370; C.F. Amerasinghe, The Law of the International Civil Service (as Applied by International Administrative Tribunals), 2 Volumes (1988; 2nd ed. 1994); J. Gomula, The International Court of Justice and Administrative Tribunals of International Organizations, 13 Michigan Journal of International Law 83-121 (1991); W. Abla, Les conditions de recevabilité de la requête devant les tribunaux administratifs de l’ONU et de l’OIT (1991); P. Pescatore, Two Tribunals and one Court, in Blokker and Muller, op. cit. note 233, at 217-237. 270. The judgments of UNAT are published by the UN; the UNJY and the AFDI provide surveys of the judgments. For the text of the UNAT Statute, see GA Res. 55/159 (Annex) and http://untreaty.un.org/ola-internet/atstatut.htm. 271. GA Res. 351 (IV). 272. UNAT Statute, Art. 3.1. 273. “Personnel” is interpreted rather widely, see UNAT judgment No. 150, UNJY 1971, at 162-164. 274. UNAT Statute, Art. 10.2. 275. Akehurst, op. cit. note 269, at 14. 276. UNAT, No. 29, at 124-127. 277. Effects of awards of compensation made by the UN Administrative Tribunal, Advisory opinion, ICJ Rep. 1954, at 47ff.

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been brought before the International Court of Justice.278 In 1995 this procedure was abolished, one of the elements of criticism being that individuals cannot appear before the ICJ.279One authority refers more in general to “the almost total irrelevance of the International Court’s contribution to the development of international administrative law”.280

b.

The ILO Administrative Tribunal (ILOAT)

§643. The League of Nations established an administrative tribunal on 26 September 1927.281 This tribunal also had jurisdiction over the staff of the ILO. After the dissolution of the League, the Tribunal continued (with some modification) as the Administrative Tribunal of the ILO. Its jurisdiction was extended to cover the staffs of now 39 other organizations: some of the UN family,282 some public international organizations outside that group such as the EFTA, Interpol and the European Organization for Nuclear Research (CERN), a regional organization with its headquarters near Geneva, and even a private international organization, the Inter-Parliamentary Union. While UNAT members usually come from a diplomatic or university background, the ILO Tribunal is composed of seven lawyers mostly coming from the national judiciaries.283 It is competent to consider disputes between the organizations concerned and their staffs at the initiative of staff members. It will not accept a complaint filed by an organization against a staff member.284 In addition to staff cases, the Tribunal can be charged with the settlement of

278. The first case was the Fasla Case, No. 158, YUN 1973, at 763. See also D. Ruzié in 19 AFDI 321 (1973); G. Schwarzenberger, International Constitutional Law 354-386 (1976). For the opinion of the International Court of Justice, see ICJ Rep. 1973, at 166. The second case was the Mortished Case (Judgment No. 237), ICJ Rep. 1982, at 325. The third case was the Yakimetz Case (Judgment No. 333), ICJ Rep. 1987, at 18. See for analyses of these cases and the role of the ICJ: Gomula, op. cit. note 269; Pescatore, op. cit. note 269. 279. See GA Res. 50/54, in which the Assembly considered that this procedure “has not proved to be a constructive or useful element in the adjudication of staff disputes within the Organization”. See also GA Res. 48/415 and UN Doc. A/49/258. 280. P. Pescatore, op. cit. note 269; see also Sands and Klein, op. cit note 123, at 428-429. 281. LoN, Official Journal, Special Suppl. No. 54, at 201 and 478. On this tribunal, see J. Ballaloud, Le Tribunal Administratif de l’Organisation Internationale du Travail et sa Jurisprudence (1967); F. Gutteridge, The ILO Administrative Tribunal, in C. de Cooker (ed.), International Administration (1990), at V.2/1-33. For the Statute of the ILO Tribunal, see Ballaloud, at 143-146 (French) or International Labour Conference Record of Proceedings 29th Session, Appendix XII (at 518-520) and 32nd Session, at 409-410, or the ILO website: www.ilo.org. The judgments are published by the ILO; the UNJY and the AFDI provide surveys of the judgments. 282. FAO, WHO, UNESCO, WMO, UPU, ITU, WTO, IAEA, IFAD, WIPO, World Tourism Organization, UNIDO and OPCW. 283. See on the method of selecting ILOAT and UNAT judges, UN Doc. A/42/328, in particular paras. 11-14; Pescatore, op. cit. note 269, at 219-220, 223. 284. ILOAT Judgment No. 173, UNJY 1971, at 169-170.

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Advisory and supervisory organs

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possible conflicts arising from contracts concluded by the ILO.285 Judgments of the Tribunal are binding, final and without appeal.286 §644. Having two administrative tribunals within the UN family may cause confusion. Even for organizations that have accepted the jurisdiction of the ILO Tribunal, questions concerning pension rights will normally go to the UNAT.287 In actions concerning mixed questions, the possibility exists that the application will be brought before the wrong tribunal. When that tribunal has rejected the action the time limit for an action before the correct tribunal may have passed. So far both tribunals have been cooperative on behalf of plaintiffs. The ILOAT has accepted that an application to UNAT stays the time period for an action before ILOAT.288 A number of further considerations would suggest that the two tribunals should be merged.289 First, having two administrative tribunals may be less efficient and more costly than operating a single body. Furthermore, the relationship agreements concluded between the UN and the specialized agencies refer to the aim of developing a single unified international civil service. In 1978, the UN General Assembly decided to request the Administrative Committee on Coordination (ACC) to study the feasibility of establishing a single administrative tribunal.290 The ACC advised against taking immediate steps to merge the tribunals and suggested instead that the statutes, rules and practices of the two tribunals be harmonized and further developed. Subsequently however, little has happened,291 and indeed, at the very time when these discussions were taking place, a third administrative tribunal was created in the UN family: the World Bank Administrative Tribunal (WBAT), established in 1980. It therefore seems unlikely that the current substantial divergence in the case law of these tribunals will reduce in the near future.

285. ILOAT Statute, Art. II.4. 286. Id., Art. VI.1. 287. See ILOAT Cases 164 and 180 (UNJY 1970, at 160, and UNJY 1971, at 178); UNAT Cases 224 and 226 (23 AFDI 505-507 (1977)). 288. Kotra Case, ILOAT Case 180, UNJY 1971, at 178. 289. See for a strong view in favour of such a merger M. Lachs, The Judiciary and the International Civil Service, in K.-H. Böckstiegel et al. (eds.), Law of Nations, Law of International Organizations, World’s Economic Law, Liber amicorum honouring Ignaz Seidl-Hohenveldern 301-313 (1988). Already in his Declaration appended to an Advisory Opinion dealing with a UNAT judgment (the Fasla Case), Judge Lachs criticized the discrepancy between the UN and ILO systems of review, and argued that “the procedures in question should be uniform”, ICJ Rep. 1973, at 214. 290. GA Res. 33/119. 291. See UN Documents A/C.5/39/7 and Corr.1, A/C.5/44/1; ILO Doc. GB.228/PFA/11/11 (1984). See also P. Tavernier, La fusion des Tribunaux Administratifs des Nations Unies et de l’OIT: necessité ou utopie?, 25 AFDI 442 (1979).

§645

c.

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The World Bank Administrative Tribunal

§645. The Administrative Tribunal of the World Bank was created in 1980 by resolutions of the Boards of Governors of the Bank, IDA and IFC, with competence to deal with disputes involving personnel from these three organizations.292 Why did these organizations not join the administrative tribunals of the UN or of the ILO? The main reasons that were given were the following. First, the object and nature of these organizations (financial activities) were considered to be fundamentally different from those of other organizations within the UN family (consultation or policy recommendation). Secondly, membership of the UN is different from membership of these organizations. Thirdly, the World Bank probably wanted to maintain its independence from political organizations such as the UN and from the ‘politicization’ occurring in a number of UN organizations.293 The first reason is not convincing because the object and nature of every UN organization is different. It is not clear to what extent this should have consequences for staff relations. Moreover, some UN organizations that have joined ILOAT, such as the International Fund for Agricultural Development, carry out financial activities. The second argument is equally unconvincing. Hardly any membership of UN organizations that have joined UNAT or ILOAT is the same, and why should it for this purpose? In our view, the last (‘political’) reason must have been decisive. The creation of this tribunal seems to have been part of a broader attempt by the World Bank (its Secretariat, and member states like the US) to further dissociate itself from the other parts of the UN family. The price to be paid is less efficiency and increasing divergence in the legal protection for personnel of UN organizations.294 d.

The Administrative Tribunal of the International Monetary Fund

§646. The idea of establishing a single administrative tribunal fell further into oblivion when, in 1992, the IMF Board of Governors adopted the Statute of the IMF Administrative Tribunal.295 The Tribunal was formally established

292. See the website of the World Bank for the Statute of this Tribunal: www.worldbank.org. 293. C.F. Amerasinghe, The Law of the International Civil Service, Vol. I (1988), at 60. 294. Cf. Art. X.1 of the relationship agreement between the UN and the World Bank: “The UN and the Bank will consult from time to time concerning personnel and other administrative matters of mutual interest, with a view to securing as much uniformity in these matters as they shall find practicable and to assuring the most efficient use of the services and facilities of the two organizations” (YUN 1947-48, at 873). 295. Res. 48-1. See also IMF Annual Report 1993, at 138-139. In 1986, the Fund’s Executive Board began to consider the possible establishment of an administrative tribunal. See for the Statute www.imf.org/external/imfat/index.htm. On this tribunal, see J.S. Powers, Reinventing the Wheel – The Establishment of the IMF Administrative Tribunal, in C. de Cooker (ed.), International Administration V.10/1-14 (1999). This administrative tribunal was preceded by the IMF Grievance Committee; see D.S. Cutler, The Grievance Committee of the International Monetary Fund, in De Cooker (ed.), id., at V.9/1-21.

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on 13 January 1994, upon the announcement by the Managing Director to the staff of the appointment of the members of the Tribunal.296 Under certain conditions, the competence of the IMF Tribunal may be extended to any other international organization upon the terms established by special agreement to be made with such organization by the IMF.297 e.

Regional administrative tribunals

§647. Many organizations have created a specific organ to adjudicate upon staff cases,298 the most important being the Administrative Tribunal of the OECD (established in 1991, replacing the OECD’s Appeals Board) the Appeals Commission of NATO,299 the Administrative Tribunal of the League of Arab States,300 the Administrative Tribunal of the Bank for International Settlements,301 the Administrative Tribunal of the OAS,302 and the Court of First Instance and the Court of Justice of the European Communities. 4.

Arbitration, conciliation, mediation and fact-finding commissions

§648. It should be clear from the above overview that it was felt necessary to create a number of special judicial organs to supervise the implementation of treaties ranging from the EC treaties to human rights conventions and international river agreements. Consequently, the International Court of Justice has not been developed as the world’s sole judicial body. But not only have numerous specific judicial organs have been created. In addition, a substantial number of organs have been charged with arbitration, mediation and factfinding tasks. A large number of disputes between states, which could in

296. Apart from its President, the Tribunal has two associate and two alternate members. The Tribunal’s Rules of Procedure entered into force on 18 February 1994. (Information obtained from the IMF Secretariat.) 297. Id., Art. 21. 298. For an enumeration see Akehurst, op. cit. note 269, at 16. See also J. Robert, Les tribunaux administratifs dans les organisations européennes, 20 Eur.Yb (1972), at 124-152; C.F. Amerasinghe, Principles of the Institutional Law of International Organizations (1996), at 452-465; Sands and Klein, op. cit. note 123, at 416-429. 299. G. Vandersanden, La commission de recours de l’Organisation du Traité de l’Atlantique Nord, son fonctionnement à la lumiére de sa jurisprudence, 10 RBDI 90-116 (1974). 300. This Tribunal was created in 1964. See R. Ben Hammed, Le Tribunal administratif de la Ligue des États Arabes, in M. Flory and P.-S. Agate (eds.), Le système regional arabe 213-248 (1989). 301. Created in 1987. Before the creation of this Tribunal, staff cases were in principle subject to the jurisdiction of the courts of Basel-Stadt, with the possibility of appeal to the Federal Supreme Court. The BIS Tribunal has no competence in matters of appointments or promotions. The 5 members of the Tribunal appointed in 1987 were all of Swiss nationality. (Information obtained from the BIS.) 302. See www.oas.org/tribadm/default.htm.

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principle have been submitted to the International Court of Justice, have been referred to arbitration.303 Many treaties contain provisions for the settlement of disputes by arbitration, conciliation, mediation or fact-finding. A large proportion of these dispute settlement mechanisms has been created within the framework of international organizations.304 For example in 1996 the members of ASEAN concluded the Manila Protocol on Dispute Settlement, mentioning good offices, conciliation and mediation as dispute settlement techniques. In practice, states often prefer not to have recourse to ‘institutionalized’ means of dispute settlement, and instead use ad hoc mechanisms. In most cases, disputes are dealt with through negotiations, which lead to political solutions. §649. On several occasions, international organizations have set up ad hoc commissions for the settlement of specific disputes. Such commissions may have different tasks. Arbitration commissions concentrate on the legal side of disputes. Organizations that have no judicial organ can usually establish an arbitral tribunal, even when the constitution contains no provision to that effect. Sometimes resort to arbitration is limited by a constitutional requirement to submit disputes to another organ (see below, §1356-1358). Mediation or conciliation commissions (these terms are used interchangeably) try to reconcile the parties amicably, fact-finding commissions ascertain the underlying circumstances of a dispute. In some cases, the clarification of the facts may be sufficient to settle a dispute and indeed, fact-finding often forms part of conciliation.305 Ad hoc arbitration is also used to settle disputes concerning contracts with private persons.306 §650. The settlement of disputes is entrusted by some international organizations to arbitration tribunals.307 Sometimes there are express provisions as to the constitution of such a tribunal.308 In the absence of such provisions the organization can use different sets of existing rules, such as the Model

303. Cf. C. Gray and B. Kingsbury, Developments in Dispute Settlement: Inter-State Arbitration since 1945, 63 BYIL 97-134 (1992). 304. See for a brief survey of the post-war proliferation of international tribunals E. Lauterpacht, Aspects of the Administration of International Justice (1991), at 9-13. 305. Nguyen Quoc Dinh, Les commissions de conciliation sont-elles aussi des commissions d’enquête?, 71 RGDIP 565-674 (1967). 306. UNJY 1976, at 168-176. 307. UPU, Art. 32; Art. 129 General Regulations; ITU Constitution, Art. 56(2); ITU Convention, Art. 41; ICAO, Art. 85. Another example is Mercosur; its dispute settlement procedures including arbitration are elaborated in the 1991 Protocol of Brasilia and the 2002 Protocol of Olivos. See D. Ventura, First Arbitration Award in Mercosur: a community law in evolution?, 13 LJIL 447-458 (2000). 308. UNIDO, Art. 22. See also the Annex to the Convention on the International Maritime Satellite Organization (INMARSAT), 15 ILM 1071-1075 (1976).

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Rules on Arbitral Procedure drafted by the UN International Law Commission,309 the arbitration rules adopted in 1976 by the UN Commission on International Trade Law (UNCITRAL), or the 1992 optional arbitration rules of the Permanent Court of Arbitration, patterned after the above-mentioned UNCITRAL rules.310 §651. Most arbitral tribunals are not permanent organs of international organizations, but are set up to deal with particular disputes. For example, an Arbitration Commission has been set up within the framework of the European Conference for Peace in Yugoslavia (the Badinter Commission, named after its chairman). Prior to and during the functioning of this commission, proposals have been made to create a new and more general body. In 1992 the OSCE Convention on Conciliation and Arbitration established a Court of Conciliation and Arbitration. This Convention entered into force in 1994. The Court is not a permanent body but a roster of conciliators and arbitrators. So far this Court has not been used.311 An interesting example is the dispute settlement system of Mercosur, created in the 2002 Protocol of Olivos. Members of this organization may take recourse to an ad hoc arbitral tribunal to resolve disputes. In order to allow for appeal (on issues of law only), a Permanent Court of Review is created whose decisions are final.312 §652. One international organization established specifically for arbitration purposes is the Permanent Court of Arbitration, created in 1899. This organization is seated (together with the International Court of Justice) in The Hague (the Peace Palace). It has a small Secretariat and keeps a list of the names of more than 300 individuals who can be called upon to act as arbitrators, to resolve disputes between states as well as disputes between states and private

309. UN Doc. A/3859; GA Res. 1262 (XIII). The Statute of the College of Arbitrators of Benelux expressly refers to this Model in Art. 6. It appears that this Model has not been used very often. One commentator wrote: “If the Model Rules are the highwatermark of legal scholarship in the field of international arbitration, they also represent a point far removed from what the majority of states are willing to apply in settling their disputes” (M.C.W. Pinto, Thoughts on the ‘Essence’ of International Arbitration, in S. Muller and W. Mijs, The Flame Rekindled, New Hopes for International Arbitration (Special Issue of the LJIL (1993), at 252). 310. See for the text and analysis of the UNCITRAL rules A. Redfern and M. Hunter, Law and Practice of International Commercial Arbitration (2nd ed. 1991). 311. See A. Pellet, Note sur la Commission d’arbitrage de la Conférence européenne pour la paix en Yougoslavie, 37 AFDI 329-348 (1991); A. Pellet, L’activité de la Commission d’arbitrage de la Conférence européenne pour la paix en Yougoslavie, 38 AFDI 220-238 (1992); A. Pellet, L’activité de la Commission d’arbitrage de la Conférence internationale pour l’ancienne Yougoslavie, 39 AFDI 286-303 (1993); M. Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, 86 AJIL 569-607 (1992); L. Condorelli, En attendant la ‘Cour de conciliation et d’arbitrage de la CSCE’: quelques remarques sur le droit applicable, in C. Dominicé, R. Patry, C. Reymond (eds.), Études de droit international en l’honneur de Pierre Lalive (1993), at 457-467; OSCE Handbook (2000), at 37. 312. Mercosur's website: www.mercosur.org.uy.

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parties.313 The Permanent Court of Arbitration has no organic link with other international organizations, but other international organizations may appoint arbitrators from its list of members. The UN uses the Court for the nomination of candidates for the International Court of Justice.314 Since 1945, only a limited number of disputes have been brought before the Permanent Court: seventeen cases have been submitted to arbitration before the Court or conducted with the cooperation of the Court’s International Bureau; additionally, one International Commission of Inquiry and two International Conciliation Commissions have been set up, composed of members of the Court.315 §653. The International Centre for Settlement of Investment Disputes was created in 1965 under the aegis of the World Bank to provide facilities for conciliation and arbitration of legal investment disputes between member states and nationals of other member states.316 The Centre maintains two panels, one of conciliators and one of arbitrators. Each of the participating states may nominate four persons to each panel, from which parties to an investment dispute may select either one sole conciliator or arbitrator or any uneven number for the settlement of their dispute. As of June 2003, some 130 cases had been submitted to the Centre.317 In 1978, a so-called additional facility was created, under which the ICSID Secretariat may administer arbitration or conciliation proceedings between a state and a national of another state, not covered by the 1965 ICSID Convention, for example between non-member states and nationals of member states.318 §654. The Iran-United States Claims Tribunal was created in 1981, as part of the arrangement between the two countries to release the American hostages

313. See on the Permanent Court of Arbitration W.E. Butler, The Hague Permanent Court of Arbitration, in M.W. Janis, op. cit. note 125; J.L. Bleich, A New Direction for the PCA: The Work of the Expert Group, in Muller and Mijs, op. cit. note 309, at 215-240. Cf. also E. McWhinney, The International Arbitral and Judicial Processes, and the Atrophy of the Permanent Court of Arbitration, in C. Dominicé et al., op. cit. note 311, at 577 ff. Website: www.pcacpa.org. 314. ICJ Statute, Arts. 4-5. 315. See Permanent Court of Arbitration, Annual Report 2002. 316. For the text see UNJY 1966, at 196-212 or the website: www.worldbank.org/icsid/. See also A. Broches, The Convention on the Settlement of Investment Disputes, some observations on jurisdiction, 5 CJTL 263-280 (1966); P.F. Sutherland, The World Bank Convention on the Settlement of Investment Disputes, 28 ICLQ 367-400 (1979); P.T. Muchlinski, Dispute Settlement under the Washington Convention on the Settlement of Investment Disputes, in W.E. Butler (ed.), Control over Compliance with International Law (1991), at 175-193; A. Broches, Observations on the Finality of ICSID Awards, 6 Foreign Investment Law Journal 321-378 (1991); W.M. Reisman, Repairing ICSID’s Control System. Some Comments on Aron Broches’ “Observations on the Finality of ICSID Awards”, 7 Foreign Investment Law Journal 196-211 (1992). 317. See the ICSID website: www.worldbank.org/icsid. 318. See for the text and comments A. Broches, The ‘Additional’ Facility of the International Centre for Settlement of Investment Disputes, 4 Yearbook Commercial Arbitration (1979), at 373.

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in Tehran as well as the Iranian assets frozen in the US.319 The Tribunal is competent to decide (1) claims of US nationals against Iran and of Iranian nationals against the US arising out of debts, contracts, expropriations or other measures affecting property rights; (2) official claims of the US and Iran against each other arising from contractual arrangements between them for the purchase and sale of goods and services; (3) any disputes between Iran and the US as to the interpretation or performance of the Algiers Declarations. The Tribunal is composed of nine arbitrators: three appointed by Iran, three by the US, and three are third country arbitrators. Most of the cases are dealt with by the three chambers of the Tribunal. Arbitration takes place on the basis of modified UNCITRAL rules. By February 2003, the Tribunal had delivered 600 awards (excluding interlocutory and interim awards).320 §655. The ILO has a Committee of Experts on the Application of Conventions and Recommendations that examines and comments on the reports submitted by governments on their implementation of ILO obligations. Governments are requested to send copies of their reports to the national organizations of workers and employers, who may give their comments. This may form a useful source of information for the Committee, which may also request further information from governments.321 The ILO appoints a Commission of Inquiry on an ad hoc basis whenever a complaint is filed against a member state for violation of an ILO convention.322 This commission collects information on the case concerned; to date, some twenty-five cases have been submitted (see below, §1425). For the examination of complaints concerning the violation of trade union rights, the ILO has created the tripartite Governing Body Committee on Freedom of Association and the Fact-Finding and Conciliation Commission of nine independent experts. Since its establishment in 1951, the Governing Body Committee has considered some two thousand cases, while the Fact-Finding and Conciliation Commission has dealt with only six cases.323

319. The Tribunal was created by the Algiers Declarations; for the text of these Declarations, see 75 AJIL 418 (1981). See on this Tribunal N. Wühler, The Iran-United States Claims Tribunal, in 8 Journal of International Arbitration 5-16 (1991), containing extensive references to further literature; J.J. van Hof, Commentary on the UNCITRAL Arbitration Rules – The Application by the Iran-U.S. Claims Tribunal (1991); Ch.N. Brower, The Iran-United States Claims Tribunal (1998); M. Mohebi, The International Law Character of the IranUnited States Claims Tribunal (1999). For further information see the Tribunal's website: www.iusct.org. 320. Information taken from the Tribunal's website: www.iusct.org. 321. On the ILO Committee of Experts, see P. Cornil, Le rôle de la Commission d’Experts de l‘OIT, dans le contrôle de l’application des conventions du travail, 6 RBDI 265-277 (1970). See more in general N. Valticos, Once more about the ILO System of Supervision: In what Respect is it still a Model?, in Blokker and Muller, op. cit. note 233, at 99-113. 322. ILO, Arts. 26-29. 323. Information taken from the ILO website: www.ilo.org.

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§656. Prior to the creation of the World Trade Organization, the GATT did not have a standing judicial or arbitration organ. If member states had a dispute, a so-called panel could be created on an ad hoc basis. Panels were usually composed of three governmental members, excluding nationals of the states in dispute, serving in their personal capacities; during the last few years of GATT, there was a tendency to appoint non-governmental members to panels. A panel prepared a report that only became binding after it had been adopted, usually by the GATT Council. The procedure used to be completely consensual. A panel would not be created against the will of one of the parties, and reports could only be adopted by consensus. In practice, a complaining state party has never been refused recourse to a panel (although substantial delays have occurred), and panel reports have almost always been adopted by the Council. GATT panels were often referred to as quasi-judicial bodies.324 In the Mid-Term Review of the Uruguay Round of Multilateral Trade Negotiations (1989) and in the 1994 Agreement Establishing the World Trade Organization, a number of significant changes were made in the GATT dispute settlement procedure.325 First, while previously one party could block (or delay) the creation of a panel, the present rule is that a panel will be established unless there is consensus not to do so.326 Secondly, stricter time limits were agreed. Thirdly, while previously the adoption of a panel report could be blocked by one party, such reports are now in principle adopted, unless there is a consensus not to adopt the report or if a party notifies its intent to appeal.327 Fourthly, a standing Appellate Body was established to hear appeals from panel cases.328 An appeal “shall be limited to issues of law

324. See on the GATT dispute settlement procedure J.H. Jackson, World Trade and the Law of GATT, 163-189 (1969); O. Long, Law and its Limitations in the GATT Multilateral Trade System 71-88 (1985); W. Benedek, Die Rechtsordnung des GATT aus völkerrechtlicher Sicht 280-373 (1990); E.-U. Petersmann, Strengthening the GATT Dispute Settlement System: On the Use of Arbitration in GATT, in E.-U. Petersmann and M. Hilf (eds.), The New GATT Round of Multilateral Trade Negotiations (2nd ed. 1991), at 323-343; E. Canal-Forgues, L’institution de la conciliation dans le cadre du GATT (1993). 325. See A.F. Lowenfeld, Remedies along with Rights: Institutional Reform in the New GATT, 88 AJIL 477-488 (1994); J.H. Jackson, Observations sur les resultats du cycle de l’Uruguay, 98 RGDIP 675-707 (1994); P.-T. Stoll, Die WTO: Neue Welthandelsorganisation, neue Welthandelsordnung, 54 ZaöRV 241-339 (1994); E.-U. Petersmann, The Dispute Settlement System of the World Trade Organization and the Evolution of the GATT Dispute Settlement System Since 1948, 31 CMLRev. 1157-1244 (1994); J. Cameron and K.R. Gray, Principles of International Law in the WTO Dispute Settlement Body, 50 ICLQ 248-298 (2001); A. von Bogdandy, Law and Politics in the WTO – Strategies to Cope with a Deficient Relationship, 5 Max Planck UNYB 2001, at 609-674; P. Van den Bossche, The Law and Policy of the World Trade Organization (2002)See for the relevant texts the collection prepared by the WTO Secretariat, The WTO Dispute Settlement Procedures (2nd ed. 2001). 326. Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2 to the Agreement establishing the World Trade Organization, Art. 6.1. 327. Id., Art. 16.4. 328. Id., Art. 17.1.

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covered in the panel report and legal interpretation developed by the panel”.329 Appellate Body reports shall be adopted unless it is decided by consensus not to do so.330 The WTO procedures have been frequently used. As of June 2003, some 300 disputes have been brought to the WTO. The Appellate Body has taken decisions in almost 50 cases.331 Partly as a consequence of the frequent use of the WTO dispute settlement procedures it has been suggested to move from ad hoc to more permanent, full-time Panelists. In addition to the general dispute settlement procedure of the World Trade Organization, there are some special dispute settlement bodies. One example is the Textiles Monitoring Body (TMB), established to supervise the implementation of the Agreement on Textiles and Clothing. This body is created as a standing organ, and its ten members are designated in their personal capacities.332 §657. The UPU has its own arbitration procedure for dealing with disputes between two or more postal administrations of member countries.333 To date, twenty-eight cases have been dealt with, of which only five date from the period after the Second World War.334 §658. Since 1978, the UNESCO operates a complaints procedure under which individual complaints concerning human rights falling within UNESCO’s competence can be examined by the Committee on Conventions and Recommendations in Education (composed of government representatives, usually meeting twice a year). This Committee is an organ for investigation and conciliation. When this procedure was created, it was explicitly stated that “UNESCO should not play the role of an international judicial body”. This procedure is characterized by the search for a dialogue with the government in question.335 Between 1978 and 1989, the Committee examined 357 communications.336

329. 330. 331. 332.

333. 334. 335.

336.

Id., Art. 17.6. Id., Art. 17.14. Information taken from the WTO website: www.wto.org. Agreement on Textiles and Clothing, Art. 8.1. See for a list of special procedures for the settlement of disputes, Appendix 2 to the Understanding on Rules and Procedures Governing the Settlement of Disputes. UPU, Art. 32, and General Regulation 129. See UPU Constitution, Vol. 1 of the annotated code 48-56 (1991), where these 28 cases are summarized. See S.P. Marks, The Complaint Procedure of the United Nations Educational, Scientific and Cultural Organization, in Hannum, op. cit. note 225, at 86-98; quotation at 94. See also S. Bastid, La mise en oeuvre d’un recours concernant les droits de l’homme dans le domaine relevant de la compétence de l’UNESCO, in R. Bernhardt, W.K. Geck, G. Jaenicke, H. Steinberger (eds.), Völkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte, Festschrift für Hermann Mosler 45-57 (1983). Marks, op. cit note 335, at 97. See also www.unesco.org/general/eng/legal/hrights/ procedure/shtml.

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§659. A qualified number of members of most international commodity councils may require the council concerned to seek the opinion of an advisory panel on disputes brought before it. This panel consists of two independent experts from exporting states, two from importing states and an independent chairman. The panel, which resembles an arbitral tribunal, has no decision-making power, it being the council itself that must take the final decisions.337 §660. The European Court of Human Rights, the American and African Human Rights Commissions (see above, §625-630), the Human Rights Committee (see above, §609), the Committee on the Elimination of Racial Discrimination (see above, §611) and the Committee against Torture (see above, §613) all perform conciliatory functions alongside their more judicial tasks.338 They strive for friendly solution of disputes concerning respect for human rights. §661. The constitution of the OAU provided for a Commission of Mediation, Conciliation and Arbitration,339 the composition and tasks of which were defined by a separate Protocol.340 The Commission could only operate with the agreement of both parties. Parties could choose between mediation, conciliation and arbitration. The OAU however preferred to settle its problems through political rather than legal channels, and if a legal settlement was sought, the members tended to prefer ad hoc arbitration. The Commission, therefore, has never been able to function.341 When the African Union was established in 2001 to replace the OAU, its constitution did not provide for an organ similar to the Commission. At the same time, this constitution provides for the creation of a Court of Justice of the Union.342 This Court is not yet operational.

337. See e.g. International Coffee Agreement 2001, Art. 42; International Cocoa Agreement 2001, Art. 50. This procedure has only been used in a few instances; see for examples UN, Handbook on the Peaceful Settlement of Disputes between States (1992), at 139. 338. European Convention on Human Rights, Art. 28: American Convention on Human Rights, Arts. 48(1)f, 49; International Covenant on Civil and Political Rights, Arts. 28-41; International Convention on the Elimination of All Forms of Racial Discrimination, Arts. 8-16; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Arts. 17-24. 339. OAU, Art. 19. For commentary on this organ, see T.O. Elias, The Commission of Mediation, Conciliation and Arbitration of the Organization of African Unity, 40 BYIL (1964), at 336-348; T.O. Elias, Africa and the Development of International Law 160-176 (1972). 340. Protocol of 21 July 1964, OAU Basic Documents and Resolutions No. 65-24272, 8 October 1965, at 9-15; 40 BYIL (1964), at 349-354; 3 ILM 1116 (1964). 341. See F. Borella, Le systeme juridique de l’OAU, 17 AFDI 248 (1971); M. Bedjaoui, Le règlement pacifique des différends africains, 18 AFDI 87-90 (1972); UN, Handbook on the Peaceful Settlement of Disputes between States (1992), at 86, 95; M. Wolfers, The Organization of African Union as Mediator, in S. Touval and I.W. Zartman (eds.), International Mediation in Theory and Practice 175-196 (1985). 342. Art. 18.1. According to art. 18.2, the statute, composition and functions of this Court shall be defined in a protocol.

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§662. The Intergovernmental Organization for International Carriage by Rail does not have a permanent arbitration body, but only a list of arbitrators, on which each member state may register two of its nationals who are specialists in international transport law.343 If a dispute arises between member states, these states may compose an arbitration tribunal from this list. In addition, the Secretariat of this organization (the ‘Central Office’) may, at the request of a member state or a transport company, attempt to settle a dispute by rendering its good offices.344 These provisions on dispute settlement have never been used.345 §663. The College of Arbitrators of Benelux is charged with the settlement of disputes between Member States. It has decided only one case.346 §664. The European Convention for the Peaceful Settlement of Disputes, prepared by the Council of Europe (1957), lays down rules for arbitration which are applicable to the states parties. In the absence of agreement to the contrary, an arbitral tribunal will consist of five members.347 The tribunal is not competent in questions that by international law are solely within the domestic jurisdiction of states,348 nor in questions of international law, which shall be submitted to the International Court of Justice.349 The Convention has rarely been invoked.350 §665. Within the framework of the Organization for Security and Cooperation in Europe (OSCE), a procedure for the peaceful settlement of disputes was agreed in 1991.351 According to this so-called Mechanism procedure, parties to any dispute other than disputes of importance to peace, security or stability among the participating states may request the establishment of a Mechanism. This Mechanism is composed of one or more members taken from a register, to which each participating state may nominate four persons. The task of these ad hoc Mechanisms is rather limited: to assist the parties in identifying suitable

343. Convention concerning International Carriage by Rail, Art. 14.1. 344. Id., Art. 9.2(l). See Z. Mátyássy and G. Mutz, La Convention relative aux transports internationaux ferroviaires (COTIF) du 9 mai 1980, in 89 Bulletin des transports internationaux par chemins de fer No. 1/2 (1981), in particular at 31-35. 345. Information obtained from the organization, July 2002 . 346. Case No. 1-1957, Judgment of 29 March 1958, published in Benelux kwartaalbericht, bijlage bij No. 5 (July 1958). 347. European Convention for the Peaceful Settlement of Disputes, European Treaty Series, No. 23, Art. 20; 320 UNTS 243. 348. Id., Art. 27. 349. Id., Arts. 1 and 19. 350. For example, the Convention has been invoked as a basis of jurisdiction of the International Court of Justice in the 1969 North Sea Continental Shelf cases. See K. Ginther, The European Convention for the Peaceful Settlement of Disputes, 1 EPIL (1981), at 56-58. 351. At the Valetta meeting of Experts on Peaceful Settlement of Disputes; the report of this meeting has been published in 30 ILM 382-396 (1991).

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procedures for the settlement of the dispute. Thus, basically, Mechanisms do not arbitrate or mediate themselves, but only recommend that parties settle their dispute by, for example, mediation. If the parties in dispute agree, the Mechanism may carry out fact-finding or expert functions, or may even be given binding powers regarding the partial or complete settlement of the dispute. Disputes of importance to peace, security or stability among the participating states may be brought directly and unilaterally before the Committee of Senior Officials, a policy-making organ in the OSCE.352 §666. The constitution of the European Free Trade Association (EFTA) directs the members to refer their disputes to the EFTA Council of Ministers.353 The Council may in turn refer the matter to an examining committee that may perform a judicial function. The commentary to the EFTA constitution, however, suggests that the examining committees were intended to be primarily political.354 §667. The North American Free Trade Agreement (NAFTA) includes provisions for the settlement of disputes that resemble the dispute settlement procedures of the GATT (before the entry into force of the 1994 WTO Agreement).355 If parties cannot solve their dispute through bilateral consultations, the NAFTA Commission (composed of representatives of the member states) may be requested to assist the parties in finding a solution. If the Commission does not resolve the conflict within thirty days after it is convened, an arbitral panel shall be established, which is composed of five independent experts chosen from a roster. Panels are required to make findings of fact and recommendations, on the basis of which parties “shall agree”.356 §668. Many organs for mediation and fact-finding have been appointed on an ad hoc basis for the settlement of particular disputes.357 The 1997 Conven-

352. See on this procedure P.H. Kooijmans, The mountain produced a mouse, in 5 LJIL 91-97 (1992); K. Oellers-Frahm, The Mandatory Component in the CSCE Dispute Settlement System, in Janis, op. cit. note 125, at 195-211; L. Caflisch, Règlement pacifique des différends en Europe: La Procédure de La Valette et les perspectives d’avenir, in C. Dominicé et al., op. cit. note 311, at 437-456. Cf. also Condorelli, op. cit. note 311. 353. EFTA, Art. 31. 354. The Stockholm Convention Examined (2nd ed. 1963), at 4 and 69; A. Szokoloczy-Syllaba, EFTA: The Settlement of Disputes, 20 ICLQ 519-534 (1971). 355. NAFTA, Chapter 20. 356. D.S. Huntington, Settling Disputes under the North American Free Trade Agreement, 34 HILJ 407-443 (1993); J.P. Bialos and D.E. Siegel, Dispute Resolution Under the NAFTA: The Newer and Improved Model, 27 The International Lawyer 603-622 (1993);L.E. Trakman, Dispute Settlement Under the NAFTA (1997). Website: www.nafta-sec-alena.org. 357. See W.I. Shore, Fact-Finding in the Maintenance of International Peace (1970); and e.g. Documents S/649: S/729: S/786; S/787 or YUN 1962, at 124-128 (on West Irian); YUN 1946-47, at 276, 436, 441 (on Palestine), or YUN 1946-47, at 360-375 and UN Doc. S/360 (Greek incidents).

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tion on the Law of the Non-Navigational Uses of International Watercourses provides for the compulsory establishment of a Fact-finding Commission if the parties to a dispute have not succeeded to settle their dispute through other means.358 Fact-finding alone can resolve conflicts arising from different views of the particular facts.359 This is illustrated by the conflict between the United Kingdom and Denmark concerning the capture of the British trawler, Red Crusader, off the coast of the Faroe Islands. Central to the conflict was the factual question whether the Red Crusader was actually fishing within Danish waters and the dispute was resolved when that question was settled.360

§669. A recurring theme of debate has been whether a supreme organ with a universal fact-finding function could be established. The General Assembly set up a UN Panel for Inquiry and Conciliation in 1949,361 and discussed other possibilities for a fact-finding organ during and after its 17th session.362 In 1991 the UN General Assembly adopted the Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security, encouraging the use of fact-finding missions by states and UN organs.363 No new organ has yet been established.364 5.

Other bodies

§670. Some organs have been created in order to carry out not a strictly judicial task, but a more general supervisory task, which is performed independently. In this context, particular reference should be made to organs performing preventive functions, such as the UN human rights special rapporteurs and the European Committee for the Prevention of Torture and Inhuman or De-

358. See Art. 33 of this Convention. 359. See on fact-finding T. Bensalah, L’enquête internationale dans le règlement des conflits (1976); P. Ruegger, Nouvelles réflexions sur le rôle des procédures internationales d’enquête dans la solution des conflits internationaux, in Le droit international à l’heure de sa codification; études en l’honneur de Roberto Ago 327-361 (1987); D.A. Leurdijk, Fact-finding: the revitalization of a Dutch initiative in the UN, 21 Bulletin of peace proposals 59-69 (1990); R.B. Lillich (ed.), Fact-Finding before International Tribunals (1992). 360. Report of the Commission of Inquiry established on 15 November 1961 (published by the Permanent Court of Arbitration). 361. GA Res. 268D (III). See for the list of persons designated by 15 member states UN Doc. A/4686-S/4632 (1961). The Panel has never been used (UN, Handbook on the Peaceful Settlement of Disputes between States (1992), at 27, footnote 32). 362. See reports of the Secretary-General A/5694 and A/6228 and comments of governments in Documents A/6886 and A/6373. 363. GA Res. 46/59. 364. See E.A. Plunkett Jr, UN Fact-Finding as a Means of Settling Disputes, 9 VJIL (1968-69), at 154-183; M. Loïc Marion, Remarques sur l’echec d ‘un projet de reforme de l’enquête internationale, 11 RBDI 475-524 (1975).

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grading Treatment or Punishment (CPT). These are the products of the increasing awareness that, particularly (but not exclusively) in the human rights area, the formulation of rules and the ex post facto supervision of compliance with these rules is not sufficient.365 The UN Commission on Human Rights has created a number of organs charged with examining either the human rights situation in a particular country or the observance of specific human rights. Examples are the working groups, rapporteurs, and representatives dealing with South Africa, Chili, Afghanistan, the Working Group on Enforced and Involuntary Disappearances, and the ‘thematic rapporteurs’ dealing with summary or arbitrary executions and torture.366 The CPT was established by the 1987 Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, concluded within the framework of the Council of Europe.367 This Committee has to examine all places within the territory of the states parties in which persons are deprived of their liberty by a public authority, for example police stations, prisons, psychiatric institutions and detention centres for foreigners. It is composed of a number of independent experts, such as medical doctors, psychiatrists, criminologists, former members of parliament. The CPT has remarkable powers, in particular, the right to visit and freely move around within the places mentioned above. Following its visits, it issues detailed recommendations, on the implementation of which the state in question must report. The CPT has now visited all states parties at least once, and its operation has generally been regarded as a success.368 §671. Another organ having a more general supervisory task is the World Bank’s Inspection Panel. This Panel was created in 1993 to review complaints from any group of private persons alleging that they are suffering or expect to suffer material adverse effects from the failure of the World Bank (or the IDA) to follow its operational policies and procedures in its ongoing operations.369 These include Bank procedures for undertaking environmental impact assessments of proposed operations, for the treatment of people involuntarily resettled during the course of Bank operations, and for relations with indigenous peoples and with non-governmental organizations. The Panel

365. See A. Cassese, The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, in Blokker and Muller, op. cit. note 233, at 124. 366. For a brief survey, see Hannum, op. cit. note 225, at 60-85. See also D. Weissbrodt, The Three “Theme” Special Rapporteurs of the UN Commission on Human Rights, 80 AJIL 685-699 (1986). On the High Commissioner for Human Rights, created in 1993, see below, §1408. 367. For the text of this Convention, see 27 ILM 1152 (1988). 368. Cassese, op. cit. note 365. On the CPT see also M. Evans and R. Morgan, The European Convention for the Prevention of Torture: Operational Practice, 41 ICLQ 590-614 (1992); R. Morgan and M. Evans, Combating torture in Europe – The work and standards of the European Committee for the Prevention of Torture (2001). 369. World Bank Res. 93-10; IDA Res. 93-6.

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reviews complaints and makes recommendations to the Executive Board about which complaints to investigate. It will investigate those complaints that are approved for investigation by the Board. In all cases, final decision will rest with the Board. The Panel has only advisory powers.370 In its first five years of existence, between 1994 and 1999, the Panel received seventeen requests for inspection. The Panel recommended investigation in six of these cases, and the Executive Board formally authorized an investigation in two cases.371 Similar inspection panels have been established by the Inter-American Development Bank (in 1994) and by the Asian Development Bank (in 1995). The Panel has three independent members, appointed for a non-renewable five-year term, and commenced its activities in 1994.372 C.

Composition of judicial organs

1.

Number of members

§672. As a rule, judicial organs operate with an odd number of less than eight members. When they have more members, they will usually delegate tasks to commissions or committees of restricted size (usually called “chambers”). The International Court of Justice has fifteen members who, in principle, participate in all cases.373 The Statute of the Court refers to two kinds of chambers: ad hoc chambers, established to deal with a particular case,374 and standing chambers, for dealing with particular categories of cases (Article 26.1). Since the 1980s increasing use has been made of ad hoc chambers.375 In 1993 the Court decided to establish a seven-member

370. D.B. Bradlow and S. Schlemmer-Schulte, The World Bank’s New Inspection Panel: A Constructive Step in the Transformation of the International Legal Order, 54 ZaöRV 392-415 (1994); I.F.I. Shihata, The World Bank Inspection Panel: In Practice (2nd ed. 2000); G. Alfredsson and R. Ring (eds.), The Inspection Panel of the World Bank – A Different Complaints Procedure (2001). 371. See for these as well as more detailed figures S. Schlemmer-Schulte, Introductory note to the conclusions of the second review of the World Bank Inspection Panel, 39 ILM 243 (2000). 372. World Bank, Annual Report 1994, at 17, 74. 373. ICJ Statute, Arts. 3, 25. 374. Statute, Art. 26.2. See A. Pillepich, Les Chambres, M. Bedjaoui, Remarques sur la création des Chambres ad hoc au sein de la Cour internationale de Justice, and the subsequent debate, in: Société Française pour le Droit International, La juridiction internationale permanente (Colloque de Lyon) 45-100 (1987); S.M. Schwebel, Chambers of the International Court of Justice Formed for Particular Cases, in Y. Dinstein (ed.), International Law at a Time of Perplexity, Liber Amicorum Rosenne (1989), at 739-770; M. Lachs, Some Comments on ad hoc Chambers of the International Court of Justice, in: Humanité et Droit International, Mélanges René-Jean Dupuy 203-210 (1991). 375. This has been explained by “considerations of speed and efficiency, as well possibly as the negative element of excluding from the proceedings certain supposedly unsympathetic judges”. Lauterpacht, op. cit. note 304, at 85.

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Chamber for Environmental Matters, the members of which were elected by secret ballot.376 The International Tribunal for the Law of the Sea has twenty-one members. Generally all members sit in cases brought before the Tribunal. However, the Tribunal may form chambers, composed of three or more members, as it considers necessary for dealing with particular categories of disputes.377 The International Criminal Court has eighteen judges.378It has an Appeals Division (composed of the President of the Court and four other judges), a Trial Division and a Pre-Trial Division (both having not less than six judges).379 The judicial functions of the ICC are carried out in each division by Chambers. The Appeals Chamber is composed of all five judges of the Appeals Division; the functions of the Trial Chamber are carried out by three judges of the Trial Division; the functions of the PreTrial Chamber are carried out either by three judges of the Pre-Trial Division or by a single judge of that division.380 The European Court of Human Rights has as many members as there are member states of the Council of Europe. It is permitted that there is more than one judge of the same nationality (there are now two Swiss judges; for Liechtenstein a judge was elected from Switzerland). To consider cases brought before it, the Court sits in committees of three judges, in Chambers of seven judges and in a Grand Chamber of seventeen judges.381 The Inter-American Commission on Human Rights and the Inter-American Court of Human Rights each have seven members.382 The Human Rights Committee established under the International Covenant on Civil and Political Rights consists of eighteen members, but it leaves its most specific conciliatory tasks to an ad hoc conciliation commission of five.383 The Benelux Court of Justice has nine members but may sit in chambers of three.384 The Central Commission for the Navigation of the Rhine is not an exclusively judicial organ. Its judicial functions have been delegated to a ten-member Chamber of Appeal. The Tribunal of the OECD Nuclear Energy Agency consists of seven judges. The Court of Justice of the European Communities has fifteen members, but much of its work is carried out in chambers of three. Currently the Court of First Instance has fifteen members; before 1995 it had twelve members (this court is one of the exceptions to the rule that judicial organs should be composed of an odd number of members). It may sit in chambers of three or five judges. The Andean Tribunal of Justice has five members. The administrative tribunals decide their cases with three judges, even if they have more, as in the case of the UN and ILO Administrative Tribunals, which both have seven members.385 The Law of the Sea Tribunal has 21 members. Arbitral Tribunals such as the Permanent Court of Arbitration and the Commission of Mediation,

376. 377. 378. 379. 380. 381. 382. 383. 384.

ICJ Communiqué No. 93/20. Statute of the International Tribunal for the Law of the Sea, Arts. 13-15. ICC Statute, Art. 36.1. Id., Arts. 34(b) and 39.1. Id., Art. 39.2. European Convention on Human Rights, Art. 27.1. American Convention on Human Rights, Arts. 34, 52. International Covenant on Civil and Political Rights, Arts. 28, 42. Treaty concerning the Establishment and Statute of a Benelux Court of Justice, Art. 3, para. 1, and Art. 5, para. 1. 385. UNAT Statute, Art. 3.1. ILOAT Statute, Art. 3 (since June 1992).

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Advisory and supervisory organs

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Conciliation and Arbitration of the OAU may nominally have many more members. The judicial function is performed, however, by tribunals of three or five arbitrators.

§673. International judicial organs are rather large, compared with national courts. Two possible reasons can be adduced. First, a larger membership will strengthen confidence in the organ (see above, §237). At the present limited level of integration, states will have more confidence in a judicial organ if it contains one of its own nationals, or at least one representative of its region. Confidence in the decisions is important since their execution often lies in the hands of the states themselves that also often determine whether the judicial organ will decide a particular case. Secondly, the expertise of a court will increase with a larger number of members. Unlike national courts, international courts do not apply a uniform system of law with which all judges are conversant. They apply rules of international law which are vague and interpreted differently in different states. Since these rules are also incomplete, international courts must apply general principles of law, partly derived from national law. In some cases they will even have to apply national law. In order to be able to evaluate the different national legal systems fairly, courts should contain judges from these systems. These arguments become weaker for judicial organs of supranational organizations such as the European Community. They are also less valid for administrative tribunals deciding on staff disputes. A strengthening of confidence of the member states will not be needed to bring cases before the organ or for having decisions implemented. The applicable law has gradually been developed to a sophisticated level, much of it being codified in decisions of the organization, in staff regulations or in prior court decisions. There will be less necessity to apply general rules common to national legal systems than in ordinary international law (although this need still exists). §674. In order to strike a balance between the advantages of a large and a small number of judges the larger courts may use chambers. The EC Court originally used chambers for staff cases only, but later this practice was extended to other classes of proceedings. The International Court of Justice has introduced the possibility to create regional chambers that would be composed of judges from the region of the disputing states. This has the double advantage of a smaller court and of a court that is closely related to the states concerned.386 The European Court of Human Rights only deals with cases in committees or chambers.

386. See J.G. Starke, Die neue Verfahrungsordnung des Internationalen Gerichtshofs, 16 Jahrbuch 11-31 (1973), in particular 19-21: G. Guyomar, La révision par la Cour internationale de justice de sa résolution visant sa pratique interne en matière judiciaire, 22 AFDI 116-119 (1976). For the text of the amendments to the rules of the Court, see 15 ILM 950-952 (1976); 17 ILM 1286-1304 (1978).

§675

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Nationality of the members

§675. The two above-mentioned reasons for enlarging international judicial organs (increased confidence and expertise) also explain the requirement to appoint members of different nationalities.387 An equitable geographical distribution of the judges will strengthen the confidence of each member state, or at least of each region, and will result in a balance between the national legal systems from which the court can derive legal principles, in addition to the laws and treaties which it must apply. It is possible that members of international courts are nationals of more than one state. The question then arises what nationality should prevail. According to the ICJ Statute, such a member shall be deemed to be a national of the state in which he ordinarily exercises civil and political rights.388 Originally the Statutes of the Criminal Tribunals for the Former Yugoslavia and for Rwanda did not contain such a provision. However, a problem arose in practice when Judge Robinson of the Yugoslav Tribunal (a national of Jamaica) and Judge Williams of the Rwanda Tribunal (a national of both Jamaica and Saint Kitts and Nevis) could both be assigned to the Appeals Chamber that these two tribunals share. The Security Council decided to amend their Statutes in order to introduce a provision similar to that of the ICJ.389 In many cases, it is expressly provided that a national from each of the member states involved in the dispute will sit in the Court (for instance in the International Court of Justice, the European Court of Human Rights (in Chambers and in the Grand Chamber), and the Inter-American Court of Human Rights). If no such judge is available in the Court, a judge will be appointed ad hoc. §676. Appointment of an ad hoc judge increases the confidence of the state concerned in the Court. The presence of a judge of their own nationality offers some guarantee that the national view will be taken into account. On the other hand, participation of ad hoc judges has some disadvantages: (1) it disrupts the unity of the court as a collegiate body: (2) ad hoc judges may be less objective as they are appointed at a time when the issues of the dispute are already known (see below, §683). Even if they are objective, they may not be fully trusted to be so. It is only exceptionally that ad hoc judges vote against their country.390

387. ICJ Statute, Art. 3; ITLOS Statute, Art. 3; ICC Statute, Art. 36.7; UNAT Statute, Art. 3; ILOAT Statute, Art. 3(1). This was also required for the European Court of Human Rights until the entry into force of the 11th Protocol (1 November 1998); for the present Court, this is no longer required. See also D. Mathy, Un juge ad hoc en procedure consultative devant la Cour internationale de justice, 12 RBDI 528ff. (1976). 388. ICJ Statute, Art. 3.2. The Statutes of other tribunals contain a similar provision: ITLOS Statute, Art. 3.1; ICC Statute, Art. 36.7. 389. SC Res. 1411. 390. See N. Singh, The Role and Record of the International Court of Justice 192-194 (1989).

473

Advisory and supervisory organs

§677

The nomination of ad hoc judges may create problems when courts handle a large number of cases simultaneously. It may then be that different drafts for a court decision are discussed, e.g. once or twice a week, interrupted by the discussion of many other cases. The ad hoc judge will then have to come back many times. Other problems may arise when there are many parties to a dispute. According to the rules of the International Court of Justice, these parties may collectively nominate one ad hoc judge if they have the same interest.391 The Court itself decides whether or not ad hoc judges will be nominated in proceedings for an advisory opinion (see below, §1368). §677. In the EC Court there is no provision for the appointment of ad hoc judges. Although the court contains judges from each of the member states, it is possible that a particular judge is unable to sit. In that case, no ad hoc judge will be appointed, even when important interests of the state are involved or when the state is accused of violating the Treaties. The reason for this exception is the supranational structure of the Communities, which provokes greater mutual confidence in, and a wider appreciation of, the judicial system of the other member states and, at the same time, stimulates a general interest in the outcome of judicial decisions. Often decisions do not concern particular states, but even where they do, they may be valuable as precedents for other states. Likewise, it is not necessary for a national judge of the state involved to sit in an administrative tribunal. The national interest and domestic law of a particular state are usually not involved in these cases. §678. Each of the members of the Andean Court of Justice has a first and a second substitute. As the Court has five judges, one from each of the member states, it thus becomes almost certain that there is a judge from each of the members in each case without the need for the appointment of ad hoc judges. As the substitutes are appointed for the same periods as the judges, they will be more objective than ad hoc judges. 3.

Qualifications

§679. In many cases only lawyers may be appointed to these judicial posts. Eligibility for the International Court of Justice, for the EC Court and (with a slightly less rigid formulation) for the European Court of Human Rights, is limited to persons who fulfil the conditions required for holding the highest judicial office in their respective countries.392 The members of the Benelux

391. Rules of the ICJ, Art. 36. Rule 30.1 of the European Court of Human Rights contains a similar provision. 392. ICJ Statute, Art. 2; ICC Statute, Art. 36.3(a); EC, Art. 223; European Convention on Human Rights, Art. 21.

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Court of Justice must actually hold such highest national offices.393 The justification for this latter provision is that the judges of this Court are mainly charged with guaranteeing that the highest national courts interpret Benelux rules in the same way. The appointment of exclusively lawyers, however, is not necessary in all cases. In administrative tribunals, former civil servants may also be appointed, while in arbitral tribunals experts on the subject may be desirable, such as directors of postal services in the arbitral tribunals of the UPU. The appointment or sitting of a particular judge may usually be challenged if he has previously taken part in the same case or if he should be otherwise disqualified.394 Members of the International Tribunal for the Law of the Sea must enjoy “the highest reputation for fairness and integrity” and must be “of recognized competence in the field of the law of the sea”.395 Judges of the ICC must either have competence in criminal law and procedure or in “relevant areas of international law such as international humanitarian law and the law of human rights”.396 For the purpose of election of these judges, there are two lists: list A for the criminal law candidates and list B for the international law candidates. At the first election to the Court, at least nine judges had to be elected from list A and at least five judges from list B.397 In addition to these requirements, states parties to the ICC Statute shall, in the selection of judges, take into account the need, within the membership of the Court, for (i) the representation of the principal legal systems of the world; (ii) equitable geographical representation; and (iii) a fair representation of female and male judges.398 4.

Appointment

§680. International organizations search for a system of appointment by which the independence of the judges will be guaranteed as much as possible. As a rule, the principal organs of the organization appoint the members of the judicial organs.399 Where an organization has more than one principal organ, other organs may also be involved.

393. Benelux Court of Justice, Art. 3, para. 1. 394. See J.P. Jacque, L’avis de la Cour internationale de Justice du 21 Juin 1971, 76 RGDIP 1050-1054 (1972). 395. ITLOS Statute, Art. 2.1. 396. ICC Statute, Art. 36.3(b). 397. Id., Art. 36.5. 398. Id. Art. 36.8(a). 399. E.g. Benelux Court of Justice, Art. 3; UNAT Statute, Art. 3.2.

475

Advisory and supervisory organs

§681

In the UN, a candidate for appointment to the International Court of Justice needs a majority of the votes in the General Assembly and in the Security Council.400 Only those who are listed as candidates are eligible. The list is compiled by the members of the Permanent Court of Arbitration and (for the states that are not parties to this Court) by national groups appointed by the same method as the members of this Court.401 Thus the possibilities for candidates solely supported by their governments are limited. The members of the different UN human rights committees (see above, §609-615) are elected by the states parties to the conventions in which these committees are created, from a list of persons nominated by the states parties. Generally, each state may nominate one national.402 Members of the International Tribunal for the Law of the Sea are elected by the States Parties to the UN Convention on the Law of the Sea. Each party to this convention may nominate not more than two persons; it is not required that nominees have the nationality of the nominating state.403 Judges of the International Criminal Court are elected by the Assembly of States Parties.404 Each state party to the Statute may nominate one candidate for any given election who need not necessarily be a national of that state but shall in any case be a national of a state party.405 The members of the European Court of Human Rights are elected by the Parliamentary Assembly of the Council of Europe, with respect to each party to the European Convention on Human Rights, from a list of three candidates nominated by each party.406 For the Inter-American Court of Human Rights, each state party to the Convention may propose up to three candidates, but there at least one candidate must be a national of another state party.407 Apparently the drafters of this Convention expected that this would also result in at least two candidates being available from each state.

§681. In the European Communities, the governments appoint the judges by mutual agreement.408 This underlines the independence of the members of the Court both from individual states and from the other institutions of the

400. ICJ Statute. Arts. 4, 8, 10-12. On the voting procedure, see W.N. Hogan, The Ammoun Case und the Election of Judges to the International Court of Justice, 59 AJIL 908-912 (1965); see on the election of members of the Court E. McWhinney, Judicial Settlement of International Disputes 91-121 (1991); S Rosenne, The World Court – What it is and how it works (5th rev. ed. 1995); N. Blokker and S. Muller, The 1996 elections to the International Court of Justice: new tendencies in the post-cold war era?, 47 ICLQ 211-223 (1998). See also the memorandum by the Secretary-General of the UN on the procedure to be followed in the election of a member of the ICJ, UN Doc. S/1997/40. 401. ICJ Statute, Arts. 4-7. There is one exception in Art. 12.2. See S. Rosenne, Elections of Members of the International Court of Justice: Late Nominations and Withdrawal of Candidates, 70 AJIL 543-549 (1976). 402. An exception is the International Covenant on Civil and Political Rights, Art. 29.2 (not more than two nationals). 403. ITLOS Statute, Art. 4. 404. ICC Statute, Art. 36.6. 405. ICC Statute, Art. 36.4(b). 406. European Convention on Human Rights, Art. 21. 407. American Convention on Human Rights, Art. 53. 408. EC, Art. 223.

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Communities. The judges of the Andean Court of Justice are also appointed by common accord of the governments of the five member states.409 Each member of the East African Community (now inactive) appointed one judge to the Common Market Tribunal. The three member states jointly appointed the fourth judge who would also act as chairman. The four judges together appointed the fifth judge.410

§682. Sometimes judges are appointed by drawing lots. This was the case for the Tribunal of the Western European Union (WEU), the three members of which had to be determined by lot out of the judges in the EC Court who are nationals of member states of WEU.411 The Grand Chamber of the European Court of Human Rights includes ex officio the President of the Court, the VicePresidents, the Presidents of the Chambers and the member, national of the state or states concerned,412 the other members being chosen by lot.413 The drawing of lots for the composition of judicial organs guarantees that no specific interests influence the choice of judges, but does have some practical disadvantages. The original organs of the European Convention on Human Rights (the Commission and the old' Court) needed a Subcommission, or a chamber, to hear each case. Drawing lots resulted in the same people being selected a number of times while others were never appointed at all. Often either their individual competence or the time they have available may indicate particular persons as most suitable for a certain case, but the lot may fail to secure their sitting. Both the Commission (for its original Sub-Commissions) and the Court of Human Rights have proposed changing the system.414 In the case of the Commission this has led to a protocol of amendment (Protocol No. 3 to the Convention) by which the Sub-Commission was abolished.415 Lots continued to be drawn in the old' Court, but the chamber thus appointed could refer the case to the plenary Court, or to the Grand Chamber. 5.

Independence of judges

§683. Judicial organs should be as independent as possible. There are several methods of promoting independence.416 Many members of judicial organs are appointed for long terms (see above, §297); the procedure for election may

409. 410. 411. 412. 413. 414.

Cartagena Agreement, Art. 8. Treaty for East African Cooperation, 6 June 1967, Art. 33. Treaty of 14 December 1957, Art. 8. European Convention on Human Rights, Art. 27. Rule 24.2(e) of the European Court of Human Rights. In letters to the Committee of Ministers of the CoE, respectively in March 1961 and February 1962. 415. Sohn and Buergenthal, op. cit. note 225, at 143. 416. See in general G. Guillaume, De l'indépendance des membres de la Cour internationale de Justice, in B. Boutros-Ghali, Amicorum Discipulorumque Liber – Peace, Development, Democracy 475-487 (1998).

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be such that individual states can exert little influence (see above, §680-682); in some courts the personal opinions of the judges are kept secret (see below, §695-696). Are these methods effective? Are the members of judicial organs independent from their states? It is hard to prove any relationship between judges and their states when courts do not publish dissenting opinions and the attitude of each individual judge therefore remains secret. In a study on the voting behaviour of national judges in international courts, Il Ro Suh noted that in the Permanent Court of International Justice and the International Court of Justice, national judges had voted against the position of their government 36 times and 167 times in favour of it. This national ‘orientation’ is even more marked in the case of ad hoc judges (included in these numbers). They voted against their government in 11 cases and in 108 cases for it.417 Another study has demonstrated that in the European Court of Human Rights national judges voted in approximately 11 per cent of the judgments in favour of the position of their government and against the majority of the Court; this figure is 43.5 per cent for ad hoc judges.418 These figures do not necessarily mean that the judges are dependent on their governments. Ad hoc judges are appointed by their governments when the substance of the case is known and they may have been chosen because of their views. Permanent judges are also likely to vote in the same way as their governments. The attitude of a government is closely linked to national public opinion and national legal thought. Public opinion may have moulded the government’s position, or it may reflect it. Many judges read (for linguistic or other reasons) only their national newspapers. They are subject to the same forces that establish the position of their national government. 6.

Advocates-General

§684. The EC Court is assisted by eight Advocates-General, that of Benelux by three.419 They do not form part of the Court, although they are closely associated with it. Their task is to present publicly, with complete impartiality and independence, reasoned conclusions on cases submitted to the Court.420 In this way, the Court receives, in addition to the information from the parties based on their own interests, objective, expert information based on exclusively legal grounds. Since the opinions of the Advocates-General are published, these opinions can be laid alongside the judgment of the court, providing a second

417. Il Ro Suh, Voting behavior of National Judges in International Courts, 63 AJIL 224-236 (1969). 418. M. Kuijer, Voting behaviour and national bias in the European Court of Human Rights and the International Court of Justice, 10 LJIL 1997, at 49-67. 419. EC, Art. 222; ECSC, Art. 32(a); Euratom, Art. 138; OJ 1995, L 17/14. Benelux Court of Justice, Art. 3.1. 420. On the role of the Advocate-General, see Brown and Jacobs, op. cit. note 175, at 53-63; T. Tridimas, The Role of the AdvocateGeneral in the Development of Community Law: Some Reflections, in 34 CMLRev. 1349-1387 (1997).

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approach to the problems of a case. The opinion of the Advocates-General may be of importance for the future development or the law. There are no Advocates-General in the other international judicial bodies. When the EC’s Court of First Instance was created, there was great discussion about whether Advocates-General should be appointed. At the end of the day, a compromise was reached, according to which there are no Advocates-General as such, but members of the Court of First Instance may be called upon to perform the task of an Advocate-General. If this is done, the decision being exclusively for the Court of First Instance, this member may not take part in the judgment of the case.421 7.

Registrar’s office

§685. The independence of a judicial body could be jeopardized if its secretarial work were done by a body responsible to persons other than the judges themselves. Some judicial organs have a secretariat of their own rather than using the secretariat of the organizations to which they belong. Courts which control the legality of decisions of the organization (in which the Secretariat has usually played its part) are particularly aware of the need of such separation. The secretariat of a judicial organ (registrar’s office or registry), is headed by a Registrar. For example, the International Court of Justice, the International Tribunal for the Law of the Sea, the International Criminal Court and the Court of the European Communities each have an independent registry. The Court of Justice of Benelux has only a registrar. Since the number of cases dealt with by the latter is small, the registrar is, at the same time, an official of the secretariat of the organization.422 He may also be assisted by that secretariat. Since the court does not decide cases involving the secretariat, this seems acceptable. The European Court of Human Rights has its own staff under the authority of the Registrar of the Court. Although formally belonging to the staff of the Council of Europe and paid out of the budget of the Council, it in fact operates independently from the Council of Europe. The administrative tribunals of UN, ILO, World Bank, IMF, and OAS,423 the UN human rights committees,424 and the Benelux College of Arbitrators425 have to rely on the secretariats of the organizations concerned.

421. 422. 423. 424. 425.

See T. Millett, op. cit. note 175, at 15-16. Benelux Court of Justice, Art. 3, para. 1. E.g. UNAT Statute, Art. 3; IMFAT Statute, Art. 9. E.g. International Convention on Civil and Political Rights, Art. 36. Benelux College of Arbitrators, Statute, Art. 1.

479

D.

Advisory and supervisory organs

§686

Procedure before judicial organs426

§686. The procedure before international courts is based on the same principles as that before national courts. Thus, there are written proceedings followed by oral ones, time limits are fixed,427 etc. Three aspects of the proceedings deserve particular attention, however: firstly, the question of access to the court, secondly, the possible decisions which can be taken and, thirdly, the possibility of separate opinions. 1.

Access to the court428

§687. International judicial organs are created for limited purposes and accordingly, their jurisdiction is restricted to particular questions. Access must be governed by the statute of the court concerned or by the constitution of the organization of which it is an organ. a.

Plaintiff

§688. States may appear before most international judicial organs.429 In a number of cases, states are the only parties competent to appear.430 The International Tribunal for the Law of the Sea in certain cases is open to “entities other than states parties” to the Law of the Sea Convention.431 §689. Organs of international organizations are rarely competent to appear before international judicial organs. Some international organizations have the power to request advisory opinions of the International Court of Justice.432 Some writers have interpreted the Statute of the Court in such a way as to include international organizations in the list of parties which are permitted to appear before the

426. See in general V. Coussirat-Coustere and P.-M. Eisemann, La procedure devant les juridictions internationales permanentes, in: Société Française pour le Droit International, La juridiction internationale permanente (Colloque de Lyon) 103-165 (1987). 427. On time limits and the extension of time limits before the International Court of Justice, see L. Gross, The time element in the contentious proceedings in the International Court of Justice, 63 AJIL 74-85 (1969). 428. See also E. Lauterpacht, op. cit. note 304, at 59-75. 429. McCleary H. Sanborn III, Standing before the International Court of Justice: The question of the Palestine Statehood exemplifies the inconsistencies of the requirement of Statehood, 7 Calif. W. Int’l. LJ 454-472 (1977). 430. For example, the College of Arbitrators of Benelux (Benelux, Art. 41). 431. ITLOS Statute, Art. 20.2. 432. The UN, the IAEA and all specialized agencies except UPU, which never applied for this power (see UN Charter, Art. 96).

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Court.433 In practice, however, this has never been tried. The EC Court and the Andean Court permit an organ (respectively the Commission and the Junta) to act as plaintiff against member states not fulfilling their obligations,434 and the principal organs (institutions) may bring actions against each other.435 §690. Individuals have standing before some international judicial organs. Before administrative tribunals and the EC Court of Justice and Court of First Instance,436 civil servants and other employees of the organization concerned may act as plaintiffs. Actions by the organization against former civil servants can be brought before municipal courts. Private individuals other than civil servants may appear before the Administrative Tribunal of the ILO, if appropriate provision has been made in a contract with the organization. Some UN human rights committees (see above, §609-615) may receive and consider communications from individuals against such states as have recognized this competence.437 The European Court of Human Rights is open to states and to private persons.438 Any individual may lodge petitions with the Inter-American Commission on Human Rights.439 Individuals may bring an action before the EC Court for the annulment of binding Community decisions that directly and individually affect them.440 Individuals may also bring actions before the Court in cases concerning the non-contractual liability of the Communities.441 Individuals may also bring claims before the Andean Court of Justice.442 Other examples can be found in the area of investment protection. Individuals or corporations may have recourse to arbitration or conciliation within the framework of the International Centre for the Settlement of Investment Disputes and the Iran-US Claims Tribunal (see above, §654). §691. National courts may request preliminary rulings on the interpretation of the law of the organization from the Courts of Justice of the EC, Benelux,

433. See C. Eagleton, International organization and the Law of Responsibility, 76 RdC (1950 I), at 418. For other authors holding this view, see F. Seyersted, Settlement of Internal disputes of Intergovernmental Organizations by Internal and External Courts, 24 ZaöRV 97 (1964). 434. EC, Art. 226; Cartagena Agreement, Art. 23. See also below, §1442. 435. EC, Arts. 230, 232; Cartagena Agreement, Art. 17. 436. EC, Art. 236. 437. Optional Protocol to the International Covenant on Civil and Political Rights, YUN 1966, at 431-432. 438. European Convention on Human Rights, Art. 34. 439. American Convention on Human Rights, Art. 44. 440. EC, Arts. 230, 232. 441. EC, Art. 288. 442. Cartagena Agreement, Art. 19.

481

Advisory and supervisory organs

§692

the Andean Common Market, and the Common Market for Eastern and Southern Africa (see below, §1374-1378).443 b.

Defendant

§692. The possibility of summoning states before the judicial organs of international organizations is limited. Most states wish to decide for themselves which rights and obligations bind them and their nationals. Thus, they will not readily accept a judgment on this question by an independent court without their express approval of its jurisdiction. Only states that have expressly submitted themselves to the jurisdiction of the International Court of Justice may be summoned before it. In practice, the same principle applies to the arbitral tribunals. The cooperation of all states involved is necessary both for the creation and functioning of such tribunals. By contrast, member states can summon another member state before the College of Arbitrators of Benelux without restriction. Organs of the organization may be summoned before the administrative tribunals by civil servants. Within the European Communities, the decisions, together with negligence or unlawful acts of the Council and the Commission may be challenged in actions before the Court of Justice.444 In exceptional cases, individuals may have to appear as defendants before international judicial organs. Examples are the Ad Hoc Tribunals on War Crimes in the former Yugoslavia and in Rwanda, the International Criminal Court, and the earlier Nuremberg and Tokyo Tribunals (see above, §608). 2.

Decision

a.

Judgment

§693. In accordance with a general principle of law, judicial organs themselves decide whether they have jurisdiction,445 and whether a party may appear before them. Once a case is declared admissible, the court will decide on its merits. As a rule, the decision will be taken in the form of a judgment. The procedures for reaching a judgment vary considerably.446 Judgments are formally binding

443. EC, Art. 234; Treaty relating to the creation and the Statute of a Benelux Court of Justice, Art. 6; Treaty establishing the Common Market for Eastern and Southern Africa, Art. 30. 444. EC, Arts. 230, 232, 236, 288. 445. E.g. ICJ Statute, Art. 36.6; UNAT, Statute. Art. 2.3; ILOAT, Statute, Art. 2.6. This principle was already applied by the Arbitration Commission set up under the 1794 Jay Treaty; see A. Nussbaum, A Concise History of the Law of Nations (1954), at 128-129. See for a more recent application the Tadic case before the ICTY, in particular the decision by the Appeals Chamber on the defence motion for interlocutory appeal on jurisdiction, Case no. IT-94-1-AR72, 2 October 1995 (reproduced in 35 ILM (1996) at 32 ff). See in general C.F. Amerasinghe, Jurisdiction of International Tribunals (2002).

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on the parties involved, and in some cases they may have direct effect. If a plaintiff wins a case against a decision of an organ of the European Communities, the Court of Justice annuls the decision, so its further application is impossible. In the case of regulations, the Court may annul the offending part only (see below, §912). The execution of the judgment is usually left to the states or organs involved and in most cases, all parties faithfully give effect to the judgments.447 If they do not, sanctions are rarely provided.448 b.

Other decisions

§694. Apart from regular judgments, most courts have the power to indicate interim measures,449 and to revise judgments on the discovery of new facts.450 Several judicial organs may give advisory opinions to other organs of international organizations (see below, §1367-1373). Such opinions are given to assist the organizations in further decision-making rather than to control the legality of their acts (although they may also have this function).

446. For the International Court of Justice, see the Court’s Res. of 12 April 1976, 70 AJIL 905-908 (1976) and R.B. Lillich and G. Edward White, The Deliberative Process of the International Court of Justice: A Preliminar, Critique and Some Possible Reforms, 70 AJIL 28-40 (1976); for the EC Court, see Schermers and Waelbroeck, op. cit. note 124, at 734-749. 447. See C. Wilfred Jenks, The Prospects of International Adjudication (1964), at 663-726; F.A. Schockweiler, L’exécution des arrêts de la Cour, in F. Capotorti et al. (eds.), Du droit international au droit de l’intégration, Liber Amicorum Pierre Pescatore (1987), at 613-635. See M.K. Bulterman and M. Kuijer (eds.), Compliance with Judgments of International Courts (1996)(proceedings of a symposium organized in 1994 on the occasion of the official presentation of the three-volume Liber Amicorum prepared for Henry G. Schermers). Reports prepared for this symposium demonstrate that there have been four cases of non-compliance in the case of the International Court of Justice (the Corfu Channel Case, the Islandic Fisheries Case, the Iranian Hostages Case, and the Military and Para-military Activities in and against Nicaragua Case; report by Judge Schwebel, id., at 40). In the opinion of R. Ryssdal, at the time President of the European Court of Human Rights, judgments of this Court have always been complied with by the member states (id., at 67). As far as the Court of Justice of the European Communities is concerned, most of its judgments have also been complied with (report by J.A. Usher, id., at 87-110; report by C.W.A. Timmermans, id., at 111-120). 448. See Chapter Ten. 449. See C.H. Crockett, The Effects of Interim Measures of Protection in the International Court of Justice, 7 Calif. W. Int’l L. J. 348-384 (1977); J.G. Merrills, Interim Measures of Protection in the Recent Jurisprudence of the International Court of Justice, 44 ICLQ 90-146 (1995); Schermers and Waelbroeck, op. cit. note 124, at 694-706. It was long disputed whether or not orders on provisional measures of the ICJ were legally binding. In the La Grand case (Germany v. USA, 27 June 2001, in particular paras. 98-109) the Court concluded that such orders have binding effect. 450. E.g. ICJ Statute, Art. 61; Art. 4 of Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms; ICTR Statute, Art. 25. An example of a case in which an earlier judgment was reviewed in the light of new facts is ICTR Case No. 97-19-AR72 (Barayagwiza v. the Prosecutor), Prosecutor's request for review or reconsideration, 31 March 2000.

483

Advisory and supervisory organs

§695

The Court of Justice of the European Communities and other regional courtsmay give preliminary rulings to national courts (see below, §1374-1378). These rulings are meant to help national courts in performing their task in the legal order of the international organizations. The national courts must apply the rules of the organization and they receive interpretative guidance from these international courts. 3.

Separate opinions

§695. If the whole, or part, of a judgment of the International Court of Justice, or its reasoning, does not represent the unanimous opinion of the judges, any judge is entitled to deliver a separate opinion.451 Such an opinion may be “dissenting” or “concurrent” with the Court’s final decision. A similar power is given to the members of other Courts, such as the International Tribunal for the Law of the Sea,452 the European Court of Human Rights.453 The separate opinions are published with the judgments.454 §696. The main advantage of the publication of separate opinions is that all legal arguments receive full attention. The reasoning of a separate opinion may be more persuasive even than the judgment itself. Additionally, each judge’s opinion will be known. Those who do not add a separate opinion by implication support the majority decision, which will affect the persuasive force of the judgment. If a large majority supports it, it may well be regarded as a sound judgment; if there are many dissenters, the law is apparently still unsettled. A disadvantage of the legal settlement of disputes is the black and white result that occurs. A party either wins or loses its case. Politically, it may be an advantage to the losing party to find one or more dissenting opinions, which at least demonstrate that its case also had some merit. §697. The disadvantages of the system are equally apparent. It can be seen to endanger the independence of the judges. In all international judicial organs the states of which the judges are nationals have the power effectively to prevent their re-election. If they are aware that “their” judges do not sympathise with their point of view on important issues, they may exploit this power. This argument is particularly strong for the states that traditionally send a judge to the court, i.e. for the five permanent members of the Security

451. 452. 453. 454.

ICJ Statute, Art. 57, Rules 95(2), 107(3). ITLOS Statute, Art. 30.3. European Convention on Human Rights, Art. 45.2. M. Günther, Sondervoten sowjetischer Richter am Internationalen Gerichtshof (1966); R.P. Anand, The Role of Individual and Dissenting Opinions in International Adjudication (World Rule of Law Booklet Series No. 35, 1967); H. Asaia, Les opinions dissidents des juges socialistes dans la jurisprudence de la Cour Internationale de Justice, 79 RGDIP 657-718 (1975); I. Hussain, Dissenting and Separate Opinions at the World Court (1984).

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Council in the International Court of Justice. It obviously carries less weight in the case of judges whose re-election depends on a majority vote. If the majority of the UN member states consider that a judge has erred, his views may be regarded as non-representative of current legal opinion, which may justify his non-re-election. This is only the case, however, when the electing organ itself represents such current legal opinion. For example, an organ composed of government delegates may be representative of the rules of law operating between governments, but it may well be biased with respect to the law applicable between governments and individuals or international organizations. The publication of separate opinions is also likely to undermine the persuasive force of judgments. The legal order of most international organizations is weak and therefore needs a firm lead from the judicial organ, a lead that can be provided by a consistent case law. If dissenting opinions of judges have been previously published, however, these judges may prefer to remain consistent with their own opinions rather than with those of the Court, even if future developments have shown that the Court’s opinions lead to acceptable results. Publication of separate opinions also weakens the solidarity of the Court. There will be more opportunity for change in the Court’s policy when one or two judges are replaced. Furthermore, the lack of a possibility to dissent openly promotes compromises within the Court and increases the chances that all legal systems represented by the judges will be reflected in the final judgment. When the minority cannot be suggested to write a dissenting opinion, the court may be more easily inclined to meet its wishes in the judgment itself.455 In the Dyestuff Cases456 the EC Court deliberated for several hours a week for six months (from December 1971 to June 1972) before it reached a common view. It may be doubted whether it would have deliberated for this length of time if the minority could have expressed its views in a separate opinion.

§698. In the EC Court and other regional courts such as the Court of Justice of the Common Market for Eastern and Southern Africa (and the now inactive Common Market Tribunal of the East African Community) dissenting opinions are forbidden.457 §699. In the International Court of Justice, judges who wish to record their concurrence or dissent without stating their reasons may do so in the form

455. See A.M. Donner, Handelingen der Nederlandse Juristen Vereniging, deel 2, 17-19 (1973); Schermers and Waelbroeck, op. cit. note 124, at 737. 456. ECR 1972, at 619-959. 457. Statute of the EC Court of Justice, Art. 32; Treaty for East African Cooperation, 6 June 1967, Art. 37, para. 3; Rules of Procedure of the East African Common Market Tribunal, Rule 29, 13 ILM 1195 (1974).

485

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of a declaration.458 Most of the disadvantages of reasoned opinions will also apply to such declarations. On the other hand, the advantage of having another legal argument will be absent.

III.

Concluding observations

§700. This chapter supplements the previous chapter in its analysis of the institutional structure of international organizations, and gives a survey of parliamentary and judicial organs. In contrast to the types of organs discussed in the previous chapter, parliamentary and judicial organs have been created only in a minority of organizations. Parliamentary organs originally were a European affair; only more recently such organs (with limited powers) have been set up in other regions as well (§566). Therefore the first question which needs to be answered is why only a limited number of organizations include such organs in their institutional structure, when they are considered so essential in most national legal orders. Two interrelated explanations may be given. First, as was observed in the concluding paragraphs of Chapter Four, states prefer to control policy-making in international organizations as much as possible. Therefore the general congress, in which all member states are represented, is the supreme organ of almost every organization. For the same reason parliamentary and judicial organs are an exceptional phenomenon. States are cautious in creating such organs which escape their direct control. Secondly, in most cases, states have attributed only limited powers to international organizations. Thus, an organization usually cannot bind its member states – let alone their citizens – without their consent. As a rule, the centres of power remain with the governments of the member states, and domestic checks and balances suffice. Therefore, there is no need to create parliamentary and judicial organs within most international organizations. At the same time, this also explains why such organs have been established in a few cases. For example, the creation and development of the only international parliamentary organ resembling national parliaments, the European Parliament, and of the most powerful international court, the EC Court, is directly linked to the scope of the powers attributed to the Communities. §701. In the limited number of instances in which parliamentary and judicial organs have been established, the member states remain omnipresent. State sovereignty explains a number of the characteristics of such organs, which are foreign to their national equivalents. For example, the division of seats among the member states within the Parliamentary Assembly of the Council of Europe is not proportional to their population: The UK has only five times as many seats as Luxembourg or Malta, while it has approximately more than

458. Rules of Procedure, Art. 95.2. See also F. Jhabvala, Declaration by Judges of the International Court of Justice, 72 AJIL 830-855 (1978).

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130 times as many inhabitants as each of these two countries. This can only be explained by the need to have an appropriate number of members of parliament from Luxembourg and Malta; these are very small countries, but they are sovereign states as well. Another example is the requirement of an equitable geographic distribution of the judges of the International Court of Justice or the phenomenon of the ad hoc judge. National legal systems are unfamiliar with these peculiarities of international judicial organs. If a Monsieur Hulot from Paris commits a crime in Marseille and is prosecuted before a criminal court in Marseille, he is not entitled to bring his own judge from Paris. These characteristics of international parliamentary and judicial organs, which might seem curious from a national perspective, are inevitable on the international level. Only if states have confidence in these organs, can their tasks be performed. If they lose such confidence, they run the risk of becoming irrelevant. At the same time, the requirement of retaining states’ confidence has been a stimulus for giving powers to parliamentary and judicial organs. Own resources were only given to the European Communities when the resulting decrease of powers of national parliaments, which no longer had to approve the contribution of the member state, was compensated by a corresponding increase in budgetary powers for the European Parliament. Likewise, it is no coincidence that the need for judicial review was felt most at times when powers were about to be attributed to organizations (EC, ICAO, ITO) or were used as never before (UN Security Council). §702. Finally, is it possible to explain the proliferation of judicial and, to a lesser degree, parliamentary organs? Why, for example, do the ILO and the World Trade Organization need their own ‘internal’ judicial organs, instead of using the International Court of Justice? And, why is there a tendency to increase rather than decrease the number of administrative tribunals? Why was it considered necessary to establish a 21 member Law of the Sea Tribunal, whose jurisdiction is, with some minor exceptions, basically the same as that of the World Court?459 Why do we have, side by side, lists of arbitrators at the Permanent Court of Arbitration, the International Centre for the Settlement of Investment Disputes, the Central Office of the Intergovernmental Organization for International Carriage by Rail, and the Conference on Security and Cooperation in Europe? Why is there parallel to an ever growing list of UN human rights conventions, a list of supervisory bodies growing with equal speed, creating a problem of coordination?460

459. See E. Lauterpacht, op. cit. note 304, at 19-22. According to Lauterpacht, this is “a good illustration of what probably is an unnecessary duplication of arrangements” (at 19). 460. Cf. the proposal to consolidate these human rights supervisory bodies into one or two new ‘super committees’. This proposal is discussed in a report prepared by P. Alston on the ‘effective implementation of international instruments on human rights, including reporting obligations under international instruments on human rights’ (UN Doc. A/44/ 668). This report was updated for the 1993 World Conference on Human Rights (UN Doc.

487

Advisory and supervisory organs

§702

This proliferation is sometimes inefficient and, more fundamentally as far as judicial organs are concerned, “raises issues which go beyond the organization and procedure of international tribunals and involve the unity and authority of international law itself”.461 It is therefore not surprising that Presidents of the International Court of Justice, in presenting annual reports of the World Court to the General Assembly, paid attention to this phenomenon, and generally expressed their concern about it,462 although not all judges of the Court seem to fully share such concern.463 On several occasions the suggestion has been made to enable other international tribunals to request advisory opinions of the World Court on general' issues of international law,464 but this suggestion has also been rejected.465 An example frequently given in this discussion is the judgment of the International Criminal Tribunal for the former Yugoslavia in the Tadic case.466 In this case the Tribunal dealt with the question when armed forces may be regarded as acting on behalf of a foreign power. It considered that “a high degree of control has been authoritatively suggested by the International Court of Justice in Nicaragua”, the so-called effective control test.467 The Tribunal carefully examined this test and finally concluded that “with respect, it does not hold the Nicaragua test to be persuasive”.468 On the one hand, this was a clear departure from the case-law of the World Court on this point. However, on the other hand, such departure was only made after an extensive analysis of this case-law, of case-law of other courts, and of differences and similarities between the relevant cases. It is important in such cases that international courts carefully take into account their case-law and, while being asked to decide a particular case before them, also take into account the need to preserve the “unity and authority of international law”.469 There are more examples, some of which concern the danger of forum shopping.470 In the 1990s

461. 462.

463.

464. 465. 466. 467. 468. 469. 470.

A/CONF.157/PC/62/Add.11/Rev.1). Alston's final report (Final report on Enhancing the Long-term Effectiveness of the United Nations Human Rights Treaty System) is contained in UN Doc. E/CN.4/1997/74. See also E. Tistounet, The problem of overlapping among different treaty bodies, in Alston and Crawford, op. cit. note 152, at 383-401. C. Wilfred Jenks, The Prospects of International Adjudication 175 (1964). Texts of statement are reproduced on the ICJ website www.icj-cij.org. See e.g. the address by President Schwebel, 26 October 1999, and the address by President Bedjaoui, 26 October 2000. See R. Higgins, Respecting sovereign states and running a tight courtroom, 50 ICLQ 121-132 (2001), at 122; R. Higgins, The ICJ, the ECJ, and the integrity of international law, 52 ICLQ 1-20 (2003), in particular at 19-20. E.g. in the 1999 address to the General Assembly by ICJ President Schwebel. E.g. T. Treves, Advisory Opinions of the International Court of Justice on Questions Raised by Other International Tribunals, in 4 Max Planck UNYB 2000, at 215-231. ICTY, Appeals Chamber judgment, Prosecutor v. Dusko Tadic (Tadic IT-94-1). Id., para. 99. Id., paras. 115-145. Jenks, op. cit. note 461, at 175. See e.g. D.L. Morgan, Implications of the Proliferation of International Legal Fora: The Example of the Southern Bluefin Tuna Cases, 43 HILJ 541-551 (2002).

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for example a dispute existed between the EC and Chili concerning swordfish fishing in the South Pacific. Both parties took recourse to a dispute settlement regime that seemed beneficial to their own interest. For the EC this was the World Trade Organization, for Chili this was the International Tribunal for the Law of the Sea. In 2001 a provisional agreement was reached suspending proceedings within these two different frameworks. It is likely that in the near future more examples will follow. The conclusion drawn by Charney on the basis of an extensive empirical study still seems to hold true: although the creation of new international tribunals may pose a threat to the future coherence of international law, so far “no substantial breakdown in the unity of central norms of general international law has developed”.471 Whatever the dangers of the proliferation of judicial organs, how can this phenomenon be explained? Sometimes a partial explanation may be found in the function of the organization, which requires particular expertise. For example, the persons on the list of the Central Office of the Intergovernmental Organization for International Carriage by Rail are required to be specialists in international transport law. Similarly, the members of the UN Committee on the Rights of the Child as well as their colleagues on the UN Committee on the Elimination of Discrimination against Women are required to be experts of high moral standing and recognized competence. Members of the International Tribunal for the Law of the Sea must be experts in the field of the law of the sea and, as a final example, judges of the International Criminal Court must either be experts in criminal law and procedure or experts in relevant areas of international law such as international humanitarian law and the law of human rights. To a certain extent, the proliferation of judicial organs is inherent in the need to have persons with expert knowledge and experience as members of these organs.472 More specifically, for regional judicial organs an explanation can be found in the need for their composition to mirror the membership of the organization or the circle of parties to a treaty. The African Commission on Human and Peoples’ Rights would probably have less authority if it were composed, wholly or partly, of human rights experts from Europe and the US. But, to some extent, this explanation might also apply to the World Court. According to E. Lauterpacht, “there is an observable, though undocumented, reluctance on the part of a number of states to submit a matter which directly affects them alone to the decision of judges most of whom have no connection with the region in which the dispute originates and some of whom one or the other side believes, rightly or wrongly, to be politically unsympathetic”.473

471. J.I. Charney, Is International Law threatened by Multiple International Tribunals?, 271 RdC 101-382 (1998), quotation at 373. See also Y. Shany, The Competing Jurisdictions of International Courts and Tribunals (2003). 472. See with regard to the UN human rights committees C. Scott, Bodies of knowledge: a diversity promotion role for the UN High Commissioner for Human Rights, in Alston and Crawford, op. cit. note 152, at 403-437. 473. E. Lauterpacht, op. cit. note 304, at 17.

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Advisory and supervisory organs

§702

But also it seems that, time and again when the imperative needs of interdependence lead to the creation of a new organization, states want to create an autonomous institutional structure geared to the protection and promotion of their common interest. There is little inclination to ‘borrow’ parliamentary or judicial organs of other organizations. This illustrates that the member states prefer to remain masters of their own creature, and are hesitant to ‘delegate’ specific functions to organs of other organizations. Objectively seen, the organs of other organizations might in some cases be perfectly capable of performing such functions. Nevertheless, they are perceived to belong to another institutional context. This also illustrates that the process of international law becoming more vertical, which was touched upon in Chapter One (§9-11), largely takes place within individual international organizations. Each organization has been given its own institutional structure, with or without the organs discussed in this chapter. Parliamentary and judicial organs provide organizations with a more complex structure, in which functions such as policy-making or supervision are more or less separated. Their presence is usually the corollary of the transfer of substantive powers to other organs of the same organization. States prefer to tie parliamentary and judicial organs to the specific mission of an organization, rather than giving such organs a more general role. The best exception to this is the International Court of Justice, but practice demonstrates that the member states of an organization whose constitution allows them to have recourse to the Court, use other mechanisms for the settlement of their disputes instead.

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Chapter 6

Decision-making process

§703. Decision-making is the most important activity of international organizations. In principle, all mutual consultations, fact-finding, studies and debates in international organs should lead to some form of conclusion, summarized in a legal formula that is expressly approved by the organ concerned. In the present chapter, the decision-making procedures will be discussed. The different types of decision that can be taken form the subject matter of Chapter Eight. Some readers may prefer to study the various types of decisions that can be taken before investigating how they are adopted. We however prefer to begin with an examination of the organization in action, deferring discussion of the types of decisions for the discussion of the legal order of the organizations (Chapter Six).

§704. Decision-making will be discussed in its legal context. The political context is wider as it covers the forces behind decision-making. It would also include “non-decisions”.1 We prefer to follow the definition of Ustor: “Under the process of decision-making we understand what takes place in a given body of the organization when the will of its members is coordinated and moulded into one which can and shall be considered under the relevant law of the organization as the expression of the will of the organization”.2 §705. Below, after having briefly discussed the concept of a decision (Section I), its legal basis (Section II), and the ways of initiating the decision-making machinery (Section III), we will analyze how decisions of international organizations are drafted (Section IV). The next sections are devoted to the adoption of decisions: adoption by consensus (Section V) and adoption by voting (Section VI). In Sections VII and VIII the entry into force and termination of decisions will be discussed. In Section IX some general conclusions will be drawn.

1. 2.

See D. Sidjanski (ed.), Political Decision-Making Processes (1973); R.W. Cox and H.K. Jacobson, Decision-making, 29 Int. Soc. Sci. J. 115-135 (1977). E. Ustor, Decision-making in the Council for Mutual Economic Assistance, 134 RdC 174 (1971 III).

§706

I.

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492

The concept of a decision3

§706. The term “decision” will be used to denote all the various legal formulations used in concluding debates within international organizations. The word is often used in this general sense,4 although the constitutions of some international organizations restrict it to legally binding decisions.5 The present chapter concerns decisions of international organizations, many of which perform projects in developing countries. Such projects are based on joint decisions taken by the organization and the country concerned. As such, these decisions are, therefore, agreements between international organizations and states, rather than decisions of international organizations, and they more properly belong to the external relations of the organizations (Chapter Twelve). §707. Decisions are often interrelated. Debates in one organ may lead to a recommendation to another organ, on the basis of which the latter may make further recommendations to a third organ or to the member states. The member states may then take further action. If uninterrupted, the process may result in the adoption of a new rule of law, binding upon the citizens of states. Perhaps only this final rule should be considered a decision, all others representing merely preparatory acts. Following this approach, the vast majority of decisions of international organizations would be only preparatory, since they only make recommendations to the governments of the members to take some form of action. The final decisions are usually taken by the member states themselves. Nevertheless, the preparatory actions are important. Final decisions do not stand on their own. A governing authority will rarely settle a problem entirely by itself. In most cases, the process of decision-making will be scattered over a number of organs. Fact-finding and functional commissions will enumerate possible solutions, further consultative organs may express a preference for one of them. The final decision is preceded by a chain of decisions, all concerning the same substance, and the whole chain is relevant. The binding decision is the last link which binds the citizens to the prescribed rule. This last link may often be the most important, but this is not always so. The actual freedom of the final decision-maker to choose between possible solutions may be so minimal that proposals made to it are substantially more important. In Chapter Ten, when the issue of enforcement will be discussed, a number of

3.

4. 5.

On the notion “decision” see also S.M. Schwebel (ed.), The Effectiveness of International Decisions, Papers of a Conference of the American Society of International Law and the Proceedings of the Conference (1971), at 366-375, 379-382, 385; see also below, §1322. UN Charter, Art. 18.2; UN Doc. A/1356 (GAOR 5th Session, Annexes, agenda item 49), paras. 22, 23, 24. EC, Art. 249; ECSC, Art. 14; Benelux, Art. 19(a); OECD, Art. 5 (see below, §1322, 1323, 1330). “decision” is used here in its broad sense. The specific sense of individually binding decisions (EC, Art. 249) will be indicated by capitalizing the D in “Decision” or by the expression “binding decision” (see below, §1322).

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circumstances will be mentioned which prohibit member states from disregarding particular recommendations of international organizations. Furthermore, decisions that are preparatory for the member states may have important effects on the organization itself. They are expressions of the will of the organization and as such, they may bind other organs of the organization. Decisions will also influence the future behaviour of the issuing organ, even when they have no legal effect. In studying the decision-making process, we cannot limit ourselves to final decisions, but must consider all links in the decision-making chain.

II.

Legal basis

§708. Before any initiative for a decision can be taken, a legal basis for the decision must be found. The powers of all international organizations are limited to those granted by the constitution. No decision can be taken which falls outside the scope of these powers (see above, §206-210). Whether or not an organization is competent to take a particular decision may depend on the interpretation of its constitution. In some cases, specific organs are charged with such interpretation (see below, §1355-1363). In such cases, it may be advisable to seek constitutional interpretation prior to acting, whenever the competence of the decision-making organ is disputed. In other cases, a specific legal organ may later annul decisions that have been taken ultra vires (see below, §911-916). The risk of such annulment will influence organs when they have to decide whether to deal with particular initiatives or not. In many cases, however, no guidance can be obtained on the competence of an organ to deal with the issue concerned. Does that leave the organ complete freedom to decide for itself? Certainly not.6 The restrictions of the constitution and the provisions for its amendment would make no sense if organs had complete freedom to act in any other field as well. The organ must determine the limits of its own competence, because no other organ can do so, but its decisions will be illegal if it assumes powers that it does not have. To prevent future problems, it may be wise to find consensus on the question of competence before any specific decision is initiated. When no such consensus exists, the legal force of the decision may later be disputed (see below, §1212). §709. In a preliminary objection, any member of an organ may dispute the competence of the organ to discuss a particular issue. Such a preliminary objection should be decided before any discussion on the merits.7

6. 7.

On this question, see B. Conforti, Le rôle de l’accord dans le système des Nations Unies, 142 RdC 223-230 (1974 II). See D. Ciobanu, Preliminary Objections related to the Jurisdiction of the United Nations Political Organs (1975).

§710

Chapter 6

III.

Initiative

A.

Necessity for initiatives

494

§710. All decision-making begins with an initiative, which does not usually call for a particular decision but provokes discussion of the subject matter concerned. The power to initiate the decision-making machinery of an international organization is limited to certain specific instances. We shall discuss successively the right of initiative of governments, of other organizations, of organs of the organizations concerned, and of interest-groups and individuals. Although there are several ways of initiating the decision-making machinery of international organizations, there is no guarantee that an initiative will always be taken when required. The governments and organizations concerned may be too involved in other business, or their incidental composition may have insufficient interest in the organization. Effective decision-making should not depend on incidental initiatives, but should be a continuous process. This can be achieved by incorporating the initiative for future action in a previous decision. The constitution of the European Community offers some good examples. Article 37 contains the initiative for the agricultural conference of Stresa of July 1958; Article 44 instructs the Council to lay down a general programme for the abolition of restrictions on freedom of establishment; Article 71 requires the Council to take a number of decisions on transport; Article 83 prescribes a decision on competition. Other international organizations also have initiatives built into provisions of their constitutions, but experience demonstrates that the inclusion of such provisions is itself no guarantee of success. Thus in several cases, provisions providing for the convening of a conference to discuss the amendment of the constitutions have been ignored.8 The UN General Assembly frequently decides to place specific subject matters on the agenda of a future session, which means that no further initiative is needed at that time. For example, the Charter of Economic Rights and Duties of States provides that the implementation of this Charter will be on the agenda of the General Assembly at least once every five years.9 The Agreement on an International Energy Program provides for several measures that must be taken when a reduction in the daily rate of oil supply is sustained. No further initiative is needed.10

8.

UN Charter, Art. 109.3: IAEA, Art. 18, sub B; NATO, Art. 12. On the efforts to organize a conference for the revision of the UN Charter, see Publication No. 81 of the Netherlands Ministry of Foreign Affairs, at 179 and 449, and, inter alia, GA Resolutions 992 (X), 1136 (XII), and 1993 (XVIII). 9. Charter of Economic Rights and Duties of States, Art. 34. 10. Agreement on an International Energy Programme, Arts. 13, 14, 17, (Trb. 1975, No. 47, at 14, 16).

495

B.

Decision-making process

§711

Initiatives by governments

§711. Governments are the most important initiators of decisions of international organizations. They have the right of initiative in almost all international organizations. An exception is the European Community where the Commission has an exclusive right of initiative in most matters. The only limitation on this power of governments is the competence of the organization itself. Initiatives are only permissible for decisions the organization is competent to take. Governments do not like their initiatives to fail, which may happen when the other governments are insufficiently prepared for discussing the matter. Therefore, they often consult other governments before they take any initiative. Such consultations may take place in regional meetings or in the lobby of international conferences. C.

Initiatives by organs of the organization

1.

Secretariat

§712. The secretariat of the organization may have some power to take initiatives for decisions, in particular for those concerning its own position. Important decisions on privileges and immunities are taken by the member states which often empower the secretariat to negotiate with the states concerned (see below, §1766). The secretariat may then have some liberty to take initiatives within the scope of these delegated powers. An example of the secretariat initiating further decisions may be found pursuant to Resolution 1237 (ES III) of the UN General Assembly (21 August 1958). This resolution empowered the Secretary-General of the UN to make such practical arrangements as would adequately help in upholding the purposes and principles of the Charter in relation to Lebanon and Jordan. Under this general mandate, the Secretary-General sent a special representative to Jordan. On his own initiative he concluded an agreement on privileges and immunities for this representative with the government of Jordan.11

§713. Apart from the limited power of initiative, which all secretariats derive from the nature of their functions, or from special instructions, some secretariats have been empowered by the constitution of their organization to take initiatives of a more general character. The Secretary-General of the UN may propose items for the agendas of the main organs.12 Even outside the scope of a particular meeting, he may bring any matter to the attention of the Security Council that he considers may

11. 315 UNTS, No. 4564. 12. General Assembly, Rule 13; Security Council, Provisional Rule 6; ECOSOC, Rule 10; Trusteeship Council, Rule 9. The same is true for many secondary organs, see Rules of Procedure of the Functional Commissions of the ECOSOC (E/5975), Rule 5.

§714

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threaten the maintenance of international peace and security.13 This power has been used on only a few occasions:14 the Congolese crisis in 1960;15 the Iranian occupation of the US consulate in Tehran,16 and following an escalation of violence in and around Beirut (Lebanon).17 The powers of the secretariats of the specialized agencies differ. Some of them have virtually no powers of initiative;18 others may make agreements with the member states or with other international organizations,19 make proposals on existing agenda items,20 or may propose new agenda items.21 In the European regional organizations, only some secretariats have the power of initiative. Examples are the Secretariats or Secretaries-General of NATO, OECD, Benelux, and ESA.22 On the other hand, informal initiatives are much easier in small organizations. The number of persons present at a meeting is often so small that the debates have a very informal character, facilitating the participation of the representative of the secretariat. For example, the Benelux Committee of Jurists (like many Benelux Committees) consists of three delegates and one representative of the Secretariat. Obviously there are no lists of speakers, official proposals or amendments in such a small organ. Therefore, suggestions for decisions can be made easily by all persons present.

§714. As civil servants of the secretariat can usually find member states willing to officially propose their well-founded ideas, the actual influence of the secretariat on the initiatives taken may be much greater than its formal competences would suggest. In practice, initiatives in the International Labour Organization generally come from the Secretariat despite its lack of a formal power of initiative.23 As a general rule, official and informal suggestions of

13. UN Charter, Art. 99. 14. However, the significance of Art. 99 of the Charter is broader than offering a legal basis for the Secretary-General to bring matters to the attention of the Security Council. All Secretaries-General have performed political functions with reference to, or in connection with this provision. See W. Fiedler in B. Simma (ed.), The Charter of the United Nations 1217-1230 (2002) and M.-C. Smouts in J.-P. Cot and A. Pellet (eds.), La Charte des Nations Unies 1333-1335 (2nd ed. 1991). 15. UN Doc. S/4381 and SCOR, 15th yr., 873rd meeting, 13/14 July 1960, para. 18. 16. UN Doc. S/13646 (letter dated 25 November 1979 from the Secretary-General addressed to the President of the Security Council). 17. UN Doc. S/20789 (letter dated 15 August 1989 from the Secretary-General to the President of the Security Council). 18. ILO, WMO, ITU, UPU, ICAO. 19. WHO, Art. 33. 20. FAO, Art. 7, para. 5. 21. UNESCO, Art. 6, para. 3; Rule 10 of the Rules of Procedure of the General Conference. 22. OECD, Art. 10, para. 2; Benelux, Art. 36 and Decision M(75)13 of the Committee of Ministers (see for this Decision: Decisions ministerielles, 83e Suppl. Textes de base); ESA, Art. 12.1b. See also C.P. Economidès, Le Pouvoir de Décision des Organisations Internationales Européennes 70-71 (1964). 23. R.W. Cox and H.K. Jacobson, The Anatomy of Influence 338 (1973).

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Decision-making process

§715

the secretariat will most easily provoke decisions in those fields in which the secretariat is specifically competent (some specialized items, and procedural matters). 2.

Organs of independent experts

§715. Organs not composed of government representatives may take their own initiatives, independent of any government. Within the UN there are several organs of independent experts that take important initiatives for decisionmaking. In the field of codification of international law, the International Law Commission has taken several initiatives in cooperation with the UN Secretariat. The Advisory Committee on Administrative and Budgetary Questions,24 and the Committee for Development Policy,25 may take initiatives, each in their own field.

Owing to the limited powers of these organs, their initiatives can only lead to decisions of minor importance or to proposals to organs of government representatives. §716. The specialized agencies also have many organs which are not composed of government representatives and whose decisions do not necessarily originate from a government. The most important of these are the organs of the ILO. The participation of workers and employers as delegates in this organization creates opportunities for non-governmental initiatives. The Executive Council of the World Meteorological Organization is composed of directors of meteorological or hydrometeorological services. Within the rather extensive competence granted to this body,26 these directors are able to take initiatives for which no government can be held responsible. §717. The presence of a parliamentary organ distinguishes some organizations from others. The parliamentary organs of the Council of Europe and Benelux have consultative powers that offer ample opportunity for submitting initiatives. In contrast to the situation in the universal organizations, where almost all initiatives originate from some governmental organ, a substantial amount of non-governmental initiatives are taken in these organizations. The Committee of Ministers of the Council of Europe takes most of its substantive decisions on the initiative of the Parliamentary Assembly.

24. Based on GA Rules 155-157. 25. Previously: the Committee for Development Planning. See ECOSOC Res. 1079 (XXXIX), Doc. E/4117; ECOSOC Res. 1998/46. 26. WMO, Art. 14.

§718

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§718. In the European Communities, the initiative for decision-making usually emanates from the Commission. The treaties have given this organ the exclusive right of initiative for almost all important decisions. This exclusive right is, in many cases, reinforced by a subsequent procedure, which protects the contents of the Commission’s initiative. In taking its decisions, the Council must first await a proposal from the Commission; it can then usually accept this proposal by a qualified majority but, as a rule, it may only deviate from it by unanimous vote.27 This exclusive right of initiative gives the Commission a strong position at the beginning of each decision-chain. It is one of the main powers bestowed on the Commission. The drafters of the treaties granted the Commission this right of initiative because they feared that the governments would be more concerned with protecting their own interests than actively initiating the decisions necessitated by the interests of the organization. In practice it is difficult to alter a well-established and familiar procedure. Despite the establishment of the League of Nations, the old (partly secret) diplomatic system survived and even underwent a period of rapid development and expansion.28 Similarly it has proved impossible to replace overnight a system of interstate negotiation and compromise. Diplomats and officials are so accustomed to conference diplomacy,29 that they continue to practice it. Notwithstanding the text of the treaties, many decisions of the European Communities are initiated by interstate negotiations. In 1969 the President-in-office of the Council observed that decision-making in the Council all too often assumed the character of inter-governmental negotiations which threatened to make the essential difference between the Community and intergovernmental organizations disappear.30 Interstate negotiations in the Communities may lead to an (in)formal request to the Commission to take a particular initiative or may result in the unanimity necessary to replace a Commission proposal with another text. An example is the initiative by the Dutch Prime Minister Lubbers which resulted in a proposal by the Commission for a European Energy Charter.31

D.

Initiatives by other international organizations

§719. Some international organizations can initiate the decision-making process of other international organizations. In their mutual agreements, the UN and the specialized agencies are each empowered to propose items to the other’s agenda. However, proposal of such agenda items is not the original initiative for decision-making. This has been taken at an earlier stage, when the proposal was made in one organization to submit an item to the agenda of another organization. Why is this indirect method used? Is it not simpler to propose

27. EC, Art. 250.1. See E. Noël, The Commission’s Power of Initiative, 10 CMLRev. 123-136 (1973). Cf. also Case C-280/93, Germany v. Council, ECR 1994, at I-4973 (in particular paras. 27-43). 28. A. Zimmern, The League of Nations and the Rule of Law, 1918-1935 (1936), at 492. 29. See J. Kaufmann, Conference Diplomacy: an introductory analysis (2nd rev. ed. 1988). 30. P.J.G. Kapteyn and P. VerLoren van Themaat, Introduction to the Law of the European Communities (3rd ed., edited by L.W. Gormley 1998), at 401-402. 31. See Europe Documents No. 1691 (1991).

499

Decision-making process

§720

the agenda item directly within the organization to which it belongs? Several reasons may be adduced for the use of this somewhat circuitous route. The proposer may have no power to act in the other organization (a state may not be a member of both organizations), he may expect more success if the proposal comes via another organization or may, for political reasons, prefer not to make a proposal directly to the competent organization. The UN, for example, might react more positively on a scientific matter if the initiative originates from UNESCO rather than a member state. The most important ground for reference will be that a subject concerns more than one international organization. After a full discussion in one organization it then can be transferred to the other. E.

Initiatives by interest groups

§720. Interest groups have some right of initiative in those international organizations in which they possess a consultative status (see above, §188-195). This right of initiative provides the international organization with the guarantee that topics of vital interest for particular groups of persons will receive at least some attention. In the ITU, interest groups play an even more important role in decisionmaking. Private companies participate fully in the advisory commissions of ITU.32 The same is true for the World Intellectual Property Organization, which maintains close contact (mainly by mutual representation in meetings) with more than one hundred ngo’s representing the “private sector”: authors, inventors, publishers, broadcasters and others.33 Even when they have no formal right of initiative, interest groups may try to exert pressure in order to stimulate particular action. They may persuade others to take initiatives or to respond to initiatives in a particular way. Appropriately, these groups are often called pressure groups (see below, §761). F.

Initiatives by individuals

§721. Individuals have occasionally exerted a strong influence on the operation, and even on the establishment, of international organizations.34 Their influence on initiating action by international organizations can however usually only be indirect. If individuals wish an international organization to act, they must approach it through one of the institutions which is competent to take initiatives: national governments, private international organizations representing the interest involved, international organs if the matter falls within their

32. ITU, Res. 3, adopted at the 1992 Additional Plenipotentiary Conference. 33. A. Bogsch, Brief History of the First 25 Years of the World Intellectual Property Organization 131-133 (1992). 34. H. Maza, Neuf Meneurs Internationaux; de l’initiative individuelle dans l’institution des organisations internationales (1965).

§722

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500

jurisdiction. A frequently used method is to convene a private international conference attended by the leading experts whose recommendations may provoke the public organs to act. §722. Certain international organs pay particular attention to complaints from individuals. In most cases, such complaints concern violations of obligations. It is more appropriate that they be discussed under the heading of supervision of obligations (see below, §1428-1438). At the same time, such complaints may also lead to legislative action by the international organization. Individual complaints under Article 34 of the European Convention on Human Rights may lead to a judgment of the European Court of Human Rights and, finally, to action by the Committee of Ministers of the Council of Europe.35

§723. When the Council or the Commission of the European Communities is obliged to address a decision to an individual and fails to do so, the individual may bring an action before the Court of Justice: the action for failure to act.36 The Court may then establish the obligation of the Community organs to act, in which case the individual will have taken the initiative for the decision which the Community organ illegally neglected to take, although the basis for this initiative is to be found in the legal obligation incumbent on the Council or Commission. §724. Parliamentary organs sometimes allow individuals to submit petitions.37 These may prompt the parliamentary organ to make suggestions that may subsequently lead to an initiative by a policy-making organ.

IV.

Drafting of the text

A.

Preparation of proposals

1.

Submission

§725. Proposals for decisions are usually well prepared before they are submitted. This is not only necessary if the proposal is to be effective when implemented, but also if maximum support is to be secured. The persuasive force of a non-binding decision largely depends on the size of the majority by which it was adopted.

35. European Convention on Human Rights, Art. 46(2). 36. EC, Art. 232; ECSC, Art. 35; Euratom, Art. 148; H.G. Schermers and D. Waelbroeck, Judicial Protection in the European Union 463-484 (6th ed. 2001). 37. Examples are the Parliamentary Assembly of the Council of Europe and the European Parliament. See Art. 194 EC, and A. Plate, Le droit de pétition à l’Assemblée parlementaire du Conseil de l’Europe, 23 AFDI 868-873 (1977).

501

Decision-making process

§726

Every proposal that will eventually lead to a change in national law requires thorough preparation in each member state. Before a state can define its position with reference to such a proposal, various national authorities must usually be consulted. Delegations are only able to discuss such proposals in an international organization if sufficient time has been allowed for these national consultations. Even proposals which contemplate little change in the existing situation cannot immediately be brought to a vote, because delegations of the member states may consider that they are not in a position to immediately oversee all the consequences. They will require at least some consultations, either with their own government or with delegations of allied states. Strong arguments at a conference session will rarely persuade delegations, which are by nature suspicious (though they will never show this) of the arguments of many other delegations. Language problems may also make arguments less convincing than in national assemblies. Many rules of procedure provide that, as a rule, no proposal may be discussed unless circulated not later than the day preceding the meeting.38 Discussion in two stages (see above, §403) also facilitates consultation. §726. The right to submit proposals is usually confined to the members of the organ involved. Observers may try to persuade a member to submit the proposals they consider useful. Sometimes the agreement by which an observer was admitted grants him the right to submit proposals himself.39 A delegation that has decided to take an initiative, will rarely submit a detailed proposal for discussion. It is usually more effective to propose the study of a particular problem either by asking the member states to consider the question at a future meeting, or by requesting a report from another organ. A functional commission may be available for many questions (such as the International Law Commission for legal questions), otherwise an ad hoc committee can be created. Within the European Union, the Council and the Commission are in many cases obliged to consult other organs (the European Parliament, the Economic and Social Committee, the Committee of the Regions) before they take a decision. More detailed decisions can be taken at a later stage, on the basis of the advice obtained. If the original proposer of the initiative ardently wishes to see positive results, he should continue to solicit support from delegations and governments during the preparatory period in order to obtain not only the greatest number of positive votes, but also maximum support during

38. See e.g. GA Rules 78, 120. 39. See e.g. ECOSOC Rules of Procedure, Rule 75, granting the specialized agencies a right to submit proposals regarding agenda items which concern them. The proposals can only be put to the vote on request of a member of ECOSOC.

§727

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502

further debates. States often make use of the regional group meetings, held in many international organizations to gather support.40 In the International Civil Aviation Organization, for example, draft conventions may be considered only six months after their transmission to the member states.41

2.

The draft

§727. The drafting of a proposal can affect the final result, especially in the case of complicated proposals, because it is often difficult subsequently to change the pattern of a proposal. It may be difficult for delegations to discuss the proposal in a form which differs from that on which their instructions are based. Thus, the structure of the original draft often remains unaltered for the entire decision-making process. In the UN Conventions on the Law of the Sea (1958), on Diplomatic and on Consular Relations and on the Law of Treaties, the structure of the underlying draft of the International Law Commission was not altered. The decision taken in 1919 to base the discussions for a Covenant of the League of Nations on the Hurst-Miller draft greatly influenced the form of the Covenant.42 In many international organizations, final decisions require a qualified majority in favour (see below), and this majority can be requested separately for specific sentences, phrases and words of the proposal. In this case, the wording of the draft may be of great importance. For example, in a proposal: “Nuclear tests are banned from all waters with the exception of the Pacific and the Indian Ocean”, restriction of tests to the Pacific Ocean is comparatively simple. All that is required is a separate vote on the words “and the Indian”. The request for a separate vote is a procedural question to be decided by simple majority. The words “and the Indian” will subsequently be deleted if more than onethird of the votes oppose them. Extension of nuclear tests to the Atlantic Ocean would only be possible if two-thirds of the votes were to support an amendment inserting the words “the Atlantic” before “and the Indian Ocean”. If the original draft had read; “Nuclear tests are banned from the Arctic Seas and the Atlantic Ocean”, (which means virtually the same as the above draft) the likelihood of amendment would have been reversed. Extension of nuclear tests to the Atlantic Ocean would be possible if a simple majority were to support a separate vote on the words “and the Atlantic” and subsequently more than one-third of the votes were to be against retaining these words. A limitation to the Pacific Ocean would require the

40. On regional group meetings, see P.R. Baehr, The Role of a National Delegation in the General Assembly (Occasional Paper No. 9 of the Carnegie Endowment for International Peace, 1970), at 33-53. 41. ICAO Assembly Res. A7-6, reproduced in ICAO Doc. 7669-LC/139/4 (Legal Committee, 4th ed. 1989), at 3. 42. Zimmern, op. cit. note 28, at 237.

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Decision-making process

§728

insertion of the words “the Indian” before “and the Atlantic Ocean”, for which a twothirds majority would be required.43

§728. It would be incorrect to leave the framing of a proposal entirely to the state which took the initiative and indeed, organs deciding by qualified majority (for which the drafting of the proposal is particularly important) rarely allow this. Proposals to these organs and possible amendments are first discussed in plenary commissions, which take their decisions by simple majority. Thus the draft which is brought to the plenary organ has the support of at least half of the member states. Apart from the advantage gained by faster proceedings (see above, §401-403), this collective preparation of the drafts has the further advantage of a two-stage debate. A third advantage is that the entire draft may be viewed in clearer perspective when it is brought to a final discussion. It may be difficult, during the first stage, to vote on the first article of a proposal when the form of the following clauses is still unknown. By the second stage the delegations are reasonably sure about the content of the rest of the proposed text. 3.

Two examples

§729. To give some impression of the work involved in drafting important decisions of international organizations, a survey will be given of the procedure followed for some conventions adopted by the UN44 (the 1958 Conventions on the Law of the Sea),45 and for the main pieces of legislation of the European Communities. Preparation for decisions of lesser importance may be more limited, but many of the stages described below are generally employed. Nevertheless, it must be emphasized that on closer investigation, there is also much diversity between the procedures employed by individual organizations to prepare decisions.46 a.

Law-making in the UN

§730. The principles of the procedure of the UN were established by the League of Nations in a resolution adopted by the League Assembly on 25 September 1931.47 Similar procedures are followed by other international organizations.48

43. For another comparable example, see UNJY 200-201 (1971). 44. For the decision-making procedure in a specialized agency, see T. Buergenthal, Law-making in the International Civil Aviation Organization 62-65 (1969); for law-making in the OAU, see T. Maluwa, International Law-Making in the Organization of African Unity: an Overview, 12 African Journal of International and Comparative Law 201-225 (2000). 45. UN Doc. A/3159, at 2. 46. UN Doc. ST/LEG/SER.B/21, at 16-23. 47. LoN Official Journal, Special Suppl. No. 92, 1931, at 11. Also UN Doc. A/AC.10/5, at 97. On the procedure of the League of Nations, see M.E. Burton, The Assembly of the League of Nations 94-205 (1974).

§731

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504

As an example of proceedings within the UN, the 1958 Conventions on the Law of the Sea will be used. These somewhat old conventions are being utilized for two reasons: a) the preparations were very detailed and contained all possible preparatory stages of UN conventions; for many less important conventions, one or more of these stages are deleted; b) the first author was closely involved in the preparation of these conventions and – as a member of the Dutch delegation to the 1958 conference – in their drafting. Compared to some other UN conventions, such as the UN covenants on human rights, the 1958 Law of the Sea Conventions have one disadvantage as examples of UN convention-making, in that they were finally adopted by a diplomatic conference rather than by an organ of the UN. As the conference was prepared by the UN and held under UN auspices, this disadvantage does not, however, seem overwhelming. In the preparation of the 1958 Conventions an important role was played by the International Law Commission (ILC). Usually conventions of a largely technical legal character are initially prepared mainly by the ILC,49 whereas more ‘political’ conventions are prepared in other fora. Examples of the latter kind of conventions are the 1982 UN Convention on the Law of the Sea (prepared by, inter alia, the UN Committee on the Peaceful Uses of the Sea-Bed and Ocean Floor beyond the Limits of National Jurisdiction) and the 1994 UN Convention on the Safety of United Nations and Associated Personnel (prepared by an ad hoc committee established by the General Assembly and by a working group of the Assembly’s Sixth (Legal) Committee; see below, §538).50 §731. In 1949 the ILC decided, pursuant to a proposal of the UN Secretariat, that the regime of the high seas was an appropriate topic for codification. It appointed its member François as rapporteur for this subject matter. The ILC did not know whether it had a right to initiate this study. Some members considered that items had to be approved by the General Assembly before further

48. See e.g. the procedure followed for Standards and Recommended Practices in the ICAO. For the decision-making process in the Economic and Social Council of the UN, see W.R. Sharp, Decision-making in the Economic and Social Council, 22 International Organization 881901 (1968); for the procedure in UNESCO, see O. Lefranc, Les problèmes juridiques posés devant la XIIe session de la Conférence Générale de l’U.N.E.S.C.O., 8 AFDI 639-647 (1962). 49. On the role of the ILC, see I. Sinclair, The International Law Commission (1987); the UN publication Making Better International Law – The International Law Commission at 50 (1998); M.R. Anderson et al. (eds.), The International Law Commission and the Future of International Law (1998); A. Pellet, La Commission du Droit International, pour quoi faire?, in Boutros Boutros Ghali Amicorum Discipulorumque Liber, Peace, Development, Democracy (1998), at 583-612; R. van Alebeek, The Proliferation of Law-Making Organs: a new role for the International Law Commission?, in N.M. Blokker and H.G. Schermers (eds.), Proliferation of International Organizations 219-240 (2001). 50. See UN Doc. ST/LEG/SER.B/21 (Review of the Multilateral Treaty-making Process), at 9-10, 268-313; G.M. Danilenko, Law-Making in the International Community 266-277 (1993).

505

Decision-making process

§732

investigation. At its fourth session, however, the General Assembly decided that such specific approval was not necessary.51 The initiative for part of this decision came from an international organ.

Iceland was very interested in agreeing a regime for the territorial sea, since the waters around Iceland abound with fish. At the fourth session of the General Assembly, the Icelandic delegation proposed to add a study on the territorial sea to the original proposal and this suggestion was accepted.52 Following the resolution of the General Assembly, the ILC also appointed François as rapporteur for the regime of the territorial sea. The initiative for this part of the decision came from a government. §732. In 1950, François presented his first report on the regime of the high seas.53 On the basis of the extensive discussions in the ILC, he drafted a new report,54 which the ILC discussed in 1951. After making some further amendments, the ILC adopted its first draft55 on which the member states of the UN were invited to submit their comments. When he had received the comments of eighteen states,56 François prepared a new draft.57 In the meantime, the Secretariat of the UN collected all national laws and international treaties concerning the high seas.58 At its next session the ILC received a further draft from its rapporteur François and was able to adopt a new report on the regime of the high seas.59 The new ILC report60 was again forwarded to the members of the UN and to interested intergovernmental organizations, which were invited to submit their comments. Twenty-five members of the UN and the Executive Secretary of the International Commission for the Northwest Atlantic Fisheries submitted their observations.61 The first invitation for comments can be regarded as a request for information. The ILC wanted to avoid overlooking specific situations in particular regions and the request concerned only part of the draft. The second invitation for comment on the other hand, was more a call for support. The ILC wished to avoid including articles to which a significant proportion of states would object.

51. Publication No. 22 of the Netherlands Ministry of Foreign Affairs, at 122; YUN 1948-49, at 950-951. 52. GA Res. 374 (IV). 53. UN Doc. A/CN.4/17. 54. UN Doc. A/CN.4/42. 55. UN Doc. A/1858. 56. Published in Documents A/CN.4/55 (with six addenda), A/CN.4/70, and A/2456. 57. A/CN.4/51. 58. Laws and Regulations on the Regime of the High Seas, UN Doc. ST/LEG/SERB/1 and 2. 59. A/CN.4/60. 60. UN Doc. A/2456. 61. Yearbook ILC (1956 II), at 37-102.

§733

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§733. Having studied the comments and three further reports of its rapporteur,62 the ILC made its final draft on the regime of the high seas in 1956.63 By this time, it had devoted the greater part of five sessions to this subject, had received seven reports from its rapporteur and at least four studies by the UN secretariat.64 The final report of the ILC was divided into three chapters: (1) General regime of the high seas, (2) Contiguous zone, and (3) Continental shelf. The proposal for a regime of the territorial sea again followed the procedure of drafts, comments and new drafts. §734. The above-mentioned procedure demonstrates that the drafting of an important international proposal requires not only a great amount of time and effort at the international level, but also a considerable national effort.65 The Dutch Ministry of Foreign Affairs could not, of its own accord, give the Dutch comment on each draft; it was obliged to consult others. The Ministries of Transport, Fisheries and Defense (Navy), and the Advisory Commission on Questions of International Law66 were asked for their comments. Advice was also sought from private organizations, such as the Netherlands Association for the Law of the Sea, the Royal Association of Shipowners and the Seamen’s Union. All these authorities and associations spent considerable time studying the drafts before they gave their advice. The Ministry of Foreign Affairs, in turn, concentrated on studying this advice, discussing it with the other authorities involved and drafting a final comment. §735. All these preparatory activities resulted in an ILC proposal for the codification of the law of the sea. The General Assembly of the UN referred this proposal to a special conference, since it was too large to be discussed in a session of any organ of the UN. As non-members were also invited to the conference, the subject did not stay entirely within the scope of the UN itself. But the organization of the conference was left in the hands of the UN Secretariat, and the conference was held in UN buildings. The UN has applied this procedure of organizing a separate conference in a number of cases where legislation was being prepared (for example, the Conventions on Diplomatic Relations, Consular Relations, Law of Treaties, Representation of States in their Relations with International Organizations of a Universal Character and Succession of States in Respect of Treaties, and Law of Treaties between States and International Organizations). With regard to decision-making, the procedure would not have been substantially different if the conventions had been made by the General Assembly itself.

62. 63. 64. 65. 66.

UN Documents A/CN.4/69; A/CN.4/79 and A/CN.4/103. UN Doc. A/3159 (GAOR 11, Suppl. 9), at 7-9; 23-31. UN Documents A/CN.4/26; A/CN.4/30; A/CN.4/32; A/CN.4/38. Publication No. 56 of the Netherlands Ministry of Foreign Affairs, at 10-11. A commission composed of individual experts on international law. At the time François was its president.

507

Decision-making process

§736

§736. The 1958 UN Conference on the Law of the Sea received more documents than merely the reports of the ILC. At the invitation of the UN Secretariat, several experts had written reports on specific subjects (inter alia, on fisheries, relation to air law, straits, bays, archipelagos, continental shelf, and safety zones around installations on the continental shelf).67 Twenty-one states, including the Federal Republic of Germany (at the time not a member of the UN) and three international organizations, had submitted further comments.68 §737. Several governments of states with particular interest in the Law of the Sea had started to gather support for their interests before the opening of the Conference. Seafaring nations tried to convince others of the importance of free and innocent passage through the straits and territorial waters of other states; the US sought support for a narrow territorial sea in order to allow the free movement of its naval forces; Eastern European states wanted a wider territorial sea for their coastal defense; Norway, Iceland, Chile, Peru, Ecuador and Colombia needed a wide territorial sea to ban foreign fishermen from their coastal waters. §738. At the UN Conference on the Law of the Sea, about 700 representatives of 87 states,69 specialized agencies and 9 private international organizations met in Geneva from 24 February to 28 April 1958. The Conference did not succeed in adopting a uniform breadth for the territorial sea, but it was successful with regard to many other provisions on the Law of the Sea. Five different commissions discussed various chapters of the reports of the ILC. Four of them drafted conventions, which were subsequently adopted by the plenary conference (the Conventions on the High Seas, on the Territorial Sea and the Contiguous Zone, on Fisheries and on the Continental Shelf). The fifth committee (on landlocked countries) only suggested the addition of some provisions to the Convention on the High Seas and to that on the Territorial Sea. These suggestions were adopted by the plenary conference.70 b.

Law-making in the European Community71

§739. The procedure for law-making in the European Community (EC) is substantially different from that in the UN. The European Commission has

67. For the texts, see UN Doc. A/Conf.13/37. 68. UN Doc. A/Conf.13/37. 69. All the then existing independent states, with the exception of Ethiopia and Sudan which were invited, and North Korea, North Vietnam and Eastern Germany, which were not. China was represented by the nationalist government (Taiwan). 70. Convention on the High Seas, Arts. 2, 3, 4; Convention on the Territorial Sea and the Contiguous Zone, Art. 14, para. 1. 71. See also L.N. Lindberg and S.A. Scheingold, Europe’s Would-Be Policy; Patterns of Change in the European Community 82-98 (1970), reprinted in P.A. Tharp Jr., Regional International

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an exclusive right of initiative for decisions on most subject matters. It often consults experts of the member states before making any proposal. As of 1 January 1994, when the Treaty on a European Economic Area (EEA) entered into force,72 the Commission is also obliged to seek advice from experts of the EFTA members of the EEA.73 Frequently, these experts are national civil servants. Even when they are heard in their personal capacity, such civil servants will usually give the Commission some indication of the attitude their governments are likely to adopt. The governments value this channel, through which their officials can exert some influence on the Commission’s proposals. In 1965, the Commission made an important proposal on agriculture without any prior consultation with national officials. It did not require any factual information since it was familiar with all the issues involved. The governments were resentful that they had not been given the opportunity to influence the proposal, and that they had been taken by surprise and had received the text only after the Commission had spoken about it in the European Parliament. This led to a provision in the so-called heptalogue of Luxembourg (the seven points of the declaration of the conference of Ministers of 28 and 29 January 1966, ending the crisis which had begun on 30 June 1965)74 in which the governments expressed their desire to be consulted on important proposals before they are officially made. The heptalogue also provides that Commission proposals should not be published before they have been officially presented to the Council and their text is in the possession of the member states. The Commission is not legally bound by the heptalogue since it was not made within the provisions of the EC Treaty but follows it in practice.75

72.

73. 74. 75.

Organizations/Structures and Functions 94-108 (1971); C.-D. Ehlermann, Legal Status, Functioning and Probable Evolution of the Institutions of the European Communities, 10 CMLRev. 199-202 (1973); F. Franzmeyer and H. Machowski, Willensbildung und Entscheidungsprocess in der EG und in Rat für Gegenseitige Wirtschaftslife, Ein Vergleich, Europa Archiv 47-60 (1973); C. Sasse and others, Decision-Making in the European Community (1977); J. Schwarze (ed.), Gesetzgebung in der Europäischen Gemeinschaft (1985); H.-J. Seeler, Die rechtsstaatliche Fundierung der EG-Entscheidungsstrukturen, 25 EuR 99-122 (1990); P. Raworth, The Legislative Process in the European Community (1993); A. Dashwood, Community Legislative Procedures in the Era of the Treaty on European Union, 19 ELRev. 343-366 (1994). In June 2003 the European Convention proposed far-reaching changes to the current EC law-making procedure. These changes are included in the Convention’s Draft Treaty establishing a Constitution for Europe that was submitted to the European Council meeting of 20 June 2003. This Draft Treaty is the basis for the Intergovernmental Conference that is expected to complete its work in 2004. See for further details: www.europa.eu.int. This Treaty has been concluded between the EEC, the ECSC, the twelve member states and six of the seven member states of the European Free Trade Association (Switzerland eventually decided not to become a party to the EEA Treaty, following the result of a referendum of December 1992, in which a very small majority of the Swiss voters rejected such participation). EEA, Arts. 99-101. On this crisis, see below, §780. In 1968, President Rey officially announced that the Commission does not consider itself bound by the heptalogue (see CCH, Common Market Reporter, para. 9257).

509

Decision-making process

§740

§740. When the Commission has officially made a proposal to the Council it usually has to be referred to the European Parliament, often also to the Economic and Social Committee, and sometimes to other organs (for example, the Committee of the Regions, the Court of Auditors and the Monetary Committee).76 In the interest of fruitful debate in these organs, it would be useful if the Council would give some indication of its own opinion before the proposal is referred to them. This, however, is not Council practice. Only under the cooperation and co-decision procedures is the Council obliged, when it communicates the common position to the European Parliament, to inform the latter “fully of the reasons which led it to adopt its common position”.77 §741. The specific powers of the European Parliament in the decision-making process have been discussed in Chapter Five (§576-593). Traditionally, its role was usually limited to giving non-binding opinions. However, the Single European Act and the Treaty on European Union have introduced three new procedures in a number of articles of the EC Treaty, which give the Parliament a much more important role in decision-making: the assent procedure, the cooperation procedure and the co-decision procedure.78 As a consequence of the Parliament’s different decision-making powers under different Treaty provisions, the choice of the legal basis for a given proposal has become more important. There has never been one uniform procedure for decision-making in the EC, but as long as the Parliament’s powers were the same in most Treaty provisions, the choice of legal basis was mainly important because of the divergent rules for voting in the Council (simple majority, qualified majority, unanimity). And for many years, these differences were not of practical importance, because the Council usually took decisions without voting. In the 1980s however, this situation has gradually changed (see below, §780). As a result, the different decision-making rules in the EC Treaty now have two variables: the powers of Parliament and voting in the Council. This explains why the choice of a legal basis for EC decisions has become more important than before. In practice, the Commission’s proposal contains a reference to the legal basis. The Council may change this legal basis, by simple majority vote.79 If the Commission insists on its choice of the legal basis, or

76. See on the limited number of cases in which other organs have to be consulted, Raworth, op. cit. note 71, at 60-62. 77. EC, Art. 251.2 and Art. 252(b). 78. See Raworth, op. cit. note 71, at 17-18, and Tables 1-4, listing the EC articles including these procedures. With the entry into force of the Amsterdam Treaty (1 May 1999), the cooperation procedure is no longer used except for certain decisions relating to the EC economic and monetary policy (e.g. Art. 106.2). 79. See more in detail Raworth, op. cit. note 71, at 73. Raworth refers to the fact that members of the Council sometimes trade acceptance of a contested legal base for concessions on the substance of a proposal.

§742

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if the European Parliament disagrees with the choice made by the Council, these institutions may start proceedings before the EC Court.80 This issue may best be illustrated by examining one of the most important “legal basis judgments” of the EC Court. In the 1980s the Commission presented a proposal for a directive on procedures for harmonizing the programmes for the reduction and eventual elimination of pollution caused by waste from the titanium dioxide industry. The proposed legal basis was Article 100a (now Article 95, on the approximation of laws). At that time, before the entry into force of the Treaty on European Union, decisions under this provision were to be taken in accordance with the cooperation procedure, and voting in the Council was by qualified majority. In 1988, the Council decided to base the directive on Article 130s (now Article 175, on action relating to the environment). Before the entry into force of the Treaty on European Union, decisions under this provision had to be taken in accordance with the consultation procedure, and voting in the Council was by unanimity. Taking the view that the directive in question lacked a valid legal basis, in that it was based on Article 130s but should have been based on Article 100a, the Commission raised an action for annulment before the EC Court. The Court repeated its earlier observation that the choice of the legal basis may not depend simply on an institution’s conviction as to the objective pursued, but must be based on objective factors which are amenable to judicial review. Those factors are, in particular, the aim and the content of the decision. In examining the directive in question, the Court came to the conclusion that the directive was concerned with both the protection of the environment (Article 130s) and the elimination of disparities in conditions of competition (Article 100a). Normally in such a case, the decision should be adopted on the basis of the two relevant provisions. However, this was not possible in this case, because the two articles in question contained different decision-making procedures (role Parliament, voting in the Council). A reference to both articles would in effect undermine the qualified majority vote and the relatively important role of the Parliament under Article 100a. For a number of specific reasons, the Court finally decided that the correct legal basis was Article 100a, and the directive was annulled.81

§742. Within the European Parliament, the proposal is usually referred to one of its commissions, which appoints a rapporteur to prepare a report. The final report of the commission is usually discussed in each of the political groups. Unlike the commissions, which may discuss a proposal extensively over several

80. For the European Parliament, such a right was only included in the Treaties (Art. 230 EC) by the 1997 Amsterdam Treaty after it had been created, under certain conditions, by the EC Court (Case C-70/88, Parliament v. Council, ECR 1990, at 2041. 81. Case C-300/89, Commission v. Council, ECR 1991, at 2867. See also the annotation by H. Somsen in 29 CMLRev. 140-151 (1992) and N. Emiliou, Opening Pandora’s Box: the Legal Basis of Community Measures before the Court of Justice, 19 ELRev. 488-507 (1994). Other examples of legal basis judgments of the EC Court are Joined Cases C-164/97 and C-165/97, European Parliament v. Council, ECR 1999, at I-1139 (see in particular para. 14 for a summary of the general approach taken by the Court with respect to these questions); Case C-269/97, Commission v. Council, ECR 2000, at I-2257.

511

Decision-making process

§743

days, the political groups usually have little time for discussing proposals. The report is finally adopted at a plenary session.82 In the Economic and Social Committee, the proposal is referred to a specialized section that may charge a working party with further preparation. The report of the specialized section serves as a basis for discussion in the Committee.83 The discussion in the European Parliament or in the Economic and Social Committee, or in other organs, may prompt the Commission to change its original proposal before it is discussed in the Council. To allow the European Parliament to maintain political control over the Commission, the Parliament should be informed of any such alterations. The Commission has acknowledged its responsibility to do so.84 The Court of Justice has established that “a fresh consultation of the European Parliament is required whenever the text finally adopted, taken as a whole, differs in essence from the text on which the Parliament has already been consulted, except in cases where amendments substantially correspond to the wishes of the Parliament itself”.85 §743. The proposal is subsequently discussed in the Committee of Permanent Representatives (COREPER, see above, §393). COREPER is assisted by over one hundred working groups. The aim is to secure the widest possible agreement before the matter is discussed by the Council.86 It has been observed that COREPER can in particular make significant contributions to decisionmaking by the Council “on issues which are both politically sensitive and technically complex”.87 Discussion in the Council is only required when COREPER cannot reach agreement. The consultation procedure contains no time limit for the duration of discussions, nor are deadlines set for the first reading of the cooperation and co-decision procedures. As a consequence, a long period may elapse before a decision is finally adopted. The record is held by two tax proposals submitted in 1969, which became legislation only in 1990.88

82. See more extensively on procedures within Parliament, Raworth, op. cit. note 71, at 45-52. 83. See more extensively on the discussion within the Economic and Social Committee, Raworth, op. cit. note 71, at 56-60. 84. OJ 2145/67. 85. Case C-280/93, Germany v. Council, ECR 1994, at I-4973, para. 38, with references to earlier case law. See also Case C-417/93, European Parliament v. Council, ECR 1995, at I-1185 (para. 17). 86. See Rules of Procedure of the Council (OJ 2002, L 230/7), Art. 19.2; Raworth, op. cit. note 71, at 66-67; M.P.C.M. van Schendelen, ‘The Council Decides’: Does the Council Decide?, 34 JCMS 531-548 (1996). In the last mentioned study, the author finds empirical support for the thesis that, while according to the Treaty rules the Council is the institution taking decisions, in practice agreement is generally reached at the level of COREPER or at working group level (as a result of which decision-making by the Council becomes a formality). 87. See D. Bostock, COREPER Revisited, 40 JCMS 215-234 (2002). 88. Id., at 69.

§744

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§744. During the debates in COREPER and in the Council, the Commission may change its proposal.89 A valid reason for doing this may be the fear that the proposal will not obtain sufficient support in its original form. §745. In practice, the discussions between the Commission and the Council or COREPER often continue until consensus is reached on a certain text. Whether this text is an amendment by the Commission of its original proposal or an amendment unanimously made by the Council to change the original proposal of the Commission makes little substantial difference to the final outcome. But the political responsibility of the organs is affected. In the former case, the Commission is responsible and should therefore inform the European Parliament; in the latter case, all Council members can be held individually responsible in their national parliaments. In practice, such individual responsibility is not realized. The national parliaments are insufficiently involved, insufficiently expert, usually even insufficiently informed to challenge the position taken by individual national ministers in European institutions. §746. During the phase preceding the decision of the Council of the European Union, the Commission and the member states are obliged to consult with the EFTA member states, parties to the EEA Treaty. Such consultations take place in the EEA’s executive body, the Joint Committee, “at the significant moments” at the request of one of the EEA parties.90 This has to be “a continuous information and consultation process”, in which parties “shall cooperate in good faith”.91 But apart from these EEA consultations, EC decisionmaking takes place within the context of the EC only. The exclusive right of initiative remains with the Commission, there is a role for the European Parliament and the Economic and Social Committee but not for their EEA counterparts (the EEA Joint Parliamentary Committee and the EEA Consultative Committee), and a final decision is taken by the Council of the European Union. Following the adoption of such EC decisions, in which the EEA plays such a limited role, the EEA Joint Committee is nevertheless obliged to take a decision the contents of which resemble “as closely as possible” the new Community legislation “in order to guarantee the legal security and the homogeneity of the EEA”.92

89. Cf. Case 280/93, Germany v. Council, ECR 1994, at I-4973, paras. 27-43. 90. EEA, Art. 99.3. The rules of procedure for deciding on the position the Community will adopt within the EEA Joint Committee have been published in OJ 1994, L 305/6. 91. EEA, Art. 99, paragraphs 3 and 4. 92. EEA, Art. 102.1. See C. Reymond, Institutions, decision-making procedure and settlement of disputes in the European Economic Area, 30 CMLRev. 449-480 (1993); M. Cremona, The “Dynamic and Homogeneous” EEA: Byzantine Structures and Variable Geometry, 19 ELRev. 508526 (1994).

513

Decision-making process

B.

Discussion of proposals

1.

Date of submission

§747

§747. Members should be fully acquainted with important proposals before a session is opened if they are to be able to define their positions precisely. Usually the thorough preparation of major proposals provides this information; sometimes international organizations expressly require that certain types of proposals are circulated in advance of the opening of a session. Several constitutions provide that proposals for constitutional amendments must be sent to the members at least six months before the opening of the session in which they are to be discussed.93 In the African Union this period is one year.94 In the IAEA ninety days is sufficient;95 for amendments to the Statute of the International Criminal Court, this period is three months.96

§748. All proposals presented to a congress of the UPU must be submitted at least six months before the opening of the session. After this date, and not later than four months before the opening, further proposals can only be made if supported by at least two members. Proposals submitted in the interval between four and two months preceding the opening are accepted only when they have the support of at least eight members.97 The main advantage of this procedure is its combination of clarity and flexibility. Clarity is offered by the availability of most proposals at least six months before the session, flexibility by also admitting later proposals less than six months before the session. Some delegations, which may have been reticent at an early stage, may be inspired to make later proposals of their own. Most regional groupings will want to discuss the proposals. They have the opportunity to do, when (four months before the session) practically all proposals are distributed. The regional meetings contribute to a more thorough preparation of all proposals and the results of these meetings can still be brought before the Congress since the meeting may make further proposals if at least eight members consider them useful. These proposals will be made available to all delegations before the opening of the session. §749. In the General Assembly of the UN, as in most other international organs, the time limits for the submission of proposals are less strict. Items for the agenda should usually be proposed at least thirty days before the opening

93. 94. 95. 96. 97.

UNESCO, Art. 13; WHO, Art. 73; WMO, Art. 28; IMO, Art. 66. AU, Art. 32.3. IAEA, Art. 18A. ICC Statute, Art. 121.2. UPU, General Regulations, Art. 120, para. 1.

§750

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of a session,98 but specific proposals should be circulated to all delegations not later than the day preceding the meeting at which they will be discussed.99 Owing to the time necessary for translation and duplication, this means that the proposals should be submitted to the Secretariat at least two or three days in advance. Exceptions are made for proposals to modify the allocation of expenses, which must be communicated to the members at least ninety days before the opening of the session.100 A meeting usually sets its own deadlines for the submission of proposals. When a session is planned, dates are fixed for each subject matter under discussion. As a result of the above-mentioned time required for translation and duplication, proposals concerning a subject matter will have to be submitted a few days in advance of the deadline.101 The timely distribution of proposals may enable members to discuss them fully with their different national authorities – including parliaments – so that they can express a final national opinion on them (see below, §894). This could perhaps eventually replace the requirement of subsequent ratification. The dates of submission of proposals are also of importance with regard to the order of voting (see below, §843). 2.

Sponsors

§750. When a decision is taken to submit a proposal, it is necessary to determine who will make the proposal. Usually, this will be the member which took the initiative, seeking credit for its efforts by officially presenting the proposal as its own. It will, moreover, be the most suitable sponsor since it will be more capable than any other delegation of answering questions on its substance. For political reasons, it may however sometimes be wiser for a proposal to be submitted by another state. Proposals by a European state can expect less African support than proposals by an African state. Arab states may deny support to a proposal for the sole reason that it has been submitted by Israel.102 The sponsor of a proposal may even influence the implementation of the decision which is finally taken. The following quotation from the Yearbook of the United Nations 1947-1948 offers an example: “Of the Arab states, Transjordan stated in its reply (S/760) that the United States, the author of the proposition of addressing questions to the Arab states, had not yet recognized the Government of Transjordan, although Transjordan for the past two years

98. 99. 100. 101. 102.

GA Rule 14; Rule 12 of the Rules of Procedure of the Assembly of States Parties to the ICC Statute. GA Rule 78. GA Rule 24. See e.g. UN Conference on the Law of the Sea, Vol. III (A/Conf. 13/39), at 74. See e.g. the discussions on proposal A/Conf.20/L.4Rev.1 at the Conference on Diplomatic Intercourse and Immunities (Vienna 1961).

515

Decision-making process

§751

had met all the required conditions for such recognition. At the same time, the United States had recognized the so-called Jewish state within a few hours of its proclamation, although the factors for this recognition were lacking. The reply from the Government of Transjordan also pointed out that the Security Council had failed on several occasions to recommend Transjordan for membership in the United Nations. For these reasons the Government of Transjordan did not feel that there was room for a reply to the Council’s questionnaire”.103

§751. However misguided this reasoning may be, it presents an argument that the initiators of a proposal must take into account. A state sometimes asks another member to sponsor its proposal. More frequently, co-sponsors, preferably from different regions, will be sought. Interested members may offer themselves as co-sponsors. A large number of sponsors may increase the chances of the proposal being adopted; it will certainly increase the attention it will receive. Nevertheless, the greater the support for a proposal, the less flexibility can be expected in the negotiations. The co-sponsors will have to be consulted for each amendment of the proposal.104 Separate meetings of the sponsors of a proposal may delay decision-making.105 New co-sponsors must be acceptable to the original sponsors. If they are not, they cannot become co-sponsors. They may then be listed in the report of the organ concerned as members having expressed their wish to become co-sponsors.106 There is no uniform policy as to whether states which are not members of the organ concerned may co-sponsor proposals. Normally this should not be permitted if the composition of an organ is made up with regard to a certain (geographical or other) balance of interests.107 The Economic and Social Council of the UN (ECOSOC) does, however, permit such co-sponsorship.108 As a rule, associate members (see above, §166-168) do not have the right to (co-) sponsor resolutions, as this is linked to the right to vote (which associate members generally do not have).109 3.

Amendments

§752. When proposals have been circulated, other delegations may wish to amend them. Proposals for amendment should also be distributed in advance to allow the other members to study them. Amendments may in turn inspire new amendments, but it may not always be possible to distribute these before discussions are opened on the subject. In practice, amendments are usually admitted even during the debates. The ITU requires the support of at least

103. 104. 105. 106. 107. 108. 109.

YUN 1947-1948, at 417-418. J. Kaufmann, United Nations Decision Making 122 (1980). On meetings of groups of sponsors, see also Baehr, op. cit. note 40, at 33, 53-59. UNJY 1976, at 180. See for example UNJY 1983, at 169. UNJY 1971, at 203-204. UNJY 1995, at 421-424.

§753

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one other delegation before an amendment can be brought up for discussion.110 All member states have the right to submit amendments. Observers will usually try to persuade one of the member states to submit the amendments they consider necessary. The agreement by which they have been admitted may grant them the right to propose amendments. 4.

Time-limits, marathon sessions

§753. In cases in which the subject of a proposal is complex, the possibility of subsequent improvements to the text will always remain open. The proposals may repeatedly be referred to functional or advisory commissions for further study. To expedite decision-making, it may be useful to set a final date by which the decision must be taken. In effect, the end of a session often operates as a deadline, especially in organs meeting infrequently. Often it is impossible to prolong the meeting, for budgetary reasons and because of the limited availability of the conference hall and of the staff concerned. As the deadline approaches, work may be intensified with extra meetings during the evenings and at weekends often proving necessary. As a result, however, delegates may become exhausted, which may affect the quality of the decisions taken. But at the same time the impending deadline enhances the willingness to compromise. Occasionally, when the time-limit has expired and negotiations are almost complete, the clocks have been “stopped” to finish decision-making “in time”. §754. In the European Union, the end of a session is not usually a pressing time-limit since the next session soon follows. Nevertheless, time-limits have been required for expedient decision-making. In the Treaties, as well as in several Council decisions, time-limits were set for future decision-making. The Council is legally bound to respect the time-limits laid down in the Treaties. Those it has set itself can be overruled in future Council decisions. Aware of the need for expeditious decision-making, the Council usually tries to abide by the time-limit set. When the final date approaches, the Council sometimes meets in a so-called marathon session, continuing until the required decision is taken. If necessary, the clocks are stopped during such sessions. Initially, the delegations consist of the usual group of people: ministers, advisors and assistants. As the deadline approaches, the number of advisors and assistants diminishes until at last the ministers alone discuss the remaining obstacles with a member of the Commission.111

110. 111.

ITU, General Rules of Conferences, Assemblies and Meetings of the Union (adopted in 2002), Nr. 18.1. See M.H.J.C. Rutten, Samenspel tussen Commissie en Raad bij de besluitvorming in de Europese Gemeenschappen. Taak en betekenis van het Comité van Permanente Vertegenwoordigers, in: 10 Europese Monografieën 49-50 (1968).

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§755. Marathon sessions have some obvious disadvantages. When there is a time-limit delegations will reserve their possible concessions until the last moment, hoping that others will change their positions earlier. The outcome of the negotiations largely depends on the physical stamina of negotiators selected on other criteria. The quality of decisions will therefore suffer. Fatigue may persuade negotiators to involve themselves in unimportant detail and to accept decisions when they are not fully aware of the consequences. Nevertheless, at times the importance of actually reaching a decision may compensate for the effects of its poor quality. 5.

Package deals

§756. In international conferences a delegation may occasionally “buy” the vote of another delegation for a proposal which it considers important by “selling” its own vote to a proposal which the other member would like to see adopted. This exchange of support is a logical result of the fact that not all delegations represent the same interests. Fishing, for example, is vitally important for Iceland, but not for Switzerland. Financial transactions, or the choice of Geneva as a seat for international organizations, are important for Switzerland, much less so for Iceland. It is only natural that both delegations would be quite willing to support the other on any proposal or amendment if that proved necessary to gain a required vote in its own field. Although it may be true that bargained votes are not the best ones,112 they are practically unavoidable. §757. Sometimes the organization adopts a system of exchange of support to escape a deadlock. By bringing together a number of proposals, each fervently supported by some delegations but opposed by others, it may be possible to obtain a “package”, which contains attractive features for so many states that it will gain wide support, even though each state also finds some less acceptable elements in it. One example of a “package deal” was the admission of a large group of new members to the UN on 14 December 1955. Some of these members were not acceptable to the US, others could not individually obtain the support of the USSR. By bringing them together in a package it proved possible to gain general support. The EC Commission has sometimes made progress in European integration by “packaging” some agricultural interests of France together with certain German industrial interests, this occasionally proving to be the only possibility for progress. §758. “Package deals” seem acceptable in the European Communities, where the packages are made by a supranational Commission for the purpose of furthering the aims of the organization (European integration) in several fields simultaneously. They are more objectionable in organizations without such

112.

T. Hovet, Jr., Bloc Politics in the United Nations 9-10 (1960).

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supranational authorities. The hope of obtaining a package deal may tempt delegations to deny support to acceptable proposals for the purpose of “selling” a vote which they would otherwise have “given”. Additionally, the practice of using package deals may lead to delays, since delegations may wait to approve decisions until some issue arises which is of particular interest to them. §759. Package deals are particularly dangerous when the packages are made by a number of the members holding a voting majority. The minority will then lose its only weapons: discussion and persuasion. This may lead to a breach within the organization. In the UN, the group of developing states, which has a voting majority, has sometimes voted to adjourn a meeting. Subsequently they met as a group and established what decisions they wanted to be taken by the meeting. These decisions were then accepted without further debate as soon as the meeting was reopened.113 In the IMF, separate meetings of the Group of Ten (rich states), which holds a voting majority in the organization bear the same risk.114

6.

Informal consultation, pressure

§760. A variety of methods may be utilized by members seeking to enhance (or to lessen) the chances of a proposal being adopted. Before the opening of a session, ambassadors may approach different governments in an attempt to obtain support for an initiative. Such steps prove that a government considers a proposal important, while offering the opportunity to explain all advantages of a proposal in a quiet atmosphere and at an early stage. Consultations between governments will be continued during the session, lunches, dinners and cocktails offering well-tried opportunities for persuading other delegations. The borderline between such exchanges of information or forms of consultation is vague but their importance is beyond doubt, as generally, these are the occasions upon which compromise solutions will be found.115 §761. In practice, it is not only delegations and governments that make individual efforts to persuade other delegations or governments to adopt a particular point of view; representatives of other organizations or interest groups also try to convince delegations of the necessity of particular proposals. This kind of pressure may benefit decision-making.

113. 114. 115.

See e.g. General Assembly, Third Committee, 27th Session. J. Gold, Voting and Decisions in the International Monetary Fund (1972), at 95-97. See for example L. Feuerle, Informal Consultation: A Mechanism in Security Council DecisionMaking, 18 NYUJILP 267-306 (1985). Cf. also F. Delon, La concertation entre les membres permanents du Conseil de sécurité, 39 AFDI 53-64 (1993).

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During the 1958 UN Conference on the Law of the Sea, the seafaring states profited from the advice of the International Shipping Federation (a private international organization). The fishing states made use of the arguments of the International Council for the Exploration of the Sea (a public international organization). The World Federation for the Protection of Animals, which had sent an observer, made a great effort to restrict the cruel methods of hunting whales and seals. It first sent a note to all delegations116 and subsequently tried to persuade the fishing states to adopt an article to this effect in the Convention on Fisheries. For economic reasons however, these states declined to take any initiative. Finally, the Federation found the delegation of Nepal willing to present a proposal.117 However, the objections of the fishing states to the adoption of an article in the Convention lead instead to the adoption by the Conference of a resolution recommending more humane hunting methods.118

§762. Obviously, pressure groups concentrate upon organizations that can take binding decisions. Their role in the European Union is more important than in most other organizations.119 7.

Caucuses

§763. Within international organizations member states which share common interests often consult each other on the procedures to follow. In most universal organizations, the problems concerning development have so much dominated their work that the developing as well as the developed states have formed consultation groups which in the same composition discuss almost all agenda items. Only a few issues, such as the use of languages, lead to consultation between different groups of members. The stability of the composition of interest groups has strengthened these groups to such an extent, that they now play a significant role in the decisionmaking process. These interest groups are often called “caucuses”. §764. In many respects, the role of the caucuses in international organizations is similar to that played by political parties in the national administration.120 Some groups may be more coherent than others, but all groups act to exert influence, inter alia by organizing their members in general meetings and by trying to obtain the appointment of their representatives to influential positions. 116. 117. 118. 119.

120.

NGO/Conf.13.WPA. A/Conf.13/C3/L6. A/Conf.13/38, at 144. Pressiegroepen in de EEG, Report of the Europa Instituut of the University of Amsterdam, 3 Europese Monografieën (1965); J. Meynaud and D. Sidjanski, Les groupes de pression dans la Communauté européenne 1958-1968 (1971); W. Averyt, Eurogroups, clientela, and the European Community, 29 International Organization 949-972 (1975); S. Anderson and K. Eliassen, European Community Lobbying, European Journal of Political Research 173-187 (1991); M.P.C.M. van Schendelen (ed.), National Public and Private EC Lobbying (1993); M.P.C.M. van Schendelen, Machiavelli in Brussels – The Art of Lobbying the EU (2002). See M. Hippolyte, La problématique des groups aux Nations Unies, 20 R.F.Sc.Pol. 453-482 (1970).

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§765. The composition of caucuses reflects the positions which members take in respect to particular issues. Nevertheless, existing caucuses often extend their operations to the work of an international organization irrespective of the position of their participants on the issues that concern the organization. The caucuses are, then, based on a mutual feeling of solidarity, rather than on the wish for a particular treatment of particular issues in the organization.121 In practice, all universal organizations have a caucus of Eastern European states, one of developing and one of Western developed states. Often these caucuses are sub-divided, and have separate groups for, for example, Africa and Latin America. The caucuses have developed strongly in UNCTAD, where they have shown a remarkable discipline that was useful during the first years of this organ, enabling in particular the developing states to muster considerable strength. The strong group discipline, however, has also proved to be a source of great rigidity.122 8.

Negotiating groups

§766. Increasing discipline within the caucuses has gradually led to greater voting discipline. Consequently, negotiations with representatives of the caucuses have become increasingly important for gaining support for a proposal. Negotiations in a large formal conference are generally slow and difficult, but they can be significantly expedited when representatives of the different caucuses reach prior agreement on major issues. Accordingly, it has been suggested that such negotiating groups should be institutionalized. These groups would be of manageable size, normally between ten and thirty members, and would include countries directly interested in the subject matter, whether or not they are members of the organ that must finally take the decision.123 §767. In the Third Law of the Sea Conference of the United Nations, the negotiating groups were actually created at the beginning of each session with usually one group for each of the most controversial issues. These groups generally contained representatives of the states that held the most extreme positions, as well as representatives of some states which held intermediary positions or for which no great interests were at stake. The size of a negotiating group varied, but could amount to some twenty to thirty delegates. As negotiating groups, even if officially established, are of an informal nature, they keep no records and do not publish their working documents. While this may

121. 122. 123.

See R.W. Cox, ILO: Limited Monarchy, in Cox and Jacobson, op. cit. note 23, at 124. G. Abi-Saab, UNCTAD, The Issues and their Significance (Lecture No. 19 of the Dag Hammarskjöld Foundation, Upsala, 1968), at 9-10. A New United Nations Structure for Global Economic Cooperation, UN Doc. E/AC.62/9, at 30-32 (1975).

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facilitate the reaching of compromises, it also makes it impossible to find the legislative history of the texts adopted. 9.

Withdrawal of proposals and amendments

§768. The initiator of a proposal or of an amendment to a proposal may decide to withdraw his proposal or amendment in response to pressure exerted before or during debates, or as a consequence of amendments made or proposed during proceedings. Withdrawal is always permitted and is sometimes even encouraged since any withdrawal of a proposal or amendment will facilitate further proceedings. In some circumstances, however, withdrawal of a proposal or amendment can be viewed as undesirable where, for example, the proposal of one delegate has pre-empted that of another. Withdrawal in these circumstances could be considered to rob the latter of its opportunity to introduce the same proposal or amendment if the withdrawal took place after the deadline for new proposals and amendments. To avoid this kind of situation, a withdrawn proposal or amendment may generally be reintroduced by any other delegation.124 Usually, there are no procedural requirements governing such re-submissions and indeed, amendments or proposals may even be orally re-submitted. In general however re-submission should be made without delay. The general congress of the UPU for example, refused to accept re-submission of a proposal that had been withdrawn six days previously.125 The possibility of re-submission of an amendment after its withdrawal should be considered as a general principle of institutional law that exists even without an express provision in the rules of procedure. Acceptance of this principle will prevent confusion such as arose in the European Parliament in March 1978 when several delegates argued that for an amendment which had been withdrawn to be re-submitted, the procedural requirements applicable to the submission of any new amendment had to be followed.126 10.

Financial implications of resolutions

§769. A number of organizations have special rules concerning the procedure for the adoption of proposals with financial implications. In the UN, for example, no resolution involving expenditure may be recommended by a committee for approval by the General Assembly unless it is accompanied by an estimate of expenditures prepared by the Secretary-General. Subsequently, if such expenditures are anticipated by the Secretary-General, the General Assembly may not take a vote until the Administrative and Budgetary Committee (Fifth Committee) has had the opportunity of stating the effect of the

124. 125. 126.

E.g. GA Rule 80; see e.g. YUN 1946-1947, at 153. UPU, XVth. Congress C4-PV4, at 8. 8 Europa van Morgen 148-149 (1978).

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proposal upon the budget estimates of the UN.127 Thus, consideration by the Fifth Committee is mandatory for any proposal involving expenditures. Nevertheless, on a few occasions the Assembly decided to suspend the application of this rule. Resolutions with financial implications were adopted during the 7th special session, but for practical reasons, more particularly the impending 30th regular session immediately after the special session, the Fifth Committee was not convened.128 The UN Office of Legal Affairs took the view that, wherever possible, the requirements of Rule 153 of the Assembly’s Rules of Procedure should be satisfied. However, if this were to prove difficult, consultations regarding the procedure to be followed were to be held in advance of the session among representatives of the various regional groups and, where there was general agreement, the Assembly could decide to follow the precedent established at the 7th special session, and discuss the financial aspects during the subsequent regular session.129 Other organizations have somewhat different rules, which serve the same purpose: taking into account the financial implications of proposals before they are voted upon.130 11.

Closure of discussions

§770. If the discussion of the item on the agenda has been completed, the chairman will declare the closure of the debate. Debates might also be closed after hearing a closed list of speakers or following the adoption of a motion to close the debate.131 In 1983, the effects of the closure of debates were discussed in a memorandum by the UN Office of Legal Affairs.132 The main consequences are that no further substantive statements may be made as to the item under discussion and no exception may be made, even for representatives already on the list of speakers. However, closure of debate does not prevent the exercise of the right of reply or the explanation of votes. Proposals already submitted but not yet formally introduced or even circulated should normally be dealt with, and normal procedural motions and manoeuvres (such as the withdrawal of a proposal) are permitted. The closure concerns the debate on the item under discussion. Such an item need not be an entire agenda item, but can also be a sub-item, a particular proposal or even an amendment to a proposal. Therefore as soon as a proposal for closure of debate is made, the chairman has to ascertain the scope of this proposal. If this is not done, “it

127. 128. 129. 130.

131. 132.

GA Rule 153. See UNJY 1978, at 172-173. Id. See for example UNESCO, Rules of Procedure of the General Conference, Rules 79-80; FAO, General Rules of the Organization, Rule XXVII. Cf. also Art. 300.3 EC, requiring the European Parliament to give its assent to agreements concluded by the Community which have important budgetary implications for the Community. See for example GA Rules 73 and 75. UNJY 1983, at 174-177.

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should usually be assumed that the motion is intended to have the broadest effect it can sensibly be given, i.e. to close debate on as much of the agenda item as possible”.133

V.

Decision-making by consensus

A.

Introduction

§771. Particularly in small organs, debates are frequently continued until general agreement is reached. Decisions are then taken not by voting, but by consensus (acclamation). Consensus is usually aimed for in larger organizations as well, but if an organization is unsuccessful in reaching consensus, a formal vote may often be required, in which case minorities are overruled by majorities. This does not generally have any consequences for the binding or nonbinding force of the decision. If an organization can take binding decisions by majority vote, a decision is usually as binding when adopted by consensus as when taken by majority vote.134 However, the overruling of a minority if no consensus can be arrived at is a rather crude way of solving conflicts and it is, therefore, not always an acceptable form of decision-making (see below, §863-867). §772. A marked tendency towards decision-making by consensus has been discernable in a large number of international organizations since the 1960s.135

133. 134.

135.

Id., at 175. See for example T. Ferguson, The Third World and Decision Making in the International Monetary Fund 65-66 (1988); O. Long, Law and its Limitations in the GATT Multilateral Trade System 56 (1985); UNJY 1987, at 175. C. Wilfred Jenks, Unanimity, The Veto, Weighted Voting, Special and Simple Majorities and Consensus as Modes of Decision in International Organizations, in Cambridge Essays in International Law, Essays in Honour of Lord McNair 48 (1965); C. Senf Manno, Majority decisions and minority responses in the UN General Assembly, 10 Journal of Conflict Resolution 1-20 (1966); Schwebel (op. cit. note 3); S. Bastid, Observations sur la pratique du consensus, in J. Tittel et al. (eds.), Multitudo legum ius unum, Festschrift für Wilhelm Wengler 11-25 (1973); J. Monnier, Observations sur quelques tendances récentes en matière de formation de la volonté sur le plan multilatéral, 31 SJIL 31-51 (1975); G. Sperduti, Consensus in International Law, 2 ItYIL 33-38 (1976); R.M. Besteliu, The Procedure of Consensus in the Adoption of Decisions by the International Monetary Fund and the International Bank for Reconstruction and Development, 11 RREI 517-526 (1977); M. Brinkmann, Majoritätsprinzip und Einstimmigkeit in den Vereinten Nationen. Konsequenzen und Grenzen staatlicher Gleichberechtigung in der Generalversammlung (1978); A.-M. M’Bow, Continuing debate, the Practice of Consensus in International Organizations, 30 Int. Soc. Sci. J. 893-903 (1978); H. Ballreich, Wesen und Wirkung des “Konsens” im Völkerrecht, in R. Bernhardt et al. (eds.), Völkerrecht als Rechtsordnung – Internationale Gerichtsbarkeit – Menschenrechte, Festschrift für Hermann Mosler 1-24 (1983); I. Seidl-Hohenveldern, Consensus in den Vereinten Nationen und in den europäischen Gemeinschaften, in G. Lüke, G. Ress, M.R. Will (eds.), Rechtsvergleichung, Europarecht und Staatenintegration, Gedächtnisschrift für LeontinJean Constantinesco 695-706 (1983); K. Zemanek, Majority Rule and Consensus Technique

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Literally, consensus means “common feeling” or “concurrence of feelings”. In the context of decision-making in international organizations, it has often been defined in a negative way: for example “the absence of any objection expressed by a representative and submitted by him as constituting an obstacle to the taking of the decision in question”.136 Or: “... if no member, present at the meeting where the decision is taken, formally objects to the proposed decision”.137 Taking decisions by consensus often involves protracted negotiations, to achieve the desired concurrence of views and to avoid express objections with an important role often being played by the chairman of the meeting. Wide varieties of interests have to converge into an acceptable compromise, and it is his task to guide this process. In many organizations, if these negotiations are unsuccessful, decisions may nevertheless be adopted by majority vote.138 However such majority decisions will lack the necessary authority for those who were outvoted. This section on consensus is placed here in Chapter Six, because it marks the end of a more or less complex process of decision-making, without recourse being taken to voting, which is the subject of the next section. In this section, some practical examples of decision-making by consensus will be given with subsequent explanations for the popularity of consensus, seen in the context of the general development of decision-making in international organizations. B.

Some examples

§773. Although decision-making by consensus has become widely popular since the 1960s, it has been applied earlier. For example, since 1948 decisions

136. 137.

138.

in Law-Making Diplomacy, in R.St.J. MacDonald and D.M. Johnston, The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory 857-887 (1983); G. Plant, The Third United Nations Conference on the Law of the Sea and the Preparatory Commission: Models for UN Law-Making?, 36 ICLQ 525-558 (1987); E. Suy, Rôle et signification du consensus dans le processus législatif des Nations Unies, in M.A. Boisard and E.M. Chossudovsky (eds.), Multilateral Diplomacy (2nd rev. ed. by J. Lemoine, 1998), at 205-218. See also the work done on this topic by the Institute of International Law: Yearbook of the Institute of International Law, Vol. 68, Part II (Session of Berlin, 1999), at 155-183 (the proposed resolution was not adopted). CSCE Rules of Procedure, Rule 69.4. See also UNJY 1982, at 177; UNJY 1987, at 174-175. Agreement establishing the World Trade Organization, Art. IX.1, note 1. An example of decision-making by consensus in the GATT (1947) is given by Roessler: “... after the EC and Japan had objected to a proposal by Australia to establish a group to study the international meat market. Australia asked the Council chairman to proceed to a vote. In response the chairman suspended the meeting “for a tea”. The meeting resumed a few days later and the meat group was established – by consensus”. See F. Roessler, The Agreement establishing the World Trade Organization, report presented at a conference organized by the College of Europe (Brugge, 18/19 Nov. 1994). E.g. the Agreement establishing the World Trade Organization, Art. IX.1: “... Except as otherwise provided, where a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting”.

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of substance of the UN Security Council have occasionally taken the form of impartial summaries by the President. If no member dissociated itself from the statement or asked that it be approved by vote, it began to be assumed that the statement represented the consensus of the Council.139 §774. No voting took place during the UN General Assembly’s 19th annual session (1964).140 The Soviet Union, France and other some states refused to pay their share for two UN peace-keeping operations which were in their view illegal. Their arrears exceeded the amount of their contributions for the preceding two full years. Article 19 of the UN Charter provides that in such cases, members shall have no vote in the Assembly. However, for political reasons, it was deemed unacceptable that the Assembly continue “business as usual”, without the votes of some of its most prominent members. Therefore, it was decided that decisions would be taken in accordance with a two-stage procedure: consultations, during which the heads of delegations informed the President of their positions; and the announcing of unopposed decisions by the President.141 Although this ‘incident’ is somewhat different from normal decision-making by consensus, because in this case no negotiations took place between most of the interested parties, it was a step in the direction of a more general application of decision-making by consensus. §775. A number of organs of the General Assembly have subsequently adopted the consensus method.142 Increasing numbers of resolutions of the Assembly itself have also been taken by consensus. Since 1972, more than half of all resolutions, and since the 1990s usually more than 70%, have been adopted “without a vote”.143 In general, voting is preferred if the majority supports a more outspoken text. Consensus resolutions are preferred if the majority wants to secure the cooperation of the minority in the implementation of the resolution.144 While the official records only refer to resolutions “adopted

139.

140. 141. 142. 143.

144.

S.D. Bailey and S. Daws, The Procedure of the UN Security Council 260 (3rd ed. 1998). For a list of decisions which the Security Council took without a vote or by consensus, see id., at 260-262. With the exception of one vote, see Zemanek, op. cit. note 135, at 862-863. Id. See also below, §1459. Id. M.J. Peterson, The General Assembly in World Politics 85 (1986). For the period 1985-1994, calculated from data published in the Press Release issues of the resolutions adopted at each annual session. For the period since 1995 data have been taken from the website of the US Department of State: www.state.gov (see for the 2001 data: www.state.gov/documents/organization/12161.pdf. The State Department annually prepares a report to US Congress on voting practices in the UN General Assembly and the Security Council. See also M. Marín-Bosch, How nations vote in the General Assembly of the United Nations, 41 International Organization 705-724 (1987). An example is the procedure agreed in 1986 for decision-making by the UN Committee for Programme and Coordination and the Fifth Committee of the General Assembly, before submitting its recommendations on the outline of the programme budget to the General Assembly. See GA Res. 41/213.

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without a vote”, a distinction has sometimes been made between resolutions adopted “without a vote” and those adopted by consensus. In case of the former, states adopt a more passive attitude vis-à-vis the resolution concerned, they “do not oppose, but are not inclined to participate actively in it”;145 they therefore “do not consider themselves too closely associated with the adopted text”.146 In case of the latter, the agreement of states is more substantial. §776. When the United Nations Conference on Trade and Development (UNCTAD) was established, it was clear that there would generally be two divergent interests, that of the richer states and that of the developing states. The majority formed by the developing states was such that it was clear that they would be able to adopt whichever decisions they supported. However, adopting recommendations on the votes of the developing states without the support of the richer ones would serve no practical purpose, since the execution of these recommendations depends on the latter.147 The problem could be overcome by requiring unanimity or, at least, such a large majority that every interest would be sufficiently protected. This might, however, have paralyzed decision-making. §777. In searching for a solution, the drafters of the UNCTAD ‘constituent instrument’ took into consideration the fact that many UN organs reached acceptable decisions after informal consultations between representatives of different interests. Presidents and Secretariat often devote considerable energy to the organization of such consultations, and UNCTAD formalized these consultation proceedings.148 Decisions are taken by two-thirds majority. The richer states can be outvoted. Between the discussions and the voting on a proposal, however, a new phase is added to the decision-making process: that of conciliation. Every group of ten states (in smaller subsidiary organs a lesser number is sufficient) may request conciliation after a proposal has been discussed and voting is postponed pending the outcome of the procedure. A committee for conciliation is appointed to find a solution acceptable to both groups. Voting takes place only after the conciliation committee has completed its report. Conciliation requires so much time that the majority may prefer to seek compromises. For the minority, the conciliation procedure provides a cooling-off period in which they can negotiate and exert pressure. In practice this procedure has never been used, although from time to time suggestions have been made to do so, when negotiations were difficult and seemed not

145. 146. 147. 148.

Peterson, op. cit. note 143, at 86. UNJY 1987, at 174. Statement of the Secretary-General of UNCTAD at the end of the UNCTAD Conference in 1964. UN Doc. A/5749. See also, Conciliation Procedures in UNCTAD, An Explanatory Note, 2 JWTL 445-466 (1968).

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to make progress.149 Nor does UNCTAD adopt decisions by majority vote; as a rule, decisions are taken by consensus.150 §778. This UNCTAD procedure has served as a model for other organs. The Third UN Conference on the Law of the Sea (UNCLOS III), for example, provided that before a matter of substance could be put to the vote, all possibilities for reaching general agreement should have been exhausted. For this purpose, the president may have to postpone voting.151 At the same time, a major innovation of UNCLOS III was the development after 1975 of what has been termed “active consensus”. The most important element of this special form of decision-making by consensus was according the president and the three main committee chairmen the initiative in producing so-called informal negotiating texts, which effectively obliged interested states to take positions to encourage or discourage the formation of consensus around them.152 At UNCLOS III, this special form of consensus was closely linked to the “package deal” procedure. Indeed, many states considered themselves not bound by package deals decided upon by voting instead of by consensus. To date however, UNCLOS III has been the only conference to use “active consensus”.153 §779. Originally, decision-making by consensus was a development in practice; the formal rules of procedure of organs continued to prescribe voting. However, decision-making by consensus has increasingly been formalized or explicitly adopted as method of decision-making. For example, although decision-making rules for UPU Congresses originally provided for majority voting, the main rule since 1984 has been that decisions are taken by “common consent”; only questions that cannot be settled by common consent are decided by vote.154 There are many other examples.155

149. 150. 151.

152. 153. 154. 155.

UNJY 1986, at 282, and information obtained from the UNCTAD Secretariat (Jan. 1994). Abi-Saab, op. cit. note 122; U. Villani, Conciliation and Consensus in UNCTAD, 2 ItYIL 61-79 (1976). Third UN Conference on the Law of the Sea, Rule 37, UN Doc. A/Conf/62/30/Rev.1; 13 ILM 1205 (1974). The same provision has been adopted as one of the fundamental elements of the UNCTAD Common Fund (para. 23), 13 JWTL 361 (1979). It has been suggested to introduce a similar system in the procedures of the General Assembly and the Economic and Social Council of the United Nations, but this proposal has received insufficient support in the organization (UN Doc. E/AC.62/9, at 30-32). Plant, op. cit. note 135, at 527. Id., at 527-528. UPU, Rules of Procedure of Congresses, Art. 19.1. Rules of Procedure of the Tin Council under the 1981 International Tin Agreement, Rule 18(d); International Sugar Council (Art. 11.1 of the 1992 International Sugar Agreement; International Olive Oil Council (Art. 11.1 of the 1986 International Agreement on Olive Oil and Table Olives, extended in 1993); Art. 16 of the “MERCOSUR” Treaty establishing a Common Market between Argentina, Brazil, Paraguay and Uruguay (30 ILM 1041 (1991)), and Art. 37 of the 1994 Protocol of Ouro Preto; Art. 10 of the 1991 Treaty establishing the African Economic Community (30 ILM 1241 (1991)); EEA Consultative Committee (Art. 11.2 of the rules of procedure (published in OJ 1994, L 301/10)); the Assembly and

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A good compromise between the advantage of seeking consensus and the need to avoid endless negotiations has been found in the rules for decisionmaking of the Conference of the States Parties of the Organization for the Prohibition of Chemical Weapons. This Conference takes decisions on matters of substance “as far as possible by consensus. If consensus is not attainable when an issue comes up for decision, the Chairman shall defer any vote for 24 hours and during this period of deferment shall make every effort to facilitate achievement of consensus, and shall report to the Conference before the end of this period. If consensus is not possible at the end of 24 hours, the Conference shall take the decision by a two-thirds majority of the members present and voting unless specified otherwise in this Convention”.156 This provision also provides a good illustration of the important role of the chairman of an organ in the consensus procedure. Some rules of procedure may oblige the chairman to attempt to secure consensus on proposals.157 In other organizations, the chairman seeks the “sense of the meeting”, which is in fact the best possible compromise between the different propositions, and proposes it for adoption without putting the matter to the vote.158 In the IMF, for example, this usually leads to consensus;159 only exceptionally a consensus cannot be reached.160 §779A. The rules of procedure of the Conference of the Parties to the Convention on Biological Diversity include rules on decision-making. However, agreement has never been reached about the rules for the adoption of sub-

156.

157. 158. 159. 160.

the Council of the Global Environmental Facility (Instrument for the Establishment of the Restructured Global Environment Facility, para. 25 (33 ILM (1994), at 1291)); the Authority and the Council of the Common Market for Eastern and Southern Africa (Arts. 8.7 and 9.6 of the Treaty establishing this Common Market, see 33 ILM 1067-1123 (1994)); Council of the Organization of Black Sea Economic Cooperation (Art. 18 of the 1998 constitution of this organization); Assembly of States Parties to the Rome Statute of the ICC (Art. 112.7 of the Rome Statute and Rule 61 of the Assembly’s Rules of Procedure); see also the draft standard rules of procedure for UN conferences, Rule 51.1 (UN Doc. A/37/163). Chemical Weapons Convention, Art. VIII.18. A similar rule – albeit without a 24 hour deferment – exists in other organizations. Examples are the Council of the International Network for Bamboo and Rattan (Art. 8.7 of the 1997 constitution of this organization), the Assembly and Executive Council of the African Union (Arts. 7.2 and 11.1 of the 2000 constitution), and the Council of the Agency for International Trade Information and Cooperation (Art. 10 of the 2002 constitution of this organization). IFAD, Governing Council, Rule 35 (1); Executive Board, Rule 20 (1); INMARSAT Art. 14 (2); UN Special Committee for the Principles of International Law, GA Res. 2327 (XXII). E.g. in IMF and World Bank; see R. Barents, in P. VerLoren van Themaat (ed.), Studies over internationaal economisch recht, Vol. I. 3(b) 38 (1977). Gold, op. cit. note 114, at 195; Ferguson, op. cit. note 134, at 65-66. An example is the dispute over a proposal by IMF Managing Director Camdessus to create more than $50 billion Special Drawing Rights, which was rejected in 1994 by the Group of Seven industrial countries (see International Herald Tribune, 3 October 1994, at 1, 5).

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stantive (not procedural) decisions.161 Rule 40.1 is therefore in brackets. According to this rule, the parties shall make every effort to reach agreement on all matters of substance by consensus. At the end of the day, most of such decisions may, as a last resort, be taken by a two-thirds majority vote. In practice the Conference has taken its substantive decisions by consensus. During the sixth meeting of the Conference (April 2002) the parties disagreed about the interpretation of the term consensus. Australia formally objected to the adoption of a proposed (substantive) decision concerning alien species that threaten ecosystems, habitats or species. However, the president of the Conference stated that, “in her view, in the United Nations and other international organizations, consensus did not mean unanimity but, rather, broad agreement. If there was such broad agreement, it was the usual practice for other delegations to ask for their objections to be reflected in the report of the meeting”.162 Australia disagreed with this interpretation and indicated that it formally objected to the adoption of the proposal. Following further consultations the president declared the debate closed and concluded that the decision was adopted. Several delegations subsequently expressed their disagreement with the adoption of the decision in spite of the formal objections by Australia.163 The adoption of a decision by consensus in this particular case is unprecedented. Australia had expressed its formal objections. Moreover, other delegations did not remain silent and disagreed with the procedure followed. As a result, there is disagreement about the validity of the decision adopted.164 This particular incident and the more general uncertainty or disagreement about the rules for decision-making may affect future decision-making by the Conference. It is no longer guaranteed in the light of this precedent that formal objections to a certain proposal will be sufficient to prevent the adoption of the proposal by consensus. Parties who object to a certain proposal may therefore need to seek additional means to ensure that it will not be adopted, and this may frustrate the process of decision-making. This incident has demonstrated the importance of certainty about rules for decision-making and of maintaining the interpretation that no decision can be adopted by consensus if there are formal objections. There can be no consensus if parties fundamentally disagree. In such a case decisions can only be taken if the decisionmaking rules provide for some kind of majority voting (e.g. voting by twothirds majority, or even through ‘consensus minus one’).

161.

162. 163. 164.

The same is true for the decision-making procedures under the UN Framework Convention on Climate Change (Rule 42) and the Convention to Combat Desertification (Rule 47), where similar rules on decision-making have not yet been agreed. See the report of the 6th meeting of the Conference, Doc. UNEP/CBD/COP/6/20, at 57. Id., at 57-60. Id. See also Res. 57/260 of the UN General Assembly, in particular para. 2, footnote 5.

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§780. The constitution of the European Economic Community (1957) stipulated that after some time (beginning of 1966) the rule of unanimity for decisionmaking in the Council would be replaced by qualified majority voting in some important policy areas (agricultural policy, transport policy, external trade policy). However, on approaching 1966, a crisis arose when France took the view that members could not be outvoted in matters which they considered to be of very important national interest. This crisis has never really been solved. In the “Luxembourg Accords” of 29 January 1966, all parties adhered to their original position, and in fact “agreed to disagree”. The member states agreed to the extent that, in case of qualified majority decisions, “where very important interests of one or more partners are at stake, the members of the Council will endeavour, within a reasonable time, to reach solutions which can be adopted by all the members of the Council”. The point of disagreement is laid down in the second paragraph: “With regard to the preceding paragraph, the French delegation considers that where very important interests are at stake the discussion must be continued until unanimous agreement is reached”.165 The second paragraph is in fact contrary to the provisions in the EC Treaty prescribing qualified majority voting. The constitutional crisis which this represented marked the beginning of a prolonged period of decision-making by consensus in the Council, which came to a gradual end only in the 1980s, partly as a consequence of the enlargement of the Communities to twelve members.166 In the first half of 1986, the Council took over forty decisions by qualified majority – a tripling of the figure of the first half of 1985.167 In 1987, the Council amended its rules of procedure. Under the new rules, the Council votes on the initiative of its President, who is obliged to initiate the voting procedure at the request of a member state or of the Commission whenever a majority of the members are in favour. Furthermore, items on which a vote could be requested must be specified in the provisional agenda, which must be sent to the member states at least sixteen days before

165.

166.

167.

See for the text of the Luxembourg Accords: EEC Bulletin 8 (1966 no. 3). On this crisis, see E. Kobbert, Eine stille Revision der EWG, Europa Archiv, 25 Febr. 1966, at 119-122; R. Hillmann, Schlussakt einer Krise, Europa Archiv, 10 April 1966, at 259-268; J. Lambert, The Constitutional Crises 1965-66, 4 JCMS 195-228 (1966); T. Oppermann, in Archiv des öffentlichen Rechts, 91 Heft, 1 June 1966, at 114-116; H. Mosler, National- und Gemeinschaftsinteressen im Verfahren des EWG-Ministerrats: Die Beschlüsse der ausserordentlichen Tagung des EWGRates in Luxembourg vom 29. Januar 1966, 26 ZaöRV 1-32 (1966); F. Bellanger, Contribution à l’Etude de la Nature juridique des “Accords de Luxembourg” du 29 Janvier 1966, 15 NedTIR 179-196 (1968); Kapteyn and VerLoren van Themaat, op. cit. note 30, at 400-402; A.L. Teasdale, The Life and Death of the Luxembourg Compromise, 31 JCMSt. 567-579 (1993). See Kapteyn and VerLoren van Themaat, op. cit. note 30, at 402-404; J.-L. Dewost, Le vote majoritaire: simple modalité de gestion ou enjeu politique essentiel?, in F. Capotorti et al. (eds.), Du droit international au droit de l’intégration: Liber Amicorum Pierre Pescatore 167-175 (1987). See OJ 1986, C 306/42; Kapteyn and VerLoren van Themaat, op. cit. note 30, 2nd ed. (1990), at 250, footnote 269.

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the meeting.168 The general acceptance that majority voting was no longer taboo generated a new dynamism in decision-making, inspiring delegations to greater flexibility.169 In addition, it also led to a renaissance of decisionmaking by consensus, in cases where it was clear that the required majority existed and no formal vote was necessary.170 This most recent type of consensus in decision-making in the Council should be clearly distinguished from the “Luxembourg-type”. In case of the latter, no decision can be taken if there is no consensus; in case of the former, a decision will be taken by majority vote. Thus the “threat” to member states of being outvoted only became effective in the mid-1980s. C.

Explaining the decline of majority voting and the rise of consensus

§781. If an attempt is made to understand the rise and current popularity of consensus as a method of decision-making in international organizations, it is useful to refer first to the general development of decision-making rules and practices, before placing consensus in the context of the general development of decision-making in international organizations. §782. In most national and other communities, decision-making by unanimity has preceded majority decision-making.171 Sociologists consider decisionmaking by unanimity as characteristic of primitive societies. In these groups, the need to reach understanding and to take decisions generally leads to a subsuming or strong identifying of the interests of the individual with those of the group. Only later does the veto become the dominant feature of the concept of unanimity. It is important to understand the true nature of unanimity in early national and other communities. The conviction that a decision has to be taken implies a need to compromise and, thus, the existence of “invisible” minorities behind the seeming unanimity. Opponents of certain decisions have often been forced,

168. 169.

170.

171.

Rules of Procedure of the Council, Arts. 11 and 3 (as published in OJ 2002, L 230/7). See also 20th Report on the Activities of the Communities – 1986, at 36. Nevertheless, in exceptional cases member states have threatened to invoke the Luxembourg Accords and block decision-making even where they can be outvoted under the Treaties. E.g. France, in case of the Blair House agreement concluded between the Commission and the US (see Europe, Nos. 6067-6069 (September 1993)), and in case of the OECD Arrangement on Shipbuilding (see Europe, No. 6336 (October 1994)). See for other examples, Raworth, op. cit. note 71, at 75-76; V. Götz, Mehrheitsbeschlüsse des Rates der Europäischen Union, in O. Due et al. (eds.), Festschrift für Ulrich Everling 339-353 (1995). See the General Reports on the Activities of the Communities/European Union, published annually; specific sections devoted to voting in the Council (e.g. General Report 1999, at 376). See A.J.P. Tammes, Hoofdstukken van Internationale Organisatie 7 (1951). Most of what follows is based on this early and very thorough study, which in turn is partly based on important German studies, in particular O. von Gierke, Das Deutsche Genossenschaftsrecht (4 volumes, published between 1868 and 1913).

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morally as well as physically, to agree. Historically and theoretically, the transition to the majority principle is implied in the imperfection of the procedure of unanimity.172 At the national level, this transition could take place freely as a result of the existence of a sense of belonging to one community sharing certain basic values. This “consensus” is accompanied by a willingness to accept outvoting in day-to-day decisions. The minority in such decisions taken today might be the majority behind decisions of tomorrow. Moreover, the shared basic values remain unaffected or change only slowly.173 §783. At the global level, international organizations could traditionally take decisions almost exclusively by unanimity,174 in a manner similar to decisionmaking in the early national and other communities. The unanimity rule was laid down in the rules of 19th century organizations, largely as a consequence of the principle of state sovereignty. It was also the basic rule for decisionmaking in the League of Nations.175 The International Labour Organization was a precursor in respect of its voting rules, as in other areas of international institutional law: labour conventions can be adopted by a two-thirds majority. However, it was with the creation of new organizations during and shortly after the Second World War that a truly new age dawned. Decision-making by majority vote became the rule in universal organizations. In 1945 Jenks wrote that “the battle to substitute majority decision for the requirement of unanimity in international organization has now been largely won”.176 This development has been explained by the spirit of cooperation prevailing at the time, and also by the dominant role played by the United States, with its traditions of democracy and majority voting at home.177 In practice however, Jenks’ conclusion proved premature. After 1945, majority voting in a number of organizations proved to be a bridge too far. Majority voting met with increasing resistance, and organizations had recourse to decision-making by consensus in an increasing number of cases. Originally, this development took place in practice only: organizations that had to take decisions by two-thirds or by simple majority in practice started to take decisions without voting. Subsequently, a number of organizations codified this practice and officially prescribed that decisions preferably or exclusively had to be taken by consensus. Thus, although the situation is not the same for every

172. 173. 174.

175. 176. 177.

Id., at 8. Id., at 12-15; Zemanek, op. cit. note 135, at 869-870. An early exception is the UPU Constitution of 1874, providing for majority voting. In practice, however, majority voting was the exception; in principle, UPU worked in a spirit of unanimity. See C.H. Alexandrowicz, World Economic Agencies, Law and Practice 15-16 (1962). League Covenant, Art. 5 (excepting matters of procedure). C. Wilfred Jenks, Some Constitutional Problems of International Organizations, 22 BYIL 34 (1945). Zemanek, op. cit. note 135, at 867.

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organization, three stages may be distinguished in decision-making by international organizations: unanimity, majority voting and consensus. §784. The most common explanation for the development of decision-making by consensus is the expansion of membership of international organizations following the years of decolonization. Developing countries obtained large voting majorities in global organizations. As a result, “the key problem in contemporary international decision-making is the divorce of power from voting majorities [...]. This renders majority voting increasingly useless for law-making decisions because of the danger of powerful alienated minorities”.178 At the same time, it is interesting to note that decisions were taken mainly by consensus in organizations where no such separation took place because the rules for decision-making provided for weighted majority voting (IMF, World Bank). These organizations take most of their decisions by consensus, partly in response to fierce opposition of developing countries to the possibility that a few rich member states could set policies in these organizations against their interests.179 A more basic explanation for the development of decision-making by consensus is that the international community was in fact not yet ripe for “majoritarianism”,180 when majority voting was introduced in a number of universal organizations. The social conditions of today’s decentralized international society, in which there is little volonté générale and in which more values and interests increasingly conflict, do not meet the requirements for a general application of majority voting.181 As long as might and majority coincided, this immaturity remained concealed. However, as soon as the powerful started to be outvoted, the problem could no longer be ignored. §785. The solution to the problem was consensus, because this reconciles the apparently irreconcilable. Like unanimity, it fully respects sovereignty, and in common with majority voting, it fully takes into account the interests of the majority of states. Finally, it acknowledges the differences in power and interests between states. This is not to say that taking decisions by such a magic formula has no drawbacks. Among the disadvantages of this manner of proceeding, frequent mention is made of the private character of negotiations,

178. 179.

180. 181.

B. Buzan, Negotiating by consensus: Developments in Technique at the United Nations Conference on the Law of the Sea, 75 AJIL 326 (1981). See Gold, op. cit. note 114, at 195; R.M. Besteliu, The Procedure of Consensus in the Adoption of Decisions by the International Monetary Fund and the International Bank for Reconstruction and Development, 11 Revue Roumaine d’Etudes Internationales 517-526 (1977); S. Zamora, Voting in International Economic Organizations, 74 AJIL 566-607 (1980). This term is used by I. Claude, Swords into Plowshares: the Problems and Progress of International Organization (4th ed. 1971), Chapter 7. Zemanek, op. cit. note 135, at 871, 879; Claude, op. cit. note 180, Chapter 7. Cf. also H. Rolin, De la volonté générale dans les organisations internationales, in: La technique et les principes du droit public, études en l’honneur de Georges Scelle 553-564 (1950).

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leaving no room for extensive public records which might facilitate the solution of future questions of interpretation; furthermore, negotiations are usually timeconsuming and the content of decisions may be excessively watered down through almost endless compromises. §786. To some extent, consensus resembles the unanimity rule, as it existed in primitive societies. This traditional rule of unanimity also disguised majorities and differences of interests and power. As in these societies, the transition to a general application of majority voting at the global level, in universal international organizations, seems only possible at a more advanced level of social integration. In the meantime, the application of majority voting will mostly be limited to decision-making in some regional organizations, and to decision-making on procedural and technical matters in universal organizations.

VI. Voting A.

Unanimity

§787. Taking decisions by unanimity has both advantages and disadvantages. On the one hand, prolonged negotiations often produce only weak compromises or sometimes culminate in no decision at all. Particularly in large organizations, granting each member a right of veto could in effect paralyze the decision-making process. On the other hand, the requirement of unanimity offers two advantages. (1) Many states will participate more readily in an organization if they are sure that they can not be outvoted. This is particularly true when an organization is able to take binding decisions, notably for states that expect to form part of a minority in the organization. (2) The implementation of decisions will be easier if they have been supported by all member states. 1.

Organizations requiring unanimity

§788. Unanimity was required for most decisions of the League of Nations.182 This precedent was not followed in the UN. With only a partial exception for the Security Council (see below, §813), the Charter provides that all UN decisions must be taken by majority vote. The specialized agencies can also take almost all decisions by majority, as can the African Union and the OAS. It should however be noted that the powers of all these organizations are generally limited to making recommendations.

182.

LoN Covenant, Art. 5. On its application, see J. Fischer Williams, The League of Nations and Unanimity, 19 AJIL 475-488 (1925).

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In smaller organizations, a requirement for unanimity is more common. Unanimity is the rule in Benelux, OECD, EFTA, and OPEC.183 In the Council of Europe, ESA, and the European Union, unanimity is required in many cases.184 Under the Agreement on Andean Subregional Integration (Cartagena Agreement), unanimity is required in most cases. Many proposals receiving one negative vote can however be re-submitted after two to six months and the state that previously cast a negative vote is precluded from doing so again.185 In its resolution of 4 October 1963, the Conference (general congress) of the Latin American Free Trade Association (the predecessor of the Latin American Integration Association (LAIA)) considered that experience with the LAFTA Treaty demonstrated the necessity for the gradual elimination of the unanimity rule. The Conference accordingly requested the member states to increase the number of fields in which decisions could be taken by a qualified majority.186 Thus, the LAIA constitution provides that, as a rule, decisions of the main organs be adopted by majority vote. However, in a number of important fields, decisions must be taken by a two-thirds affirmative vote and in addition there must be no vote against.187

2.

Exceptions to unanimity

§789. The high threshold set by the requirement of obtaining unanimity may be reduced by providing that abstention or absence of one or more members will not form a barrier to the adoption of the decision (see below, §824). Are the parties to a dispute entitled to block unanimity on a decision concerning their dispute? This question arose in the Council of the League of Nations when a boundary dispute between Turkey and Great Britain (representing Iraq) was discussed. The Council could not achieve complete unanimity because of the objection by Turkey. It requested an advisory opinion of the Permanent Court of International Justice on the question whether the validity of the Council’s (otherwise unanimous) decision was affected by the dissenting vote of an interested party. The Court answered in the negative, holding that “according to the Covenant itself, in certain cases and more particularly in the case of the settlement of a dispute, the rule of unanimity is applicable, subject to the limitation that the votes cast by representatives

183. 184.

185. 186. 187.

Benelux, Art. 18; OECD, Art. 6; EFTA, Art. 32; LAFTA, Art. 38; OPEC Art. 11c. CoE, Art. 20; ESA, e.g. Arts. 11.5(a), 14.1, 16, 22; EC, e.g. Arts. 93, 94, 308; TEU, Art. 49. Over the years the number of provisions requiring unanimity for Council decisions taken on the basis of these provisions has been significantly reduced. Most recently, the 2001 Nice Treaty has replaced unanimity voting in some 40 EU and EC provisions with qualified majority voting. Agreement on Andean Subregional Integration, Art. 11b; Peaslee I, at 48. LAFTA Res. 68 (III); M.S. Wionczek, Economic Cooperation in Latin America, Africa and Asia 74-75 (1969). Art. 43.

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of the interested parties do not affect the required unanimity [...]. The wellknown rule that no one can be judge in his own suit holds good”.188 In the Security Council of the UN, where unanimity of the permanent members is normally required (see below, §813-815), the parties to a dispute must abstain from voting on decisions concerning the peaceful settlement of that dispute.189 §790. Under international law, the other parties to an international treaty are by unanimous agreement entitled to suspend the operation of a treaty with respect to a defaulting state.190 This could form a basis for allowing the other members of an international organization to take decisions without the approval of a defaulting member, even in cases where the constitution requires unanimity of all members. In practice, however, interested members usually participate in voting. In the Security Council of the UN a state has only once abstained from voting expressly on the ground of Article 27(3) of the Charter. In 1960, Argentina presented a draft resolution to the Security Council concerning the kidnapping of Eichmann from Argentina by Israeli forces. The Argentinian delegate expressly declared that pursuant to Article 27 (3) of the UN Charter he would not participate in the vote.191

In most international organizations, representatives are not disqualified from casting their votes when a decision directly affects their states.192 B.

Voting power

1.

Equality of voting power

§791. Most international organizations take at least some of their decisions by majority vote193 and base their decision-making process on the principle of equality of the voting power of all member states. In a few cases, however, the voting power of members is restricted to certain subjects. In the WMO, for example, members which are not states may not vote on amendments to the constitution, admission of new members, relations with other public international

188. 189. 190. 191. 192. 193.

PCIJ Rep. Series B, No. 12 (concerning the interpretation of Art. 3.2. of the Treaty of Lausanne (frontier between Turkey and Iraq)), 21 November 1925, at 31-32. UN Charter, Art. 27.3. Vienna Convention on the Law of Treaties, Art. 60 (2). P. Tavernier, L ’abstention des Etats parties à un différend: Art. 27, §3 in fine de la Charte. Examen de la pratique, 22 AFDI (1976), at 284, 289. See e.g. Gold, op. cit. note 114, at 111. One exception is Benelux.

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organizations or in several types of elections.194 Parties to disputes are usually permitted to participate in the voting when decisions are taken by majority vote.195 In some cases persons not representing governments of members can vote either in all policy-making organs,196 or in particular organs.197 Transfer of voting-power to the delegation of another member state is only permitted in organizations which accept voting by proxy (see above, §264-266).

§792. Equality of voting power for all member states is a poor basis for decision-making, unless it is supported by an equality of judgment or a parity of interest.198 Equality of judgment exists when all voters base their votes on the same factors, when they all take account of every interest involved. This is often the case in meetings of individual experts who are not nominated to represent specific interests. There is no reason why, on a specific technical question, the vote of a US expert should necessarily be of higher value than that of a Swiss or Luxembourg expert. Parity of interest is however rare in international organizations. Some delegates represent the interest of hundreds of millions of people, others only those of less than one million. As a rule, a delegate of a large state will represent more interests than his counterpart from a small state. But the size of the population is not the only consideration. The Icelandic delegate may represent more fishery interests, the Norwegian delegate more shipping interests, the Netherlands’ delegate more international trade interests, and the Swiss delegate more watch-makers interests than many delegates of larger states. Inequalities exist in so many fields that they are difficult to define. The only common dominator is that each delegation represents an independent government, responsible to its own people. §793. The difference between equality of voting-strength and inequality of the interests involved is a handicap for many international organizations. Under the system of equal voting power, member states which pay the bill for almost all an organization’s expenses often possess so little voting strength that they are unable to prevent it from undertaking new obligations. Similarly, members with vital interests in a particular field can be outvoted by members with virtually no interest at all. However, where the power of the organization is limited to advisory functions, equality of voting power seems to be accepted. Neither governments nor parliaments, however, will readily be prepared to charge international organizations with any stronger governing functions when they consider their interests to be unfairly represented.199

194. 195. 196. 197. 198.

199.

WMO, Art. 11(a). For the UN General Assembly, see 8 UNCIO, at 376. Representatives of workers and employers in all organs of ILO. E.g. in the European parliamentary organs. See also R. Wolfrum, The Protection of Regional or Other Interests as Structural Element of the Decision-Making Process of International Organizations, 1 Max Planck UNYB 1997, at 259-282. G. Clark and L.B. Sohn, World Peace though World Law 20-34 (1964).

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In some rare cases, the voting power of members depends on the subject involved. In the IMF, for example, only the participants in the Special Drawing Account are entitled to vote on matters concerning that account.200 2.

Inequality of voting power

§794. The inequality of the members’ influence on decision-making is reflected in different ways.201 a.

Permanent seats and weighted representation

The influence of particular states may be enlarged by allowing them plural membership (see above, §75, 77), by sending more representatives with full voting rights to the organization or by offering them permanent seats in nonplenary organs (see above, §282-283). b.

Weighted voting

(i) Desirability §795. Several systems of weighted voting have been considered as a means of compensating for the inequality of members.202 The main argument in favour of weighted voting is one of equality. It is considered unfair for the interests of a large population to be set aside in favour of the interest of two or three other populations which, even when combined, are smaller. Another argument for weighted voting is its mitigating effect on “trading” with votes. In systems where votes are not weighted, states which have votes but no substantial interests may vote in favour of a proposal in order to gain support for other proposals, instead of basing their vote on the issue involved. The effect of such abuses is decreased by giving states relatively fewer votes in matters in which they are not directly interested. §796. The main problem of weighted voting is the criterion on which extra weight should be given. Should it be population, national income, power, or some other criterion?

200. 201. 202.

See Gold, op. cit. note 114, at 5. See also J. Kolasa, “One State-One Vote” Rule in International Universal Organizations, 6 PYIL 215-243 (1974). C. Senf Manno, Selective Weighted Voting in the UN General Assembly, 20 International Organization 37-62 (1966), and further literature quoted there (at 37); C. Barret and H. Newcombe, Weighted Voting in International Organizations, Peace Research Reviews, April 1968; J. Gold, Weighted Voting Power: Some Limits and Some Problems, 68 AJIL 687-708 (1974); F.K. Lister, Decision-Making Strategies for International Organizations: The IMF Model (1984).

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As a rule, the size of the population seems the most suitable factor, but in several fields this does not seem appropriate. States like China and India, which would thus obtain the greatest voting strength, have limited interest in foreign trade, air navigation, or safety at sea, which are of great importance to smaller states such as the Netherlands and Norway. Several other criteria have also been considered. Voting power proportionate to financial contribution unduly favours the richer states (contributions are based on financial capacity, rather than on the interests involved (see below, §976-979)). Furthermore, this weighting may create problems if the decisions are so important that states would be prepared to pay larger contributions in order to obtain extra votes. Jenks observed in 1945: “Weighted voting is most readily attainable in an organization the functions of which are sufficiently circumscribed and well-defined to afford some simple basis for the selection of criteria of relative importance capable of securing general acceptance. Where an organization has a wide range of responsibilities, the factors to be taken into account in assessing the relative interest of its members either in its work as a whole or in particular decisions are likely to be too varied and imponderable and the relative weight to be attached to the different factors is likely to be the subject of acute controversy”.203

§797. Only when the interests involved are specific and isolated from other interests is it relatively easy to find a key for a weighted voting system. If an organization covers many different interests, the use of a weighted voting formula might be considered only for some isolated subject matters and either a non-weighted or a differently weighted voting system for other subjects. This will inevitably lead to problems in defining to which category a particular question belongs, and although clear preliminary definitions may limit such problems, they can never be entirely excluded. §798. The most important reason for introducing a weighted voting system is the need to acquire the cooperation of particular states. In the World Bank as well as in the regional development banks, insufficient money would have been made available had the donating states not obtained a preponderant influence in decision-making. When the African Development Bank gave too little influence to the states that paid most of the funds, insufficient funds were obtained. Consequently, when the African Development Fund was created, the voting power of the donor states was strengthened considerably. In the Fund 1,000 votes are cast by the African Development Bank and another 1,000 by the donor states.204 It is worth mentioning that once the developed states consider that they have sufficient influence in decision-making, they appear to be willing to increase their contributions without additional voting power.205

203. 204. 205.

C. Wilfred Jenks, op. cit. note 176. African Development Fund, Art. 29. Barents, op. cit. note 158, at 150.

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(ii) Some examples §799. The principle of weighted voting is an old one. At the peace conferences of 1919, the votes of the large powers were counted five-fold, those of the medium powers two- or three-fold, while the small states had only one vote.206 There is no weighted voting in the UN.207 Among the specialized agencies, the IMF and the World Bank use weighted voting for all decision-making. Their tasks are confined so precisely to one field that criteria for weighting can be agreed. The weighted voting is not, however, entirely based on financial factors. The fact that every state forms a separate, financially autonomous entity is also taken into account and in the determination of a particular member’s financial interests, political factors play an important role. It is no accident that, for example, the financial interests of Brazil and Argentina have been established at the same level. On the basis of both the individuality of the member states and their financial interests, the following system was accepted. (1) Every member state has 250 votes (the element of sovereign equality). (2) In the IMF: Every member state has one additional vote for each part of its quota, equivalent to one hundred thousand Special Drawing Rights.208 In the World Bank: Every member state has one additional vote for each share of stock held209 (the interest element). As a result of this system, the US has 371,743 votes in the IMF (17.16 per cent) and 265,219 in the World Bank (16,45 per cent). The Netherlands has 51,874 votes in the IMF (2.39 per cent) and 35,753 in the World Bank (2.21 per cent), the Maldives have 332 votes in the IMF (0.02 per cent) and 719 in the World Bank (0.04 per cent).210 The relative importance of the industrial states is declining. The US held 31.5 per cent of the votes in the IMF in 1947, but by 1975 this had dropped to 20.7 per cent; in the same period, the percentage of the African votes rose from 0.4 to 7.8 per cent.211 In the international community, where the principle of equality of states is predominant, the voting strength in the IMF and World Bank is so disproportionate that it produces resistance to voting.212 Consequently, where possible these organizations tend to avoid voting.

206. 207. 208. 209. 210. 211. 212.

13 AJIL Suppl. 156-186 (1919). Manno, op. cit. note 202, at 37-62. IMF, Art. XII, Section 5(a). The distribution of votes is different for voting on certain transactions, see Art. 5, Section 5(b). World Bank, Art. V, Section 3. Data for IMF from the 2002 Annual Report, at 146-149, and from www.imf.org. Data for the World Bank from the 2002 Annual Report, at 120, and from www.worldbank.org. R.M. Jeker, Voting Rights of Less Developed Countries in the IMF, 12 JWTL 218-227 (1978). J. Gold, General Council of the FUND, in Schwebel, op. cit. note 3, at 85, 417. See also above, §779.

541

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§800

§800. A voting system similar to that of the IMF and World Bank is used by the regional development banks. The relative differences in voting strength used to be much smaller in the regional development banks, because there the element of sovereign equality is larger (see above §799),213 but this situation is gradually changing.214 In the African Development Bank, the strongest members (Nigeria, Egypt and the US) hold 10.3, 6.0 respectively 5.8 per cent of the votes, the weakest (Comores) holding 0.066 per cent.215 In the Asian Development Bank, the strongest members (US and Japan) each hold about 13 per cent of the votes, the weakest 0.340 per cent (Tuvalu) and 0.341 per cent (Cook Islands; Marshall Islands).216 In the Caribbean Development Bank, the strongest members are Jamaica, Trinidad and Tobago (each 16.1 per cent of all votes), Canada and the United Kingdom (each 10.19 per cent). The five memberterritories are considered as one member for this purpose and together have 1.09 per cent of all votes; the weakest member states (Belize, Dominica, Grenada, St. Lucia, St. Vincent and the Grenadines, Antigua and Barbuda, St. Kitts and Nevis) each hold 0.92 per cent of the votes.217 The Inter-American Development Bank forms the exception here, since in that organization the element of sovereign equality is weaker, although the differences in voting strength have been reduced over the years. Thus, the US holds 30 per cent of the votes, the five smallest regional developing members between 0.09 and 0.21 per cent each, and the eight smallest non-regional members between 0.03 and 0.17 per cent.218

§801. On the boards of all financial organizations each board member is entitled to cast all the votes of the members he represents (see above, §290). Therefore, the total number of votes cast in these boards is the same as in the general congress. Generally, every member of the board must cast all his votes as a unit.219 §802. Weighted voting is also used in the International Fund for Agricultural Development (IFAD). When it was established in 1977, this organization had three categories of members: Western states, oil producing countries and developing states. Each category had 600 votes, which were distributed in

213. 214. 215. 216. 217. 218. 219.

J. Syz, International Development Banks 34 (1974). Compare the figures given here to the figures presented in the 2nd edition (at 399-400) and in the 3rd edition (at 523). African Development Bank, Annual Report 1992, at 104-105, 122. Asian Development Bank, Annual Report 2001, at 274. Caribbean Development Bank, Annual Report 1990, at 110. Inter-American Development Bank, 2001 Annual Report, at 121. Cf. also the 2nd ed. (at 400) and the 3rd ed. (at 523). For example, MIGA, Art. 42(a). An exception to this rule is the Common Fund for Commodities (see below, §805). Rules of Procedure of the Executive Board, Rule 22. Another exception is the Global Environment Facility (see the ‘Instrument for the Establishment of the Restructured Global Environment Facility, para. 25(c)(ii), 33 ILM (1994), at 1291).

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different ways. In the Western group, 105 votes were equally divided and 495 were distributed on the basis of contributions. In the oil producing group, 150 votes were equally divided and 450 distributed on the basis of contributions. By contrast, in the group of developing states, all votes were equally divided.220 This voting power system was changed in 1995; the agreed amendments of the constitution entered into force in 1997. Whereas previously there was a formal equality group system (each of the three categories of members having 600 votes), in the new system there is a stronger relationship between the voting power and the contribution paid by members. The new system is somewhat complex. As provided for in Article 6, Section 3(a) of the amended constitution, the total number of votes in the Governing Council (IFAD’s general congress) is now comprised of original votes and replenishment votes. All members have equal access to those votes on the following basis: (i) original votes consist of a total of 1800 votes made up of membership votes (distributed equally amongst members) and contribution votes (distributed amongst members on the basis of each member’s cumulative paid contributions to the resources of IFAD); (ii) replenishment votes, made up of membership votes (distributed equally amongst members) and contribution votes (distributed amongst members in proportion to each member’s paid contribution for each replenishment), in a total amount of votes to be decided by the Governing Council upon each occasion that it calls for additional contributions under Section 3 of Article 4 of the constitution (a “replenishment”).221 As at January 2003, the United States had 204.929 votes (some 9 per cent of all votes), Saudi Arabia 137.230 (some 6 per cent) the Netherlands 69.726 (some 3 per cent), and Maldives 6.311 (some 0.3 per cent).222 It is expected that these voting numbers will change in the course of 2003, following the implementation of the 6th replenishment.

§803. In the Global Environment Facility, decisions are normally taken by consensus. However, if “no consensus appears attainable, any member of the Council may require a formal vote”. Decisions requiring a formal vote are taken “by a double weighted majority, that is, an affirmative vote representing both a 60 per cent majority of the total number of participants and a 60 per cent majority of the total contributions.223 This is in fact a combination of the one-state-one-vote system (60 per cent of the total number of participants (element of sovereign equality)) and a system based on economic strength (60 per cent majority of the total contributions (the interest element)). §804. Several international commodity councils allot one thousand votes to the importing members collectively and another thousand to the collective

220. 221. 222. 223.

IFAD, original Art. 6, Section 3; Schedule II; Rule 33.1 of the Rules of Procedure of the Governing Council. IFAD, Art. 6, Section 3(a). IFAD Doc. GC 24/Res.119/XXIV/Rev.1 (October 2001), attachment C. Instrument for the Establishment of the Restructured Global Environment Facility, para. 25 (33 ILM (1994), at 1291).

543

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§805

exporting members. Within each group these votes are distributed according to interest, although some attention is paid to the element of sovereign equality. For example, in the International Sugar Council, the element of sovereign equality is represented by the principle that every member has at least six votes. The size of exports or imports (reflecting the interest principle) determines the number of votes given in addition to this basic vote. Under the 1992 International Sugar Agreement, for example, the EEC has 332 votes, Cuba 151, Sweden 15 and Guyana 6.224 Other commodity councils have similar rules. For example, each member of the International Coffee Council has five basic votes, and the remaining votes for exporting and importing members are divided in proportion to the average volume of their exports and imports in the preceding four calendar years.225 Essentially the same system is applied by the Multilateral Investment Guarantee Agency, which has two categories of member states: ‘Category One’ (developed or home) countries and ‘Category Two’ (developing or host) countries.226

§805. Another system of weighted voting can be found in the Common Fund for Commodities, where the votes are distributed between the developing states (47 per cent), the Western industrialized states (42 per cent), the Eastern European states (8 per cent) and China (3 per cent).227 Each member state has 150 basic votes (element of sovereign equality), and a number of additional votes related to the shares of directly contributed capital which it has subscribed (interest element). The smallest member states have between 301 and 310 votes, Brazil 1024, Germany 4362 and Japan 5502 votes.228 The most important decisions are taken by a majority of three quarters of the total votes cast, other decisions, depending on their relative importance, by a majority of two thirds or by a simple majority. However, the rules of procedure of the Governing Council and the Executive Board provide that, whenever possible, decisions shall be taken without a vote.229 §806. In the International Energy Agency, every member state has three general voting weights (the element of sovereign equality) plus one to forty-six voting

224. 225. 226. 227. 228. 229.

International Sugar Agreement, Art. 25 and Annex. The precise number of votes is revised on an annual basis according to the procedure laid down in Art. 25.3. International Coffee Agreement 2001, Art. 13. A slightly different system is applied for the International Cocoa Council; see Art. 10 of the 2001 International Cocoa Agreement. MIGA, Art. 39. See I.F.I. Shihata, The World Bank in a Changing World (selected essays, compiled and edited by F. Tschofen and A.R. Parra, 1991), at 329-330. UNCTAD, Fundamental elements of the Common Fund, para. 24, see 13 JWTL (1979), at 361. Agreement establishing the Common Fund for Commodities, Schedule D; Annual Report 2001, at 6-8. Rules of Procedure of the Governing Council, Rule 30; Rules of Procedure of the Executive Board, Rule 23.

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weights based on oil consumption.230 Currently the US has 46 combined voting weights, Japan 17, the UK and Italy each 8, Canada 7and the Netherlands 4. §807. In the International Maritime Satellite Organization, voting power depends on shares held in the organization, as in a private company.231 §808. An interesting voting system was developed in the International Institute of Agriculture, the precursor of the FAO. In this organization, which was established in 1905, the member states could choose whether they wanted 16, 8, 4, 2, or 1 vote but a higher number of votes also involved a duty to pay higher contributions (respectively 5, 4, 3, 2, or 1 unit). Such a system is only workable when votes are apportioned according to financial interests. However, where votes are considered to be more important than contributions, every state might choose the highest class regardless of its means. The system is rarely followed elsewhere. It was also used in the International Red Locust Control Service.232 Here, however, not the members but the treaty and the general congress decided in which class they would be placed. In the International Red Locust Control Organization for Central and Southern Africa, which succeeded the Service in 1970, each member has one vote. §809. The European Union has a weighted voting system for most Council decisions. Germany, France, Italy and the United Kingdom have ten votes each, Spain eight, Belgium, Greece, the Netherlands and Portugal five, Austria and Sweden four, Denmark, Finland, and Ireland three, and Luxembourg two. A decision can be adopted by sixty-two votes in favour. In order to give some additional weight to the general European interest, and to protect the interests of the smaller member states,233 an additional provision was inserted in the constitutions of the European Community and Euratom to the effect that where these treaties do not require the decision in question to be adopted on a proposal from the Commission (which is exceptional), the sixty-two votes required must come from at least eleven member states.234 Thus the “blocking minority” (i.e. the minimum number of votes required to prevent a draft decision from being adopted by qualified majority) is twenty-

230.

231. 232. 233.

234.

IEA, Art. 62, and information provided by the IEA Secretariat, January 2003. See further R.H. Lauwaars, Some institutional aspects of the International Energy Agency, 12 NYbIL 113145 (1981). INMARSAT, Art. 14(3), 15 ILM (1976), at 1058. International Red Locust Control Service, Art. 3(b). As has rightly been commented, the presumption is that the interests of the smaller countries are safer in the hands of the Commission than in those of a Council majority principally made up of the larger member states. Kapteyn and VerLoren van Themaat, op. cit. note 30, at 400. EC, Art. 205.2; Euratom, Art. 118. See also: Besluitvorming in de Europese Gemeenschappen: theorie en praktijk, 10 Europese Monografieën (1968).

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§809A

six votes. During the negotiations for accession to the Union by Austria, Finland, Sweden, and Norway (which in the event did not join as a result of the rejection of accession in a referendum), it proved to be very difficult to agree on adjustments to these voting rules. Spain and the UK were firmly opposed to the new rules, and final agreement was only reached in the socalled Ioannina compromise (29 March 1994). This was amended after the nonaccession by Norway and now provides, inter alia: “If the members of the Council representing a total of 23 to 25 votes indicate their intention to oppose the adoption by the Council of a decision by qualified majority, the Council will do all in its power to reach, within a reasonable time and without prejudicing obligatory time limits laid down in the Treaties and by secondary law [...] a satisfactory solution that could be adopted by at least 65 votes”.235 §809A. This weighted voting system of the European Union has been the subject of difficult negotiations since the mid-1990s. At the time it was expected that a number of states in Central and Eastern Europe would become members of the Union within a few years. Whereas in the previous rounds of accessions the weighted voting system remained unaffected (the ‘old’ members kept their number of votes; votes were given to the new members applying the existing principles for determining their weight), this time it was considered necessary to reconsider the system as such. Decision-making in the Council with twentyfive members is completely different from decision-making with six members for which the original system was devised. In addition, the successive enlargements of the Union increased the need to further limit decision-making by unanimity and replace this by qualified majority voting; otherwise decisionmaking in the Union could become paralyzed. This need for more qualified majority voting also increased the interest in a proper weighting system. In particular, the large members considered that over the years their relative voting strength had considerably decreased with the accession to the Union of almost exclusively small or not-so-large states.236 While there was agreement from the outset that the weighted voting system of the Union had to be rebalanced in order to prepare for the expected enlargement, it proved to be extremely difficult to come to an agreement on this issue. The 1996-1997 Intergovernmental Conference failed in this respect. Thus the old wisdom was confirmed that it is difficult to agree on voting weights where an organization has a wide range of responsibilities and functions that are not “sufficiently circumscribed and well defined to afford some simple basis

235.

236.

See OJ 1994, C 105/1 (original text of the Ioannina compromise), and OJ 1985, C 1/1 (the amendment of this compromise). On the Ioannina compromise, see Kapteyn and VerLoren van Themaat, op. cit. note 30, at 405-408; G. Poensgen, Das Paradox von Ioannina: Betrachtungen zu einem Ratsbeschluß, in O. Due et al. (eds.), Festschrift für Ulrich Everling 1133-1140 (1995). See further N.M. Blokker and T. Heukels, The European Union: historical origins and institutional challenges, in T. Heukels, N. Blokker and M. Brus (eds.), The European Union after Amsterdam – A Legal Analysis 9-50 (1998), in particular at 38-48.

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for the selection of criteria of relative importance capable of securing general acceptance”.237 Only in the 2001 Nice Treaty a new system was agreed.238 This system will apply as of 1 January 2005. The new votes are as follows: twenty-nine (now: ten) for the large members, twenty-seven (now: eight) for Spain, Netherlands thirteen (now: five), Belgium, Greece and Portugal twelve (now: five), Austria and Sweden ten (now: four), Denmark, Finland and Ireland seven (now: three), and Luxembourg four (now: two). It is clear from these figures that the relative voting strength of the large members has increased, but not too much. The biggest increase in relative voting strength has been given to Spain – it is the only member that will have more than three times as many votes as it has now. As of 1 January 2005, the threshold for adopting Council decisions is 169 votes in favour (the total amount of votes being 237). In addition, it will be required that Council acts need the support of at least the majority of member states where they have to be adopted on a proposal from the Commission; in other cases a two-thirds majority of the member states is required. In addition, the member states constituting the qualified majority must represent at least 62 per cent of the total population of the Union.239 §810. Eurocontrol (European Organization for the Safety of Air Navigation) uses weighted voting based on the annual contributions of the members. Members paying less than 1% of the total annual contributions of all the parties have one vote; members paying 30% or more have 16 votes.240 As of April 2002, thirteen member states (Albania, Cyprus, Croatia, Finland, Hungary, Luxembourg, the FYR of Macedonia, Malta, Moldova, Monaco, the Slovak Republic, Slovenia and the Czech Republic) have one vote; three members (Germany, France and the United Kingdom) have eleven votes.241 §811. The casting vote of a president is a moderate form of weighted voting. Only in cases of deadlocks the presidents of certain organs have a second vote for solving a problem (see below §840).

237. 238.

239. 240. 241.

See the quotation from the 1945 study by Jenks at the bottom of §796 above. See the Protocol on the enlargement of the European Union agreed in Nice, OJ 2001, C 80/49. According to Art. 3.1 of this Protocol, Art. 205 EC will be amended as of 1 January 2005 to include the new rules on the weighting of votes in the Council. See on these new rules and the preceding negotiations A. Moberg, The Nice Treaty and Voting Rules in the Council, 40 JCMS 259-282 (2002); G. Tsebelis and X. Yataganas, Veto Players and Decisionmaking in the EU After Nice: Policy Stability and Burocratic/Judicial Discretion, 40 JCMS 283-307 (2002). Id. Eurocontrol Revised Convention (1997), Art. 11. Information from the Eurocontrol Secretariat (January 2003).

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§812

Another moderate form of weighted voting is in the requirement that in addition to a majority of the votes, the states voting in favour should collectively pay a majority of the financial contributions to the organizations.242 §812. In international organizations in which weighted voting is used, it is not always clear whether it is intended that the system be extended to cover subsidiary organs.243 Extension would seem logical for other policy-making organs, but not for tribunals and procedural commissions. Ideally the constitutions of the organizations in question will contain provisions on this matter. c.

Veto

§813. In some cases where decisions are taken by majority vote, the majority must include some specified member states. The effect of such a requirement is to make the decision-making process for these states the same as if unanimity was required, while for the others decision-making is simply by majority. By giving a right of veto to the states whose cooperation is essential, the advantages of decision-making by unanimity can partly be combined with those of decision-making by majority vote. The best known example of a right of veto is offered by the Security Council of the UN.244 It can adopt no important decision that is opposed by one of the five principal Powers of 1945. In order to be able to use the veto at any occasion, these five members needed to be permanent members. Only procedural questions cannot be subject to a veto. This makes it necessary to distinguish between procedural and non-procedural questions. The principal Powers submitted a memorandum on this distinction when the UN was established.245 The smaller member states have continuously tried to move the borderline in favour of procedural questions, or at least to clarify the sort of decisions to which the right of veto would not apply. In 1948, the Interim Committee of the General Assembly established a “list of possible decisions of the Security Council”,246 and a “classification by categories of possible decisions of the Security Council”.247 This classifies every possible decision as either procedural or non-procedural. On 14 April 1949, the General Assembly adopted a resolution giving its opinion on which questions should be

242. 243. 244.

245. 246. 247.

European Centre for Medium-Range Weather Forecasts, Art. 6 (2), Trb. 1974, 7. Gold, op. cit. note 114, at 203. UN Charter, Art. 27.3. On the right of veto in the UN, see A.V. Patil, The UN Veto in World Affairs 1946-1990 – A Complete Record and Case Histories of the Security Council’s Veto (1992). See also S. Morphet, Resolutions and vetoes in the UN Security Council: their relevance and significance, 16 Review of International Studies 341-359 (1990). Bailey and Daws, op. cit. note 139; for a list of the 242 vetos expressed between 1945 and 1997, see id., at 231-238. See also P. Tavernier, in J.-P. Cot and A. Pellet (eds.), La Charte des Nations Unies (2nd. ed. 1991), at 509-510. 11 UNCIO, at 711-714; YUN 1946-47, at 23 ff.; Simma, op. cit. note 14, at 481-482. YUN 1947-48, at 291-295. YUN 1947-48, at 295-296.

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considered as procedural.248 The notion “procedural” in this classification is rather broad.249 Procedural questions should include: the submission to the General Assembly of any question relating to the maintenance of peace; a request to the Secretary-General for the convocation of a special session of the General Assembly; the approval of credentials; the establishment of subsidiary organs; decisions on the rules of procedure; questions concerning the agenda; invitations to states to participate in Security Council debates.

§814. Notwithstanding these clarifications, disagreement may still arise as to whether or not a particular proposal is procedural. According to their original intention, the principal Powers would also have a right to veto any suggestion that a proposal is procedural (the so-called double veto). This would provide the only guarantee against any important decision being taken against the will of a veto Power by declaring it procedural.250 The fears that the double veto might lead to the indefinite expansion of substantive matters subject to the veto, have not been vindicated.251 §815. The right of veto cannot be used by a party in the peaceful settlement of a dispute.252 Here too, problems can easily arise. What is a dispute, and what is only a dangerous situation in which there is a right of veto?253 The Interim Committee of the General Assembly considered that the question of whether there is a dispute is a procedural matter and therefore not subject to a veto, and also provided a more specific definition of the notion “dispute”.254 In practice, states hardly ever abstain merely because they are a party to the dispute concerned (see above, §790). The practical effect of a veto is often more limited than one would expect. Bailey demonstrated that the veto could have been used in 186 items of which the Security Council has been seized in the period between 1945 and 1987,

248.

249. 250.

251. 252. 253. 254.

GA Res. 267 (III); YUN 1948-49, at 429. More recently various suggestions regarding the use of the veto have been made within the context of the Open-ended Working Group on the Question of Equitable Representation on and Increase in the Membership of the Security Council and Other Matters related to the Security Council; see the annual reports of this working group of the UN General Assembly, e.g. UN Doc. A/55/47, in particular at 9-17. It is wider than the notion of “procedural” which has been used above when discussing procedural motions (§349-350). For examples of the application and non-application of the double veto, see Bailey and Daws, op. cit. note 139, at 240-249. The issue of the double veto has not arisen since 1959. See also UNJY 1986, at 283-285. Claude, op. cit. note 180, at 142. Claude’s conclusion still holds true today. UN Charter, Art. 27.3. Bailey and Daws, op. cit. note 139, at 251-257, give several examples. See also UNJY 1986, at 283-285. YUN 1947-48, at 292, item 22.

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but in fact there were no vetoes in connection with 127 of these 186 items.255 His conclusion based on a detailed analysis of the use of the veto in this period is that “assertions that the Security Council is impotent because of the veto cannot be substantiated”.256 §816. The member states of the Andean Common Market have a right of veto on a list of subjects contained in an annex to the constitution. On another list of subjects they have a right of veto only in a first voting round. This latter veto postpones decision-making for two to six months, during which period the proposal must be reconsidered. After that period of reconsideration, it can be adopted according to the same procedure as in the first voting round, but the member state which exercised a veto in the first round cannot do so again.257 C.

Required majority

1.

Kinds of majorities

§817. The terminology used for different kinds of majorities is not entirely consistent. Four kinds of majorities will be distinguished: (a) The smallest possible majority is a simple majority, which is more than half of the voters who actually vote (i.e. disregarding abstention). (b) When qualified majority is required, a proposal can only be adopted by a given percentage of the votes, which is higher than for a simple majority. Thus, how much higher this percentage should be depends on the number of votes counted. Out of four votes all percentages up to 75 (3 votes), would still lead to a simple majority; out of 400 votes, 51 per cent (204 votes) would already be a qualified majority.

The most common qualified majority is two-thirds but other qualified majorities (e.g. three-quarters or three-fifths) are also used. (c) A relative majority is larger by a number of votes than the number that is obtained for any other solution. In a case where the voters have a choice between two alternatives, relative majority is the same as a simple majority. However, if there is a choice between more than two alternatives it may be considerably less than the number of votes required for a simple majority. When, out of three possibilities, one receives 40 per cent of the votes and the others 30, the first is adopted if a relative majority is sufficient. (d) An absolute majority is a number of votes greater than the number that possibly can be obtained at the same time for any other solution. If one choice is to be made from two or more alternatives, an absolute majority is the same

255. 256. 257.

See the second edition (1988) of Bailey, op. cit. note 139, at 210. Id., at 214. Cartagena Agreement, Art. 11 (Peaslee I, at 48).

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as a simple majority, but when several votes are cast at the same time for several alternatives the situation is different. In practice, this kind of majority is used in multiple elections (see below, §849). Again, this may best be illustrated by an example: if, in a multiple election, 50 voters have to elect 6 members for a commission, they cast a total of 300 votes, i.e. enough for 11 candidates to obtain 26 votes or more. An absolute majority, therefore, should be substantially larger than a majority of the voters. A majority of the votes (151), on the other hand, would be impossible to obtain for any candidate. The absolute majority should therefore be somewhere between the majority of the votes and the majority of the voters. It is the smallest number of votes required to ensure that the number of candidates chosen cannot exceed the number of vacancies available. In the above example, that would be a majority of 43 (six candidates may obtain 43 votes – 6 x 43 is less than 300 (258) –, but seven candidates cannot – 7 x 43 is more than 300 (301)). An absolute majority in this sense is used by the FAO for multiple elections.258 The FAO rules of procedure also provide the method by which the required majority is to be calculated: “Except as otherwise provided in these Rules, in the case of an election to fill simultaneously more than one elective place, the required majority shall be the smallest number of whole votes necessary to elect no more candidates than there are seats to be filled. This majority shall be obtained by the following formula Required majority =

number of votes cast + 1 number of seats + 1

+1

(disregarding any resultant fraction)”.

§818. The terminology used above under (a), (b) and (c) is generally accepted. However, definitions of absolute majority vary greatly. Some international organizations and several authors do not distinguish between simple majority and absolute majority, even considering the terms identical as regards multiple voting.259 The UN draws a distinction between simple and absolute majority based not on the majority of the votes cast but on the participants in the voting. Both the General Assembly and the Security Council define simple majority as the majority of the votes cast, and absolute majority as the (simple) majority of the total number of possible voters (in other words, in the case of the General Assembly, as the majority of the total membership of the UN). Rudzinski has rightly opposed this practice which is a development of Articles

258.

259.

FAO, General Rules of the Organization, Rule XII, para 3(b). See also, UN Doc. A/C6/182 and FAO Doc. CL 26/13, discussed at the Ninth Session of the FAO Conference (2-23 Nov. 1957), Report, paras. 479-487. E.g. European Parliament, Rule 14.1; A.W. Rudzinski, Election Procedure in the United Nations, 53 AJIL 81-111 (1959), in particular at 102.

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10 and 12 of the Statute of the International Court of Justice (on the election of judges), the only basic UN texts employing the term “absolute majority”.260 §819. Some international organizations require a double majority. When international organizations use weighted voting, for some sorts of decisions, particularly those affecting the members as sovereign units, they may require a majority of the votes as well as a majority of the members.261 Under the constitution of the European Coal and Steel Community (now dissolved), the Council took its decisions by absolute majority, but there also had to be a positive vote from two of the member states which each produced at least one tenth of the total value of the coal and steel output of the Community.262 In order to prevent a minority taking important decisions if a large number of members are absent (see above, §304), some international organizations taking their decisions by two-thirds majority of the votes cast, require that at least a majority of the members support the decisions.263 2.

Calculation of majorities

§820. Majorities may be calculated on the basis of the total membership, from the members present, or from the members expressly taking part in the voting. The outcome of the calculation will usually be quite different in each of these three cases. In exceptional cases majorities are counted separately from different groups of members. For example, some international commodity agreements provide for a “distributed simple majority vote” and a “distributed two-thirds majority vote”, which means that the majorities must be cast both by exporting members present and voting, and by importing members present and voting, counted separately.264 a.

Majority of membership

§821. When a majority of all members is calculated, or of all members present, every member who does not vote in favour of the proposal is treated as opposing it. The members have one choice: in favour, or not in favour. Ab-

260.

261.

262. 263. 264.

A. Rudzinski, op. cit. note 259, at 98-105. See also, W.N. Hogan, The Ammoun Case and the Election of Judges to the International Court of Justice, 59 AJIL 908-912 (1965). See also UNJY 1984, at 173-176. See e.g. IMF, Art. XXVIII; 1992 International Sugar Agreement, Art. 2 (definitions of “special vote” and “simple majority vote”); International Cocoa Agreement 2001, Art. 2; International Coffee Agreement 2001, Art. 2. ECSC Art. 28. E.g. SELA, Art. 17. International Agreement on Jute and Jute Products (1989), Art. 2; International Cocoa Agreement 2001, Art. 2; International Coffee Agreement 2001, Art. 2.

§822

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staining members are counted as being not in favour. This limitation may be a burden to those delegations which are indifferent about a particular proposal as well as to those delegations which do not want to impede decision-making but, for political reasons, cannot support a particular proposal. The UN requires a majority of the membership in three cases and in each case questions of interpretation have been raised. The first case concerns amendments to the Charter. According to the UN Charter, amendments have to be adopted by a vote of two-thirds of the members of the General Assembly.265 The same majority is needed to convene a special conference for the purpose of reviewing the Charter.266 Comparison with the general rule for calculating majorities of the members present and voting267 suggests that two-thirds of the actual membership is needed in cases mentioned. However, this conclusion has not met with unanimous acceptance.268 Some writers are inclined to regard the voting procedure of Article 18 as a general rule applicable even when the wording of another article is different. This interpretation appears to be supported by the travaux préparatoires of Article 109.3, but has never been put to the test in practice.269 When amendments have been proposed the majority in favour has been so large that the requirement of two-thirds of the membership of the organization was met. Proposals for amendment which were rejected never obtained a two-thirds majority, even of the members present and voting. The second case where the UN requires a majority of the membership concerns voting in the Security Council. The Charter provides that decisions on all non-procedural matters “shall be made by an affirmative vote of nine members, including the concurring votes of the permanent members”.270 To meet the first requirement (affirmative vote of nine members) abstentions are counted as negative votes. To meet the requirement of the concurring votes of the permanent members, the text of this provision points in the same direction. In practice, however, Security Council decisions are often taken with permanent members abstaining, notwithstanding the requirement of their “concurring votes”, a practice which has been generally accepted (see below, §825, §1339). In the third case, a majority of the membership is not required by the UN Charter, but by the interpretation which the General Assembly and the Security Council give to the notion “absolute majority” in the Statute of the International Court of Justice (election of judges, see above, §818). It is standard practice for both organs to require a majority of the membership to support the candidature of a particular judge.271

§822. Apart from the UN, several other universal organizations require a majority of the membership to support the adoption of decisions of special

265. 266. 267. 268. 269. 270. 271.

UN Charter, Art. 108. UN Charter, Art. 109. UN Charter, Art. 18. R. Zacklin, The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies 113 (1968). L. Kopelmanas, L’Organisation des Nations Unies 152-154, Vol. I (1947). UN Charter, Art. 27.3. See also UNJY 1984, at 173-176.

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importance.272 In a number of closed organizations, decision-making by a majority of the membership is the rule,273 sometimes even for procedural motions. b.

Majority of the votes

§823. In most international organizations, each member state has one vote. A majority of the votes is then the same as a majority of the membership. In organizations having a weighted voting system these two majorities differ. A minority of the members, if they each have many votes, may control a majority of the votes. The International Monetary Fund requires a majority of the “total voting power” in 21 cases.274 c.

Abstention275

§824. Apart from voting in favour and against, most international organizations provide for a third method of voting: abstention. In abstaining, a member participates in the voting but does not cast a vote. It thus indicates that it neither wished to support nor to reject the proposal. It actually divides its vote.276 While, on the one hand, it fails to support the proposal, on the other, it reduces the number of vote’s cast and, therefore, the majority required for adoption of the proposal. Unlike absence, abstention does not influence the quorum required. In modern international institutional law, abstentions are usually recognized as not preventing unanimity,277 but this has not always been the case and indeed, abstentions were often counted as negative votes in the past. The Japanese delegation made a determined effort to introduce the principle of racial equality into the Covenant of the League of Nations. When it failed to get a specific provision adopted, it proposed to add to the preamble of the Covenant as one of the methods for securing peace and security: “the endorsement of the principle of equality

272.

273. 274. 275.

276. 277.

ICAO, Art. 90, see Buergenthal, op. cit. note 44, at 63-64; WMO, Art. 3(c) and (e); UPU, Art. 30.1; ITU Constitution, Art. 2(c) (no. 23); IMO, Art. 7; IMF, Art. III, Section 2, Art. IV, Section 4, Art. XXVII, Section 1(b), Art. XVII(a); World Bank, Art. II Art. IV, Section 4b, Art. V, Section 4(b), Art. VI, Section 3, Art. VIII(a). See e.g. EFTA, Art. 32.5; EC, Art. 205.1; Euratom, Art. 118.1; ECSC, Art. 28; AU, Arts. 7, 11. See also CoE, Art. 20 and OAS, Art. 59. See Gold, op. cit. note 114, at 120-121. This figure applies to the constitution in force before the second and third amendment of the constitution. M. Fromont, L’abstention dans les votes au sein des organisations internationales, 7 AFDI 492523 (1961). For the meaning of abstention as understood by the Netherlands Minister of Foreign Affairs, see his statement in 1 NYIL 115 (1970). Except when unanimity is required. Generally, abstention (if permitted) then has exactly the same effect as support. See e.g. Benelux, Art. 18; OECD, Art. 6; EFTA, Art. 32.5; CoE, Art. 10; EC, Art. 205.3; Euratom, Art. 118.3; IEA, Art. 62 (1).

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of nations and just treatment of their nationals”. This proposal received 11 votes in favour and 6 abstentions. Although no delegation voted against the proposal, the chairman (President Wilson) ruled that the proposal had not been adopted because its support was not unanimous.278 During the second part of the First Session of the UN General Assembly, the chairman of one of the committees ruled that a given motion had not been adopted, since the number of votes in favour (19) was not greater than the total of negative votes (14) plus abstentions (16). His ruling was however challenged and overruled by the committee on a vote of 46 to 4 with one abstention.279 The current Rule 86 reflects this decision, providing that, for the purposes of the rules of procedure, the term “members present and voting” means members casting a vote in favour or against with the members who abstain being considered as not having voted.280 The same rule is applied in other organizations.281

§825. The rule that abstentions do not prevent unanimity has become so strong in the UN that it is applied even in the case where the Charter expressly provides that the “concurring votes” of the permanent members of the Security Council are needed.282 On 6 May 1965, a decision on Southern Rhodesia was adopted by the Security Council in which seven votes were cast in favour (the minimum number required at the time), but in which four of the permanent members (all except China) abstained.283 The International Court of Justice accepted this practice in its 1971 Advisory Opinion on Namibia.284 §826. Generally there is no limit imposed upon the number of abstentions. Decisions can be adopted with only one or two votes in favour and a large number of abstentions (as long as the positive votes outnumber the negative ones). Nevertheless, several organizations limit (or limited) the number of abstentions to a certain maximum. For example, in UPU General Congresses when the number of abstentions plus blank or null and void ballot papers exceeds half the number of votes cast (for, against and abstentions), considera-

278. 279. 280. 281. 282.

283. 284.

Zimmern, op. cit. note 28, at 260 ff. UN Doc. A/393, at 4. Cf. also UNJY 1986, at 274-275. For example WHO, Rule 71 of the Rules of Procedure of the World Health Assembly; IMO, Art. 57(c). This has been the established practice since the early days of the Security Council. See e.g. the statement of the president of the Council in SCOR, 2nd year, No. 68, 173rd meeting, at 1711-1712, quoted by Zacklin, op. cit. note 268, at 183. On the abstention of permanent members of the Security Council and on the objections raised against the current practice, see L. Gross, Voting in the Security Council: Abstention in the Post-1965 Amendment Phase and its Impact on Article 25 of the Charter, 62 AJIL 315-334 (1968). See also, C.A. Stavropoulos, Practice of Voluntary Abstention by Permanent Members of the Security Council under Article 27, Paragraph 3, of the Charter of the United Nations, 61 AJIL 737-752 (1967); UNJY 1991, at 290-291; Simma, op. cit. note 14, at 493-499. Res. 202, Publication No. 82 of the Netherlands Ministry of Foreign Affairs, at 116, 216. ICJ Rep. 1971, at 22.

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tion of the matter must be deferred until a subsequent meeting, at which abstentions plus blank or null and void ballot papers are disregarded.285 Likewise, in the ITU when the number of abstentions exceeds half the number of votes cast (for, against, abstentions), consideration of the matter under discussion must be postponed to a later meeting, at which time abstentions are not taken into account.286 §827. Usually, abstention is only relevant to the adoption of a proposal. Once the decision has been adopted, it loses its relevance because the binding force of the decision is the same for all members regardless of the way they voted. There are however a few exceptions to this rule. In the OECD, decisions must be taken unanimously.287 Abstentions do not invalidate the decision, but make it inapplicable to those members that abstained.288 The same provision applies to some cases in the IMF.289 The constitution of the League of Arab States accepts majority decisions and declares that decisions reached by a majority vote bind only those who accept them.290 In these cases, abstention – and in the League of Arab States also negative voting – exclude the abstaining members from all consequences of the decision-making process. This procedure facilitates decision-making in organizations that require unanimity, since the resistance of opposing members will be weaker if they can escape the consequences of decision-making. On the other hand, there is the disadvantage that the rules that have been adopted do not necessarily apply to all members. No coherent body of law can develop within an international organization if all its rules do not bind the same members. In fact, the decisions of OECD and the League of Arab States are not really binding. They are more akin to conventions drafted by the organization and submitted to its members for ratification (see below, §1262-1317). §828. In the Council for Mutual Economic Assistance (CMEA, now dissolved) there has been some discussions of the question whether members who are not interested in a particular issue are, at least morally, obliged to abstain. By voting against they could prevent other members from adopting mutually binding rules. On the one hand, members should be considered entitled to block such rules between other members since, even when a member will not be bound by a rule, its very existence may be contrary to its interests. On the other hand, such blocking is quite useless as the other members are always entitled to make the rule outside the scope of the organization.291 However,

285. 286. 287. 288. 289. 290. 291.

UPU, Rules of Procedure of Congresses, Art. 20.5. ITU, General Rules of Conferences, Assemblies and Meetings of the Union (adopted in 2002), Nr. 21.4. OECD, Art. 6.1. OECD, Art. 6.2. Under the General Arrangements to Borrow, para. 7. See Gold, op. cit. note 114, at 113. League of Arab States, Art. 7. Ustor, op. cit. note 2, at 208, 211-213.

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since members must be considered to be interested in the entire range of activities of an international organization and in the use made of its time and resources, it is submitted that members must be considered free to vote against activities which they do not wish to see the organization perform. §829. In 1951, the Committee of Ministers of the Council of Europe decided that each of its recommendations which requires unanimity,292 can, by a separate and previous vote, be addressed to those members which will vote in favour of it. The recommendation will then apply to those members only. Thus the same procedure as that used in the OECD has been created for (nonbinding) recommendations. d.

Non-participation in the vote (or in a consensus)

§830. For political reasons, member states may not wish to participate in a vote. This is different from abstention since rather than – more actively – not wishing to vote either “yes” or “no”, states are passive and completely dissociate themselves from the vote. It is also different from “absence”, because the member in question is present during the vote. A good example is the French position vis-à-vis the resolutions by the UN Security Council and the General Assembly, in which the Comoros (a former French colony) was admitted to the UN.293 In the General Assembly, the French representative explained that his country had decided not to participate in the voting (or in the consensus), because it did not wish “by abstaining from voting to give the impression that it could hesitate between ‘yes’ and ‘no’”.294 Another example is the decision by the United States not to participate in the voting on General Assembly resolutions concerning the International Criminal Court.295 As stated in the General Assembly, the US has serious objections against this Court and therefore decided not to join the consensus.

In the UN Security Council, before 1971 states did not participate in the vote on nine occasions, as a form of protest against the wisdom or legality of the proceedings, or as a substitute for an obligatory abstention (i.e. the state in question was party to the dispute).296 When in 1971 Communist China occupied the Chinese seat in the Security Council, it did not participate in votes on any matter arising from decisions taken when Nationalist China was on this seat. This Chinese practice continued for almost ten years, and was

292. 293. 294. 295. 296.

CoE, Art. 20 (a). See SCOR, 1847th meeting, 17 October 1975, at 1-2; GAOR, 2402nd plenary meeting, 12 November 1975, at 815. GAOR, 2402nd plenary meeting, 12 November 1975, at 815. E.g. GA Res. 57/23. Bailey and Daws, op. cit. note 139, at 258.

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followed by other members.297 Since 1982 there have hardly been any cases of non-participation in the vote in the Security Council.298 The ITU Convention explicitly provides for non-participation in the vote. Article 32.14.2. (No. 414) provides that “Delegations which are present but do not take part in a particular vote or expressly state they do not wish to take part shall not be considered as absent, for the purpose of determining a quorum (...), nor as abstaining for the purpose of applying the provisions of no. 416 below” (according to which consideration of the matter under discussion is postponed if the number of abstentions exceeds half the number of votes cast).

e.

Absence

§831. If a majority of all members of the organization is required, or of all members of a particular organ, absence, like abstention, will have the same result as voting against. It will impede the attainment of the required number of favourable votes. This negative effect of absence may deemed acceptable in the case of important decisions with (at least some) binding effect. Absent members should not be bound too easily. Requiring the support of a majority of all members may however hamper decision-making, particularly where the division of labour between higher and lower organs is ill-balanced. In some cases, a higher organ (such as the general congress of the UPU, which assembles the highest officials of postal services), must discuss fully minor questions like technical details of parcel-post or addressing methods. This leads to frequent absence from meetings. Decisionmaking by a majority of the members will be difficult when only slightly more than half of the members are present. If all minor decisions, and the preparation of important ones, are delegated to lower organs, the sessions of the higher organs can be shorter and their discussions can concern only major issues. Fewer members will be absent. Even then it seems questionable whether or not decisions should be taken by a majority of all members. When the members are informed sufficiently in advance of the kind of decisions to be taken, absentees may be considered as not being interested. They should then not affect the majority required for decision-making. §832. Absent members are obviously less involved in decision-making than members that abstain. Abstention is a form of participation in voting. Sometimes a delegation does not wish to participate at all, for instance when it

297. 298.

As a result, there have been non-participations in the vote in some 100 cases between 1971 and 1982. See id. Bailey and Daws, op. cit. note 139, at 258-259. In recent years, non-participation in the vote has been exceptional; an example is SC Res. 1402 (2002), adopted by fourteen votes in favour, Syria being absent for political reasons when the voting took place. After the vote the Syrian representative returned to his chair and explained the position of his country (see UN Doc. S/PV.4503, at 35-36).

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considers the organ to be entirely incompetent to discuss the issue involved. It may then leave the conference hall before a vote. The actual result is the same as in the case of an abstention. There are many examples of delegations leaving the conference hall. The French delegation left the hall in 1947 when the Trusteeship Council discussed petitions from German citizens of trust territories, which the French Government considered to be a violation of Article 107 of the UN Charter. It left the hall several times when the General Assembly discussed (during its 10th and 13-16th sessions) the Algerian question. The French delegation considered this to be a violation of Article 2.7 of the UN Charter. The Eastern European delegations left when the Korean question was discussed in 1947.299 The delegation of the United Kingdom did not participate in the debates on Oman in 1970 and previous years.300 African delegates have sometimes left conferences when a South African delegate took the floor.

§833. It may also be that a member present in the conference hall does not express himself in favour, against or abstaining from a motion. He will then be registered as absent. Thus, on 29 September 1950, the Security Council of the UN voted (on a challenge to a ruling of the president), no votes in favour, no votes against and no abstentions. The challenge was considered rejected.301 §834. The view was taken above that a general rule of international institutional law provides that abstentions do not prevent unanimity. Is the same rule applicable for absentees? Several constitutions have such a provision.302 Others are silent. The question is of particular importance when members boycott sessions of international organs. In 1950, the USSR refused to participate in meetings of the Security Council, since China was (allegedly) illegally represented by the wrong delegation. The affirmative vote of the permanent members, required by Article 27.3 of the Charter, was therefore no longer possible. The Security Council then decided that absence would be equivalent to abstention, so that decisions could be taken even without the presence of all permanent members. In 1965, France refused to participate in meetings of the Council of the European Economic Community.303 Decision-making remained possible to a limited extent as unanimity could be obtained by a written procedure.304 The Council did not however equate absence with abstention, although the French statements in the Security Council

299. 300. 301. 302. 303.

304.

YUN 1947-48, at 86-87. Report of the Netherlands’ delegation to the 25th Session of the General Assembly (Publication No. 98 of the Ministry of Foreign Affairs), at 134. SCOR, 5th year 507th meeting (No. 49), at 7. EFTA, Art. 32.5; CoE, Art. 20. See also, Agreement on Andean Subregional Integration, Art. 10, which declares attendance obligatory and as signifying abstention. J. Kaiser, Das Europarecht in der Krise der Gemeinschaften, 1 Europarecht 4-24 (1966). A. Gleiss, Kann ein Mitgliedstaat die Europäische Wirtschaftgemeinschaft handlungsunfähig machen?, 16 Wirtschaft und Wettbewerb 608-616 (1966). EC, Art. 205.3.

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would have offered some strong arguments for doing so.305 The EC Treaty offers less opportunity for this interpretation than the Charter of the UN, since it expressly provides that abstention by members that are either present or represented shall not prevent the adoption of decisions requiring unanimity. The constitution of the Council for Mutual Economic Assistance (CMEA, now dissolved) did not require the unanimous vote of all members for decision-making. The consent of interested members was sufficient, other members not being affected by the decision. Sessions of the Council must, however, have been composed of delegates of all members.306 When Albania ceased to participate in the organization, the question could have arisen as to whether the Council could still legally meet and whether decisions could still be taken in the fields in which Albania was interested. The organization apparently took the view that it could continue all its functions in the absence of Albania, although Albania claimed that decisions of the CMEA taken in its absence were invalid (see above, §141).307

§835. The number of cases in which decisions have been taken in the absence of a member is too low to provide a basis for a rule of customary law.308 The Albanian example demonstrates that a constitutional rule requiring all members to be present is impractical. If it is read literally, it enables any member to fully block the entire functioning of the organization. When it is not clear that the constitution envisages this result, exceptions to the rule should be accepted in extreme situations such as a complete rupture of all relations between the organization and one of its members. In the Organization of Petroleum Exporting Countries (OPEC), decisions of all members can be taken “unanimously” in the absence of one or more members, but the absent members can object to such decisions for up to ten days prior to their publication.309 The effect of such an objection is to destroy the unanimity, which therefore prevents the decision’s entry into force. To a large extent, this solution solves the problem of unanimity in the case of absent members. §836. The influence of occasional absence on the quorum310 is a special problem. Assume that an organ assembles with only a few members more than the required quorum. The session will then be valid. But would any two or three opponents of a proposal be allowed to block its adoption by leaving the room and thus cause the attendance to fall below the quorum? This might give minorities too strong a position. Several organizations, therefore, only count those present at the beginning of a session. If there are then sufficient members, the whole session and all its decisions are considered valid. This

305. 306. 307. 308. 309. 310.

See, Commerce Clearing House Inc., Common Market Reporter, Vol. II, para. 9077 (January 1966). CMEA, Art. 6.2. M. Kaser, COMECON (2nd ed. 1967), at 97, 245-246. Zacklin, op. cit. note 268, at 186. OPEC, Art. 11. For the quorum, see above, §302-305.

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practical solution may lead to the adoption of proposals on behalf of the organization by only a few members. For this reason, not all international organizations are willing to accept this solution. f.

Invalid vote

§837. Invalid votes are particularly prevalent in written voting procedures. The invalidity of the vote depends on the internal rules of the organization. In multiple elections, if the number of names written down exceeds the places available, the vote will always be invalid. In some organizations, if the number of names is less than the number of seats available, this will have the same effect (rightly so, see below, §850). Sometimes a delegation may cast an invalid vote intentionally, in order to escape a political conflict. An invalid vote has the same effect as an abstention. 3.

Unqualified majority

a.

Voting between two alternatives

§838. Decision-making by a simple majority of the votes cast is common in most international organizations for procedural decisions and for the decisions of lower organs. Benelux, in which all decisions must be taken by unanimity, forms a notable exception to this general rule. The Security Council of the UN provides a further exception as regards procedural decisions, which must receive 9 votes out of 15. Judicial organs and several higher organs also take non-procedural decisions by simple majority. An example is the European Commission.311 Some other organs require a simple majority for some questions, while for others a qualified majority is necessary.312 §839. The principal advantage of majority voting is the increased chance that decisions will be adopted (see below, §858). In a choice between alternatives, one will obtain a majority unless the votes for and against are exactly equal, in which case many organizations consider a proposal rejected.313 As a rule in these circumstances, the UN organs vote again within two days of the original vote.314 By the time of the second vote, some abstainers may have been persuaded to join a particular camp and the composition of the voting membership may have altered subtly. If the voting is equal again, the proposal

311. 312. 313. 314.

EC, Art. 219; ECSC, Art. 13; Euratom, Art. 132. E.g. UN General Assembly, general congresses of many specialized agencies (see below, §852). For example: WMO, General Regulations, Art. 63(a); ITU, General Rules of Conferences, Assemblies and Meetings of the Union (adopted in 2002), Nr. 21.1. (3); GA Rule 133. E.g. GA Rule 95; see also UNESCO, General Conference Rule 96.

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is considered to have been rejected.315 However, nothing is gained by considering a proposal rejected if the question is whether Mr. A or Mr. B should be chairman of the meeting. In that case, the voting will have to be repeated.316 A choice can be assured by giving the president a casting vote, or by drawing lots, in the event of a tie.317 §840. A casting vote if often given to presidents of legal organs. The president has a casting vote in the International Court of Justice,318 and in the European Court of Human Rights.319

§841. Most other international organs draw lots when some proposal must be adopted.320 The EC Court always deliberates with an uneven number of judges. If the Court is ever comprised of an even number, the possibility of an equal vote is avoided by excluding the most junior judge from the voting.321 b.

Voting between several alternatives

§842. Instead of two alternatives several different possibilities may be under discussion. A meeting has then to decide either to vote on all possibilities at the same time or to take them individually. As a rule, international organs start from one particular text (usually the report of a committee) and decide on all alternatives (either different texts or amendments to the original one) consecutively. The choice between several possibilities is then reduced to a series of votes on an alternative (for or against each possibility). The order of voting may then be of great importance since the adoption of one proposal may exclude others on the same subject. Delegations are often prepared to support several proposals. Sometimes their only interest is to defeat one particular proposal, and they are indifferent to which of the others is accepted. The 15th Congress of the UPU (Vienna 1964), had decided to increase the membership of the Executive Council to 27. Three proposals were made for the division of these seats over the five regions of UPU. For 25 of the seats, the three proposals were the

315. 316. 317.

318. 319. 320. 321.

GA Rule 95. FAO General Rules, Rule XII.12(h). Id. See on these solutions, Schweizerische Juristenzeitung, 1 July 1965, at 201-206 and 239-240. A casting vote has been given, for example, to the chairman of the Board of the Bank for International Settlements (Statutes, Art. 33). ICJ Statute, Art. 55.2. See H. Thierry, Par la voix prépondérante du Président..., in E. Yakpo and T. Boumedra (eds.), Liber Amicorum Judge Mohammed Bedjaoui (1999), at 525-530. European Court of Human Rights, Rule 23.1. E.g. WHO, Rules of the Assembly, Art. 81; WMO, General Regulations, Art. 89; UNESCO, General Conference, Rule 95. Court of Justice, Rules of Procedure, Art. 26.1.

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same. A difference of opinion existed however as regards the other two seats. The USSR had proposed to give them to Eastern Europe and Asia, the USA wanted to give them to the Western Hemisphere and Asia, and Tunisia preferred Eastern Europe and the Western Hemisphere. The Asian states had no strong preference for either the Soviet or the American proposal. They merely wanted to prevent the adoption of the Tunisian proposal. The Soviet proposal was put to the vote first. It was adopted by 55 votes to 54 (with 3 abstentions). The US proposal would probably have obtained an even stronger majority if it had been voted on, since it would have gained the support of 26 American states and lost only that of 11 Eastern European states.322

§843. Three generally recognized rules have been established to limit conflicts on the order of voting: (1) Proposals are voted upon in the order in which they are submitted; (2) Voting on amendments precedes voting on proposals; (3) When two or more amendments are moved on the same proposal, the amendment furthest removed in substance from the original proposal will be voted upon first.323 §844. Unless otherwise provided, it is not relevant for the order of voting whether proposals have been submitted by organs or by member states.324 The date of submission is the date on which the secretariat receives the proposal unless a further condition has been attached. Submission of a proposal subject to the request that it should be delayed to a later date is treated as submission at that later date.325 Proposals cannot be made with respect to a question before the question itself has been placed as an item on the agenda. There is one exception to this rule: the proposer of an item may submit a draft resolution with his proposal.326 Thus, the proposer of an item for the agenda always has the possibility to ensure that his proposal will be discussed first. Agenda items are sometimes postponed to a future session. Generally a draft resolution submitted at one session will not be brought before the subsequent session unless (1) it is resubmitted, (2) there is an express desire on the part of the sponsor to maintain it, or (3) the organ, in postponing the item, has expressly transmitted all documents relating to it.327

322. 323.

324. 325. 326. 327.

For the voting, see UPU, XVth Congress, PV 12 (18 June 1964), at 12-16. See for example GA Rules 90, 91, 130, 131; CoE Parliamentary Assembly Rule 34; Common Fund for Commodities, Rules of Procedure of the Governing Council (Rule 33), Rules of Procedure of the Executive Boards (Rule 26); OPCW, Rules of Procedure of the General Conference (Rules 76-77), Rules of Procedure of the Executive Council (Rules 46-47); Assembly of States Parties to the Rome Statute of the ICC (Rules 71 and 72 of the Assembly’s Rules of Procedure). UNJY 1976, at 181-183; UNJY 1984, at 169. UNJY 1973, at 181. GA Rule 20. See also UNJY 1973, at 143, para. 9. See UNJY 1973, at 143, para. 10.

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§845. There are two good reasons justifying the rules that provide that amendments should be voted on first. In the first place, the original proposal should only be voted upon after all efforts have been made to improve it. In the second place the supporters of extreme amendments should have the opportunity to vote for more moderate amendments when their own have been rejected. For example, assume a proposal has been made that the territorial sea have a breadth of 3 nautical miles. Amendments are proposed to change this breadth to 6, 24, 12 and 200 miles. If the voting were to follow this order (of submission), states desiring a wide territorial sea would be in a difficult position. They want more than 6 miles, but would prefer 6 to 3. Were they to support 6 miles, that proposal might be adopted and there would be no further voting. If they were to oppose it, the wider limits might also be defeated and the result might be 3 miles. By following the order 200, 24, 12 and 6, the supporters of 200 and 24 miles can easily vote for 12 when their proposals have been defeated. The final proposal on the territorial sea will contain the breadth that finds the widest support. (The law of the sea conferences of 1958 and 1960 failed to find any breadth which received sufficient support, although almost two-thirds voted for six miles with an additional fishing zone extending to twelve miles.)

§846. However, it may not always be easy for the chairman to see which proposal is the most far-reaching and thus should be voted on first. To answer this question, a tentative non-binding vote may be taken. This procedure was used frequently in the European Commission of Human Rights, but also in other organs, in cases where the order of voting may be important for the outcome. In a tentative vote, the chairman asks for a non-binding opinion on each of the possible alternatives. The outcome of the tentative vote will usually offer sufficient indication to allow the chairman to decide on the order of voting and for the voters to decide which proposal they want to support. §847. The problem of having to establish the order of voting can be avoided if all possibilities are voted upon simultaneously. This procedure is commonly used in elections. When a chairman has to be elected, no organization will vote for or against each candidate separately. Voting will always take place for all candidates at the same time. This, however, may lead to another problem: it is possible (especially when there are many candidates), that none of the candidates receives an absolute majority. In that case, the organs of the UN and the specialized agencies will usually take a new vote on the two candidates who obtained the largest number of votes. In the Parliamentary Assembly of the Council of Europe, the renewed voting will again be between all candidates, but in the second or (in case of presidents and vice-presidents) third voting, a relative majority will be sufficient to secure election.328 Neither of these two procedures necessarily leads to the most suitable candidate being elected.

328.

CoE Parliamentary Assembly, Rules 13 and 45.

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In an organ containing two blocks (radical, moderate; developed, underdeveloped; etc.) tensions between the blocks are likely and the president should mediate between them. Both blocks nominate their own candidates for the presidency and each strongly objects to the other’s candidate, whom they refuse to consider impartial. A third candidate is proposed from a non-committed state, and he would be acceptable to all, as a second choice after the candidate of their own block, but only a few “middle of the road” members support his candidacy in the first ballot. As a mediator, the third candidate would make the best president. In a harmonious organization, activities in the lobby would usually lead to the withdrawal of the candidates of both main groups, after which the third candidate would be elected unanimously. Assume, however, that the lobby failed. Both groups would support their own nominee. In the UN system, the third candidate would drop out after the first vote. His middle of the road supporters would have to vote for one of the extreme candidates, one of whom would win. In the Council of Europe system, the third candidate might win support from the weaker of the two extreme candidates after the first election. But, if many supporters remain loyal, this may be insufficient to outvote his strong rival, who would subsequently be elected by a relative majority.

§848. For this reason, a working party of the FAO proposed a system of elimination-voting.329 If there are more than two candidates, the second election would be between the two who received the fewest votes. The loser of that election would be eliminated. A vote would then be taken among all remaining candidates, and the procedure would be repeated, until finally one of the last two candidates acquired an absolute majority. One advantage of this system is that the second choice of many delegations would remain in the election until the last round of voting. Voting under this system, however, is very time-consuming. The same result would be achieved if all delegations were asked to number all candidates in order of preference. Repeated voting could then be replaced by a count behind the scenes. However, the psychological objection could still be raised that the delegations were unable to witness the whole development of the election. c.

Multiple elections

§849. In the above-mentioned case, one officer had to be chosen from more than two candidates. Another type of election where a majority may be difficult to establish is the multiple election, in which several candidates must be chosen from a larger number, which is commonly the situation in elections for nonplenary organs where many seats may have to be filled (see above, §286-287). The election of each seat successively takes a long time and is not always appropriate because of the interrelationship between the elections themselves.330 Therefore, the elections are combined into a multiple election. Every

329.

330.

FAO Council Committee on Methods of Election, Doc. CL 26/13. The procedure was not accepted by the general congress of FAO (FAO Conference), see Report of the Ninth Session of the Conference, 2-23 November 1957, paras. 479-487. Rudzinski, op. cit. note 259, at 84.

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voter must cast as many votes as there are vacancies to be filled. In effect, this means that the number of votes cast – and thus the number required to form a majority – is multiplied. It seems reasonable to require that a candidate receive an absolute majority in the sense described above (§817), a requirement which is indeed set by the FAO. However, when the number of votes is relatively small and the number of vacancies to be filled relatively large, an absolute majority may be difficult to obtain. When the Security Council elects five judges to the International Court of Justice every three years, each of its fifteen members votes for five names, i.e. a total of 75 votes are cast. The smallest possible majority which cannot be obtained by more than 5 candidates is 13. It may be difficult for any candidate to obtain so many votes. After the election of some candidates, the absolute majority will gradually decrease. To fill two vacancies, a majority of 11 would be absolute, and for one vacancy 8 would be sufficient.331

§850. The difficulties of determining what constitutes an absolute majority and of obtaining the majority required, have persuaded most international organizations to accept a simple or a relative majority for multiple elections,332 even when the rules require an absolute majority.333 In a multiple election, delegations could favour their own block by not casting a vote for the vacancies in the other blocks. This would reduce the number of votes cast and thus the majority required. It would bring the candidates of their own block into a relatively stronger position, which might help to get more of them elected. Some organizations do not accept this practice and consider the voting paper of a state to be invalid if not all vacancies have been voted for.334 4.

Qualified majority

a.

Two-thirds majority

§851. In many cases, international organizations only take decisions if the decision in question is supported by a qualified majority of the votes cast. The status quo is thus protected (see §858). In other cases, difficulties arise when none of the possible solutions is supported by the qualified majority.

331.

332. 333. 334.

For the problems arising when the Security Council elects 5 judges to the International Court of Justice, see Rudzinsky, op. cit. note 259, at 81-88; Hogan, op. cit. note 260, at 908-912; Bailey and Daws, op. cit. note 139, at 307-314. E.g. European Parliament, Rules 14 and 15. E.g. Statute of the ILC, Art. 9. See Rudzinski, op. cit. note 259, at 88-94, for the UN practice. E.g. FAO General Rules of the Organization, Rule 12.4 (d) (ii). In the UN General Assembly such an incomplete vote would be valid. See Rudzinski, op. cit. note 259, at 108.

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Decision-making by qualified majority is the rule in, for example, the WMO,335 the Council of Europe,336 the Assembly of Heads of State and Government of the African Union.337

§852. In many international organizations, usually those that generally require a simple majority, qualified majority votes may be reserved for particular categories of decisions,338 which will be mentioned expressly in the constitution or in specific decisions of the organization. For the UN General Assembly and for the WHO it is not clear what decisions require a qualified majority.339 Their constitutions provide that “all important questions, such as ...” shall be decided by qualified majority. After “such as ...” some important questions are mentioned, but only as examples. Such constitutional provisions are objectionable for two reasons. Firstly, the listing of only some important questions gives rise to confusion. The inference from such a list of examples would be that omitted questions are of doubtful importance. Secondly, the distinction between the important and the less important is vague and difficult to draw. Items from the list of examples will need a two-thirds majority even if they later prove to be unimportant. For specific questions outside the list, a preliminary procedural vote is required to determine whether a two-thirds majority is required. Recourse should be taken to such a preliminary vote, for which simple majority will suffice, only in cases of genuine doubt.340 However, experience demonstrates that the denial of a requirement of qualified majority for a particular decision is usually inspired by a desire to see the decision adopted, rather than by the degree of importance attributed to it. When the general congress of the WHO discussed the suspension of voting rights of South Africa (see above, §146), it was decided that a qualified majority would not be required for the adoption of this decision. It seems beyond doubt that the vast majority of the general congress must have considered South Africa’s apartheid policy, as well as suspension of voting rights, as important questions. The decision that no qualified majority was needed seems to have been inspired by the desire to ensure that the proposal to suspend voting rights would be adopted. A rough survey of the roll-call votes in the General Assembly of the UN also indicates that delegations wanting to block a proposal usually vote that the question is important and requires a qualified majority, while the delegations who seek its adoption vote that it is unimportant and only needs a simple majority. Whether the

335. 336. 337. 338. 339.

340.

WMO, Art. 11(b). CoE, Art. 20(d). AU, Art. 7. For example UN Charter, Art. 18; WHO, Art. 60. E.L. Kerley, Voting on important questions in the UN General Assembly, 53 AJIL 324-340 (1959). On the background of Art. 18 of the UN Charter, see UN Doc. A/C.6/L.408 of 13 Nov. 1957. For the WHO, see UNJY 1979, at 199-200. See on the practice of the General Assembly, R. Wolfrum in Simma (ed.), op. cit. note 14, at 352-362. UNJY 1983, at 160.

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question is in fact important does not seem very relevant. While questions relating to the operation of the UN trusteeship system require a qualified majority in the General Assembly,341 all questions on colonial issues are decided by a simple majority. Occasionally, the UN Office of Legal Affairs has given legal opinions on the question whether a specific draft resolution concerned an important question and thus required a two-thirds majority vote for adoption.342

§853. The “important-unimportant” criterion has little in common with the practical – and totally different – consideration of exploiting the different voting procedure in order to achieve political ends in the decision-making process. Perhaps a secret vote (see below, §873) on the preliminary decision might help less interested states to vote independently on the question of a decision’s importance rather than allow them to be swayed by considerations of solidarity with the interested states. In the constitutions of the IAEA and UNESCO, the criterion of importance has not been used. Both constitutions merely enumerate a series of questions that require a two-thirds majority.343 Unlike the IAEA constitution, the UNESCO constitution does not provide a procedure for adding questions to that list. This caused problems when a very important, costly and novel question was submitted (the cost of saving the Nubian Temples). It required great ingenuity to bring this item within the list of questions requiring a two-thirds majority.344

§854. The distinction between decisions requiring a qualified majority and those which may be adopted by simple majority is not drawn in the same way in all organizations which utilize both. Thus, budgetary questions need a qualified majority in some organizations,345 and only a simple majority in others.346 Apart from voting on the budget, the UN also considers the scale of assessment to be an important question, requiring a majority of two-thirds.347 Questions of principle which basically affect decisions on the budget or on the scale of assessment will probably also require a majority of two-thirds.348 Amendment to proposals and parts of proposals relating to important questions (when voted on separately), require the same majority (two-thirds) as the proposals themselves. This was decided by the General Assembly of the UN349 on the basis of a careful study.350 Following the decision of the

341. 342. 343.

344. 345. 346. 347. 348. 349.

UN Charter Art. 18.2. UNJY 1977, at 195; UNJY 1982, at 159-160. IAEA, Art. V C; UNESCO, Art. IV, para. 8. At the Conference establishing IAEA the provision was introduced by a Scandinavian proposal, which referred to the procedure in the General Assembly. See Lefranc, op. cit. note 48, at 647-654. For example UN Charter, Art. 18.2; ILO, Art. 13.2(c). For example FAO, Art. IV.1 jo. III.8; UNESCO, Art. IX.2 jo.IV, para..8(a). UNJY 1972, at 160-163. Id., at 161-162. GA Rule 86, adopted on 1 November 1950 by 57 votes to none, with one abstention (GA Official Records, Fifth Session, Vol. 1, at 290), now Rule 84.

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UN, it now seems to have become a generally accepted rule of international institutional law.351 b.

Other qualified majorities

§855. Two-thirds is the most common qualified majority, although some organizations require a different qualified majority for particular decisions. The ICAO requires a majority of four-fifths for the admission of states that fought against the Allies during the Second World War.352 The IMF requires a majority of seventy per cent for many important decisions,353 and of eighty-five per cent for others,354 whilst normally a simple majority is sufficient.355 In the case of amendment of the constitution three-fifths of member states must be in favour, and eighty-five per cent of the votes.356 The eighty-five per cent majority was introduced in 1968 in order to give a right of veto to the combined members of the European Communities.

5.

Qualified minorities

§856. In procedural questions, a special protection is often granted to minorities. Minority protection is particularly appropriate in connection with the question whether a problem can be decided without discussion. A minority could put forward such strong arguments that a part of the majority could be persuaded to alter its opinion. In such cases the majority should not have the power to prevent the minority from submitting their arguments. In the General Assembly, the reports of the Main Committees are usually not discussed. Such discussion will take place, however, if requested by one-third of the members.357 Acts of the Council of the European Union on an urgent matter may be adopted by a written vote where the Council or the Committee of Permanent Representatives (COREPER) unanimously decides to use that procedure.358 Thus, every member state may veto such a decision.

350. 351. 352. 353. 354. 355. 356. 357. 358.

UN Doc. A/1356. For its application in ICAO, see Buergenthal, op. cit. note 44, at 64-65. ICAO, Art. 93. See e.g. Arts. III(3)d, V(8)d, XII(6)d, XIX(7)b. See e.g. Arts. III(2)c, IV(4), V(12)b, XII(1), XVIII(4)d, XXVI(2)b, XIXb. Art. XII(5)c. Art. XXVIII. GA Rule 66. See also 3 UNCIO, at 230. Council, Rules of Procedure, Art. 12.

569

6.

Decision-making process

§857

Factors influencing the majority to be preferred359

§857. It is difficult to establish a general rule on the most desirable majority for decision-making. Different political factors play a role in every individual organization. Some factors are, however, generally applicable. a. The need for a decision §858. In a vote, the choice is often between the status quo and some modification of it. To require a qualified majority or unanimity would then be to favour the status quo over the modification. In many cases this may be acceptable since the difficulties and risks which the change involves should only be tolerated if such change is strongly supported. The wish to favour the status quo may also be expressed by requiring a qualified majority or unanimity for temporarily changing the status quo and a simple majority for returning to it. In the IMF, the Executive Directors (the board) may suspend the operation of provisions only by unanimous vote. By simple majority they may decide to terminate the suspension.360

§859. Protection of the status quo is not always appropriate. Sometimes a decision is necessary for the continuation of the work of the organization. This is demonstrated most clearly by procedural questions. The day on which a general congress is to convene must be decided; the budget must be set. In such cases, a bad decision is better than no decision. Decisions should then be taken by simple majority. Only this will ensure that a decision is indeed taken. Non-procedural questions may also require some positive decision. The functioning of an international organization often represents a continuous process, which requires decisions to be taken if it is to function effectively. Far from preserving the status quo, failure to take a decision may well be a step backwards, detrimental to the organization and many of its members. In such circumstances, the requirement of unanimity or of qualified majority no longer has the character of protecting individual members or minorities, but rather offers them power to halt the activities of the other members.361 §860. The UN requires a qualified majority vote inter alia for elections to the Security Council.362 In the past, this has caused great problems where no such majority could be found for either candidate for a specific seat.

359. 360. 361. 362.

Claude, op. cit. note 180, at 120 ff. See J. Gold, The “Dispensing” and “Suspending” Powers of International Organizations, 19 NedTIR 191-192 (1972). Claude, op. cit. note 180, at 124. UN Charter, Art. 18.2.

§861

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In 1947, twelve ballots were needed before the Ukraine could be elected. In 1955, no candidate was elected after 35 ballots.363 It was then decided that each candidate (Yugoslavia and the Philippines) should serve half the term. Many states (especially from Latin America) objected in vain to this splitting of an already very brief term (two years). In later deadlocks, the same procedure was again followed.364 The drafters of the Charter must have foreseen the risk of such deadlocks but preferred it to the risk that a majority group dictates the composition of the organ.

b.

The effect of the decision

§861. As long as decisions are not binding, states themselves will decide what effect they will be given. Since they are not bound, they are unlikely to raise objections to majority decisions. Similarly, states will not object strongly to majority decisions in lower organs when these decisions require the subsequent approval of a higher organ before they can become final. Strong objections can be raised at a later stage of the decision-making process. On the other hand, it may be considered unwise to embark upon a new project that will directly affect the members without the full support of all states involved, which would be guaranteed by a requirement for unanimity. Only if the organization is highly integrated can binding decisions be taken by majority vote. Otherwise, they may create tensions that may even endanger the existence of the organization. The UN can take few binding decisions by majority vote. Examples are the approval of the budget and the allocation of members’ contributions. Nevertheless, an effort to enforce such a binding decision against the will of the USSR, France and several other members, precipitated a crisis in 1964.365 Even in integrated organizations problems may arise, as was demonstrated by constitutional crisis in the EC “solved” by the 1966 Luxembourg Accords (see above, §780).

§862. The need for decisions in closed organizations is no less acute than in universal ones. The decision-making organs in closed organizations are usually more homogeneous and mutual trust is accordingly stronger. Yet unanimity is more frequently required and, where provision is made for majority decisions, it is usually by qualified majority. This is a consequence of the stronger binding force of the decisions in these organizations.

363. 364.

365.

GAOR 1955, at 247-252, 269, 270, 275-277, 405-407, 469, 470, 494-501; see Bailey and Daws, op. cit. note 139, at 144-148. For example, in 1959 Poland and Turkey, YUN 1959, at 567; YUN 1960, at 721. See also YUN 1964, at 609 (decision to divide a term of office between Jordan and Mali; this decision did not materialize because of the enlargement of the Security Council, see YUN 1965, at 840. N. Padelford, Financing Peacekeeping, 19 International Organization 444 (1965).

571

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§863

In the European Union, the Committee of Permanent Representatives has no decisionmaking power. In fact, however, it decides many issues of the agenda of the Council of Ministers (see above, §393). In the Council of Europe, the Deputies can decide on a number of issues only by unanimity. In the absence of unanimity the Committee of Ministers must decide.366

c.

Structure and procedures of the decision-making organ

§863. The composition of the decision-making organ is an important factor when deciding whether majority decisions are appropriate. Decision-making by a majority is acceptable if all delegations work towards approximately the same general interest. This is most likely to be the case with regard to most procedural questions: usually it is in the interest of all delegations to promote the speedy and efficient functioning of meetings. The same may apply to technical matters: experts usually search for an effective solution to a particular problem. In national parliamentary meetings, all members frequently claim to defend the same general interest of the entire population and although they may view this interest differently, their general purpose is identical. They may pay special attention to one particular section of the population, but, at the same time, they will take account of the interests of other sections. In most international meetings, the situation is different. The “general interest” ranks lower than national interests. Nevertheless if all national interests were equal in relation to every subject, this need not form an insurmountable barrier to majority decisions. However, this is not the case. Most states with a minor interest in any one solution would support that, notwithstanding the fact that one or two other states may have a large, or even vital, interest in another solution. In determining their votes, different delegations use different measurements, the votes representing different values. One example of interests of unequal magnitude can be found in the field of international fishing in the Eastern Pacific, one of the richest fishing grounds in the world. Several states need the fish for food; some states want parts of these fishing grounds to remain unused, as is shown by the following quotation from the speech of the Peruvian delegate at the UN Conference on the Law of the Sea in 1958: “In the case of Peru, there was a remarkable phenomenon, which was worth mentioning in that connection. The guano deposits on the islands off the coast were built up by aquatic birds which fed on anchovies. Over-fishing in the area could therefore result, and was resulting, in a decrease in numbers of those birds, which had an adverse effect on the region’s whole economy, because guano was essential – as manure – to Peruvian agriculture. Thus in the case of Peru, conservation of living resources of the sea was vital to conservation of the land as a source of food”.367

366. 367.

See M. Virally, P. Gerbet, J. Salmon, Les Missions Permanentes auprès des Organisations Internationales 398-399 (1971). UN Conference on the Law of the Sea (1958), Official Records, Vol. III (A/Conf.13/39), at 7, Section 12 (translated from Spanish by the UN).

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It seems plausible that the fish contain more foodstuffs than the excrement of the birds which eat the fish, so that the value of the fish to the fisherman must be greater than the value of the manure to the farmer. Nevertheless, both had an equal representation in the conference.

§864. Unequal representation of interests is very common in international organizations. This militates against majority voting especially when majorities and minorities fluctuate only to a small extent.368 In some situations where the same states always form the majority, the view of the minority may receive too little attention. Their constant position as part of the minority may explain why the Socialist states were reluctant to participate in several activities during the 1950s. In the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples (the Committee of 24) of the General Assembly,369 Australia, the US and the UK contended that the majority prepared decisions in complete disregard of minority views, which indeed induced them to withdraw from the Committee.370

§865. When there are two distinct groups of unequal size in one organization, majority voting can only work when the degree of solidarity is such that the majority will give full weight to the minority’s interests. In the UN this is often done by continuing debates until a compromise can be reached to which both groups can agree. This procedure has been formalized in UNCTAD by the introduction of a conciliation procedure, prior to voting in cases where the minority cannot agree (see above, §777). However, this procedure does not really solve the problem. As long as conciliation is not binding, the interests of the minority may still be overruled. But if conciliation were binding, the decision-making would in fact have been transferred to the commission for conciliation, where the same conflict of interests would arise. Better protection seems to be offered by requiring a qualified majority, or by introducing a system of weighted voting in such a way that neither group can be outvoted. In the OAU, the requirement of a qualified majority (two-thirds) prevented one of the groups of African states previously in existence (the so-called Casablanca group and Monrovia group) from out-voting the other. Organs which clearly only represent two interests have succeeded in giving an equal voting power to each one, either by a system of equal representation (Trusteeship Council) or by a system of weighted voting (commodity councils; see above, §804). Decision-making by majority voting then meets no objection.

368. 369. 370.

U.W. Kitzinger, The Politics and Economics of European Integration 60-62 (1963). On this Committee, see P.K. Menon, United Nations Special Committee and Decolonization, 9 IJIL 19-46 (1969). UN Doc. A/AC.109/366, at 10.

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§866

§866. In organs where majorities and minorities fluctuate with the interest concerned, there may be greater willingness to search for compromises. However, the risk that vital interests of minorities may be outvoted by the lesser interests of majorities remains. In this case too, the requirement of a large qualified majority or the introduction of a system of weighted voting would only partly overcome this objection. A large qualified majority still leaves a minority whose interests in particular issues may be greater than those of the majority. A weighted voting system will necessarily have to be based on certain general criteria. This would mean that the ten or twenty states which have a vital interest in sea-fishing or coffee-growing could still be outvoted by a large majority of other states, unless a different weighted voting formula could be used for each specific interest, which seems to be technically impossible. §867. In the constitutions of the European Community and Euratom, a supranational organ has been incorporated in the decision-making process. For all important decisions, a proposal of the Commission is required (see above, §547). It may be assumed that the vital interests of minorities will be taken care of in those proposals. When deciding in conformity with such a proposal, the Council may act by (qualified) majority vote. For amending the proposal however, unanimity is required.371 Thus a system was found which permitted majority voting even on issues which might be of vital interest to a minority. The Court of Justice described this system in the following way: “within the framework of the mechanics of collective discussion ..., the member states should emphasize their interests, whilst it falls to the Commission to arbitrate ... between possible conflicts of interest from the point of view of the general interest”.372 D.

Methods of voting

§868. There are four different procedures for voting: simultaneous open voting, roll-call or recorded voting, secret voting and voting by correspondence. The procedure followed may be decisive for the result obtained. Originally, the first three procedures were carried out manually. But the larger organizations gradually have had recourse to time-saving electronic voting systems. In 1990, the Governing Body of the ILO decided to introduce an electronic voting system at the International Labour Conference (the ILO’s general congress). However as a result of the complexity of the system, it was three years before this electronic voting system became operational.373

371. 372. 373.

EC, Art. 250.1. Case 57/72, Westzucker, ECR 1973, at 341. See ILO Doc. GB.256/SC/3/1 (May 1993).

§869

1.

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Simultaneous open voting

§869. The most common method is the vote by a show of hands, by sitting and standing or by raising the delegation’s name-plate. Before expressing his vote, the voter can wait to see how other delegations vote. This may be important for delegations that have no clear interest or opinion and want their vote to depend on the attitude of others. The vote is public in that all other delegations can see how a vote is expressed, but it is not registered in the records of the meeting. The main advantage of this method of voting is speed, while its main disadvantage is the risk of error in counting the votes. The Parliamentary Assembly of the Council of Europe once voted by a show of hands. When some members alleged that the Secretariat had miscounted the votes, a recount was requested. The vote was repeated by sitting and standing, but the results differed by one. When again repeated by roll-call, the result differed by three.374

§870. Modern conference halls are usually equipped with facilities for electronic voting. Many larger organs, e.g. the General Assembly of the UN, use this method. Each delegation can push a button according to its wish to vote. As a rule, only the numbers of votes are recorded, not the way in which each delegation has voted.375 Mistakes in counting are practically impossible. This method of voting is fast and secure. 2.

Roll-call or recorded vote

§871. In a roll-call vote, all delegations are asked in succession to express their vote. They answer with “yes”, “no” or “abstention”. This is recorded so that later research is possible on the voting attitude of each delegation. One disadvantage of this manner of proceeding is its time-consuming character and, for this reason, roll-call votes should be limited to important questions. Roll-call votes may present difficulty when many delegations wish to support an interest particularly defended by one delegation. As it is likely that the delegation concerned will have investigated the procedural implications of the main issue, it may also enjoy the unqualified support of other members on these aspects. Delegations that are requested to vote first, are thus at a disadvantage, being uncertain of the way others will vote. For this reason, lots are drawn to decide which delegation is to commence the voting, after which the members vote in alphabetical order.

374. 375.

Reports, Part II (1949), at 344, 360. Also in the 15th Session, 1st meeting, Reports III, at 1032. See GA Res. 2323 (XXII), UNJY 1967, at 135-137.

575

Decision-making process

§872

A proposal was made in the UN that, on matters of peace and security, roll-call votes should be started by the five major powers,376 but this was not accepted.

§872. In some organizations roll-call votes may be requested by one delegation, but usually the request must be made by two or more. When the General Assembly votes by mechanical means, it is no longer necessary to call out the names of the members. Unless a delegation specifically requests that they be called out, the roll-call vote takes the form of all other votes, the only difference being that each member’s vote is recorded.377 3.

Secret vote

§873. Most international organizations use secret voting only for the election of persons, even if the number of candidates is the same as the number of places to be filled.378 In the personal interest of the candidates it would seem improper to record those delegations which favoured or opposed them. Sometimes an exception is made where there is only one candidate.379 In the UPU,380 the ITU381 and in the WMO382 every vote is taken secretly if requested by two (in ITU by five) delegations. Such a request takes precedence over a request for a roll-call vote. In the WHO secret votes can also be taken on any subject (with the exception of budgetary questions) but only if requested by a majority of the meeting. 383This makes secret voting difficult. In the UN, there are no provisions for secret voting in cases other than elections, although this does not form an absolute barrier to the use of such procedure by an organ.384 The absence of a provision for secret ballots for other matters does not, however, absolutely prevent an organ from resorting to such a procedure. On a number of occasions, the General Assembly of the UN has decided on the choice of a site or venue by secret ballot.385 §874. In a secret vote, block solidarity may disappear. There is no fear of offending other delegations or of creating political conflicts. A delegation can vote entirely according to its own opinion. On the other hand, the delegation will not be subject to any control and could even ignore the instructions of its own government. Persuasion to accept compromise or to change an opinion

376. 377. 378. 379. 380. 381. 382. 383. 384. 385.

YUN 1965, at 17. GA Res. 2323 (XXII). Cf. UNJY 1984, at 101-102 and UNJY 1985, at 84-85. Cf. UNJY 1986, at 307-309. UPU, Rules of Procedure of Congresses, Art. 19.3(c). ITU, General Rules of Conferences, Assemblies and Meetings of the Union (adopted in 2002), Nr. 21.5 (1(c)). WMO Regulation 60. World Health Assembly, Rule 78. For example, in 1989 a vote by secret ballot took place on the application for membership by Palestine. See UNJY 1984, at 170-171. UNJY 1977, at 195-196; UNJY 1984, at 170-171.

§875

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will be impossible when it is unknown how delegations have voted. For that reason, secret voting seems to be inappropriate for complicated political issues. It may, however, be useful in other matters, particularly, for example, as regards the procedural question of whether a particular proposal is so important that it requires a qualified majority (see above, §853). The method of voting does seem to influence the result. On 5 June 1964, the UPU Congress voted on a declaration against the attendance of South Africa. The debates had been heated and pressure from other African countries had been strong. In an open vote by roll-call, 58 countries voted against the presence of South Africa, 30 voted for it and 26 abstained. The South African delegation had to leave the meeting. It was not clear, however, whether an expulsion from the UPU was intended or merely expulsion from the meeting. On 9 July, a new resolution was tabled to ensure that South Africa was banned from the Union. This time the vote was taken by secret ballot. Fifty-six countries voted against South Africa, 58 favoured South Africa’s presence in the Union and only 3 abstained. It may be that some countries had understood that the first declaration would apply only to the present session of the Congress and that they wished to ban South Africa from that session only. It is also possible that a number of countries fundamentally changed their minds. But it seems more probable that the political atmosphere created by many African delegations induced several representatives to vote with the African block, or at least to abstain when the voting was public because the support of the African block was needed in other cases. For the African delegations, the question was emotive and no delegation wanted even to appear to be favouring the South African policy of apartheid. However, arguments preceding the second (secret) vote were dominated by the major interest of maintaining the universal character of the UPU.386 The number of abstentions fell dramatically. To some extent modern electronic voting comes close to secret voting. Usually nobody notices how a particular delegation has voted. Only the final result is indicated. It remains possible, however, to identify each vote. In particular situations it may be advisable to permit identification after the voting.

§875. Some regional organs, for example the Council of the European Union, have a different sort of secret vote. The members vote orally and openly among themselves but they do not reveal the voting to the outside world. Thus they keep secret how the delegates voted and thereby prevent criticism and political control over their individual members. The procedure seems acceptable for courts (which should not be controlled by other organs) but less tolerable for organs of ministers who should be accountable to their parliaments. Nevertheless, this form of secrecy helps ministers to make concessions (which may be unpopular at home) and therefore may facilitate decision-making. Greater openness was introduced in December 1993, in an amendment to the Council’s rules of procedure. At present the Council of the European Union, when acting

386.

H.G. Schermers, Some Constitutional Notes on the Fifteenth Congress of the Universal Postal Union, 14 ICLQ 636-637 (1965). During the sixteenth congress (Tokyo, 1965), it was made clear that South Africa was at that time only expelled from the session, see Res. C 2, UNJY 1969, at 118-119.

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§876

in its legislative capacity, is obliged to make public the results of votes and explanations of vote as well as statements in the minutes.387 4.

Vote by correspondence

§876. Many organs can vote when not in session,388 which means that urgent decisions do not always have to wait until the next meeting. On the other hand, since no discussions precede the decision-making, some delegations may not be fully informed of all possible consequences of the decision. To the extent that provision is made for voting by correspondence, it is usually subject to severe restrictions. In the Council of the European Union and in, e.g., the International Olive Oil Council, no vote by correspondence can be taken if any one member objects.389 §877. One of the most detailed procedures for voting by correspondence is that of the World Meteorological Organization.390 It is the responsibility of the president of the organ concerned to decide whether a vote will be held by correspondence. Secret voting by correspondence is not possible for other cases than elections.391 Votes by correspondence are conducted by the Secretariat; at least two senior officials of the Secretariat are designated by the Secretary-General to check and count the voting slips received. On a number of matters and on all proposals the implementation of which would call for extensive or costly measures, votes by correspondence must be preceded by an exchange of opinion. In all other cases, such an exchange of opinion may be requested by the president or by any member. To comply with this requirement, the president presents all available information for and against the proposal and sets a reasonable time-limit for receipt of comments. These comments are then distributed. Having studied the comments, the president may amend the proposal and ask for further comments, which again will be distributed. In the light of the replies, the president decides whether to proceed with the vote by correspondence or to defer further action until the next session of the organ concerned. When he decides to proceed with the vote by correspondence, he prepares a draft decision and ballot papers are distributed,

387. 388. 389.

390. 391.

Art. 207.3 EC. Art. 7 of the Rules of Procedure of the Council (OJ 2002, L 230/7) defines when the Council acts in its legislative capacity. E.g. GATT; see BISD, 12th Suppl. 16 (1964). The system of voting by correspondence was introduced by the UPU in 1874; Zacklin, op. cit. note 268, at 44-45. International Olive Oil Agreement 1976, as extended in 1993, Art. 11.5. Rules of Procedure of the Council of the European Union, Art. 12. In 1985 a decision was adopted by correspondence although two member states were opposed to use this voting procedure. The UK argued that this constituted an infringement of an essential procedural requirement under Art. 173 EC (now Art. 230), and requested the EC Court to declare the decision in question void. The UK’s claim was sustained (Case 68/86, UK v. Council, ECR 1988, at 902). General Regulations 65-78. WMO, Regulation 75 and 60. See also UNJY 1984, at 120, and UNJY 1985, at 100-101.

§878

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which have to be returned within 90 days. A separate vote must be requested on each independent question. The proposal is deemed to have been rejected if less than the quorum send in replies. Decisions adopted by a vote by correspondence “shall have [...] the same force, effect and status as if it had been adopted by the constituent body in session”.392 §878. The system of the IMF is also rather detailed.393 The Executive Board may request the Board of Governors to vote without meeting, if any action by the Fund must be taken which should not be postponed until the next meeting of the Board of Governors and does not warrant the calling of a special meeting of this Board. It shall present to each Governor “by rapid means of communication a motion embodying the proposed action”.394 No votes may be cast by members of the Board of Governors during such period after the dispatch of the motion as the Executive Board prescribes. This interval enables the members to consult among themselves if they wish.395 §879. In the UN, voting by correspondence is rare.396 In the International Court of Justice, judges may vote by correspondence if they participated substantially in the proceedings of a case but are unable to be present when the decision is taken.397 The UN Commission on Narcotic Drugs introduced voting by correspondence by a resolution,398 which has been accepted as a sufficient legal basis for decisions taken in this way.399 The International Fund for Agricultural Development (IFAD) also provides for voting by correspondence. As in most organizations, IFAD requires that for valid decision-making, a reply must be received from as many members as constitute a quorum.400 §880. In 1980 the question arose in the IMF and in the World Bank whether member states had the right to withdraw their votes under the procedure of voting by correspondence. If such a right were accepted, a quorum would be lacking. Different answers were given to this question. In 1980, Mr. Amir Jamal of Tanzania was Chairman of the Board of Governors of the World Bank. Under the By-Laws of the Bank, the Chairman of the Board is entitled

392. 393. 394. 395. 396. 397.

398. 399. 400.

Regulation 77. IMF, Art. 12 (2); By-Laws of the IMF (58th issue, May 2001), Section 13. By-Laws of the IMF (58th issue, May 2001), Section 13 (b). By 30 April 1971, the general congress of the IMF had adopted 342 resolutions of which 116 had been adopted without a meeting. Gold, op. cit. note 114, at 54. UNJY 1970, at 171-172. See G. Guyomar, Le vote final des décisions de la Cour internationale de justice, 17 AFDI 334339 (1971); S. Rosenne, The Law and Practice of the International Court 1920-1996 (3rd ed. 1997), at 1557-1568. Res. 1 (XX) 1965. UNJY 1972, at 171. IFAD, Governing Council, Rule 39.

579

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to invite observers to meetings after consultation with the Executive Directors, but not necessarily with their approval. Jamal instructed the President of the Bank to invite the PLO to attend the 1980 annual meeting as an observer. The President of the Bank refused, knowing that the majority of the Executive Directors disagreed with such an invitation. This question arose in the IMF at the same time. In both organizations, the Board of Governors took a decision on the competences involved, voting by correspondence. During the period prescribed for voting not enough votes having been collected, the period was extended by ten days. (It was disputed whether this was legally permitted.) Before the end of the extended period, the necessary number of votes had been received, including the negative votes of Syria and Sudan. However, before the voting period had expired, these two countries requested to withdraw their votes. Acceptance of this request would have caused the number of votes cast to fall under the required minimum and thus the proposed resolution would not be adopted because of the absence of a quorum. The Executive Boards of IMF and World Bank decided that member states did not have the right to withdraw their votes under the procedure of voting by correspondence. At the same time, a Special Committee was charged to further study the question; a majority of this committee reached the conclusion that such a right to withdraw exists before the expiration of the voting period.401

§881. Debates serve little purpose for some political issues. Delegations will not be persuaded to change their position where their governments hold strong views and indeed, debates may result in increased antagonism. In such cases, a vote by correspondence, without any debate, may be the most appropriate course of action. The prior consultation of all members, not only those present at a meeting, is an additional advantage. It seems positive therefore that the African Union (and previously the OAU) votes by correspondence on the admission of new members.402 5.

Alteration of votes cast

§882. May a delegation change its vote after it has been cast? At the 92nd plenary meeting of the UN General Assembly, Pakistan was admitted as member with 53 votes in favour, no abstentions and only Afghanistan voting against. At the 96th meeting, the representative of Afghanistan announced that his delegation wished to withdraw its negative vote.403 Was this admissible? In rare cases, a change of votes has been permitted with full retroactive effect as to the decision taken. At the 15th Congress of the UPU, the US delegation changed its vote when the rejection of a proposal presented problems during further discussions. The change of one vote

401.

402. 403.

This case is discussed in H.G. Schermers, The quorum in intergovernmental organs, in K.-H. Böckstiegel et al. (eds.), Law of Nations, Law of International Organizations, World’s Economic Law: Liber amicorum honouring Ignaz Seidl-Hohenveldern 527-535 (1988). AU, Art. 29; OAU, Art. 28. YUN 1947-48, at 40.

§883

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was sufficient to obtain a majority for the proposal. The meeting considered the rejected proposal as having been adopted after the US declaration.404

§883. In most cases, however, no legal effect is given to a change of vote made after the announcement of the result of the voting. Declarations such as Afghanistan’s may have some political effect but they cannot influence the decision taken.405 In subsequent UN practice, the results of a vote have never been altered after the announcement of the results. If a member state did not participate in the vote and wish subsequently to express its opinion, a footnote to the tabulation of votes is used: “Subsequent to the vote, the representative of ... announced that he had been unable to participate in the vote but that, if present, his delegation would have cast [an affirmative] [a negative] vote”. If a member state is not satisfied with such a note, the only solution left for it is to propose a reconsideration of the vote by the organ in question. If this proposal is accepted, the new vote supersedes the earlier one.406 The effect of a change of vote before the result of the voting is announced is less clear. The question has arisen several times in roll-call votes.407 In particular, those delegations at the head of the list of roll-call voters may wish to change their vote on hearing how other members have voted. Afraid of encouraging this practice, the General Assembly of the UN has been reluctant to rule on this question,408 but the ad hoc committee on the improvement of the methods of work of the General Assembly409 proposed that every delegation should “have before him a switch with three positions, marked ‘yes’ ‘no’ and ‘abstention’ respectively. The representative would move the switch to the desired position, and would be completely free to alter his vote until the close of the voting”. This indicates that a change of vote during the voting proceedings would be permissible, but after the recording of the votes, alterations may be recorded but do not change the voting result.410 E.

Conditional voting

§884. Sometimes delegations add certain conditions to their agreement to a project. They state officially their own particular interpretation of the proposed rule and the way in which they will apply it. Once this is made clear, little pressure can be exerted to oblige the member to deviate from its stated interpretation, especially if no objections were raised before the voting. Do such declarations have legal consequences? According to the EC Court, there are no such consequences. It ruled in 1973:

404. 405. 406. 407. 408. 409. 410.

UPU, XVth; Congress, C4 PV4, at 7. Cf. also UNJY 1982, at 177. UNJY 1984, at 159-160. UN Doc. A/2977. GA Res. 983 (X); See on this question also Kaufmann, op. cit. note 104, at 126. A/5423, Annex VIII. See e.g. the recording of the voting on GA Res. 2339 (XXII), YUN 1967, at 506.

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“It cannot be accepted that a member state should apply in an incomplete or selective manner provisions of a Community Regulation so as to render abortive certain aspects of Community legislation which it has opposed or which it considers contrary to its national interests. [...] For a state unilaterally to break, according to its own conception of national interest, the equilibrium between advantages and obligations flowing from its adherence to the Community brings into question the equality of member states before Community law and creates discriminations at the expense of their nationals, and above all of the nationals of the state itself which places itself outside the Community rules”.411

This decision seems sound as a general rule of international institutional law. Acts of international organizations have a legal force of their own and cannot be altered by the various addressees. Possible restrictions in its application should be incorporated in the act itself. Qualifications to decisions of international organizations can only be made when the members remain free individually to decide whether (and to what extent) they will be bound by the decisions (see below, §1263). §885. Many resolutions refer to prior resolutions. In UNCTAD, the Western European countries in several instances wished to add the words “as adopted” immediately after such references. This was to record that their objections to those prior resolutions still held. The wording “recalling resolution ... as adopted” would indicate that their objections to the resolution were also recalled. The UN Office of Legal Affairs objected to this practice as it considered these words to be without legal effect, unnecessary and misleading.412 §886. The conclusion that should be drawn from this is that conditional voting is impossible. Members vote as elements of the organization and not as partners in a contract. The legal consequences of a decision are the same for all members, irrespective of whether they voted for or against. The IMF does form an exception to this rule in that in the case of special drawing rights, an optingout procedure is available only to those members that have voted against. This is based, however, on a specific legal rule.413 §887. Members often issue a “declaration of vote” either before or after the voting.414 This is not quite the same as a conditional vote. The member concerned does not intend to limit the effect of the decision taken. Declarations of vote are made for the record. By explaining why in the specific case a delegation has voted for or against a proposal, the government concerned may be better able to defend its position at home or in other international organiza-

411. 412. 413. 414.

Case 39/72, Premiums for slaughtering cows, ECR 1973, at 115-116. UNJY 1974, at 172-174. See Gold, op. cit. note 114, at 102-103. Cf. UNJY 1983, at 176-177.

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tions. In the case of a negative vote, it may be easier to remain opposed to similar proposals elsewhere when the earlier negative vote has been recorded. Declarations may also be made when a proposal is adopted by consensus, when, in the absence of voting, a member wants to put on record either why it did not object, or how it interprets the decision.415

VII. Entry into force of decisions A.

Immediate entry into force

§888. Most decisions of international organizations enter into force as soon as they have been accepted by the required majority vote. There is certainly no reason why recommendations or declarations should enter into force at a later date. Recommendations only propose action, they do not directly change the law (see below, §1217-1243). Declarations proclaim the law as it already exists or they lay down aims to be reached only later (see below, §1244-1261). Binding decisions usually only take legal effect after a certain period. Elections of persons and of members of non-plenary organs are often held before the vacancies arise. The persons concerned are thus able to prepare themselves for their new functions. Binding decisions of the European Communities take effect on notification to the persons concerned if they are addressed to specific persons or states. In the EC legal order, binding regulations generally enter into force on a specified date or, failing this, on the twentieth day following their publication.416 Such requirements, however, only provide a period of delay. The decision was final once the vote had been taken. B.

Previous agreement of other organs

§889. The normal method by which two or more organs of an international organization are involved in the decision-making process, is to charge one or more of them with the drafting of a proposal which may lead to a decision by the other organ. All organs play a role in this procedure and the higher organ is able to accept, amend or reject the decision. In some cases, however, the final organ involved in the decision-making process has weaker powers. Sometimes where two organs are involved in decision-making, they must reach mutual agreement. A good example is the mutual agreement between the Security Council and the General Assembly of the UN, on the admission of new members and on the candidates for the International Court of Justice.417

415. 416. 417.

See UN Doc. A/PV 2312 (1974), recorded in 20 AFDI 495 (1974). EC, Art. 254. UN Charter, Art. 4, and ICJ Statute, Art. 10, respectively.

583

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It may be doubted whether it was the separate competence of the Security Council (peace and security) that made it desirable to require its cooperation in the acceptance of new members and new judges, or whether it was the political desire to strengthen the influence of the major powers on these issues, which in fact led to this state of affairs.

§890. In other cases, the decision is taken by one organ but requires the approval of another before it can enter into force. Such subsequent approval is useful when different organs each have their own areas of competence. Agreements between the UN and the specialized agencies are made by the ECOSOC but must be approved by the General Assembly.418 Minor changes in the constitution of the European Coal and Steel Community (now dissolved) could be made jointly by the Commission and the Council but these alterations required the approval of the Court of Justice and of the European Parliament before they could enter into force.419 Similar approval by the Court of Justice can be requested by the European Parliament, the Council, the Commission or any member state when an agreement is concluded between the EC and one or more states or an international organization. If the Court considers that the agreement is incompatible with the constitution of the EC, the conditions for amendment must be satisfied before the agreement can enter into force.420 The opinion of the Court may be requested even before an agreement is concluded. When the Council had requested the Court to rule on the question whether the Community could adhere to the European Convention on Human Rights, the Court replied that the Community had no such competence.421

§891. In most international organizations no organs have specific competences which are different from those of the general congress. For that reason, there is little need to require subsequent approval of congress decisions by other organs. As the supreme organ, the power of the general congress usually extends beyond the mere approval of other organs’ decisions. Thus, it may also make amendments where appropriate. In the absence of specific provisions, decisions of subsidiary organs adopted within their terms of reference do not require the endorsement or approval of the parent body concerned, unless the decision in question calls for action by the parent organ.422 C.

Previous agreement of member states

§892. Some decisions of international organizations require the express agreement of the member states before they can enter into force.

418. 419. 420. 421. 422.

UN Charter, Art. 63. ECSC, Art. 95. EC, Art. 300.6. Opinion 2/94, ECR 1996, at I-1759. See UN Doc. TD/B/327, para. 208, reproduced in 5 JWTL 226 (1971).

§893

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There may be two reasons for requiring such agreement. In the first place, it ensures that all members are involved in the decision-making process before they are bound by it. Members that might not have been present at the session where the decision was taken will still be given the opportunity to study the text. In the second place, an extra opportunity is given to the governments of the member states to study the decision in full before it becomes binding. Not all national authorities may have been involved in the drafting of the instructions to the delegation, and even if they were, the outcome of the decision may differ from what was expected when the instructions were issued. It is doubtful whether these considerations always justify the requirement of individual approval by each government after the decision has been taken. Protection of members who could have participated in the vote should be restricted to a minimum. Membership of an organization entails a certain moral obligation to participate in its work. By not participating, a member neglects a general duty of membership and therefore can be seen to forfeit any right to block the decision. Only the individual rights of absent members should be protected. This could be achieved by admitting representation by proxy (see above §264-266), or by giving prior notice of important proposals. If discussions during the meeting lead to fundamental alterations in the proposals, it may be desirable to postpone the final adoption of the decision to a future session, so that all members can again be informed. The ILO does not decide on the text of a convention at the session in which it is first discussed. Many international organizations follow a similar procedure.

§893. Members are sometimes not permitted to participate in decision-making. In the ICAO, most important decisions are made by the board of the organization (the Council). The decisions will nevertheless bind all members which do not expressly “contract out” (see below, §1288-1294). In order to permit the non-members of the Council to exert some influence on the most important Council decisions (the adoption and amendment of annexes to the ICAO Convention), a majority of the members were granted a collective right of veto against these decisions. Annexes, or amendments to annexes, will not enter into force if a majority of the members register their disapproval within three months of their adoption by the Council.423 This has never yet occurred.424 §894. The desire to allow further discussions within the member states seems a more persuasive argument for requiring their express approval of a given proposal. International decisions may strongly influence national policy, which itself is a complicated matter involving many national organs. Although

423. 424.

ICAO, Art. 90(a). E. Yemin, Legislative Powers in the United Nations and Specialized Agencies 130 (1969). Buergenthal, op. cit. note 44, at 68. Information obtained from the ICAO Secretariat (January 1994).

585

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§895

membership of an international organization necessarily entails some limitations on the freedom of the organs of a state, international decisions should limit the decision-making power of these organs as little as possible without their approval, particularly in the case of national parliaments. In many states, the express consent of parliament is required for the adoption of generally binding pieces of legislation. However, it is perfectly conceivable that international decisions impinge upon these general national rules, without the national parliament playing any role whatsoever. Unlike governments, parliaments are not directly involved in international decision-making. Thus, the international decision-making process could jeopardize the balance of power between national governments and parliaments. Organizations taking many binding decisions try to deal with this problem by allowing national members of parliament to participate in the decisionmaking in the international fora. However, even if there were a strong international parliamentary organ, this would base its decisions on criteria other than the specific national interests of each member. To allow each national parliament to play its role before a decision binds the state, the requirement of individual approval by each member state seems essential. Nevertheless, this may not always be true. Effective coordination between a state and its delegation to an international organization, together with appropriate timetables in international decision-making, could provide an adequate remedy for these essentially national problems. If proposals are distributed sufficiently in advance of the meeting and if no final decision is taken before each delegation has had sufficient time to request further instructions whenever necessary, all national authorities, including the parliaments, could be heard before a delegation is instructed to vote on the final proposal. The Inter-Parliamentary Union recommended that, as far as practicable, governments should keep parliaments informed of the main course of negotiations. Even when the negotiations do not lead to binding decisions, parliaments should still be given the opportunity to express their views on them.425

§895. It would be possible to operate without requiring separate approval by each member and strong arguments can be adduced for doing so. First, there is the time factor. Modern developments increasingly require rapid decisionmaking. Separate approval by each member simply requires a great deal of time. There is usually at least one member whose domestic situation or change of government delays the act of approval. Second, the separate approval by each member negates the principle of collective action, which is inherent in every international organization. Mutual persuasion and the search for compromise are basic reasons for holding meetings of international organizations. National authorities that do not participate in this process are less receptive to the arguments of others. The decisions will be judged mainly on the basis

425.

Recommendation adopted at the 42nd annual conference, quoted in 11 IJIL 270 (1971).

§896

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of their consequences for national policy. The process of mutual consultation, which has probably influenced the national delegations, will have little effect on the attitude of national authorities deciding on final approval. Similarly, national objections raised after the decision has been taken cannot be considered in drafting the text. At this stage of decision-making, new national objections can only block an agreement that has already been reached. §896. Separate acceptance by member states is mainly required in two fields: (1) amendment of the constitution (see below, §1168-1177) and (2) adherence to conventions drafted by the organization (see below, §1281-1297). Decisions to amend a constitution sometimes enter into force only when they have been accepted by all members. In other cases, they require acceptance by only a proportion of the members to enter into force for all. Finally, amendments may sometimes enter into force only between the members that have accepted them. This is of course the norm for conventions, which always enter into force only between those members that have accepted them.

VIII.

Termination of decisions

§897. Some decisions are taken for a specific period of time or with the objective of realizing a particular aim. They come to an end at the end of this period of time or when their aim has been realized. Other decisions are intended to remain in force until replaced, revised or revoked. As a rule, organizations that can make rules can also amend or revoke them (for an exception, see above, §231) A.

Amendment and revocation

1.

Amendment

§898. The existence of a decision can often form a psychological barrier to further decision-making. Members may be reluctant to re-open the discussion in a field in which agreement has been previously reached. Retention of an existing decision may prove easier than revision.426 Nevertheless, if circumstances change considerably, amendment of the rules is essential to any legal order. One of the greatest problems of the international legal order is the extremely difficult procedure for amending its existing binding legal rules, a procedure which does not meet the needs of practical daily life.

426.

K.W. Deutsch, The Nerves of Government 246 (1963).

587

Decision-making process

§899

We noticed above (§710) that the initiative for taking decisions can often be found in prior decisions of the organization. Similarly, an initiative for amendment may be anticipated in a legal rule.427 §899. In practice, the amendment of non-binding decisions of international organizations poses no problems. They create no rights, and new recommendations on the same subject cannot therefore affect vested interests. The acceptance by the UN General Assembly of a recommendation to terminate colonialism does not impede the adoption of a more extensive recommendation at the next session. In fact, recommendations of the General Assembly are often interrelated. Thus, they often begin with the consideration: “The General Assembly, recalling its resolution ... ” and then enlarge on or amend what was previously recommended. §900. Binding decisions can be amended by the same procedure by which they were adopted. The European Communities offer many examples.428 When the amendments are of minor importance, and particularly when errors are being corrected, the Communities do not always follow the procedure established for making (and therefore also for amending) decisions.429 This may seem illegal. If the Council is obliged to seek the opinion of the European Parliament before adopting a decision, it should also require the Parliament’s opinion for amending it. On the other hand, it should be considered that, in the consultation procedure, the Council has the power to alter its proposals after the necessary consultations, and indeed before publication it may make all the amendments it thinks fit. This may be compared to the situation where an error is discovered soon after the publication of a decision. In such a situation, the correction could be regarded as a continuation of the same decision-making process. Likewise, the consultations that took place for the original decision may also be valid for the amendment. This specific question has not yet been brought before the Court of Justice. §901. A closely related question is whether a decision should be annulled by the Court of Justice if the General Secretariat of the Council has made alterations to the text of a decision adopted earlier by the Council. The Court ans-

427. 428. 429.

Several constitutions provide that their amendment will be discussed after a number of years; see e.g. UN Charter Art. 109.3; TEU, Art. 48.2. Community decisions sometimes contain a specific clause providing a less rigorous procedure for the adoption of amendments. For some examples of small corrigenda, see OJ 1990, L 73/34-35. Usually, only the specific error is corrected. One exception is formed by Regulation 4064/89 (on the control of concentrations between undertakings), originally published at OJ 1989, L 395. After nine months, this Regulation was published again, accompanied by the following explanation: “Given that certain errors appear in the various language versions of the above-mentioned Regulation, the entire text shall be published as below, in the form of a corrected version replacing [the earlier version] ”. See OJ 1990, L 257/13.

§902

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wered this in the affirmative, concluding that the General Secretariat does not have the power to make such alterations, if they go beyond simple corrections of spelling and grammar, and therefore the decision was declared void.430 Subsequent to the adoption of Directive 86/113/EEC (laying down minimum standards for the protection of laying hens kept in battery cages), the General Secretariat added, inter alia, a reference to Article 42 EEC (now Article 36) and replaced the reference to the European Convention for the Protection of Animals kept for Farming Purposes by a reference to the common organization of the market and to the rules on the conditions under which egg production takes place. The United Kingdom requested that the Court annul the Directive, partly for this reason. The Court observed that the Council’s Rules of Procedure did not authorize the Secretariat to make alterations or corrections to texts adopted by the Council. Although spelling and grammar may be corrected, the content of the decision in question must not be affected. These considerations also apply to alterations to the Preamble, which often contains the raison d’être of the decision. The statement of reasons forms an essential part of the decision.431

§902. It is not self-evident in all cases that the amendment of binding decisions should require the same majority as the initial adoption of those decisions. When an organization decides by qualified majority to suspend a part of its binding rules or to take other temporary emergency measures, it could be argued that the exceptional situation should end when there is no longer a qualified majority in support of these measures, or, in other words, when more than the minority wants to amend them in order to weaken them.432 §903. May an international organization amend decisions which bind only some of their members, or should this right be reserved to the members concerned? Although this question might arise with respect to constitutional amendments which are not generally binding (see below, §1187-1188), it is only of practical importance for conventions drafted by the organization (see below, §1311-1312). §904. As a rule, a proposal can only be amended by the organ that made it. In the European Community, the Council may sometimes amend Commission decisions. Most examples of this procedure are to be found in the field of agriculture. Before taking a decision, the Commission must often consult a management committee (see above, §275). If it does not follow the advice of this committee, the Council has the right to replace the decision of the Commission by its own decision. The EC Court may also amend some Commission decisions, namely decisions levying fines. It can reduce (or increase) a fine which it considers inappropriate (see below, §1552).

430. 431. 432.

Case 131/86, UK v. Council, ECR 1988, at 935. Id., at 934-935. On this question, see Gold, op. cit. note 114, at 126.

589

2.

Decision-making process

§905

Revocation

§905. The most drastic amendment of a decision is its revocation. The decision disappears entirely, often to be replaced by another. The revocation of decisions of universal organizations is rare. Since the decisions are not binding, there is usually no need to revoke them when they become outdated. In 1970, the ICAO revoked 16 resolutions that had not been superseded by new resolutions, because it considered that the objectives had been realized.433 In 1991, the UN General Assembly revoked its earlier determination that zionism is a form of racism and racial discrimination, contained in Resolution 3379 (XXX) of 10 November 1975.434 Some member states (which subsequently voted against the resolution) argued that a fundamental decision like the revocation of a General Assembly resolution could only be taken by a two-thirds majority vote.435 Others (which subsequently voted in favour) took the view that a decision to revoke an existing resolution could be taken in the same way as the decision that was to be revoked (in this case: simple majority).436 When this matter was put to the vote, the proposal to treat the decision to revoke the earlier resolution as important, and thereby requiring a two-thirds majority, was rejected.437 In 1994, following the first all-race multiparty elections and the establishment of a non-racial government of South Africa, the UN Security Council decided to terminate, inter alia, the mandatory arms embargo and other restrictions related to South Africa imposed by Resolution 418 (1977).438

§906. In the European Communities, decisions are often revoked,439 which occasionally has created problems when individuals had derived rights from the decisions. In Case 54/65 (Forges de Chatillon), the EC Court considered: “The High Authority has the power to revoke decisions and may even do so retroactively, subject in exceptional cases, to considerations of legal certainty. This power is even greater when the ‘revocation’ concerns not a formal decision, but a simple statement”.440 In Case 14/81 (Alphasteel), the Commission withdrew a decision while an action against it was pending, and replaced it with another one. The applicant submitted that this was not allowed, but the Court saw no objection as the applicant had apparently not relied on the lawfulness of the decision.441

433. 434. 435. 436. 437. 438. 439.

440. 441.

ICAO Assembly Res. A18-1. GA Res. 46/86. See YUN 1991, at 537. UN Doc. A/46/PV.74, at 22-23 (Yemen), 23-28 (Algeria), 28-30 (Sudan). Id., at 31-32 (Uruguay) and 33-36 (Poland). Id., at 37. SC Res. 919 (1994). On the legality of the withdrawal of Community acts, see Schermers and Waelbroeck, op. cit. note 36, at 70-71. See further M.A. Letemendia, Retrait et abrogation des actes administratifs individuels en droit communautaire et en droit anglais (1987). Case 54/65, Forges de Châtillon, ECR 1966, at 196. ECR 1982, at 763, 764, 771. See also Schermers and Waelbroeck, op. cit. note 36, at 355.

§907

Chapter 6

590

The Court has never annulled the withdrawal of a decision although it has held that the enactment of an (illegal) decision, followed by its revocation, can amount to a wrongful act, for which damages can be claimed under Article 288 EC.442 3.

Withdrawal

§907. Sometimes members are permitted unilaterally to withdraw from binding decisions of international organizations. This possibility usually exists for conventions and sometimes for binding decisions that do not bind all members equally and therefore closely resemble conventions (see below, §1262-1317). B.

Termination of membership

§908. When a state withdraws from an international organization, generally it does not remain bound by decisions taken while it was a member. This conclusion is the logical consequence of the fact that an international organization strives to reach certain goals, and by withdrawing from the organization, the state disassociates itself from these goals and from the related decisions. If a member withdraws from the European Union,443 it would no longer be bound by the EC antitrust or agricultural policy, not even by that part of the policy that was established while it was a member. An international organization simply cannot require a former member to apply its binding decisions, unless it has made a specific arrangement with the former member to that effect. Of course, the fact that it is no longer internationally obliged to do so does not prohibit a member from voluntarily continuing to apply the rules. §909. The effects outlined above are limited to decisions deriving their binding force from the constitution of the organization. Other decisions remain unaffected. The withdrawing state will usually remain bound by conventions made by the organization which it has ratified since participation in conventions is not necessarily limited to members of the organization. Only in exceptional cases will the convention provide to the contrary.444 The constitution of the ILO provides expressly that withdrawal from the organization does not affect the continuing validity of obligations arising from conventions.445 Apart from conventions, other types of decisions may also remain in force. A universal organization may unanimously have made a declaration that certain rules are rules of international law (see below, §1248-1258). Such a declaration does not create international law, but it merely records its existence. With-

442. 443. 444. 445.

Cases 19, 21/60 and 2, 3/61, First Fives Lille Cail, ECR 1961, at 297. The Treaty on European Union contains no provision for withdrawal. By using Art. 48 (amendments), however, the possibility to withdraw could be introduced. For example, European Convention on Human Rights, Art. 58.3. ILO, Art. 1.5.

591

Decision-making process

§910

drawal from the organization does not entail withdrawal from this sort of rules. The vote in favour of recording the existence of a legal rule will be a permanent indication that the state has recognized the rule. Furthermore, binding decisions of international organizations may also have entered into the national legal order. Whether such decisions can still belong to that national legal order after termination of membership is a question of national law. This could well be the case for several kinds of decision (e.g. regulations allowing colouring of foodstuffs). Withdrawals cannot affect commitments which the state may have made to the organization. Thus, contributions will have to be paid up to the date on which withdrawal becomes effective, loans must be repaid, etc. C.

Dissolution of the organization

§910. The legal order of an international organization will come to an end when the organization is dissolved. Its binding decisions will also disappear, unless some provision is made for maintaining them in force, either in the national legal order of the members or in the legal order of another international organization. Continuance in the national legal order can be arranged individually by the national law of each state. Continuance in the legal order of a new organization is usually provided for particular groups of decisions only (see below, §1648-1665). D.

Political annulment

§911. In many international organizations, decisions of lower organs need the approval of a higher organ before they can enter into force (see above, §890). This causes a considerable delay in decision-making and it may burden the higher organ with a great amount of technical decision-making for which it is not equipped. Some organizations, therefore, have adopted a different system for delegating most of the decision-making to specialized organs whilst at the same time retaining some form of supervision by a higher organ. In those organizations, the specialized organs may take binding decisions, but the higher organ has the right to annul them within a certain period of time. This means that the higher organ will discuss only those decisions that are disputed by one or more of the members. In the IMF, a decision of the Executive Directors (the board) may be referred to the Board of Governors (the general congress) within three months.446 In the European Community, decisions taken by the Commission without the support of a management committee, may in some cases be annulled or amended by the Council (see above, §275).

446.

Gold, op. cit. note 114, at 105.

§912

Chapter 6

E.

Judicial annulment

1.

Possibility of annulment

592

§912. Many decisions of international organizations are adopted by majority vote. One or more members in the minority may claim that a given decision has been taken in violation of the constitution of the organization. The decisions would then be void and no member could be obliged to apply it. But who is to decide whether the decision is indeed unconstitutional? In the absence of agreement to the contrary, the international system has no tribunal competent to make a finding of nullity. It is the affected state itself that rejects the decision on the ground that it considers it null and void.447 Such a unilateral rejection of the validity of international decisions is, of course, antithetical to the implementation of the law of international organizations. To avoid leaving the decision on the validity of international acts to the states concerned, judicial organs may be established, especially in organizations empowered to take binding decisions (see above, §599-601). With the exception of decisions concerning staff members which may be challenged before an administrative tribunal (see above, §544, 602, 642-647), decisions of the UN and the specialized agencies can not be annulled by any court. To some extent, a substitute for direct legal action is possible because the validity of an act may be brought before the International Court of Justice, either by the organ concerned or by another organ authorized to do so (see below, §1366). The Court may then rule upon its legality in an advisory opinion.448 However, neither states nor individuals can ask the Court for such a ruling. The ruling is merely advisory and does not annul the decision, but it will deprive the decision of its political force. For all practical purposes, an advisory opinion holding a UN decision illegal will have the same effect as an annulment. In the absence of an advisory opinion, two states may also dispute the validity of a decision of an international organization and bring their dispute before the International Court of Justice in contentious proceedings.449

447.

448.

449.

Dissenting Opinion Winiarski in Certain Expenses Case, ICJ Rep. 1962, at 232. See also E. Osieke, Ultra vires acts in international organizations – the experience of the International Labour Organization, 48 BYIL (1976-77), at 261; E. Lauterpacht in the 1965 Cambridge Essays in International Law (Essays in Honour of Lord McNair), at 115: “It need hardly be pointed out that the whole question of the effect of illegal acts is closely linked with that of the existence of suitable machinery for determining whether the act is in fact illegal”; R. Bernhardt, Ultra Vires Activities of International Organizations, in: J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21th Century – Essays in honour of Krzysztof Skubiszewski 599-609 (1996). See A. Basak, Decisions of the United Nations Organs in the Judgements and Opinions of the International Court of Justice, (1969); J.P. Jacqué, L’avis de la Cour Internationale de Justice du 21 juin 1971, 76 RGDIP (1972), at 1070-1074, 1083-1093. L.B. Sohn, Enabling the United States to Contest “Illegal United Nations Acts”, 69 AJIL 852-854 (1975).

593

Decision-making process

§913

A proper action for the annulment of decisions450 of international organizations is possible in the European Communities. Such an action can be brought against binding acts adopted jointly by the European Parliament and the Council, binding acts of the Council, of the Commission and of the European Central Bank, and acts of the European Parliament intended to produce legal effects vis-à-vis third parties.451 The Court of Justice may also decide to annul parts of decisions while other parts remain in force.452 Originally, resolutions of the European Parliament could only be annulled if taken under the ECSC Treaty.453 Since the parliament initially had very little power to take binding decisions, there seemed to be little need for judicial review of its acts under the other treaties. In 1977 the Court of Justice held that Article 173 EEC (now Article 230 EC) could not be used to challenge the acts of institutions other than the Council or the Commission.454 However, a few years later, the Court changed its views in the Les Verts Case. This case concerned the European Parliament’s granting of financial support to political parties in such a way that parties not represented in the Parliament received less than those which were. The Court came to the conclusion that “an interpretation of Article 173 of the Treaty which excludes measures adopted by the European Parliament from those which could be contested would lead to a result contrary both to the spirit of the Treaty as expressed in Article 164 [-now Article 220 EC-] and to its system. Measures adopted by the European Parliament in the context of the EEC Treaty could encroach on the powers of the member states or of the other institutions, or exceed the limits which have been set to the Parliament’s powers, without its being possible to refer them for review by the Court. It must therefore be concluded that an action for annulment may lie against measures adopted by the European Parliament intended to have legal effects vis-à-vis third parties”.455 This development in the case-law of the Court was subsequently reflected in the 1992 amendments to the present Article 230 of the EC Treaty, to cover also judicial review against “acts of the European Parliament intended to have legal effects vis-à-vis third parties” as well as judicial review against acts of the European Central Bank and against acts adopted jointly by the European Parliament and the Council.

§913. Acts of Community institutions enjoy a presumption of legality. This presumption applies until the Court has annulled the act in question.456 Illegal decisions may only be annulled if they are brought before the Court of Justice

450.

451. 452. 453. 454. 455. 456.

The reader is reminded that “decision” is used here in its broad sense. The specific sense of individually binding decisions (EC, Art. 249) will be indicated by capitalizing the D in “Decision” or by the expression “binding decision” (see below, §1322). EC, Art. 230; ECSC, Art. 33; Euratom, Art. 146; Schermers and Waelbroeck, op. cit. note 36, at 313-359. EC, Art. 231; Euratom, Art. 147; Schermers and Waelbroeck, op. cit. note 36, at 346-347. ECSC, Art. 38. See Schermers and Waelbroeck, op. cit. note 36, at 409-410. Case 294/83, First Les Verts, ECR 1986, at 1339. See Schermers and Waelbroeck, op. cit. note 36, at 410-411. See e.g. Case 15/85, Consorzio Cooperative d’Abruzzo v. Commission, ECR 1987, at 1005 (para. 10); Case T-72/98, Astilleros Zamacona v. Commission, ECR 2000, at II-1683 (para. 56).

§914

Chapter 6

594

within a specific period of time (one or two months). If an illegal general regulation is not challenged in time and therefore remains in force, it can form the legal basis for further legislation. Nevertheless, the “secondary legislation” can still be challenged before the Court of Justice. In such an action, interested parties do not attack the last link in the decision-chain (the “secondary legislation”) but the previous one. This is done by the so-called plea of illegality.457 As a rule, this plea may only be used for the next to the last link in the decision-chain; earlier regulations cannot be challenged.458 The plea of illegality does not lead to the annulment of the illegal regulation, but only establishes its illegality thereby depriving the later decision of its legal basis. The later decision will then be annulled. The plea of illegality is actually an incidental ground of illegality in proceedings for the annulment of a decision. It cannot be brought independently.459 Many Community decisions have legal effects within the national legal order of the member states. National courts need not apply them when they consider them to have been illegally enacted. Before using this power they may (and must, in case of a national court or tribunal against whose decisions there is no judicial remedy under national law) request the opinion of the Court of Justice.460 In the resulting preliminary ruling, the Court of Justice may then inform the national courts that a particular decision is invalid (see below, §1374-1378). National courts cannot request preliminary rulings on the validity of decisions of other international organizations. How should they proceed when their validity is disputed? They clearly have no power to annul the decisions but they may refuse to apply them when their nullity is beyond doubt (see below, §1353).461 2.

Initiative for judicial annulment

§914. Courts never annul decisions on their own initiative. The question of legality must be brought before the Court. To which groups is the right to be extended to initiate such proceedings? On one hand, it may be desirable to allow as many people as possible to bring an action for annulment. The larger the circle of individuals entitled to challenge a decision, the greater the chance that an illegal decision will be challenged timeously. On the other hand,

457.

458. 459. 460. 461.

EC Art. 241; Euratom, Art. 156; ECSC, Art. 36. See Schermers and Waelbroeck, op. cit. note 36, at 485-492; T.P.J.N van Rijn, Exceptie van onwettigheid en prejudiciële procedure inzake geldigheid van gemeenschapshandelingen (Europese Monografieën No. 26, 1978); T. van Rijn, L’exception d’illegalité, 16 CDE 177-205 (1980). Case 21/64, Third Dalmas, ECR 1965, at 187-188. See Schermers and Waelbroeck, op. cit. note 36, at 489-490. Case 33/80, Albini, ECR 1981, at 2157, para. 17. See also Schermers and Waelbroeck, op. cit. note 36, at 485-489. EC Art. 234; Schermers and Waelbroeck, op. cit. note 36, at 218-307. Cf. Case C-364/92, Eurocontrol, ECR 1994, at I-43.

595

Decision-making process

§915

legal certainty could be jeopardized and the courts overburdened if the act to challenge is too widely available. This latter danger has probably been exaggerated, since uncertainty can be avoided by requiring actions to be brought within a fixed period of time.462 In practice, not many parties consider it worthwhile to challenge an international decision. Nevertheless, the drafters of the Community Treaties have restricted the capacity to bring an action before the Court of Justice to the principal organs of the Communities and to the member states. In addition, individuals may bring an action against decisions that directly and individually affect them.463 However, individuals may often be able indirectly to obtain a court decision on the legality of acts that they cannot challenge directly. Whenever they are affected by such acts they may argue their illegality before a national court. The national court will then ask for a preliminary ruling (see below, §1374-1378), in which the Court of Justice will render an opinion on the legality of the act. The national courts will not apply acts that have been declared illegal by the Court of Justice. 3.

Grounds of illegality

§915. The competence of the EC Court is limited to the legal field. Thus, it can only decide on the legality of decisions, not their suitability or efficiency. For that reason, its competence to annul binding community acts is limited to five legal grounds.464 Infringement of the treaty or of any rule of law relating to its application are the most important of these grounds. “Any rule of law relating to its application” includes international law and the general principles of law common to the member states. Whenever a decision has been taken illegally, some infringement of the treaty will have occurred or some rule of law relating to its application will have been violated. These two grounds of illegality therefore cover the other grounds as well. Lack of competence is not easily established. Generally, the definition of the competences of the organs is sufficiently broad to provide a legal basis for their activities. But a decision taken outside the scope of the treaties, or by the wrong organ of the communities, would be annulled on this ground. Infringement of an essential procedural requirement is the ground for annulment of a decision taken without the consultations required by the Treaties (for example, without the advice of the European Parliament when needed), or a decision not supported by reasons. Misuse of powers exists if an organ has used its discretionary power for a purpose other than that for which it was given.

462. 463. 464.

In EC and Euratom the time-limit is two months (Arts. 230 and 146 respectively), in ECSC it was one month (Art. 33). Schermers and Waelbroeck, op. cit. note 36, at 414-459. EC Art. 230(1); Schermers and Waelbroeck, op. cit. note 36, at 359-404.

§916

Chapter 6

596

§916. In practice, actions can be brought against all illegal decisions on at least one of the grounds mentioned. Similar grounds of illegality may also be raised in international organizations which do not provide for judicial review of their acts. These grounds are then used, not to obtain judicial annulment of decision, but either to influence the decision-making organs or to justify a subsequent refusal to apply them.465

IX.

Concluding observations

§917. Decisions are the expressions by which international organizations concretize their objectives. They embody the aims of the organization in the context of a particular practical situation. This is equally true for Security Council Resolution 660, adopted immediately after the invasion of Kuwait by Iraq, as for Resolution 45.35 (1992) of the World Health Assembly (the WHO general congress), calling upon the member states to intensify national AIDS prevention efforts. §918. International organizations have been created to carry out a number of functions that can no longer be discharged effectively by states alone. Organs employ their powers to fulfil these functions in a rapidly changing world. Nevertheless, states remain sovereign and will try to control this process as much as possible. It is the rules on decision-making that partly determine to what extent this is possible. §919. In Chapter Two, a distinction was drawn between the external role of states, as counterparts of the organization, and their internal role as members, constituent parts of organs of an organization. This dédoublement fonctionnel is clearly visible in the rules on decision-making, which impose restraints on the possibilities for states to control decision-making in the organization. §920. A first restriction is found in the powers of the decision-making organ itself, which circumscribe the freedom of member states to take initiatives for decisions. If a member was to take an initiative in an area apparently falling outside the scope of powers of the organ in question, it will be easier for other members to prevent the adoption of the proposed decision by using the argument that it would be ultra vires. In the rare cases in which there is the possibility of judicial review, such decisions – if they are nevertheless adopted – may be declared null and void. §921. A second, more formidable restraint has been developed in particular within the European Communities, where the Treaties have attributed the

465.

See Osieke, op. cit. note 447.

597

Decision-making process

§922

exclusive right of initiative to the Commission. Although in practice many Community decisions are in fact initiated by the member states, the Commission still has to agree to submit a formal proposal. In taking this decision, the Commission’s starting point is the Community interest. Thus, at least at the beginning of the decision-making chain, the interest of the organization as a whole is clearly represented, and has to be interpreted by an independent institution. This is completely different in other organizations, where, at most, the secretariat or the Secretary-General have a right of initiative alongside that of the member states. §922. The third and most formidable restraint is implied in the rules for the adoption of proposals and in the preceding negotiations. Member states have to convince other member states of the desirability of the proposed decision. To this end, informal and formal consultations take place, in which compromises are sought. Such consultations are influenced by the voting rules. If Bosnia-Herzegovina wants the Security Council to adopt certain decisions, it will do its utmost to secure the support, or at least to avoid veto’s, of the Council’s permanent members. The importance of the rules on voting also emerges from the frequent and often heated discussions about the legal basis of EC decisions, which are, in fact, discussions about the degree of control over decision-making enjoyed by individual member states and by the European Parliament. §923. The rules on voting of many international organizations are attempts to balance state sovereignty (or, more specifically, the principle of sovereign equality of states) and the factual inequality of states. The examples of such formulae given in this chapter all demonstrate different ways of finding this balance. For example, often the same number of basic votes are given to each member (formal equality), and a different number of votes are added (factual inequality). The main difficulty is to find a key for such weighted voting formulae, in other words a criterion has to be developed to decide what weight should be given to each individual member. Often the interests involved lack specificity and are difficult to isolate from other interests. Nevertheless, it is interesting to see that, in a number of organizations, weighted voting formulae have been established which are more than a bare reflection of the power of each state. These formulae relate closely to the interests of states in the specific function to be performed by these organizations. Thus, the US or other large powers do not by definition have overwhelming voting power in a number of organizations of which they are members, for example, some of the development banks, IFAD, the Global Environment Facility, and the commodity organizations including the Common Fund for Commodities. The distribution

§924

Chapter 6

598

of voting strength in these organizations is partly influenced by their specific function.466 §924. Apart from specific rules and practices in each organization, a very broad development has been analyzed above (§783) from decision-making by unanimity to majority decision-making and to the taking of decisions by consensus. It has been submitted that the social conditions of present day’s decentralized international society, in which there is little volonté générale and in which values and interests frequently conflict, provides a context within which a general application of majority voting is inappropriate. Decision-making by consensus proved to be an acceptable alternative in many organizations, as it may allow reconciliation of the apparently irreconcilable. It respects sovereignty, factual inequalities and difference of interests. However, it is of crucial importance that decision-making by consensus is considered as a decision-making device different from unanimity voting, or giving a veto to each member. Otherwise it will paralyze decision-making. The experience of the European Community (see §780 above) demonstrates the difference between a consensus which is more or less the same as decision-making by unanimity (from 1966 until the mid 1980s) and a consensus which in fact covers different majorities and minorities (since the mid-1980s).

466.

Wolfrum, op. cit. note 198, at 281, rightly concludes that: “[a] function-related structure of the decision-making process of international organizations is one of the prerequisites of their efficient functioning”.

Chapter 7

Financing

§925. Before passing on to the types of decisions that can be made by international organizations, the financing of international organizations will be discussed. Often financing is only an administrative consequence of the activities of international organizations that could be discussed together with the secretariat. Increasingly, however, international organizations raise funds not only to cover their administrative costs, but also for the purpose of carrying on specific activities, such as rendering aid to member states. The use of money may then become an important factor in policy-making. Since the rules of interpretation, supervision and enforcement are just as important for financial as for other obligations, we prefer to discuss financing before dealing with the legal order of international organizations. Owing to the dearth of literature available on financing,1 this chapter is more detailed than the others. §926. In most households expenditure follows income; income sets the limits of expenditure. For governments and international organizations it is the other way around. Member states of international organizations are usually committed to pay their share to cover the agreed expenses. Income follows expenditure. This is no different when the organization has some income of its own as long as the members are committed to supplement this income up to the level of the expenditure. In few international organizations there is no such commitment. This method of financing means that international organizations have an almost unlimited capacity to pay and virtually no capacity to save. Any increase of agreed expenditure will be met by an increase of the contributions of the members; any savings will only lead to a decrease in these contributions. §927. In the present chapter we shall first discuss the expenditure of international organizations, then the sources used to finance the expenditure and, finally, the more technical rules of the budget. Throughout the chapter, references to figures will be limited to the minimum necessary to illustrate the text,

1.

For an exhaustive survey of older literature (up to 1969), see R. Szawlowski, Les finances et le droit financier d’une organisation internationale intergouvernementale 16-26 (1970).

§928

Chapter 7

600

to give a general impression of the amounts involved and to facilitate comparison between organizations.

I.

Expenditure

A.

Total expenditure

§928. In 1993 the total estimated expenditure of the United Nations system amounted to some $10,000 million.2 More recent and detailed figures of most of the organizations of the UN system are given in Table 1, which lists the approved regular budgets of these organizations for the period 1994-2003.3 §929. Total expenditure for the European Union amounted to approximately ECU 3,600 million in 1970. This figure rose to some ECU 70,000 million in 1994 and to EUR 97,503 million in 2003.4 The budget of the Council of Europe for 2003 came to EUR 175 million.5 The Organization of American States: $76 million for the Regular Fund and some $8,5 million for the Voluntary Fund (2003).6 The African Union: $43 million for 2004.7 The budget of the International Criminal Court for 2004 is some EUR 53 million.8

2. 3. 4. 5. 6. 7. 8.

$20,171.8 million for the two-year period 1992-1993; see UN Doc. E/1993/84. This figure excludes expenditures by the IMF and the World Bank Group. This table is reproduced from UN Doc. A/57/265, at 4. See the Interinstitutional Agreement of 6 May 1999, OJ 1999, C 172. Figure for 2003: OJ 2003, L 54. The budget for 2003 was adopted 27 November 2002 by the Committee of Ministers (Res. (2002)28). Adopted on 4 June 2002, AG/Res.1909 (XXXII-O/02). Approved programme budget for 2004, Assembly decision Assembly/AU/Dec.3(II), taken from www.africa-union.org. As decided by the September 2003 meeting of the Assembly of States Parties. The budget for the ICC’s first financial period (Sept. 2002 – Dec. 2003) was some EUR 31 million, see Doc. ICC-ASP/1/3.

Organization

601

Table 1 Approved regular budgets, 1994-2003 (in United States dollars)9 1995

1996

1997

1998

1999

2000

2001

2002

2003

UN

1,087,625,600

1,087,625,600

1,171,592,550

1,171,592,550

1,088,194,150

1,088,194,150

1,112,671,250

1,112,671,250

1,138,464,200

1,138,464,200

ILO

233,255,000

233,255,000

289,750,000

289,750,000

240,525,000

240,525,000

233,735,000

233,735,000

217,020,000

217,020,000

FAO

336,557,000

336,557,000

325,000,000

325,000,000

325,000,000

325,000,000

325,000,000

325,000,000

325,879,000

325,879,000

UNESCO

227,745,000

227,745,000

259,222,500

259,222,500

272,183,625

272,183,625

272,183,625

272,183,625

272,183,625

272,183,625

ICAO

51,317,000

52,204,000

50,340,000

52,191,000

54,596,000

52,578,000

53,765,000

55,174,000

56,743,000

57,584,000

WHO

411,050,500

411,050,500

421,327,000

421,327,000

421,327,000

421,327,000

421,327,000

421,327,000

427,827,000

427,827,000

UPU

23,952,902

29,487,672

30,211,638

30,815,948

27,628,169

28,714.788

22,312,500

22,312,500

21,250,000

21,250,000

ITU

113,753,030

137,751,720

142,740,090

142,740,090

142,725,860

142,725,860

104,597,800

104,597,800

103,520,525

103,520,525

WMO

41,073,826

41,073,826

53,620,690

53,620,690

42,842,466

42,842,466

39,669,811

39,669,811

38,227,270

38,227,270

IMO

24,961,493

27,111,084

30,261,111

31,123,957

28,893,221

30,052,421

30,234,849

30,907,525

27,498,525

28,240,326

WIPO

86,985,606

98,984,482

118,636,047

107,775,000

135,753,546

120,385,220

128,838,050

128,838,050

205,575,800

205,575,800

UNIDO

114,882,300

124,129,400

109,549,390

97,256,140

67,682,384

65,524,500

67,179,050

67,179,050

60,288,070

60,288,070

IAEA

200,103,000

211,557,000

219,017,000

221,992,000

221,370,000

227,245,000

226,327,000

229,984,000

243,260,000

248,875,000

2,953,262,257

3,018,532,284

3,221,268,016

3,204,406,875

3,068,721,421

3,057,298,030

3,037,840,935

3,043,579,611

3,137,737,015

3,144,934,816

TOTAL

UN Doc. A/57/265, at 4 (footnotes omitted).

§929

9.

Financing

1994

§930

Chapter 7

602

§930. The budgets of international organizations have grown substantially since their early years, although the last decade a ‘zero growth’ policy has been followed in a number of organizations. The average annual combined cost of the League of Nations, the ILO and the Permanent Court of International Justice from 1920 to 1939 was approximately $5.4 million.11 The first UN budget (for 1946) amounted to $19 million. Subsequently, the size of the regular UN budget has increased considerably, although it has remained stable over the 1994-2003 period: from $49 million in 1956, $122 million in 1966, $373 million in 1976 (half the size of the biennial budget for 1976-1977), $856 million in 1986 (half the size of the budget for 1986-1987), $1,290 for 1994 (half the size of the 1994-1995 budget), to $1,312 for 2003 (half the size of the 2002-2003 budget).12 Although this increase is considerable, the size of the UN budget still does not appear very large. Comparisons have been made to put it in perspective, showing that its size is roughly the same as the costs of one submarine with nuclear missiles, the income from excise duties on coffee and tea in Germany, or the annual costs of the police or of the refuse collection in New York.13 Likewise, the budget of the World Trade Organization is only one third of the budget of the World Wildlife Fund.14 B.

Classification of costs

1.

Methods of classification

a.

Budgeting according to instrument or to activity

§931. The expenses of international organizations can be classified in two ways: according to instrument,15 or according to field of activity. Classified according to instrument, the costs will be divided among the instruments by which the organization fulfils its tasks: staff, conferences, equipment, etc. When classified according to field of activity, they will be split between the various fields in which the organization operates: technical assistance, social develop-

11. J.G. Stoessinger, Financing the United Nations System 38 (1964). For a list of the budgets of the LoN from 1920-1946, see Szawlowski, op. cit. note 1, at 57; for a similar list of the ILO budgets, id., at 58; for a detailed survey of the costs of the International Office of Public Hygiene for the year 1913-1914, see id., at 29. 12. J.-P. Cot and A. Pellet (eds.), La Charte des Nations Unies (2nd ed. 1991), at 372; B. Simma (ed.), The Charter of the United Nations (2nd ed. 2002), at 336; for the 1994 figure, see GA Res. 48/231; for the 2003 figure, see GA Res. 56/254 A. 13. See e.g. Simma, op. cit. note 12, at 335; B. Simma (ed.), The Charter of the United Nations (1st ed. 1994), at 296; UN Doc. SG/SM/3858 (1986), referred to in D. Leurdijk, Financiële problemen van de Verenigde Naties: Amerikaanse bijdrage ter discussie, Internationale Spectator 302 (mei 1986). 14. Speech by WTO Director-General Moore, 2 December 1999 (taken from www.wto.org). 15. The UN uses the term “object of expenditure”. As the object of expenditure will generally be the furtherance of the fields of activity, we prefer to speak of “instrument”.

603

Financing

§932

ment, industrialization, etc. (the items will depend on the task of the organization). §932. Splitting the costs according to instrument is by far the easiest way of dividing the expenses. The instruments cause the expenditure so that it is not difficult to determine how much each instrument has spent. This method of classifying expenditure is useful in order to ascertain, by comparison with other organizations, whether particular costs may be too high or too low. Division according to instrument is also practicable for the sake of auditing. §933. When, however, costs are divided according to fields of activity, the destination of funds is more clearly identified. Member states are interested in the purpose for which their contributions will be used, whilst the various organs need to know the areas in which the organization’s expenditure can be cut down in order to make funds available for new ventures without increasing total expenditure. Such a transfer of funds from one field of activity to another has a greater effect on the policy of the organization than a shift of expenditure, for example, from staff to equipment. As many expenses are incurred simultaneously for a variety of purposes, their classification according to field of activity must, largely, be based on estimates. This does not invalidate the system. As long as the calculations are made in the same way for each project of the organization, and as long as delegates and member states know how the figures are established, classification according to field of activity may be workable even when it is based on estimates. Mutual comparison of budgets is hampered by the fact that the techniques of programme and budget presentation vary considerably. There is still a long way to go towards a standardized budgetary presentation, one of the essential technical conditions for the efficiency of every organization.16 In 1986, the Group of High-level Intergovernmental Experts to Review the Efficiency of the Administrative and Financial Functioning of the United Nations (Group of 18) recommended that the efforts to harmonize the format of the programme budgets of the organizations of the United Nations system should be vigorously pursued.17 In some cases there is a greater need for mutual comparison than in others. Particularly in the field of economic assistance, one organization may wish to know the expenditure of other organizations in particular projects and in particular states, before it establishes its own programmes. In the organizations belonging to the UN family, the Economic and Social Council of the UN and the Fifth (Administrative and Budgetary) Committee of the General Assembly coordinate the work of the agencies and supervise their budgets. These tasks can only be properly fulfilled when the expenditure

16. UN Docs. A/7822, at 20-21 and A/34/84 (reports by Maurice Bertrand). 17. UN Doc. A/41/49, at 9 (recommendation 13).

§934

Chapter 7

604

of the agencies is known, both as allocated to instruments and as distributed according to field of activity.18

§934. In practice, classifications are neither entirely according to instrument nor to field of activity. When attributing costs according to instrument, it may seem theoretically possible to fit each item of expenditure of an international organization into one of five classes of instruments: personnel, buildings, meetings, equipment and general expenses (such as costs for mail, fax and telephone). Even costs of indirect payment (subsidies to others) can often be distributed among those classes, in the proportion in which the subsidized institution spends its funds. §935. When classifying costs according to field of activity, the main problem is to divide the costs of various common services between the different fields of activity. Since no mathematical apportionment is possible, estimates must be made based on the work of the service concerned. One third of the costs of the General Assembly, for example, can be attributed to economic, social and human rights activities, bearing in mind the work programmes of the Second (Economic and Financial) and Third (Social, Humanitarian and Cultural) Committees and the time devoted to these activities by the General Assembly meeting in plenary session, and by the Fifth (Administrative and Budgetary) Committee.19

§936. In some cases, however, it is practically impossible to distribute the costs of common services among the objects concerned. Costs for public information services, legal and personnel departments, budget control, medical services, archives, furniture and communications can hardly be attributed proportionately to different objects of the organization. In a report classifying the expenditures of the UN organizations (with the exception of the financial agencies) according to type of activity, the Administrative Committee on Coordination was able to attribute approximately 80 per cent of the total expenditure to specific fields of activity.20 The remaining 20 per cent had to be allocated to services common to all fields of activity, such as policy-making organs (1.75 per cent), executive management and programme planning (1.83 per cent), activities common to a number of programmes (3.66 per cent), administration (4.4 per cent), common services – such as communications – (3.9 per cent), central and field offices of the United Nations Development Programme (2.87 per cent), other budgetary provisions – such as loans and liabilities – (1.7 per cent).

18. Cf. the Compendium of Introductions to the Budgets of Agencies and Organizations within the United Nations system, UN Doc. E/AC.51/89 (1978). 19. Report of the ACC on the Expenditures of the UN system in relation to programmes, UN Doc. E/4702 of 12 June 1969, at 7. 20. UN Doc. E/4702, at 14-64.

605

Financing

§937

§937. In the UN family, financing used to be mainly according to instrument. The UN budget for 1973, for example, revealed that $126 million was expended on staff costs, out of a total of $226 million. There were separate headings for some organs however, such as the United Nations Conference on Trade and Development ($13 million), the United Nations Industrial Development Organization ($15 million) and the Office of the United Nations High Commissioner for Refugees ($6 million), which also included costs for personnel. This made it difficult to assess the precise relationship between the various costs and instruments.21 As the budgetary authorities were more interested in the purpose for which the money was spent, than in the instrument through which it was directed, the UN changed to budgeting according to field of activity in 1973.22 This means that in subsequent budgets the instruments are no longer indicated. The expenditure spent on, for example, “political affairs” (including disarmament, peace-keeping operations and peaceful uses of outer space) ($248 million for the biennium 2002-2003) can now be compared with “human rights and humanitarian affairs” ($132 million for 2002-2003) and with “international justice and law” (International Court of Justice and legal affairs) ($59 million for 2002-2003). However, more than one-third (in 1994: more than half) of the budget is still reserved for “common support services”, “jointly financed administrative activities and special expenses”, “staff assessment”, “capital expenditures” and “internal oversight”, which have not been classified according to the fields of activity involved.23 b.

Administrative or operational expenditure

§938. Independently of the method of budgeting, the expenditure of international organizations is often classified as either “administrative” or “operational”. Administrative costs are the costs of running the organization (buildings, staff, equipment, etc.); operational costs are the costs of projects performed by the organization (economic assistance, peacekeeping etc.). Some expenditure is clearly administrative; for example, the painting of the building and the salaries of the personnel department. Other expenditure is clearly operational, such as the money paid for the construction of an electricity generating station in a developing country. But for many costs the distinction is less clear. In the case of a peace-keeping operation, for example, discussions will take place in the UN Security Council. Are the costs of employing interpreters for these discussions part of the peace-keeping operation and, therefore, of the operational costs? The same question can be asked about the costs of the

21. See the budget for the year 1973, GA Res. 3044 (XXVII). 22. YUN 1973, at 832. 23. Budget appropriations for the biennium 2002-2003, GA Res. 56/254 A. Figures for 1994: GA Res. 48/231.

§939

Chapter 7

606

delegates attending the meeting, the costs of a staff team travelling to the states involved for discussion with their governments and about the costs of permanent UN staff who keep contacts with the peace-keeping force and write the reports on their activities. In an organization budgeting according to instrument, most of these costs will be seen as general expenditure of the organization. A large part of such costs will be considered operational when the budgeting is according to field of activity. §939. The classification is important, as operational expenditure needs more extensive control than administrative expenditure. In the case of the latter, it may be assumed that the organization is competent to enter into financial obligations, whilst in the case of operational expenditure, the organization’s competence must be demonstrated24 (see below, §1210-1215). In determining whether expenditures legally constitute expenses of the organization, the International Court of Justice tests them by examining their relationship to the organization’s purposes.25 §940. Some international organizations use a separate budget for their operational expenditure, either because they wish to apply a different (voting) procedure in approving this expenditure,26 or because they want to finance them from different sources.27 Since it is practically impossible to calculate how these operational costs should be distributed among the various instruments, we are obliged to limit ourselves to administrative budgets when comparing cost classifications according to instrument. However, despite this limitation, there still can be no fully reliable comparison of the items of administrative budgets of different organizations. Even between the organizations of the UN system, there are important differences. In particular, the World Health Organization used to include in its administrative budget many items which other organizations would consider operational (particularly development cooperation). This explains why its costs for personnel per head are higher than those of the other agencies (its officers are usually highly qualified, whereas their cheaper servicing staff is provided by local authorities and is therefore not included in the WHO budget); the staff for development aid needs extra allowances for replacement. §941. In most international organizations, by far the largest part of the budgets is used for administrative expenditure.

24. B. Conforti, Le rôle de l’accord dans le système des Nations Unies, 142 RdC (1974 II), at 270. 25. Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962, ICJ Rep. 1962, at 167. 26. Euratom, Art. 177.5, before the entry into force of the Treaty of 22 April 1970, amending certain budgetary provisions. 27. IAEA, Art. XIV; UNIDO, Art. 13. Cf. also ESA, which has a general budget for its mandatory activities and a programme budget for optional activities (Arts. 5, 13).

607

Financing

§942

In UN budgets which are compiled according to field of activity (since 1973), it is hard to discover the percentage of administrative expenditure. Before 1973, about 85 per cent of the regular UN budget was administrative.28 However, that figure did not include the costs of the voluntary programmes (see below, §1022-1028) which were always mainly operational (the administrative expenditure of UNDP, for example, is less than 10 per cent of its income). When considering the voluntary programmes and the regular budget together, the UN spends less than 50 per cent on administrative expenditure. In 1968, the specialized agencies, with the exception of the financial agencies and excluding funds obtained from UNDP, spent more than 90 per cent of their budgets on administrative items.29 In 1979, this figure had decreased to 75 per cent, because of a gradual increase in expenditure on development cooperation.30 By far the largest part of the budgets of most regional organizations is for administrative costs. The European Union is an exception, mainly because of its large operational expenditure (mostly the costs of the agricultural policy and the structural policies). In 2003, the EUR 5,211 million provided for administrative costs represented only 5.4 per cent of the budget.31 Approximately half of this was for the Commission. Approximately one-third was for the other institutions.32

2.

Fields of activity: some examples

§942. Which fields of activity require expenditure by an international organization depends on the aims of that organization and the members’ willingness to pursue these aims. There are no institutional questions involved, but a brief survey may nevertheless be useful to illustrate the various purposes on which the international community spends most of its funds. Firstly, we will give a general indication of activities which require expenditure by reproducing some data collected by the UN (sub-section a). Subsequently, we will pay specific attention to development cooperation (sub-section b) and to peacekeeping (sub-section c). a.

General overview

§943. Since 1991, the Administrative Committee on Coordination of the UN (ACC) has submitted, on a biennial basis, information on programmes and resources of the UN system. This Committee was restructured and renamed

28. For 1971 $166 million out of $192 million; for 1969 $132 million out of $155 million. Special expenses (mainly the bond issue for expenses of peace-keeping operations) technical programmes and the costs of special missions (Parts IV, V and VIII of the 1971 budget) have been deducted as operational expenditure. 29. In UN Documents A/6911 and A/7379 the special projects and activities of the specialized agencies are listed in para. 14. Most of the listed expenditure seems to be classified as “operational”. 30. UN Doc. A/32/309, at 9 and 13. 31. European Commission, Doc. SEC(2003)50, at 7, 12. 32. Id., at 17.

§944

Chapter 7

608

to “UN System’s Chief Executives Board for Coordination” in 2001.33 The data in Table 2 below are reproduced from the ACC’s 1993 report; more recent data are not available.34 §944. This classification is necessarily superficial and to some extent inaccurate, as many items fit under several headings. The education of refugee children, for example, may be classified under “education” as well as under “humanitarian assistance and disaster management” or, perhaps, under “social development”.35 The health care for the unemployed may be classified under “health”, “employment” or “social development”. Nevertheless, the table gives a useful general indication of the size and the nature of activities of the UN system.

33. ECOSOC Decision 2001/321. See UN Handbook 2002, at 148-149; see for the most recent report on “the budgetary and financial situation of organizations of the United Nations system”, UN Doc. A/57/265. This report does not contain figures on estimated expenditures of the UN system. 34. UN Doc. E/1993/84, Table 1. It should be noted that this table does not include figures from organizations of the UN system essentially concerned with development financing or general international finance (the IMF, the World Bank Group and IFAD), “in view of the nature of their activities, which are essentially different from those of the organizations covered, and the magnitude of their resources, which are not commensurable with those reported” (id., at 2). These arguments are not convincing. On the contrary, these would be convincing arguments to include figures of these organizations in these overviews, which have the “aim of showing the objectives of organizations of the UN system in the various areas of activity in which they were engaged, and the corresponding allocations of financial resources. It was believed that such information could be a useful tool for improving the understanding of the work of the system and could contribute to more effective coordination of its activities” (id., at 1). 35. Cf. Maurice Bertrand in UN Doc. E/7822, at 46.

Sector I. Policy-making organs

UN UNICEF 169.5

UNDP

UNFPA UNRWA

3.0

46.6

WFP

ILO

FAO

18.9

14.3

UNESCO ICAO 34.0

38.6

36.9

68.3

11.6

164.7

47.3

2.2

WHO

UPU

32.7

ITU WMO 4.7

4.1

609

Table 2 Estimated expenditures of the United Nations system by organization and by sector, 1992-1993, all sources of funds35 (millions of United States dollars) IMO WIPO 2.4

1.3

UNIDO IAEA 3.7

18.4

Total 355.8

II. Programmes of activity 583.8

020 General development issues

693.0

48.0

030 General statistics

161.5

11.0

040 Natural resources

119.6

174.5

050 Energy

62.3

48.0

060 Agriculture, forestry and fisheries

34.7

294.5

070 Industry

49.9

147.7

080 Transport

47.1

135.1

090 Communications

152.1

100 Trade and development

459.9

110 Population 120 Human settlements

7.0

Total

39.0

101.1

28.0

1 106.0

141.5

209.0

251.0

73.0

323.4

296.0

42.3 84.4

124.0

88.5

24.8 181.3

3.0

28.6

20.5

1.6

4.8

370.8

3.0

55.5

1 810.0

2 234.5

601.3 1 850.0

UN Doc E/1993/84, Table 1 (footnotes omitted).

34.6

84.7

55.3

1 634.5

14.5

555.1

1.8

482.3

5.0

597.9

4.5

583.8 537.6 14.4

255.8

1 193.9

12.0

91.2

9.8

12.7

6.9

215.8

1.0

40.6

56.0

18.2

7.2

88.4

8.7 662.1

3.9

118.3

750.5

371.6

46.6

257.0

144.5

82.3

97.8

96.0

23.8 2.7

538.7

139.6

491.3

534.8 20 171.8

5.1 183.5

568.9 5 399.7

3.1 8.2

93.3

675.7 1 556.9

2 805.8 837.1

56.5

19.2 647.9 3 006.0

162.9

76.9

82.9

333.4

34.5

34.1

47.4

1.3

81.4

5 994.1

807.1

14.8

252.3

2.0

6.7 35.3

46.6

497.2

10.0

12.4

74.8

76.5

291.8

24.5

314.2

3.2 37.2

4.0

248.0

6.2 22.1

908.0 4.0

106.3

358.8

6.6

770.6 1 548.9

118.0

589.2

§944

35

342.0

21.2

2 518.6

176.8 59.2

3.3

1.7

180 Culture 200 Environment

15.5 242.0

58.2

150 Employment

190 Science and technology

11.1

8.0

140 Education

170 Social development

3.0 15.1

70.9

130 Health

160 Humanitarian assistance and disaster management

7.0 658.1

Financing

010 Political affairs

§945

b.

Chapter 7

610

Development assistance; “economic and social cohesion”

§945. Many international organizations spend part of their funds on assistance to their members. In most cases this is development assistance given to developing members (also called ‘international development cooperation’), but it may also take the form of aid to all members. In other cases, aid may be given to developing members for the benefit of all members. One example of the latter is the aid given by the World Meteorological Organization to improve national meteorological stations so that they are able to help provide improved data to all members. Another example is the aid given by the International Civil Aviation Organization to improve safety at national airports. §946. Especially since the 1960s, a large part of the operational activities of the UN and organizations of the UN family concerned development cooperation. For the UN, the legal basis for these development activities can be found in Articles 55 and 56 of the Charter.36 The UN Millennium Declaration (2000) is the latest most authoritative agenda for development cooperation, with internationally agreed quantitative goals and time-limits.37 The World Bank has estimated that, “if countries improve their policies and institutions, the additional foreign aid required to reach the Millennium Development Goals by 2015 is $40-60 billion a year”.38 In 2001, total expenditures for development cooperation (development grants) provided by the UN and its funds and programmes amounted to $5,096 million.39 In the Agenda for Development, presented in 1994 by the UN Secretary-General, two new trends concerning these expenditures are pointed out.40 Firstly, a trend among donors toward thematic and special purpose funding, which may affect the ability of the UN Development Programme to support “general” country programmes, “through which recipient governments can coherently address all dimensions of sustainable human development”.41 Since 1994 this development has continued. Most UN funds and programmes experience a decline of regular, so-called core resources. For UNDP alone core funding decreased from $1.2 billion in 1992 to $652 million in 2001. Although, at the same time, UNDP non-core contributions (in the form of e.g. trust funds and extrabudgetary resources) increased from $408 million in 1992 to over 1.6 billion in 2001,42 the UN has pointed out the danger inherent in this development: “[c]ore funding is at the foundation of the multilateralism, flexibility,

36. 37. 38. 39.

M. Virally, L’Organisation mondiale (1972), at 314 et ff. GA Res. 55/2. See UN Doc. E/2003/89, at 4. See UN Doc. E/2003/57, at 28. This figure comprises activities financed from the WFP ($1,744 million), UNDP ($1,526 million), UNICEF ($1,012 million), UNDP-administered funds ($500 million), and the UNFPA ($314 million). 40. Agenda for Development, UN Doc. A/48/935, at 26. 41. Id. 42. UN Doc. E/2003/89, at 8.

611

Financing

§947

universality and neutrality that characterize the United Nations system […]”.43 Secondly, the 1994 Agenda for Development observed that there is a shift in emphasis from development to relief activities. This trend has also persisted, and there is now a concern that “increases in humanitarian assistance needs have tended to crowd out the resources required for long-term development”.44 In 2001, total expenditures for development cooperation (development grants) provided by specialized agencies and other organizations excluding the World Bank Group amounted to $2,037 million.45 In recent years large amounts of funds for development cooperation have been channeled through the World Bank Group. Grant funding through the Bank’s trust fund programme has increased from $4.38 billion to $5.34 billion in 2002, and important new trust fund programmes have been set up in areas such as aids, tuberculosis and malaria control, Niger River Basin Development etc.46 §947. Regional arrangements and organizations also spend a considerable part of their funds on development cooperation. Some years ago the Agenda for Development estimated that they provide development cooperation of some $5.5 billion each year.47 §948. A distinction has to be made between assistance for non-member states and assistance for member states. For example, the European Union has its own policy for assistance to developing countries, which is complementary to the development cooperation policies pursued by the member states. This Union policy has to foster (1) the sustainable economic and social development of the developing countries, particularly the most disadvantaged among them; (2) the smooth and gradual integration of the developing countries into the world economy; (3) the campaign against poverty in developing countries.48 Moreover, the Union has to take account of these three objectives in the policies that it implements which are likely to affect developing countries.49 §949. Next to this policy to assist non-member states, the European Union provides assistance to its own less-developed members and areas. Specific instruments to provide such assistance have been created over the years (mainly the three so-called Structural Funds: the European Social Fund, the Guidance Section of the European Agricultural Guidance and Guarantee Fund

43. Id., at 6. 44. Id., at 7. A typical example is the WFP, “where development cooperation has become marginal as compared with food assistance linked to emergency situations” (id.). 45. UN Doc. E/2003/57, at 28. $424 came from regular budgets; $1613 from extrabudgetary sources. 46. UN Doc. E/2003/89, at 14. 47. Agenda for Development, UN Doc. A/48/935, at 27. 48. EC, Art. 177.1. 49. EC, Art. 178.

§949

Chapter 7

612

and the European Regional Development Fund), but a more consistent policy was only formulated after Greece, Spain and Portugal entered the Communities. The 1986 Single European Act introduced a new Title in the EEC Treaty devoted to “Economic and Social Cohesion”. The provisions under this title were elaborated in the 1992 Treaty on European Union.50 The main objective is to promote overall harmonious development. In particular, the Union shall aim at reducing disparities between the levels of development of the various regions and the backwardness of the least-favoured regions, including rural areas.51 How is the EU to attain these objectives? The answer is given in Article 159 EC. First, through the conduct and coordination of the (general) economic policies of the member states. Secondly, these “cohesion objectives” have to be taken into account in the formulation and implementation of the Community’s policies and actions and the implementation of the internal market. Thirdly, these objectives are pursued by the Community through the three Structural Funds, the European Investment Bank and the other existing financial instruments. In addition, in 1993 a Cohesion Fund has been set up to provide a financial contribution to projects in the fields of environment and trans-European networks in the area of transport infrastructure.52 The Fund is intended for Greece, Ireland, Portugal and Spain. ECU 15.15 billion has been allocated to this Fund, for the period 1993-1999, and EUR 18 billion for the period 2000-2006.53 In 1988 the structural funds, together with the fisheries policy, accounted for 19.1 per cent of total budget expenditure.54 In the financial perspective for 1993-1999, the total appropriations for commitments for structural actions (Cohesion Fund, Structural Funds and other operations) will increase in absolute terms as well as compared to overall expenditure: from ECU 21,277 million in 1993 (30.7 per cent of total appropriations for commitments) to ECU 30,000 million in 1999 (36.7 per cent of total appropriations for commitments).55 In the financial perspective for 2000-2006 these expenses will be gradually reduced: from EUR 32, 045 million in 2000 to EUR 29,170 million in 2006.56

50. 51. 52. 53.

Arts. 158-162. EC, Art. 158. EC, Art. 161. XXVIth General Report on the Activities of the European Communities 1992, at 15; XXVIIth General Report on the Activities of the European Communities 1993, at 151; figure for 20002006: Financial Perspective EU-15, 2000-2006, see OJ 1999, C 172, Table A. 54. D. Strasser, The Finances of Europe (7th ed. 1992), at 163. 55. See Interinstitutional Agreement of 29 October 1993, Annex I (published in OJ 1993, C 331/6). See for more specific data on commitments entered into by the three Structural Funds and other financial instruments in 1992: XXVI General Report on the Activities of the European Communities 1992, at 150-163; XXVII General Report on the Activities of the European Communities 1993, at 142-151. 56. Interinstitutional Agreement of 6 May 1999, OJ 1999, C 172, Table 1 (Financial perspective EU-15, 2000-2006). For 2003, this amounted to 34.3 per cent of total appropriations for commitments, see Commission Doc. SEC(2003)50, at 12.

613

Financing

§950

§950. It is useful to put the above-mentioned figures for development assistance in some perspective. Firstly, it should be added that non-governmental organizations undertake projects valued at more than $7 billion annually.57 Secondly, the Agenda for Development estimates that private international investment flows have reached $1 trillion per year.58 In this context, the UN Secretary-General observes that “private enterprise increasingly is recognized as a positive factor in providing solutions to problems previously thought to be the special province of public authorities”.59 c.

Peace-keeping

§951. The UN and some other organizations (for example, the OAS) spend part of their finances on peace-keeping. The peace-keeping activities of the OAS are hardly reflected in its budget. Members sending forces pay their own expenses. The UN peace-keeping activities (see below, §1495-1512) have incurred heavy expenditure. Expenditure for UN peace-keeping varied over the years, depending on the number and size of the operations. Total expenditure for all operations in 1990 amounted to $379 million, in 1994 $3.5 billion, from 1 July 1998 to 30 June 1999 $860 million, and from 1 July 2002 to 30 June 2003 $2.63 billion.60 The total cost of the First United Nations Emergency Force in the Middle East (UNEF I) during the ten and a half years of its deployment (1956-1967) was approximately $213 million.61 The UN budget for the Operation in the Congo (ONUC) ran to $196 million,62 although its total costs (including direct payment by states) were considerably higher. Yearly budgets for some other UN peace-keeping operations (2003) are as follows: UNFICYP ($45.6 million), UNDOF ($40.8 million), UNIFIL ($117 million), UNAMSIL ($700 million), UNMEE ($231 million), and MONUC ($608 million) .63 Although member states are obliged to pay for these expenses, they often do not pay in full and on time, and large deficits exist for peace-keeping operations. In 1992, a Peace-keeping Reserve Fund was established by the General Assembly, at a level of $150 million. The UN Secretary-General is authorized to advance from the Fund such sums as may be necessary to finance unforeseen and extraordinary expenses relating to peace-keeping operations as well as budgetary appropriations, including start-up costs, approved by

57. 58. 59. 60. 61. 62.

Agenda for Development, UN Doc. A/48/935, at 39. Id. $1 trillion is equivalent to $1012. Id. Information taken from the UN website (entry: peace-keeping operations). YUN 1967, at 258. T. Franck and J. Carey, The legal aspects of the United Nations Actions in the Congo 47-51 (1963). 63. Information taken from the UN website (entry: peace-keeping operations).

§952

Chapter 7

614

the General Assembly for new, expanded or renewed peace-keeping operations pending the collection of assessed contributions.64

§952. The question arose whether the UN was competent to engage in this sort of activity in this way (see below, §1210-1215). But while the legality of the UN’s activities may affect members’ obligations to pay their share of the costs and also influence the method of collecting the required funds, the fact that expense has been incurred and must somehow be met remains unchanged. Since UNEF I and ONUC have been terminated, they no longer lead to new expenditure. To pay off the arrears the UN decided to issue bonds to the value of $200 million, the repayment and interest of which constituted an item on the regular budget.65 §953. In view of the financial crisis following the refusal of some countries to pay their share for UNEF I and ONUC, it was decided to finance the next peace-keeping force, the UN Force in Cyprus, from voluntary contributions. However, the presence of this force in Cyprus has now almost become permanent, and voluntary contributions were by no means sufficient to meet the costs involved. In 1993 it was decided that “those costs of the Force which are not covered by voluntary contributions should be treated as expenses of the Organization under Article 17.2 of the Charter of the United Nations”.66 §954. Generally, those costs of peace-keeping forces which are paid by the UN are not included in the regular budget, but in special accounts. These special accounts use different scales of assessment from the scale for the regular UN budget (see below, §991). Only exceptionally, UN peace-keeping operations (a few observer groups) have been financed through the regular budget of the UN. The most important example is the UN Truce Supervision Organization in the Middle East (costs $25.9 million in 2003).67

64. GA Res. 47/217. See also GA Res. 57/317; UN Documents A/47/898, A/48/503, A/48/470/Add.1, A/48/955, A/48/973, A/49/654;D. Dormoy, Aspects récents de la question du financement des opérations de maintien de la paix de l’organisation des Nations Unies, 39 AFDI 131-156 (1993). 65. On the 1979 budget it amounted to $8.4 million (1.5 per cent of the total budget for 1979)(GA Res. 33/205). The principal and interest (at 2 per cent) were to be repaid in 25 annual instalments. In all, $170 million were purchased. The bonds were fully amortized in or around 1991. Understandable, but nevertheless illegal, the member states which had refused on principle to pay for UNEF I and ONUC were unlikely to pay for their share in the budget relating to these bonds. See A. James, The Security Council: Paying for Peacekeeping, in D.P. Forsythe, The United Nations in the World Political Economy 19-20 (1989); UNJY 1995, at 436. 66. SC Res. 831. See also GA Res. 47/236. 67. Information taken from the UN website (entry: peace-keeping operations).

615

3.

Financing

§955

Instruments

§955. It is worth comparing the instruments on which international organizations spend their funds. Relatively high costs for personnel, meetings, buildings or equipment may indicate that economies could be made in these areas. Since nearly all international organizations use the same instruments, comparison is often possible and useful. As most organizations of the UN family changed over to budgeting according to field of activity from 1972, the budgets of 1971 are used as examples. There is no reason to expect that in recent years the relationship between the different instruments has changed fundamentally. a.

Personnel

§956. The cost of personnel is by far the largest single item on all administrative budgets. In the administrative budgets of most international organizations salaries, wages and common staff costs (such as security payments) account for approximately three quarters of the costs.68 In the European Union, the budget for 2003 included appropriations for the cost of personnel of the five institutions to the amount of EUR 3.1 billion, which is approximately 60% of total administrative expenditure.69 The WTO’s budget for 2003 amounted to approximately $155 million; some $112 million (i.e. more than 70%) was reserved for staff costs.70

Almost all international organizations charge their members for the salaries of the staff in their regular budgets. In a few small organizations the costs of the staff are paid by the host state. For example, South Africa used to meet all costs of the African Postal and Telecommunications Unions.71 Originally, the Belgian government provided the subordinate personnel of the International Committee of Military Medicine; the costs of the higher personnel was charged to the budget of the organization. At present, the costs of all personnel are charged to the budget of the organization.72 b.

Sessions of the organs of the organization

§957. Apart from the necessary expense incurred by hiring conference rooms and staff, meetings of international organs entail further costs. In smaller organizations, which have insufficient staff for simultaneous translations,

68. See for specific data the second edition of this book, at 465. 69. See the general budget for the European Union for the financial year 2003, OJ 2003, L 54, Vol. I at 166, 231, 301, 365, and Vol. II at 66. 70. See www.wto.org (entry: budget). 71. Peaslee, Vol. V, at 41. 72. Statute of the International Committee of Military Medicine and Pharmacy (Peaslee, Vol. II, at 1063), Art. 19. Information obtained from the Secretariat of this Committee (July 2003).

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interpreters must be hired. If the meeting is not held at the organization’s headquarters, a large number of staff must be moved to the place of the meeting. Their travel and subsistence allowances must then be paid. If the meeting is to be successful, it is essential that the member states send qualified delegates. Their travel and living costs are necessary expenses of the meeting and should therefore be reimbursed (see above, §313-316). In some organizations, all of the members maintain permanent missions. These missions enhance the functioning of the organization by enabling formal and informal meetings of government delegates to be called at short notice. The costs of these missions could therefore be substantially regarded as beneficial to the organization. International organizations, however, do not bear all such costs. Permanent missions are invariably financed by the members concerned. Usually the members pay all the expenses of their national delegates to meetings. Part of the cost of meetings is thus transferred from the budget of the organization to the national budgets of the member states. In most international organizations, sessions account for considerably less than 10 per cent of the budget. The 1999 WTO Ministerial Conference in Seattle was sponsored by private enterprises. A number of enterprises such as Microsoft, Northwest Airlines, Boeing, General Motors and Ford each paid hundreds of thousands of dollars and obtained in return undertakings for contacts with government officials, the level of such officials being dependent on the amount of sponsoring. Invitations for sponsoring came from the organizing committee of Seattle for this conference, chaired by Bill Gates of the (Seattle based) software company Microsoft. According to Gates, sponsoring of the conference offered private business an exciting opportunity. However, his view was not shared by the European Commission that criticized the initiative and warned the US government that it would destroy credibility of the WTO – the organization was already criticized for being too much oriented towards the interests of private business. The US government itself was not happy either with the initiative by Gates.73 The UN appropriated an expenditure of approximately $5 million for meetings in 1971, which is approximately 3 per cent of the (administrative) budget of the organization.74 Between 1954 and 1966 the number of the UN meetings doubled for the first time.75 Ever since then this number has been rapidly growing.

73. NRC Handelsblad, 23 August 1999. 74. GA Res. 2482 (XXIII), Part I. Added to this are the costs of meetings mentioned in parts VI and VII and part of the staff’s travel expenses. From the total budget, Parts IV, V and VIII are deducted as they are not considered administrative expenses. The percentage was the same in 1969. 75. UN Doc. A/6289/Add. 2, at 5.

617

Financing

§958

In the European Union, appropriations for meetings in the 2003 budget amounted to approximately EUR 10 million for the European Parliament and EUR 25 million for the Council.76

§958. In many cases the cost of meetings is partly borne by the host state.77 The economic and political advantages of holding a meeting within its territory justify some financial sacrifice. The general congresses of the Universal Postal Union and the International Telecommunication Union are not usually held at the seats of the organizations. The host state for each session supports most of the session’s costs. It provides the conference rooms and the larger part of the extra staff required. Each member bears the expenses of its own delegation.

§959. In 1957, the UN General Assembly decided that, as a general principle, meetings of UN bodies shall be held at the established headquarters of the bodies concerned. They may be held away from those headquarters when a government issuing an invitation for a meeting to be held within its territory has agreed to defray the additional costs involved.78 In this resolution the General Assembly followed the previous policy of the Assembly of the League of Nations.79 c.

Buildings

§960. A considerable amount of money is needed for the building, maintenance and permanent equipment of the premises required both for the staff of the organization and for its meetings. In 1971, the total cost of the buildings of the UN represented approximately 10 per cent of the administrative budget.80 In 1978 and 1979, the percentage had fallen to 4.5.81 In the 2003 budget of the European Union, the money appropriated for buildings (“investments in immovable property, rental of buildings and associated costs”) was EUR 192 million for the European Parliament, EUR 42 million for the Council, EUR

76. See general budget for the European Union for the financial year 2003, OJ 2003, L 54, Vol. I, at 166, 231. 77. This includes costs for security and liability for claims, see UNJY 1976, at 178. 78. GA Res. 1202 (XII), para. 2 (e). See also GA Res. 40/243 and UN Doc. ST/AI/342 (Guidelines for the Preparation of Host Government Agreements falling under General Assembly Res. 40/243). 79. F.P. Walters, A History of the League of Nations (Reprint 1965), at 131. 80. $16.3 million, out of $166 million, GA Res. 2738 (XXV), Sections 7, 8, 9. For the administrative budget, see above, note 34. In 1969 the costs of buildings accounted for approximately 9 per cent of the budget. 81. UN Doc. 32/205, Part XI.

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221 million for the Commission, EUR 14 million for the Court of Justice and EUR 5.6 million for the Court of Auditors.82

§961. As a rule, costs for buildings are covered by the budget of the organization. In many cases, however, other financial sources have been available to meet at least part of these costs. Any comparison of costs for buildings is complicated by special gifts from member states (see below, §1041), and sometimes from others (Rockefeller to the UN, see below, §1042), paid for buildings and not usually accounted for in the budgets. If the US had not made a $65 million interest-free loan for the construction of the UN headquarters, and if the organization had been compelled to pay normal interest rates on the loan, the costs for the building would have been substantially higher. Host states often make some form of contribution towards the housing of international organizations. The Italian government allows the FAO the use of its headquarters for $1 per annum. UNESCO holds a lease from the French government for 99 years at the nominal rent of 1,000 (old) French francs a year.83 Austria offered a $25 million building to the IAEA and UNIDO for the nominal rent of 1 Austrian Shilling a year.84 Switzerland put a building site, worth 2 million Swiss Francs, at the disposal of the UPU through a 99-year rent free lease85 and donated 3 million Swiss Francs to meet the major share of expenses of the new building of the WHO;86 the US lent $65 million without interest to the UN. The Government of Brazil made a gift of 6,000m2 land to the ILO for the ILO field office in Brasilia which was opened in September 1983.87 France paid the largest contribution by far to the extraordinary budget for financing the construction of the Council of Europe’s human rights building.88 The Netherlands has made premises available to the International Criminal Court free of charge for a 10 year period starting 1 July 2002. It has also financed the installation of 100 workspaces in the Court’s first year.89 The European Union on the other hand, pays the full cost of the lease for their buildings. The Berlaymont building in Brussels (occupied at the end of 1969) originally cost 141 million Belgian Francs (approximately $2.8 million per annum), which was the same price as that charged for comparable offices in the neighbourhood.90 By 1978, this rate had risen to 284 million Belgian Francs ($8.9 million).91

82. See the general budget for the European Union for the financial year 2003, OJ 2003, L 54, Vol. I at 166, 231, 301, 365, and Vol. II at 72. 83. On this lease and on the reasons why it was preferred to a gift, see J. Salmon, Quelques remarques sur l’installation du siège de l’UNESCO à Paris, 4 AFDI 543-465 (1958). See also C. Wilfred Jenks, The Proper Law of International Organisations 137 (1962). 84. Report of the Industrial Development Board on the work of its first session, GAOR 22nd Session, Suppl. No. 15 (A/6715/Rev.l), at 3. 85. 20 International Organization (1966), at 839. 86. WHO Res. WHA 13.42. 87. ILO, Personnel Newsletter No. 156 (November 1983). 88. See the 1994 budget of the Council of Europe. The share paid by France is 24 per cent (information obtained from the Council of Europe). 89. See the budget for the first financial period of the Court, Annex V. 90. Nieuwe Rotterdamse Courant, 12 September 1969. 91. OJ 1979, C 221/16.

619

Financing

§962

Some smaller organizations, such as the International Committee of Military Medicine and the International Institute for the Unification of Private Law, receive their housing free of charge from their host states.92

§962. The cost of buildings partly depends on local conditions. Apart from local price differences and extra expenditure incurred in cities built on a soft soil or enjoying a poor climate, the availability of other buildings for meetings will also affect the price. The general congress of the ILO, for example, meets in the Geneva building of the UN. Thus, the ILO does not require a conference hall, whereas the Council of Europe in Strasbourg had to construct a conference hall of its own (despite its only being in use for part of the year) since there is no other suitable building in the neighbourhood. The need for more efficient use of conference halls is one of the arguments for the centralization of headquarters of international organizations (see above, §478). d.

Equipment

§963. All international organizations need office equipment and at least some library facilities. The need for a library will largely depend on the seat of the organization. The organization will not require an extensive library of its own if other libraries are at hand. The excellent library of the former League of Nations and of the UN in Geneva provides invaluable service to all international organizations seated in Geneva. Such an opportunity to make common use of equipment is another argument in favour of centralizing the headquarters of international organizations (see above, §478). In most international organizations the costs for equipment are low in relation to the total budget. For that reason they are often brought under “general expenditure” or (in the case of permanent office equipment) under “building”. We have thus classified the UN expenditure for equipment. Some organizations, however, use a considerable part of their finances for equipment. In 1978, the European Organization for Nuclear Research spent approximately one quarter of its expenditure on accelerators, beams and other equipment (190,9 million Swiss Francs on a budget of 737,4 million).93 e.

General expenses

§964. The functioning of an international secretariat entails costs for communication (post and telecommunications), recording of meetings and documentation. Publicity about its achievements is important for every international organization. To some extent, national governments will inform their parliaments and their populations but, as a rule, additional information by the

92. Information obtained from the secretariats of these organizations (July 2003). 93. CERN Annual Report 1977, at 147-148.

§965

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organization itself is considered desirable. The cost of such publicity is a general expense. The amount of general expenses will partly depend on where the organization’s seat is located. The cost of post and telecommunications obviously depends on the distance between the seat of the organization and those of the member governments. In UN budgets, most general expenses are distributed to different programmes. In the UN budget for 1971, general expenses (including equipment and printing) amounted to approximately $10 million,94 or 6 per cent of the total administrative budget of $166 million.95 For the Commission of the European Communities, the budget for 1971 provided $9.3 million or 9 per cent,96 of the administrative costs for general expenses and equipment.

II.

Income

§965. Public international organizations in many respects operate on the same footing as states in international relations. But this is not the case in their financing. Very few international organizations can levy taxes. The vast majority of international organizations rely for their funds on the same sources as private (international) organizations: (compulsory) contributions levied on members, gifts or voluntary contributions and retributions for services rendered. A.

Contributions

1.

Contributors

§966. The larger part of the income of public international organizations is paid by the member states in the form of contributions to ‘their’ organizations. Most organizations draw ninety per cent or more of their finances from this source. Few organizations do not require contributions from their member states (see below, §1051, §1081-1090). As a rule, in contrast with voluntary contributions, member states are legally obliged to pay their contribution. This legal obligation is nowadays more honoured in the breach than the observance. Member states are often reminded of this obligation by the competent organs of the organization.97

94. GA Res. 2738 (XXV), Sections 10 and 11. Added to this sum are the general expenses and printing costs mentioned in Sections 15, 16 and 18 and certain other general costs such as those for hospitality. 95. For the administrative budget, see above, note 28. In the budget for 1969 the general expenses amounted to about 7.5 per cent of the administrative costs. 96. OJ 1971, L 62/135. 97. See for example GA Res. 48/220.

621

Financing

§967

In Chapter Two five different kinds of participants in international organizations have been discussed. Of these, full members pay most of the contributions, associate members and affiliate members are assessed to a lower rate, partial members only pay their share of the expenses of the organs in which they participate and observers are not assessed at all. Private agencies, which participate in the work of an international organization, do not usually contribute to the costs. The agencies participating in the Sectors and Conferences (specialized congresses) of the International Telecommunication Union and those which are affiliate members of the World Tourism Organization are an exception, as they share in the expenses of these organs.98 2.

The sharing of expenditure

a.

Equal contributions

§967. In 1961, Peaslee listed 8 out of 122 organizations assessing their member states to expenditure in equal shares.99 None of these organizations belong to the principal universal or regional organizations. The most important are the Central Commission for the Navigation of the Rhine,100 the Organization of the Petroleum Exporting Countries,101 and the Western European Union. As of 2003, the two former organizations still apply this system of equal contributions.102 This system has been chosen only exceptionally for organizations that have been established more recently. Examples are the Organization of Arab Petroleum Exporting Countries,103 Mercosur104 and the Baltic Marine Environment Protection Commission (the Helsinki Commission).105 §968. One reason for levying equal contributions may be administrative simplicity, especially when costs are low and the number of members is relatively large. Another reason may be one of equity. All members participate and vote on the same footing, they all benefit from the work of the organization, and thus, it could be argued, they should all pay an equal share of the expenditure. A final reason could be that equal contributions mirror the principle of sovereign equality of states.

98. 99.

100. 101. 102. 103. 104. 105.

ITU Convention, Art. 33; WTO, Art. 25.1. Peaslee (2nd ed. 1961), table II, (at XXXIV). Not listed were inter alia the Central African Customs and Economic Union (Art. 26, text published in M.S. Wionczek, Economic Cooperation in Latin America, Africa and Asia 243 (1969), the International Pacific Halibut Commission, the International Pacific Salmon Fisheries Commission (see 61 AJIL 695 (1967)) and the OPEC. Mannheim Convention, 17 October 1868, Art. 47. OPEC Statute, Art. 38 C. The WEU abolished this system following the accessions of Portugal and Spain in 1990. See YIO 2003-2004, Vol. I, at 2148. Mercosur, Protocol of Ouro Preto (1994), Art. 45. Convention on the Protection of the Marine Environment of the Baltic Sea Area (1992, entered into force on 17 January 2000), Art. 22.3. See www.helcom.fi.

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Neither of these arguments is particularly persuasive. The problems created by unequal assessments are rarely insurmountable and, in practice, states can never receive equal benefit from the organization. Furthermore, the burden of uniform contributions will be felt differently by rich members than by poorer ones. Considering the small number of organizations following this procedure of sharing their expenditure, and the limited size of their budgets, we may conclude that it is not generally acceptable to the international community. b.

Optional classes of contribution

§969. Two of the oldest international organizations, the Universal Postal Union (UPU), and the International Telecommunication Union (ITU), have created different classes of contributions, whereby each member pays a different share. In the UPU, a member in the first class pays 100 times as much as one in the last, in ITU 640 times as much.106 The World Intellectual Property Organization (WIPO) also uses optional classes of contributions: it inherited this system from the unions of which it is composed.107 Originally, a member in the first class paid 25 times as much as one in the last. But the system has been changed, and, beginning with the 1994 budget, a member in the first class pays 800 times as much as one in the last.108 §970. When this contribution system was introduced, every member state was free to choose its own class of contributions. In that early stage, binding decisions of international organizations – even those concerning the apportionment of cost – were unacceptable. National pride and capacity to pay had to ensure that each state registered in the right class. All “great powers” belonged to the first class, only very small and underdeveloped states were included in the last. In the WIPO, the class in which any given state is placed is still solely a matter for the state itself to decide.109 §971. Before the First World War, the UPU system was followed by other organizations such as the Permanent Court of Arbitration. The Covenant of the League of Nations originally referred to the apportionment of the expenses of the UPU.110 But in the League the system was not a success. The much larger expenses required a more divergent system, whereby the principal powers were to pay more than 25 times the share of the smallest ones. The UPU apportionment dated from before the war and was not yet adapted to the changes of

106. 107. 108. 109. 110.

UPU, Constitution Art. 21; General Regulations, Art. 125. ITU Constitution, Art. 28; ITU Convention, Art. 33. WIPO, Art. 11 (YUN 1974, at 1038). WIPO Doc. AB/XXIV/5 and information obtained from the WIPO Secretariat (July 2003). WIPO, Art. 11.4(b). LoN Covenant, Art. 6.5 (original text).

623

Financing

§972

the peace treaties (Austria belonged to the first class). The system paid insufficient regard to each member’s capacity to pay.

§972. The League amended its constitution in 1921. When the new text had entered into force the Assembly assessed the number of units charged to each member. The largest contributor (Great Britain) had to pay more than a hundred times the amount charged to the smallest members.111 The freedom of each member to choose its own class of contribution, which was an essential feature of the original UPU-ITU contribution system, has at times caused difficulties in both organizations. Nevertheless, it has been confirmed on a number of occasions and continues to be used. In 1959, the ITU Congress considered that not all members had selected a class of contribution fully in accordance with the importance of their telecommunication services. It asked the members to consider the possibility of accepting a higher class of contribution. Only one member (Malaya) responded to the appeal by increasing its share.112 The 1965 Congress considered that the method of voluntary choice of class of contribution might “give rise to undesirable fluctuations” and instructed the Secretary-General and the Administrative Council (the executive board) to study possible amendments to the financing of ITU expenditure.113 Nevertheless, the ITU has firmly upheld this principle of free choice of contribution class.114 The members of UPU need the approval of the general congress in order to move to another class. Until 1964 such approval was always given.115 At the 15th UPU Congress (1964) a document was submitted listing the members and the contribution classes to which they belonged.116 By way of amendment to this document, 22 members asked to be transferred to a class of lower contribution. The Congress finally rejected the document containing the amendments by a narrow majority. The president declared that the status quo, existing before the 15th Congress, would remain in force.117 Following several studies of the contribution system, the principle of free choice of contribution class was confirmed in 1974 (Lausanne Congress) and 1989 (Washington Congress).118

§973. From the developments in both organizations it may be concluded that the UPU-ITU system of contribution classes has proved to be viable. But generally, it does not seem practicable in large and expensive organizations of states which feel neither ashamed to be poor nor sufficiently responsible for the work of the organization to pay as much as they can.

111. 112. 113. 114. 115. 116. 117. 118.

H.Ch.G.J. van der Mandere, Vijftien jaren arbeid van den Volkenbond, 1919-1935 (1935), at 175-183. R. Szawlowski, Finanzen und Finanzrecht der Internationalen Zwischenstaatlichen Organisationen, in Handbuch der Finanzwissenschaft, 4. Band, 2. Auflage (1965), at 328. ITU Congress 1965, Res. No. 11. See ITU Constitution, Art. 28. G.A. Codding, The Universal Postal Union (1964), at 125. UPU XV Congress, Doc. 130. For the discussions, see UPU XV Congress, PV 23 (10 July 1964, afternoon session). See UPU Constitution, Vol. 1 of the annotated code (1991), at 35 and 133-134.

§974

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Apart from the choice of contribution class, the system as used by UPU and ITU differs from the system of scales of most organizations in two ways. In the first place there is less variation; only eleven (UPU), fourteen (WIPO) or twenty-two (ITU) different amounts can be charged to a member.119 Other organizations attribute costs in hundredths of per cents of the total expenditure. They can virtually give an individual assessment to each member. In the second place, the range between large and small contributions proves to be narrower, although this range has been widened over the years. The largest contributors in UPU pay 100 times as much, and in WIPO 800 times as much, as the smallest contributors. In the UN the largest contributor (US) bears 22 per cent of the cost and the smallest 0.001 (for a table of contributions, see below, §992-994). c.

Scales of assessment

§974. Most international organizations use scales of assessment on which a certain percentage of the expenditure is assessed to each member individually. Some organizations (e.g. the WHO and the ICAO in their early budgets) use units instead of percentages. The difference is only arithmetical. Percentages indicate more clearly the share of the total expenditure each member bears and facilitates comparison of scales of assessments. Units have the advantage that no changes are needed when new members are admitted or existing members withdraw. An alteration in the total number of units will only lead to a change in the value of each unit. In order to harmonize the budgets of the organizations of the UN family there is a tendency to use percentages in the universal organizations.

§975. How is each member’s percentage to be fixed? Several factors can be taken into account in order to ensure that the burden is shared fairly. (i) Capacity to pay §976. The UN apportions its expenses broadly according to capacity to pay.120 The main advantage of an apportionment according to capacity to pay is fairness. The great differences in size and financial resources of states should not be neglected in the assessment of contributions.

119.

120.

UPU, General Regulations, Art. 127.1. ITU Convention, Art. 33.1. It should be noted, however, that the number of contribution classes has increased in both organizations. In particular, lower contribution classes have been created, which are reserved for the group of least developed countries. Information about WIPO obtained from the WIPO Secretariat. GA Res. 14 (I), A,3; GA Rules of Procedure, Rule 160. See also E.T. Rowe, Financial Support for the United Nations: The Evolution of Member Contributions 1946-1969, 26 International Organization 619-657 (1972).

625

Financing

§977

To some extent the assessment based on capacity to pay conflicts with the principle of sovereign equality of states. Inequality of contributions conflicts with full parity in voting rights. It would not be true, however, to state that inequality in the sharing of the burden would lead to irresponsible voting. Members paying only a small percentage of the costs will not necessarily vote for expensive projects more readily than other members. On the contrary: assessments according to capacity to pay will mean that extra expenses will be an equal burden to all members. A share of 0.001 per cent of new costs may be an even larger sacrifice for Chad and Tuvalu than one of 22 per cent for the US, since on the basis of capacity to pay the former states would have paid less if a minimum had not been set, while the US would have paid more had there not been a maximum.

§977. It is difficult to measure capacity to pay by statistical means and it is impossible to arrive at any definite formula. In 1946, the General Assembly decided that comparative estimates of national income were prima facie the fairest guide. From the beginning, the UN used national income statistics as a basis for measuring each member’s capacity to pay. Since 1946 there has been considerable improvement in the statistical data provided by member states since more states now provide systematic national accounts. Furthermore, the UN Commission on Contributions is charged to continuously improve the system of comparing the basic national data.121 It takes the averages of national income statistics for a period of several years in order to reduce the effect of short term fluctuations in economic conditions.122 Since 1998 national income data are measured in the gross national product (GNP) figures for each member state.123 Over the years, a number of alternative measures (other than national income) have been considered to determine the capacity to pay, e.g. socioeconomic indicators, deterioration of terms of trade, balance of payments problems. However, with regard to such alternative measures reliable and comparable data are not always available for all member states. Therefore the General Assembly has continued to use national income (now measured in GNP) as the starting point to determine the capacity to pay.124 When the former republics of the Soviet Union were admitted to UN membership (excluding Belarus and Ukraine, which are original members of

121.

122.

123. 124.

E.g. UN Documents A/48/11, A/49/11 and A/55/11 (Reports of the Committee on Contributions to the GA). In addition, in 1994 the General Assembly established an ad hoc intergovernmental working group on the implementation of the principle of capacity to pay. This working group presented its report in 1995 (UN Doc. A/49/897). UN Doc. A/48/11, at 13; UN Doc. A/49/11, at 10; UN Doc. A/55/11, at 14-15, 26. For the scale of assessments for the period 2001-2003, average statistical base periods of six and three years have been used, see GA Res. 55/5 B. See Simma, op. cit. note 12, at 345. See UN Doc. A/55/11, at 25.

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the UN, and the Russian Federation, which took over SU membership), their rates of assessment for the UN budget were determined by a redistribution of the combined rates of Belarus, Ukraine and the former Soviet Union, mainly on the basis of statistics of the former Soviet Union.125 As a consequence, no adjustments had to be made in the rates of assessments of the other UN members. The resulting rates for the former Soviet republics were sharply criticized by the countries concerned, which claimed that these did not correspond to their capacity to pay,126 and by the UN Legal Counsel, who observed that the treatment of Belarus and Ukraine as new members and the drastic increase of their rates of assessment (as recommended by the Committee on Contributions) was “not consistent with Resolution 46/221 of the General Assembly and Rule 160 of the rules of procedure of the General Assembly”.127 This criticism did not lead to new rates, but was included in the general discussion on scale methodology within the Commission on Contributions.128 §978. National income cannot be the only criterion for capacity to pay. In 1946, the General Assembly decided that other factors – such as the comparative income per head of population and the ability of members to secure foreign currency – should be taken into account to prevent anomalous assessments.129 These “other factors” to be taken into account have changed over the years.130 For the years 2001-2003the following factors were used (in addition to the national income data):131 (a) The level of external debt. (b) Low per capita national income. The national income of countries whose per capita national income is below the per capita income limit of $4,318 (the average per capita gross national product of all member states) is reduced by the percentage resulting from calculating 80 per cent of the percentage difference between the country’s per capita income and $4,318. For example, for a country with a per capita income of $1,000, national income (possibly adjusted by the application of factor (a) above) is reduced by 61.6 per cent ($4,318 – $1,000 = $3,318; $3,318 = 77 per cent of $4,318; 80 per cent of 77 per cent = 61.6 per cent).

125.

126. 127.

128. 129. 130. 131.

UN Doc. A/47/11, at 14-20. The same method was used to determine the rates of assessment for Bosnia and Herzegovina, Croatia and Slovenia (id., at 16 and 19), and the rates for the Czech Republic and for the Slovak Republic (UN Doc. A/48/11, at 19-20). UN Doc. A/48/11, at 3-8. UNJY 1992, at 435-438. Res. 46/221 provided for the scale of assessments for the contributions of members to the regular budget of the UN for the period 1992-1994. Rule 160 deals with the functions of the Committee on Contributions and provides, inter alia, that “[t]he scale of assessments, when once fixed by the General Assembly, shall not be subject to a general revision for at least three years unless it is clear that there have been substantial changes in relative capacity to pay”. Id., at 9. See also UN Doc. A/49/11, at 8-9. GA Res. 14 (I), A 3 of 13 February 1946. For an overview, see UN Doc. A/55/11, Annex II. See GA Res. 55/5 B and UN Doc. A/55/11.

627

Financing

§979

§979. The assessment scale of the UN is of particular relevance since it is used as a model for several other international organizations. ILO, FAO, WHO, UNESCO, UNIDO and IAEA apportion their expenses according to the principles of the UN scale. GA Res. 2190 (XXI) recommends that the specialized agencies harmonize their scales with the UN scale. Other examples are the International Criminal Court (ICC Statute, Article 117) and the Organization for the Prohibition of Chemical Weapons (Art. VIII.7).132 The General Assembly (general congress) of the OAS establishes the contribution of each member “taking into account the ability to pay of the respective countries and their determination to contribute in an equitable manner”.133 The most extreme example of assessment based on capacity to pay was the case of Namibia before it became independent. The General Assembly of the UN recommended the specialized agencies to admit Namibia, represented by the UN Council for Namibia, as a full member, but to grant a waiver of the assessment.134 As the UN Council for Namibia had no effective powers in the country, it had no capacity to make payment from Namibian funds.

(ii) Interest in the work of the organization and other factors §980. Some international organizations base their scale of contributions entirely or in part on the interest which the members have in the work of the organization. The Intergovernmental Organization for International Carriage by Rail (OTIF) charges its contributions in proportion to the length of railway lines served.135 In 2002 these contributions amounted to 6.40 Swiss Francs per kilometre.136 This method for determining contributions will change when the 1999 Protocol (Vilnius Protocol) will enter into force; two fifths of the contribution will then be based on the UN scale of assessments, three fifths in proportion to the total length of railway infrastructure as well as of the maritime and inland waterway services.137 The costs of the Inter-American Tropical Tuna Commission are assessed in the proportion which the fisheries of each state bears to the total catch.138 The International Hydrographic Organization uses a scale based on the tonnage of the fleets of the member states to determine their contributions.139

132. 133. 134. 135. 136. 137. 138.

139.

The OAU also applied the UN scale (Art. 23). The constitution of its successor organization, the African Union, does not refer to this scale. OAS, Art. 55. GA Resolutions 31/149 para. 4, 32/9 E para. 4, and 34/92 C, paras. 1, 2. Convention concerning International Carriage by Rail (COTIF), Art. 11.1. OTIF, 2002 Annual Report, at 46 (available on www.otif.org). Convention concerning International Carriage by Rail (COTIF) of 9 May 1980 in the version of the Protocol of Modification of 3 June 1999, Art. 26.1. See the 1949 Convention for the Establishment of an Inter-American Tropical Tuna Commission, Art. 1.3 (www.iattc.org). See also J.E. Carroz and A.G. Roche, The proposed International Commission for the Conservation of Atlantic Tunas, 61 AJIL 695 (1967). Convention on the International Hydrographic Organization, Art. XIV.

§981

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Another example is the International Organization of Vine and Wine. According to its 2001 constitution, two-thirds of the contribution of each member is determined on the basis of its relative position in the vine and wine sector.140 In the ICAO scale of assessments, the UN scale carries a weight of 75 per cent; the other 25 per cent is determined according to the interest and importance of each member in civil aviation.141 Until the second biennium (1994-1995) of its eleventh financial period (1992-1995), the WMO scale was partly (25%) based on the UN scale, partly (75%) on the interest of each member in the work of the organization The WMO decided to move progressively towards the UN scale and, as of 1994, the 25/75 ratio was changed into 50/50.142 The method of calculation of assessments for the budget of the International Maritime Organization is as follows. A small part of the budget (2.94 per cent) is divided equally amongst all members (the “minimum assessment”). Of the remainder, 12.5 per cent is based on the UN scale (the “basic assessment”), and 87.5 per cent is based on gross tonnage registered by each member (the “tonnage assessment”).143 For that reason, Liberia, which pays the minimum (0.001 per cent) to the budget of the UN, has a far larger share (8.22 per cent) in the 2003 IMO budget (similarly, Panama’s share in the UN budget is 0.018 per cent, and 18.49 in the 2003 IMO budget); Austria, on the other hand, which pays 0.947 per cent to the UN budget, has a share of only 0.10 per cent in the 2003 IMO budget.144 Contributions by members of the World Trade Organization (prior to 1995: GATT members) are calculated on the basis of their share in the total trade of all members (computed on the basis of foreign trade figures for the last three available years). Since not only the EC but also the fifteen member states are members of the World Trade Organization, they have to pay more contribution than the EC, if the latter would have fully replaced these fifteen states, because intra-Community trade is now included.145

§981. Some fisheries commissions relate the assessments to the number of subsidiary bodies in which each member participates. Thus members interested in all activities of the organization will contribute more than members only participating in some activities.146 Other fisheries commissions relate the assessments to the amount of fish caught by each member,147 and again others

140.

141. 142. 143. 144. 145.

146. 147.

The new constitution was adopted on 3 April 2001 and is expected to enter into force 1 January 2004. See annex 2 to the constitution for the allocation of contributions (www. oiv.int). ICAO Doc. A33-WP/22 (2001). Abridged Report Cg 11, para. 10.2.4. See IMO Doc. A 23/16 (2003). See UN Doc. A/57/265, at 8-17 (Table 3). See GATT, BISD Suppl. No. 38, at 19-21. See also Article VII of the Agreement establishing the World Trade Organization, and Documents PC/BFA/M/1 and PC/W/8/Corr.1 (W.50/11/Corr.1). See Carroz and Roche, op. cit. note 138, at 695-696. E.g. the Inter-American Tropical Tuna Commission.

629

Financing

§982

have their expenditure paid by the FAO.148 The commodity councils often relate the assessments in the budget to the number of votes attributed to each member.149

§982. Some smaller organizations such as the International Organization of Legal Metrology,150 share their expenses between all members partly or fully on the basis of their populations. The Council of Europe used to do the same. For most of its members this assessment differed little from an assessment based on capacity to pay, owing to the similarity of the Western European economies. It was more favourable however for the rich members and less for the poorer ones with large populations. Turkey bore three times as much as Belgium of the costs of the Council of Europe while Belgium bore three times as much as Turkey of the costs of the UN and the agencies mentioned. Increasingly the Council of Europe is taking account of capacity to pay as well, but the size of the population still plays an important role. In the 2003 budget Turkey paid slightly more than Belgium;151 the large powers still bear the same share of the contributions, whilst Italy pays about half as much as Germany in the scales of the UN and those specialized agencies which attribute costs according to capacity to pay.152 Some justification for this attribution of expenditure can be found in the number of representatives sent by each member to the Parliamentary Assembly. This number also depends on the size of the population. Since the expenditure of the Council of Europe is relatively low, the national pride attached to belonging to the most important members may make the states concerned relatively more willing to pay a larger share.

§983. In NATO the administrative expenditure is relatively small and could quite easily be appropriated to the member states.153 The US, France and the UK originally paid about 24 per cent each and the other members the remainder.154 In 1969, the US share was still about 24 per cent but the shares of the larger European states had fallen below 20 per cent. This was still the

148. 149.

150.

151.

152. 153.

154.

E.g. the Commission for Inland Fisheries of Latin America; the Indo-Pacific Fishery Commission. E.g. the 1989 International Agreement on Jute and Jute Products, Art. 21.4; the 1992 International Sugar Agreement, Art. 25.9, the 2001 International Cocoa Agreement, Art. 25.2; the 2001 International Coffee Agreement, Art. 24.2. International Organization of Legal Metrology, Art. 26 (Peaslee, 2nd ed. 1961, Vol. II, at 1320). Additional information obtained from www.oiml.org and from the Secretariat of the organization (July 2003). 1969 Budget CoE: Belgium 3.15 per cent, Turkey 10.39 per cent; 1969 Budget of the UN: Belgium 1.10 per cent, Turkey, 0.35 per cent. 2003 Budget CoE: Belgium 2.31 per cent, Turkey 3.06 per cent; 2003 UN budget: Belgium 1.138 per cent; Turkey 0.444 per cent. Council of Europe, Parliamentary Assembly, 30th ordinary session (1978), Doc. 4186, at 9; Press release 603a (2002). Up to 1963, NATO administrative expenditure amounted to approximately $13 million annually. Gradually, expenditure was increased. The total “civil budget” for 1994 amounted to $133 million for 2000 (NATO Handbook 2001, at 205). Stoessinger, op. cit. note 11, at 56.

§984

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situation in 1994.155 As of 2003, the US share is 22.4 per cent; the UK 17.3, Germany 15.5 and France 15.4.156 The sharing of the much higher expenditure on the (military) infrastructure of the members caused considerable problems.157 The final result was more of a compromise between different views than a percentage based on particular factors. According to the 1969 scale, the US paid 30.16 per cent, Germany 19.42, the UK 21.96, Italy 7.38 and the other members the balance.158 As of 1 January 2003 the US share is 25.5%, Germany 20.7%, the UK 15.4%, Italy 8.8% and the other members the remainder. The present method of cost sharing may change in the near future following the agreed accession of seven new members.The figures for operational (military) expenditure (including operations such as SFOR and KFOR) should be seen in their proper context. Most of the operational activities of NATO are paid in kind by the member states; this expenditure does not form part of NATO’s military budget.159

§984. Between 1958 and 1971, the European Economic Community (EEC) and Euratom used to have a fixed scale of contributions. This was in fact in sharp contrast with the method of financing of the Coal and Steel Community, which consisted of a true Community tax: levies on the production of coal and steel in the member states (see below, §1085). Germany, France and Italy each paid 28 per cent, Belgium and the Netherlands each 7.9 and Luxembourg 0.2.160 To some extent capacity to pay was reflected in this scale, although according to the capacity-to-pay-scales Italy should have borne much less of the expenditure, and Belgium and the Netherlands slightly less. Interest was also reflected in this scale. Germany, France and Italy have larger economic interests, they possess a stronger voting power in the Council161 and they send more representatives to the European Parliament.162 Another factor in the EEC and Euratom scales was equality. Italy entered the Communities as an equal partner to France and Germany and wished to be treated in a like manner. Nonetheless, Italy bore a smaller percentage of the costs of some special projects of the Communities, such as research and investment in Euratom (to which Germany and France paid 30 per cent and Italy 23 per cent)163 and the European Social Fund of the EEC (to which Germany and France paid 32 and Italy 20 per cent).164 In both cases, the Dutch share was also lower than that of Belgium.

155. 156. 157.

158. 159. 160. 161. 162. 163. 164.

See NATO Doc. ISM (94)5, Annex B. NATO Doc. FC(2003)040, Annex 2. The “military budget” for 2000 amounted to approximately $ 751.5 million. This figure excludes the substantial costs of assignment of military personnel, which are borne by the respective contributing countries (NATO Handbook 2001, at 205). Data provided by NATO Secretariat. Information obtained from the Netherlands Permanent Representation to NATO (September 2003). EEC, Art. 200.1(original text); Euratom, Art. 172.1 (administrative budget, original text). See also Strasser, op. cit. note 54, at 84-86. EEC, Art. 148; Euratom, Art. 118 (original texts). EEC, Art. 138; Euratom, Art. 108 (original texts). Euratom, Art. 172, para. 2 (original text). EEC, Art. 200, para. 2 (original text).

631

Financing

§985

§985. However the drafters of the EEC and Euratom Treaties did not consider this system of contributions by the member states as the ideal method of financing and laid the foundations for an alternative method. Article 201 of the EEC Treaty (now repealed) provided, inter alia “The Commission shall examine the conditions under which the financial contributions of member states provided for in Article 200 could be replaced by the Community’s own resources, in particular by revenue accruing from the common customs tariff when it has been finally introduced”. On the basis of this provision, the socalled First Own Resources Decision was adopted by the Council in 1970.165 Under this decision, the existing system of contributions by the member states was replaced by a new system, consisting of three main sources of income: levies and contributions under the common agricultural policy, customs duties, and a part of the value-added tax. These three main sources of income will be discussed below (§1086-1090). In 1988 a new source of income for the Union was established: contributions from the member states based on their GNP.166 Although this was added to the existing “own resources”, this is basically a contribution, thus the same type of income as the one used between 1958 and 1971.167 According to the Commission, this “fourth resource” constitutes the keystone of the new system of financing.168 In this way “capacity to pay”, a common element in the system of financing of most international organizations, has again become prominent as a criterion for determining each member’s share in the Community budget. This fourth resource is open-ended. What is of fundamental importance is that it was decided to define an overall ceiling for the Community’s resources, as a percentage of the Community’s GNP. Under the previous system (1971-1988), there were only individual limits on each of the three main resources. The fact that these were individually capped, and could not be substituted, was a major drawback. Two of these three resources (agricultural levies and customs duties) were structurally declining in real terms. The new system of an overall ceiling for the Community’s resources ensures stability of finance irrespective of developments relating to the individual components. If the other three resources decrease or increase more than expected, the fourth resource changes correspondingly.169 The overall ceilings laid down in the financial perspective

165.

166. 167.

168. 169.

Decision 70/243 (OJ Special English Edition 1970 (I), at 224). See also Strasser, op. cit. note 54, at 84-86. This Decision has been amended most recently by Decision 2000/597 EC, Euratom (OJ 2000, L 253/42), the “Fifth Own Resources Decision”. Decision 88/376/EEC, Euratom (OJ 1988, L 185); amended most recently by Decision 2000/597 EC, Euratom (OJ 2000, L 253/42). See also Strasser, op. cit. note 54, at 93-94. See L. Kolte, The Community Budget: New Principles for Finance, Expenditure Planning and Budget Discipline, 25 CMLRev. (1988), at 492-493; Strasser, op. cit. note 54, at 93; R. Bieber, Artikel 201, in Von der Groeben et al., Kommentar zum EWG-Vertrag (5th ed. 1997), at 4/1443-1445. See also C.-D. Ehlermann, The Financing of the Community: The Distinction between Financial Contributions and Own Resources, 19 CMLRev. 571-589 (1982). Strasser, op. cit. note 54, at 93. See Kolte, op. cit. note 167, in particular at 489-490.

§986

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for 1993-1999 increase from 1,20 per cent of the Community GNP in 1993 to 1,27 per cent of the Community GNP in 1999.170 For the period 2000-2006 it was agreed to retain this overall ceiling of 1,27 per cent.171 In the 1994 budget, the share of this fourth resource in total revenue was 27 per cent,172 in 2003 this was 60 per cent.173

(iii) Flexibility of scales §986. Scales of contribution should not be amended frequently or drastically. Member states must make provision in their national budgets for the funds to pay their contributions. They are only able to do so if their contribution is substantially predictable. Stable international contribution scales ease the pressure on budgetary procedures in national parliaments and also avoid frequent, time-wasting discussions of assessments. On the other hand, assessment scales should not be too rigid. The members’ capacity to pay as well as their interests in the work of the organization, may alter. Their assessment should then be amended accordingly. Some international organizations have laid down the assessment scales in their constitutions.174 This has rendered them extremely inflexible. It created great difficulties for the League of Nations. The original text of the League Covenant referred to the distribution of expenses of the Universal Postal Union (UPU) (see above, §969-970). The League had no capacity to amend the UPU classes of contribution. Nevertheless, amendment of the scales was considered to be necessary in view of the League’s vastly increased expenses and the effect of the World War on the member’s capacity to pay. Amendment of the League’s Covenant was thus required, and this was a lengthy process.175 After 1924, the League was able to apportion the expenses; but since a unanimous decision by the Assembly was necessary, a substantial degree of flexibility was still not attained.

§987. The problems experienced by the League of Nations induced the founders of the UN and of the newer specialized agencies to allow the general congresses of the organizations to establish assessment scales by majority vote. The General Assembly of the UN decided at its first session that the scale should not be subjected to a general revision for at least three years, unless

170. 171. 172. 173. 174.

175.

See Interinstitutional Agreement of 29 October 1993 (OJ 1993, C 331/6); Decision 94/728/EC, Euratom (OJ 1994, L 293/9), Art. 3. See Interinstitutional Agreement of 6 May 1999 (OJ 1999, C 172); Decision 2000/597 EC, Euratom (OJ 2000, L 253/42). See general budget for the European Union for the financial year 1994, OJ 1994, L 34, at 5, 26. See general budget for the European Union for the financial year 2003, OJ 2003, L 54, Vol. I, at 12, 17. EEC, Art. 200; Euratom, Art. 172 (original texts). (In both Communities amendment of the scales is possible, however, by unanimous vote of the Council); League of Nations, Art. 6. para. 5 (original text). The amendment of Art. 6, adopted by the League Assembly in 1921, entered into force in 1924. See Van der Mandere, op. cit. note 111, at 175-180.

633

Financing

§988

it was clear that there had been substantial changes in the relative capacity to pay.176 §988. At its early sessions the UN Committee on Contributions felt it should move cautiously and gradually in recommending changes. As a general rule no change, either upward or downward of more than 10 per cent in any one year was made in the percentage contribution of any member.177 Later, statistics became more reliable and changes in assessment better reflected fluctuations in capacity to pay rather than changes in the data used to calculate a state’s capacity to pay. In 1968, the UN Committee on Contributions declared that restricting alterations to a predetermined percentage would prevent appropriate consideration of capacity to pay as revealed by revised national product data. The Committee, therefore, expressed itself as being no longer in favour of percentage limitations on alterations.178 Since national product data do not usually vary widely from year to year, assessments based on capacity to pay have a certain stability in practice. §989. Amendment of the scales of contribution is necessary when states adhere and when members withdraw. Normally, this will cause no problems, but in the case of the US withdrawal from the ILO in 1977, the financial receipts of the organization fell so drastically that the other members did not want to follow the normal rule, which would have required them to increase their contributions by one third, in order to fill the gap of 25 per cent of the budget which had previously been paid by the US. Instead, the organization decided to curtail its activities, so that the amount to be paid by the remaining members would not considerably increase, even though, of course, the percentage for each member went up by one third. ILO’s activities could be extended again when the US returned to the organization in 1980. §990. Apart from the fluctuation from year to year, contribution scales may be varied according to the subject matter for which the funds are needed. Certain international organizations use special scales for particular expenses such as new and expensive projects thus achieving a substantial degree of flexibility.179 §991. Special scales have been introduced in the special accounts (separate from the regular budget) established for UN peace-keeping forces. Originally

176. 177. 178. 179.

GA Res. 14 (I) A 3; GA Rule 160. Report of the Committee on Contributions to the fifth session of the GA (OR V Suppl. 13; UN Doc. A/1330), at 2. Report of the Committee on Contributions to the twenty-third session of the GA (OR XXIII, Suppl. 10; UN Doc. A/7210), at 6, para. 31. See e.g. EEC, Art. 200; Euratom, Art. 172 (original texts); EEC Council Regulation 130/66/ EEC of 26 July 1966, OJ 2965/66 on the financing of the Common Agricultural policy, Art. 3.

§991

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an ad hoc scale of assessments was established for each specific peace-keeping force. Generally, more than half of the expenditure is paid by the five permanent members of the Security Council (in view of their special responsibility for the maintenance of international peace and security); the remainder is almost completely paid by the developed member states of the UN that are not permanent members of the Security Council. In 1960 the UN General Assembly reduced the poorer states’ share in the expenditure of the first United Nations Emergency Force by 50 per cent of their normal assessments;180 and again in 1963, when a 65 per cent reduction was made.181 For the UN operations in Congo the General Assembly reduced the contributions of the poorer states by 80 per cent of their normal assessments. Other states received a 50 per cent reduction.182 The large number of reductions led to a totally different scale of contributions. For the Second United Nations Emergency Force a special scale of contributions was adopted, distinguishing between four groups of UN members: the permanent members of the Security Council (63.15 per cent), developed member states not permanent members of the Security Council (34.78 per cent), developing countries (2.02 per cent), and the least developed countries (0.05 per cent).183 Within these four groups, the share for each individual member state is determined on the basis of the scale of assessments for the regular budget. The same system is used for the United Nations Disengagement Observer Force (UNDOF);184 a similar system is used for the United Nations Interim Force in Lebanon (UNIFIL)185 and for most subsequent peace-keeping forces.186

In 2000 the General Assembly decided to reform the then existing method for apportioning the expenses of UN peacekeeping operations. It reaffirmed five general principles for the financing of these operations: (i) the financing of these operations is a collective responsibility of all UN members; the costs are expenses of the UN to be borne by member states in accordance with Article 17.2 of the Charter; (ii) a different procedure is required from that applied to meet expenditure under the general budget of the UN; (iii) developed states will make relatively larger contributions to peace-keeping operations than developing states;

180. 181. 182. 183. 184. 185. 186.

GA Res. 1575 (XV). GA Res. 1875 (S-IV). GA Res. 1619 (XV). See also GA Res. 1732 (XVI). GA Resolutions 3101 (XXVIII), YUN 1973, at 218, 222. See YUN 1974, at 212, 218, and GA Res. 3374 (XXX) B. See YUN 1974, at 203 and e.g., UN Doc. A/34/11, Add., at 4, showing that UNEF and UNDOF are covered by the same contributions. See for the UNIFIL figures GA Res. S-8/2 (1978). For example, the UN Transition Assistance Group for Namibia (see GA Res. 43/232); UNFICYP, since 16 June 1993 (GA Res/47/236); UN Operation in Mozambique (GA Res/47/224 C); UN Operation in Somalia II (GA Res. 47/41 C).

635

Financing

§992

(iv) the special responsibilities of the permanent members of the Security Council should be taken into account in determining their share in the financing; (v) the General Assembly should give special consideration to the situation of member states that are victims of, and those that are otherwise involved in, the events or actions leading to the establishment of a peace-keeping operation.187 On the basis of these principles the General Assembly decided to base the rates of assessment for peace-keeping operations on ten levels of contribution. The highest level (A) is for the permanent members of the Security Council, the lowest level (J) for the least developed countries. Level B includes 25 economically developed states, level I includes 92 states (developing countries and Central and East European states).188 This list will be updated every three years, in conjunction with the regular budget scale of assesments reviews.189

3.

Limits to contributions of members

a.

Minimum contribution

§992. During the second part of its first session, the UN General Assembly decided on the minimum assessment of 0.04 per cent to be paid by any member. The principle of a minimum contribution seems justifiable. The right to participate on a basis of full sovereign equality must be balanced by some minimum obligation to accept the responsibilities. Another justification for a “floor” in the contribution scale was that, in the absence of this lower limit, some members might receive more in travel costs for their delegates to conferences than they pay towards the total expenditure of the organization.190 At present the UN’s minimum assessment is 0.001 per cent. In 1973, the minimum contribution to the UN regular budget was reduced from 0.04 to 0.02 per cent.191 In 1978 this floor was further reduced to 0.01 per cent.192 In 1993, 87 members were assessed by this percentage. In 1998 the UN has lowered this minimum contribution to 0.001 per cent.193 In 2003, 44 members were assessed by this percentage. The ILO, FAO, UNESCO, IAEA and UNIDO use the same lower limit. The ICAO has a minimum contribution of 0.06 per cent, IMO and WMO, 0.02 per cent,

187. 188. 189. 190. 191. 192. 193.

GA Res. 55/235, para. 1. See Simma, op. cit. note 12, at 347-348. GA Res. 55/235, para. 10 and Annex. GA Res. 55/235, para. 15. UN Publication No. 1 of the Netherlands Ministry of Foreign Affairs (1947), at 80. GA Res. 2961(XXVII). As decided by the General Assembly in Res. 31/95, para. 2. GA Res. 52/215 A (following earlier recommendations from the Committee on Contributions, see UN Doc. A/50/11A, part two, para. 50; UN Doc. A/51/11, para. 89).

§993

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636

WTO, 0.015 per cent.194 The budget for the International Tribunal for the Law of the Sea for 2004 and 2005-2006 has a floor rate of 0.01 per cent.195 In most of these organizations the minimum has been drastically lowered over the years.196 Of the regional organizations, the Council of Europe has a minimum contribution of 0.12 per cent.197 The OAS has a minimum contribution of 0.02 per cent (2003 budget: Antigua and Barbuda; Dominica; Guyana; St. Kitts and Nevis; St. Vincent and the Grenadines).198

b.

Maximum contribution

§993. In 1946, the UN Committee on Contributions formulated a scale based exclusively on capacity to pay. According to that scale the share to be paid by the US would have been 49.89 per cent.199 The US representative opposed this amount, arguing that one member should not pay more than one quarter, or at the utmost one third of the expenditure. The principle of sovereign equality in voting and the functioning of the organization should also demand equality in the sharing of costs. Account could be taken of capacity to pay, but not to such an extent that the principle of common financial responsibility almost disappears. Furthermore, the organization should not be too dependent on the financial support of one single member. After much debate in a special sub-committee, the General Assembly lowered the US share for 1946 and 1947 to 39.89 per cent.200 The principle of a maximum percentage, however, was not accepted until 1948. At its third session, the General Assembly recognized that “in normal times” no member should contribute more than one third of the ordinary expenses for any one year.201 Until 1954, the US accepted the consequences of the war as creating “abnormal” times. After that year the US paid less than one third of the UN expenditure. In 1957, the General Assembly decided that “in principle” the maximum contribution should not exceed 30 per cent.202 §994. On 25 October 1972, US Congress adopted an Act providing that after 1973 no appropriation would be authorized nor any payment made to the UN or any affiliated agency (with a few exceptions) in excess of 25 per cent of the total assessment of such organization.203 Legally, such a statement cannot be of any effect on an international organization. The law of the orga-

194. 195. 196. 197. 198. 199. 200. 201. 202. 203.

UN Doc. A/33/309, at 16-19. WTO: see www.wto.org. Doc. SPLOS/97, decision of the Meeting of States Parties to the UN Convention on the Law of the Sea, 12 June 2003. Cf. the first edition of this book, at 402. Financial Regulations CoE (1985). See OAS Doc. AG/Res. 1909(XXXII-O/02). YUN 1946-47, at 217-218. J. David Singer, Financing International Organizations, 126 ff. (1961). GA Res. 238 (III) A(a). GA Res. 1137 (XII). 12 ILM 163 (1973).

637

Financing

§995

nization stipulates how the assessments are to be distributed, and no member may unilaterally intervene. Politically, the statement put pressure on the organizations. It could have been understood as an indication that the US intended to withdraw from organizations in which it had to pay a share larger than 25 per cent. On 13 December 1972, the General Assembly of the UN decided, as a matter of principle, to lower the maximum contribution to 25 per cent.204 As it was decided at the same time that this decision should not lead to an increase of the percentage to be paid by other members, the resolution could not become effective until the admission of the two German states in September 1973. The specialized agencies followed the example of the UN and also lowered their maximum contribution to 25 per cent. Since the 1980s the US requested a further reduction. In 2000, following long and difficult negotiations, the General Assembly decided to a further lowering of the ceiling for the regular budget to 22 per cent.205 As a consequence, the rates for other members increased, and the Assembly therefore agreed to establish transitional measures.206 §995. The maximum for any member created a new problem. It substantially lowered the contribution of the US per head of its population. If the US had paid 49.89 per cent of the UN budget (according to the original estimates of its capacity to pay), each US citizen would pay 14 cents.207 When the General Assembly decided that there would be a maximum of 30 per cent for any member, the Canadian delegation estimated that this would be unfair for the smaller states. By using the maximum of one third, the cost per citizen in the US would fall to just under 10 cents. The Canadian delegation thought it unfair that the individual share of the Canadians was to remain slightly above 10 cents208 while that of the Americans was to be lowered. At its third session, the General Assembly also decided that “in normal times” the per capita contribution of any member should not exceed the per capita contribution of the member which bears the highest assessment.209 On the basis of this provision, the average individual Canadian or Swede will pay no more than the average individual American. §996. The problem of the per capita ceiling became more acute when the US share dropped to 25 per cent, whilst at the same time some other states, because of the devaluation of the US dollar, had become relatively richer. Apart from the contributions of Canada, Sweden and Kuwait, those of Denmark and

204. 205. 206. 207. 208. 209.

GA Res. 2961 B (XXVII). GA Res. 55/5B. See Simma, op. cit. note 12, at 346. Id. On these transitional measures, see Simma, op. cit. note 12, at 346. UN Budget for 1949: $43.5 million; US population in 1949: 151 million. Canada paid 3.2 per cent of the budget; Canadian population in 1949: 13.5 million. GA Res. 238 (III) A(b).

§997

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the United Arab Emirates also required to be lowered and others (Australia, New Zealand, France, Luxembourg) seemed likely to follow. This caused such strong objections that the UN abolished the per capita ceiling as from 1977.210 In fact the per capita contributions of members vary a great deal, especially when the voluntary programmes (see below, §1022-1039) are taken into account. In 1977, each US citizen paid $2.51 to the organizations of the UN family. In fourteen other states, each citizen paid more, ranging from $23.34 for a Norwegian, $20.42 for a Swede and $18.10 for a Dane to $2.66 for a citizen of the German Federal Republic. Every Japanese citizen paid $1.30, every Soviet citizen $0.41 and every citizen of Tanzania, Sudan, Ethiopia, Bangladesh, Chad and Nepal $0.02.211 §997. Several regional organizations also use maximum contributions. The Charter of the OAU expressly provided that no member state would be assessed to an amount exceeding 20 per cent of the yearly regular budget.212 This provision has been of little practical value. According to the UN scale, which was used by the OAU, the largest contributor (Libya) bore about 16 per cent of the expenditure of the OAU. The provision was important, however, as a recognition by the founders of the OAU of the principle that there should be a maximum to the contribution of a single member. The OAS used to have a maximum contribution of 66 per cent (paid by the US). Following the admission of Canada to the OAS in 1990, a review of quota assessments took place. As of 1991, the maximum contribution has been reduced to 60 per cent of total quotas.213

§998. Are these ceilings justified? Seen in the light of capacity to pay, this seems doubtful. If it is fair that rich states pay more than poor ones, why should there then be a limit for very rich states? Both the ceiling of one third and the per capita ceiling have the detrimental effect of limiting the contributions of rich states. The amounts which could have been paid by these states will now have to be charged to poorer nations. US population growth will further diminish the per capita share of its population and thus the per capita share of other wealthy populations.214 The decrease of the US percentage has the same effect.

210. 211. 212. 213. 214.

GA Res. 3228 (XXIX). Doc. II (1979) of the Permanent Mission of Sweden to the United Nations, based on UN Doc. A/34/11 and World Development Report 1979 of the World Bank. OAU, Art. 23. The constitution of the African Union (the OAU’s successor organization) does not provide for a maximum contribution. OAS Doc. AG/RES.1073 (XX-0/90); the US quota for the 2003 regular budget is 59.47 per cent of total quotas (see OAS Doc. AG/Res.1909 (XXXII-O/02)). Singer, op. cit. note 200, at 132.

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The anomaly may be illustrated by two hypothetical cases. (a) Suppose that Mexico were to join the Central American States in one Central American Federal Union. At the outset, this union would have a capacity to pay equal to the total capacity to pay of the participating states. The contribution to the UN would be a simple addition of the contributions paid so far by the individual participating states. There would be no repercussions for other UN members. This seems justified from the point of view of capacity to pay, since there is no immediate change in the financial capabilities of any state. (b) Suppose that Mexico were to join the United States of America. Again the capacity to pay of this enlarged US would be increased by Mexico’s capacity to pay. But because of the ceiling, the contribution of the US to the UN would remain the same. Other states would have to make up for the 0.88 per cent paid so far by Mexico. Furthermore, a consequence of the increase of the US population by more than 80 million Mexicans would be that the US contribution per head of its population would decrease considerably. This would mean that the contribution of Canada and of several European and Arab states would also decrease in order to prevent their contribution per capita becoming higher than that of the US. The net result would be that states such as Canada and Sweden (which would in no way participate in the Americo-Mexican federation) would see their contributions to the UN decrease. while states such as India and Japan (which also have nothing to do with the federation) would see their shares rise.

§999. From the point of view of capacity to pay both the maximum share and the maximum per capita share seem unjustifiable. There may, however, be other reasons for establishing a maximum for the contribution of a single member. (1) The relative interest of a large state may be less than that of a small one. In the given example, of Mexico entering into the US, relations between Mexico and the US would no longer concern the organization, but would become a matter for the new federal government. As a general rule, it can be said that, per head of the population, small states profit more from membership of international organizations than large ones. At the same time, the participation of influential states is greatly in the others’ interest. What would the UN be without the US? The participation of the large states may itself be so advantageous for the other members that they would feel justified in contributing an extra share towards the expenditure. But this argument, in favour of retaining the maximum share rule, does not apply to maximum shares per capita. (2) If there is no maximum to contributions by the large states, an international organization may become too dependent on one or two of its members. The US paid almost 70 per cent of the expenses of the United Nations Korean Reconstruction Agency (UNKRA), the UK almost 20 per cent. The UNKRA came to a standstill and had to be disbanded when in 1957 the US decided to pursue its programme of aid to Korea unilaterally rather than through a UN agency.215 Apparently, the existence of this organization had been in the hands of the US. The dissolution of the International

215.

Stoessinger, op. cit. note 11, at 202.

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Refugee Organization also was largely influenced by the US desire to terminate its support.216 Many problems arose when the US withdrew from the ILO (see above, §121, §989). These problems would have been considerably worse had the US been paying more than 25 per cent of the budget.

Once a state becomes aware that its participation is vital to an organization’s continuance, it will be able to exert considerable pressure on that organization’s policies and operations. In UNKRA, there would have been ample opportunity for such manipulation since the finances represented the core of all its activities. They met operational as well as administrative expenses. In other organizations, financial support may be relatively less important. In the Universal Postal Union, for example, the total annual costs of approximately 35 million Swiss Francs (2003) are so small when compared with the great importance of international mail, that financial pressure would hardly be relevant. The other members would accept an extra share of the expenses, even if a member which provided funds for half the expenditure were to withdraw its participation. The risk of dependence on a member contributing more than, for example, one third of the costs may be an argument in favour of a contribution ceiling in certain international organizations, especially for operational expenses; in others, the risk may not even exist. This is no justification for fixing a per capita ceiling. (3) The sovereign equality of member states having equal voting power should at least mitigate the disparities in the sharing of the burden. In the examples given above (§998) the reduction of the voting power of federating states could be reflected in a reduction of their contributions. Here again, the argument is particularly strong with regard to operational expenditure. It is difficult to accept that one group of members could compel another group to pay expenses from which only they themselves would benefit. Equality of voting power is an argument in favour of minimum contributions. No state should vote in matters with financial consequences if it does not bear a reasonable share of the financial burden. This is also an argument against treating capacity to pay as the sole basis for assessment. The way in which equality of voting power affects the assessment of contributions forms part of the larger problem of the relationship between voting power and a member’s interest in the organization. Just as a land-locked state should have little say in sea-fishing matters, so a non-paying member should have little influence on the size of the expenditure (see above, §795-797). Again, it may be doubted whether the argument is equally valid in favour of a per capita ceiling. The voting power of a state does not normally depend on the size of its population. Small states have a larger voting influence per capita than populous states. This could justify a larger per capita share of the expenditure.

216.

Id., at 208.

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§1000. There are so few arguments in favour of a per capita ceiling that its abandonment by the UN in 1977 seems justified. As the largest contributor has a strong position in financial matters, it is more difficult to abandon the principle of a maximum share in the assessments. The resolution of the US Congress and its effect on the UN assessments (above, §993-994) demonstrate that considerable pressure can be exerted in favour of a maximum share. c.

Maximum expenditure

§1001. Every international organization sets a maximum for its expenditure by the decisions approving the budget. Since this is often done by a (qualified) majority vote, some states may be outvoted and thereby obliged to pay the expenses of activities which they do not support. In practice, members of international organizations are usually somewhat reluctant to vote new funds.217 So far, states have rarely suffered from extravagant budgets. Only peace-keeping operations have created serious problems (see below, §12121213). Similar difficulties, however, may arise elsewhere. The large number of underdeveloped states may vote for development funds against the will of the states which have to bear the main financial burden. In order to prevent tensions it has been suggested in the UN that the capacity to vote the budget should be kept within definite, though reasonably wide, limits. The General Assembly would only be allowed to assess contributions above that limit to members with their express agreement.218 Such a limit would restrict the power of the organization to make binding internal rules with external (budgetary) effects (see below, §1206-1215). One argument in favour of a budgetary ceiling would be that in most organizations, in all other fields, no binding decisions can be taken without the express approval of all states concerned. The approval of the budget by majority vote is an exception to the general rule for decision-making and exceptions should be interpreted restrictively. On the other hand, since the total needs are somewhat unpredictable, it could be argued that a budgetary ceiling might seriously prejudice the further development of the organization. As long as the expenditure of international organizations remains relatively low, it is thus fortunate that no fixed budgetary ceilings exist. Certain organizations fix temporary ceilings in cases where their general congresses meet too infrequently to be able to approve the (bi-)annual budget so that this must be established by their boards. Once every four or five years, the general congresses of the Universal Postal Union, the International Telecommunication Union and the World Meteorological Organization adopt maxima, up to which limits the executive boards can establish the (bi-)annual budgets of the organizations.219

217. 218. 219.

See e.g. Walters, op. cit. note 79, at 130. Stoessinger, op. cit. note 11, at 185. UPU Constitution, Art. 21; General Regulations, Arts. 102.6 and 125; ITU Constitution, Art. 8.2(c) (No. 51); ITU Convention, Art. 4.11(7) (No. 73); WMO, Art. 23.

§1002

d.

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Special rates

§1002. Originally, the UN General Assembly decided that new members should be required to pay one third of their annual contribution for the year of admission.220 This was reduced to one ninth for practically all newly independent states admitted since 1955.221 As this one ninth percentage was partly based on the fact that new members were usually admitted towards the end of the year, a different percentage was decided upon when a number of countries were admitted to membership in the first halves of 1992 and 1993 (most former Soviet republics, Eritrea). These countries had to pay one-twelfth of their annual contribution for each full month of membership in their year of admission. For example, Eritrea was admitted to membership on 28 May 1993. It was assessed at a rate of 0.01 per cent for 1994 and at seven-twelfths of that rate for 1993.222 Other organizations have similar provisions. They often take into account the date of entry into effect of the membership. Members admitted at the beginning of the budget period will pay their full share, members admitted towards the end will pay less.223 But there are exceptions. The WIPO requires new members to pay their contribution only from the year following that in which they became members.224 §1003. Special rates may also be granted to members on the ground of special circumstances.225 Apart from a temporary incapacity to pay, there may be a special situation in the member state concerned. In the same resolution in which the UN General Assembly requested the specialized agencies to admit Namibia as a full member, it also asked for a waiver of that country’s assessment for as long as it was represented by the UN Council for Namibia (see above, §979).226 Several specialized agencies complied with this request.

§1004. Partial members are also assessed at a special rate, depending on the activities in which they participate.227 For example, under the UN scales of assessment for the period 2001-2003, Switzerland’s rate was 1.274 per cent.228

220. 221. 222. 223. 224. 225. 226. 227. 228.

GA Res. 69(I). See e.g. GA Res. 3371 (XXX) and GA Res. 46/221 A. UN Doc. A/48/11, at 20. E.g. in WMO the rate is determined in proportion to the unexpired part of the biennium in which membership begins (Financial Regulations, Art. 8.10). WIPO, Financial Regulation 9.3. See e.g. European Space Agency, Art. 13. See GA Resolutions 31/149 and 32/9 E. UN Financial Regulation 3.8. See also UNJY 1986, at 280-281, dealing with the problem of what constitutes “participation”, and what not. GA Res. 55/5 B.

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When it was admitted to the UN as a full member in September 2002 the same rate was established.229 4.

The organs involved

§1005. A clause for equal payment of contributions or for optional classes of contribution may be inserted in the constitutions of international organizations. Rules in relation to scales of assessment must be so detailed and so flexible that they cannot be settled by constitutions. One of the organs must be empowered to make the provisions. As a general rule of international institutional law such power is invested in the general congress. Since all member states pay a share of the budget each should have a voice in the drafting of the provisions. The UN Charter does not oblige the General Assembly to assess the contributions according to capacity to pay. It has the power to use other criteria whenever appropriate. Several states have submitted that another scale should have been used for the expenses of the first United Nations Emergency Force (UNEF I) and the United Nations Operation in Congo (ONUC). In their opinion the costs should have been charged to those states which had created the situation requiring the establishment of UNEF and ONUC. The General Assembly did not accept this suggestion for the first peace-keeping operations, but it provided for special rates for its later peace-keeping activities. The states which are permanent members of the Security Council pay more towards those activities than to the regular budget, because of their special responsibility: the developing states pay less, because of their difficult financial situation (see above, §991, and below, §1057).

5.

Currencies of contributions

§1006. International organizations spend much of their income in the country (or countries) of their headquarters. Lower personnel will be recruited from that country, higher personnel will usually live there, many purchases are best made locally. The organization will require a large part of its funds to be in the currency of the host state. It will need other currencies as well, for example, for goods which cannot be purchased locally, for books, travel and other minor items and to allow foreign personnel to transfer part of their income to their states of origin. Furthermore, different currencies may be needed for operational expenses outside headquarters. The financing of an international organization will be made easier when local currency is easily obtainable (see above, §476 (8)). The organization can then accept the contributions of most member states in their own currencies and exchange them. Many organizations, however, have been established in states with strong currencies. A change of the members’ currencies into US dollars or Swiss francs is often impossible. For this reason, international

229.

GA Res. 57/4 B.

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organizations require payment of contributions in the currency of the headquarters or in convertible currencies.230 This may impede the payment of contributions by members with weak currencies. Most international organizations take account of this when assessing contributions to their members.231 Voluntary contributions are often paid in weak currencies which may make them less useful (see below, §1039). §1007. [deleted] §1008. International organizations suffer considerable losses because of the instability of currencies. The UN suffered a loss of $9 million when the US dollar was devalued in 1973. Of the $250 million of its budget, $85 million was spent outside the US, $55 million of which in Geneva and $15 million in Vienna, where the value of the local currencies had risen in relation to the US dollar.232 Apart from the organizations themselves, pensioned staff members, who often live in other states, may suffer (see above, §514). Some international organizations created a special suspense account against currency fluctuations.233 In the WHO, this account (“exchange rate facility”) originally amounted to $31 million for the biennium 1990-1991. However, due to significant adverse exchange rates fluctuations in respect of the Swiss franc, the Danish krone and the CFA franc, this amount soon became insufficient. An $12 million increase was sought and approved in 1991.234

§1009. In order to limit the risk of losses caused by the fluctuation of one particular currency, modern international organizations sometimes use a special unit of account which is composed of specified amounts of different currencies.235 Devaluation of one may then be (partially) compensated by stability or even revaluation of others. Since 1974, the Special Drawing Rights (SDRs) of the International Monetary Fund are calculated by reference to a basket of specified amounts of originally sixteen, and now five currencies.236

230. 231. 232. 233. 234. 235.

236.

UN Financial Regulation 3.9; Financial Rule 103.3. As a factor of the members’ capacity to pay. See UN Doc. A/PV.2206, 18 Dec. 1973. E.g. FAO, see YUN 1973, at 899. The Work of WHO 1990-1991, Biennial Report of the Director-General to the World Health Assembly and to the United Nations (1992), at 130. See T. Treves, Les Unités de Compte dans les Conventions et Organisations internationales, 20 AFDI 753-772 (1974); J.J. Rey, Le flottement de monnaies et les organisations internationales, 12 RBDI (1976), in particular at 67-74. For the composition of units of account see also UN Doc. A/33/11, at 24-25. J. Gold, Legal and Institutional Aspects of the International Monetary System: Selected Essays 111 (1979). The SDR valuation basket is reviewed every five years, and includes the currencies of the members having the largest exports of goods and services. Since 1 January 2001, the currencies comprising the basket and their percentage weight are: US dollar (45 per cent), Euro (29 per cent), Japanese yen (15 per cent), Pound sterling (11 per cent) (see IMF Press Release No. 00/55, 12 October 2000).

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The International Fund for Agricultural Development uses the SDR as its unit of account.237 As yet, the United Nations has not been able to agree upon a similar system. The European Union has used several units of account of their own.238 The first unit of account was equivalent to the US dollar. Later, special units of account were introduced for the common agricultural policy and for the monetary system. In 1975, a European Unit of Account was introduced which was equivalent to one SDR. The value of that unit of account thus largely depended on non-European currencies. In 1979, a new unit of account was introduced,composed of the currencies of the member states. As some of these currencies were stronger than others a weighted formula was used.239 As of 1 January 1999, the euro replaced the ECU in all EU and EC legal instruments, at a rate of one euro to one ECU; since then, all income and expenditure of the Union is expressed in euros.240 6.

Defaults in payment

a.

Refusal to pay

§1010. Originally, most states paid their contributions to international organizations regularly. In states with well organized financial systems, the treasury transfers the necessary funds to the organizations almost automatically as soon as they become due. The amount of contributions outstanding used to be limited in most organizations. However, since the 1970s this situation has changed. The non- or overdue payment of contribution became common practice, and has brought organizations into serious difficulties. At the end of 1977, the UN had collected 83 per cent of the contributions for 1977, 85 per cent of those for 1976, 93.4 per cent of those for 1975 and 93.8 per cent of those for 1973 and 1974.241 At the end of 2001, the UN had collected 80.5 per cent of the contributions for 2001.242 Arrears to the general budget amounted to $239.6 million; of the UN’s members, 54 (some 29 per cent) had not paid their regular budget con-

237. 238. 239.

240. 241. 242.

IFAD, Art. 5(2). See Strasser, op. cit. note 54, at 59-66. In March 1995, the value of the European Currency Unit (ECU) was determined 32.68 per cent by the value of the German mark and 20.79 per cent by that of the French franc. The percentages for the other currencies were: 11.17 (British pound), 10.21 (Dutch guilder), 8.71 (Belgian franc), 7.21 (Italian lire), 4.24 (Spanish peseta), 2.71 (Danish krone), 1.08 (Irish pound), 0.71 (Portuguese escudo), 0.49 (Greek drachma) (Information obtained from the Dutch Ministry of Finance (March 1995). The ECU ceased to be defined as a basket of component currencies on 1 January 1999 (see Council Regulation No. 1103/97, OJ 1997, L 162/1). Council Regulation No. 1103/97, OJ 1997, No. L 162/1. UN Financial Report and accounts for 1976, 1977, UN Doc. A/33/5, at 5. UN Doc. A/57/265, at 40 (Table 5).

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tributions in full.243 In 2002, only 117 members paid their regular budget contributions in full (compared to 75 in 1994 and to 141 in 2000).244 For 2002, regular budget arrears amounted to some $305 million; the US owed $190 million (or 62 per cent).245 The WHO originally collected more than 95 per cent of its contributions before the end of the budgetary year concerned.246 Over the years these figures have decreased. In September 1978, about 10 per cent of the contributions for 1977 were still due.247 In 1992, this figure was 22.40 per cent; as of 31 December 1992, only 87 members had paid their contributions to the regular budget in full, and 66 members had made no payment.248 While overdue payment of contributions has become practice in most organizations, the situation is worse for some organizations as compared to others. The following percentages indicate how much of the assessed contributions for 2001 was actually paid at the end of that year: 80.5 per cent in the UN, 81.7 in the ILO, 96.1 in the IAEA and 98.3 in the IMO.249 Non-payment of contributions is a constant problem in the OAS.250

§1011. Occasionally an international organization is faced with a member expressly refusing to pay its contributions.251 Most such refusals result from political objections against the organization or its activities rather than from incapacity to pay. In the UN, the US, the USSR and several other states have repeatedly refused to pay their contributions for any expenses incurred for activities which they considered illegal. The US refused to pay (through the UN) certain liberation movements (PLO, SWAPO, ANC) and to cover expenses of the Preparatory Committee created under the 1982 Law of the Sea Convention.252 The most important issues which several states have refused to finance are the First UN Emergency Force in the Middle East (UNEF I, see below, §1212-1213, §1496), the UN Operation in the Congo (ONUC, see below, §12121213, §1497) and the UN Interim Force for Southern Lebanon (UNIFIL, see below, §1500),253 but there are other examples, such as the UN Memorial Cemetery in

243. 244. 245.

246. 247. 248. 249. 250. 251. 252. 253.

Information taken from the UN’s website: www.un.org/geninfo/ir/ch5. Information given at a press conference by Catherine Bertini, Under Secretary-General for Management, 9 May 2003. Id. According to one observer, criticism against the US for its outstanding contribution is “enormously exaggerated”, see A. Gerson, Multilateralism à la Carte: The Consequences of Unilateral ‘Pick and Pay’ Approaches, in 11 EJIL 61-66 (2000). See UN Doc. A/8031, at 56 (Annex I para. 126). See UN Doc. A/33/309, table F, at 21. Res. 46.9 of the World Health Assembly. UN Doc. A/57/265, at 40 (Table 5). For the IMO, see IMO Doc. A 23/16 (2003). See OAS Res. AG/RES.34 of 22 April 1971 and Documents AG/doc. 108 with addenda; Annual Report of the Secretary-General 1992-1993, at 8. C. Tomuschat, Die Beitragsverweigerung in internationalen Organisationen, Liber Amicorum F.A. Mann 439-464 (1977). Cot and Pellet, op. cit. note 12, at 368-369, where more examples are given. The former Socialist states, with the exception of Rumania expressed their unwillingness to pay at the Eighth Special Session of the General Assembly, see Publication 123 of the Netherlands Ministry of Foreign Affairs, at 5.

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Korea.254 During the 24th Session of the General Assembly, the Soviet delegation announced that it would not contribute to the expenditure of the conciliation commission provided for in the Vienna Convention on the Law of Treaties (Annex, para. 7).255 The refusal to pay was based on the submission that, since the General Assembly had no power to make the expenditure concerned, the costs would be incurred illegally. In 1970, the US Senate refused the funds needed for the US contribution to the ILO. Its reasons were dissatisfaction with the results obtained, discontent with the functioning of the tripartite representation after the admission of communist states (see above, §250) and the nomination of a Soviet Russian Assistant Director General.256 The US State Department and the US delegates to the 1971 session of the general congress of ILO recognized the obligation to pay, and payment was finally made with some delay. In September 1966, France unilaterally decided to stop contributing to the military budget of NATO as from 1 January 1967. Its reason was the French decision to terminate participation in the military collaboration in NATO. The other NATO members had to make up the amount. South Africa refused to pay (part of) its contributions to several international organizations when its representatives were no longer admitted to their meetings.257 In 1986, the long-standing difficult financial situation of the UN reached rock bottom following the adoption of legislation by US Congress in 1985, which resulted in partial withholding by the US of its contribution to the UN. Firstly, the Gramm-RudmanHollings Deficit Reduction Act required that the US federal budget deficit be reduced to zero within five years. To this end, a pro rata sequestering or cutting of virtually all federal appropriations was introduced, including those for the UN. Thus, the Act was not specifically directed against the UN.258 This was different for the second piece of legislation, the Kassebaum amendment, which limited US payments to the UN and the specialized agencies to 20 per cent of their budgets unless a new decision-making procedure was adopted for budgetary matters providing voting strength proportional to the size of the contributions.259 This was more drastic than earlier withholdings by the US, which only concerned specific UN programmes. The Kassebaum amendment was only one of a number of specific measures taken against organizations of the UN family by the US at the time (the most far-reaching being the US withdrawal from UNESCO). The origin of these measures was general dissatisfaction with the functioning of the UN system. The US was among the members which remained “committed to the ideals of the UN”, but which no longer had “confidence in the UN as an institution for effectively serving those ideals”.260 As was rightly noted by numerous commentators at the time, the UN crisis was not a financial, but a political crisis. A “Group of High-level Intergovernmental Experts to Review the Efficiency of the Administrative and Financial Functioning of the UN” (Group of 18) was established by the UN General Assembly.261 The Assembly agreed to a number of recommendations of this

254. 255. 256. 257. 258. 259. 260. 261.

For a further survey, see YUN 1975, at 953-956. Publication No. 96 of the Netherlands Ministry of Foreign Affairs, at 150. S.M. Schwebel, The United States Assaults the ILO, 65 AJIL (1971), at 136-142. Cot and Pellet, op. cit. note 12, at 368. See UN Doc. A/40/PV.127, at 58. Id., at 57-58. Id., at 54-55. GA Res. 40/237.

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Group.262 In particular, some changes in the budgetary procedure were adopted. It was agreed that “the Committee for Programme and Coordination should continue its existing practice of reaching decisions by consensus”, and “that the Fifth Committee, before submitting its recommendations on the outline of the programme budget to the General Assembly (...), should continue to make all possible efforts with a view to establishing the broadest possible agreement”.263 Without changing UN budgetary law, this reflected a general agreement among the members that decisions on budgetary matters will not be taken against the will of the major contributors.264 In practice, the UN budget since then has been adopted by consensus.

§1012. It is difficult to establish an obligation to contribute to illegal expenditure. It is equally hard to accept that each state may subjectively decide what will constitute illegal expenditure. As long as no judicial organ can settle the question of the legality of decisions, the general congress seems the body most competent to settle such questions. The members should accept its ruling (see also below, §1210-1215). Within the organizations of the UN family, problems may easily arise as the majority of the general congress is composed of states other than those which pay most of the contributions (“who has the vote does not pay the note”). When an organization undertakes expensive activities in a field where its competence is disputed, the states which have to pay may find no practical means for defending their interests other than refusing to pay their share towards the expenditure on the activities which they consider to be illegal.265 One author has even concluded that “[a]bsent an impartial third body to give conclusive rulings on such possible deviations, the power to withhold payment is a necessary and proper power of each member state. That power is necessarily implied by the legal order of the organization because its rejection would be to verticalize a system that was meant to be, and to remain, horizontal. (...) the reasons for withholding cannot be left to unfettered discretion. They must be “compelling”, but “compelling” in the legal order of the organization.”266

Such a view has the inherent danger that, absent an impartial third body, it would be for the withholding state to decide what is “compelling” in the legal order of the organization.267

262.

263. 264. 265. 266.

267.

The Report of the Group of 18 is reproduced in UN Doc. A/41/49. See on the work of this Group, P. Taylor, Reforming the UN system: value for money, in: The World Today 123126 (July 1988). GA Res. 41/213. E. Zoller, The “Corporate Will” of the United Nations and the Rights of the Minority, 81 AJIL 634 (1987). Tomuschat, op. cit. note 251, at 439. Zoller, op. cit. note 264, at 631-632. See also F. Francioni, Multilateralism à la Carte: The Limits to Unilateral Withholdings of Assessed Contributions to the UN Budget, 11 EJIL 43-59 (2000). See also Gerson, op. cit. note 245. Zoller’s view view has been criticized in F.L. Kirgis, Admission of “Palestine” as a Member of a Specialized Agency and Withholding the Payment of Assessments in Response, 84 AJIL (1990), at 229-230.

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Financing

§1013

§1013. Sometimes, after a revolutionary change of the government of a member, a new government no longer accepts responsibility for debts of a prior government. When, in the UN, the Chinese government of Taiwan was replaced by the Government of the People’s Republic of China (see above, §260), the latter government did not want to pay a debt of some $30 million which the Taiwan Government still owed to the organization.268 The debt was finally remitted.269 Legally, the situation is entirely clear. There are two possible solutions. (1) The new government has created a new state, which should be admitted as a new member: the old state should either withdraw or be expelled. The new state does not have to pay any debts of the old one. (2) The new state succeeds the old one, in which case there is no need for admission to the organization: membership is continued and all debts incurred under the old government are to be taken over by the new one. The latter of these two solutions seems the most appropriate one. A change of government is an internal matter of a state and its financial consequences should not be shifted to the international community. b.

Incentives to pay

§1014. An alert secretariat will continuously remind members of their financial obligations. Holborn attributes the outstanding success of the International Refugee Organization (IRO) in collecting nearly all its contributions largely to the Organization’s unremitting efforts to keep its members constantly apprised of their contribution positions and in requesting their cooperation in expediting their payments.270 When the IRO was dissolved in 1952, all members had paid their contributions in full, with the exception of China (with $8.2 million unpaid of a contribution of $21.8 million) and Guatemala (with $60,024 unpaid of a contribution of $269,850). For an organization in which many members had no substantial interest of their own, the final collection of 98 per cent of its contributions may indeed be considered successful.

Originally organizations rarely used incentives for early payment of contributions. In particular since the 1990s however, a number of organizations have introduced incentive schemes in order to stimulate members to pay their contributions in time. Examples of incentives used are discounts for early payment (e.g. FAO) and distribution of interest earnings (e.g. ICAO, ILO). An overview by the IMO Secretariat of incentive schemes of a number of specialized agencies has shown that these schemes have only had limited success.271

268. 269. 270. 271.

See R.G. Bissell, A Note on the Chinese View of United Nations Finances, 69 AJIL 628-633 (1975); UN Doc. A/8952, at 2. GA Res. 3049 C (XXVII); YUN 1972, at 715, 716, 719. L.W. Holborn, The International Refugee Organization (1956), at 105, 106, 122. IMO Doc. A 23/16 (2003), Annex 3.

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§1015. Many constitutions provide for some form of sanctions against members which fail to fulfil their financial obligations (see below, §1450 ff.). Often this sanction amounts to a loss of voting rights but sometimes other provisions are made, such as being no longer eligible for election to non-plenary organs,272 loss of membership273 or the availability of a Court judgment.274 When an organization is empowered to do no more than recommend that action be taken by its members, the payment of contributions may be the only substantial obligation capable of violation. Some organizations provide for sanctions specifically for the case where contributions have not been paid in time (see below, §1455-1460).275 In the UN, members forfeit their voting rights in the General Assembly if the amount of their arrears equals or exceeds the amount of the contributions due for the preceding two full years.276 There are always several members which are almost two full years in arrears. The fact that they manage to pay just before the close of the second year277 illustrates the effectiveness of the penalty.278 In one important case the sanction was ineffective. In that case (the financing of peace-keeping operations), the members concerned contested their obligations to pay and therefore the applicability of Article 19 (see below, §1213, §1459). This case was hence different in character from the normal case of failure to pay. Another indication of effectiveness of this sanction can be found by comparing the UN and the OAS, which has no provision for sanctions. Arrears in the OAS have been more serious than those in the UN regular budget. At times they have reached 25 per cent of the entire budget.279

§1016. Most international organizations do not charge interest on outstanding contributions. They have working capital funds from which the money can

272. 273. 274. 275. 276. 277. 278.

279.

FAO Rule 22(5). International Organization of Legal Metrology, Art. 29 (Peaslee, Vol. III & IV, at 323); International Bureau of Weights and Measures, Regulation 6 (Peaslee, Vol. III, IV, at 251). In the European Union. Such sanctions do not necessarily apply to financial obligations other than contributions, see UNJY 1970, at 188. UN Charter, Art. 19. The two full years are measured from the 1st of January of the financial year concerned, see UN Financial Regulation 5.4. Singer, op. cit. note 200, at 140. For example, on 17 September 1991, the UN Secretary-General informed the President of the General Assembly that six member states (the Central African Republic, the Congo, the Dominican Republic, Equatorial Guinea, Sierra Leone and South Africa) were over two years in arrears in the payment of their contributions. In October and November 1991 four of these members made payments to reduce their arrears below the amount required and had regained their right to vote in the Assembly. See YUN 1991, at 883. By far the largest part was due by South Africa which refused to pay as long as it was not entitled to participate in the sessions of the General Assembly. In 1994 the General Assembly decided “to consider, as an exceptional measure, that the arrears of South Africa that have accrued to date were due to conditions beyond its control and, accordingly, that the question of the applicability of Article 19 [...] will not arise” (GA Res. 48/258). Stoessinger, op. cit. note 11, at 44.

651

Financing

§1017

be freely borrowed. This procedure actually favours the states in arrears. In the Universal Postal Union governments in arrears have to pay an interest of 3 per cent per annum for the first six months of the relevant financial year, and 6 per cent per annum from the seventh month.280 This can hardly be regarded as a sanction; it is rather a normal financial compensation. The effect however, is similar to that of a sanction. The increase after six months demonstrates a desire to give the interest the persuasive effect of a sanction. National postal administrations will find it difficult to account for the interest on their own budgets. The International Telecommunication Union applies the same system.281 Inflation causes another problem when members are in arrears in paying their contributions. After two years a dollar may represent less value than at the time it was due. When the rate of inflation is high, late payment should be compensated by an extra charge. c.

Filling the gap: working capital funds

§1017. Expenditure is made throughout the entire year. International organizations will not suffer from problems of financial liquidity provided that at least some members pay their contributions at the beginning of the budgetary year or that the members pay only a part then. The other contributions may be spread out over the following months. Quite often, however, insufficient funds are received at the beginning of the year; and even at the end of the year, some of the funds are still outstanding. In that case, an organization requires credits from elsewhere. Such credits may only be available with payment of interest. In the Universal Postal Union and the International Telecommunication Union this interest is paid by the defaulting members (see above, §1016). §1018. Most international organizations avoid the administrative problems of loans by using a working capital fund.282 From this fund money can be borrowed, not only when members are in arrears in paying their contributions, but also when urgent new activities require financing before the necessary assessments are due.283

280. 281. 282.

283.

UPU General Regulations, Art. 125.8. ITU Convention, Art. 33.3 (No. 474). For the UN Working Capital Fund, see UN Financial Regulations 4.2-4.4; UN Financial Rule 104.1. For the amounts of working capital funds of the UN and the specialized agencies and their relation to the budget estimates for 1992, see UN Doc. A/47/593, at 17. For the Working Capital Fund of the International Criminal Court (ICC), see Financial Regulation 6 of the ICC and Res. ICC-ASP/1/Res. 13. For examples of the latter use, see GA Resolutions 2483 (XXIII) (United Nations) and UN Doc. A/6905, at 56 (UNESCO).

§1018

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652

A working capital fund is made available by the members, which are assessed for its establishment.284 In organizations or organs which receive part of their income in weak currencies (such as the United Nations Development Programme), the working capital fund may also be used as a reserve fund in which a limited amount of weak currencies may be kept. The fund may then facilitate currency management by making advances of currencies which would otherwise have to be purchased with dollars.285 In theory, a working capital fund will remain at its original level. As it is only used for borrowing purposes, the money is returned to it. In practice however, working capital funds decrease since some members remain in arrears in paying their contributions and some projects, provisionally financed from the working capital fund, may cost more than the amount of money appropriated for them. The sum available for working capital funds should be sufficiently high to prevent them from being drained completely. On the other hand, a large working capital fund (or any other form of reserve) may encourage the organization to live beyond its means, instead of deferring items not provided for in the approved appropriations; also, members might become even more lax to pay their contribution in full and on time.286 The levels of the working capital funds of the specialized agencies generally vary between 3 and 10 per cent of their yearly budgets.287 The Working Capital Fund of the UN was originally higher since it may be needed in cases concerning peace and security which may incur considerable unexpected expenditure. It was established at $20 million in 1946 and increased to $40 million in 1963.288 It remained at this level up until 1981.289 For the biennium 2002-2003 it was established at the level of $100 million.290 In relation to the total budget, the Working Capital Fund of the UN has decreased considerably. In 1946 it was about equal to one year’s budget, in 1964 it was 40 per cent of the amount of the budget, in 1974 it was 13 per cent, in 1981 it was only 6 per cent. Subsequently, the Fund was increased to its present level of $100 million, which in 1982 represented 13.3 per cent of regular budget expenditures. This size has

284.

285. 286. 287. 288. 289. 290.

In the ITU, which has no working capital fund, part of the function of such a fund is performed by the Reserve Account which receives its income from budgetary surpluses. See ITU Convention, Art. 33.6 (No. 485). P. Berthoud, The United Nations Development Programme, Framework and Proceedings, 4 JWTL (1970), at 165. See e.g. UN Documents A/6905, para. 145 (for 1969) and A/8155, at 11 (for 1971). See also YUN 1991, at 878. See UN Doc. A/57/265, at 41 (Table 6). See YUN 1975, at 954. GA Res. 3541 (XXX), 32/215 and 34/232. GA Res. 56/257.

653

Financing

§1019

decreased to 8.2 per cent of the regular budget appropriation for 1993,291 and to 7.7 per cent of the regular budget appropriation for 2003.292

§1019. The Working Capital Fund of the UN was unable to provide sufficient funds when a number of members had refused to pay their share of the organization’s expenses for the operations in the Middle East and in the Congo. Defaults in payments of members cannot be covered by the budget of an international organization as only those items which have been expressly approved in the budget may be paid for and assessed to the members. As long as there is no budgetary item covering defaults in payment, there will be gaps, however large or small the budget may be. When some members refused to pay their full share in the budget, the UN was compelled to solicit funds from elsewhere. The General Assembly authorized the Secretary-General to issue bonds up to the sum of $200 million.293 Both the interest on the bonds (two per cent per annum) and the instalments were charged against the regular budget of the UN. Thus, by their regular contributions, all members helped to fill in the gaps caused by the non-payment of other members. Some members (for example the USSR) refused to pay their share of these instalments and interest. They refused to sponsor peace-keeping operations which they considered illegal, even in this indirect manner. The bonds covered the debts of the UN resulting from the non-payment by several members. The payments remain due. If they are made after repayment of the bonds (which seems doubtful) the organization will have accumulated a surplus. Like all surpluses, the excess amount should be returned to the members.

§1020. Due to substantial outstanding contributions the UN Working Capital Fund has not always been able to function normally. In a few instances the UN Secretary-General has borrowed from UN funds or from external sources. In principle, such borrowing is not permitted since the Secretary-General can only incur obligations and make payments on the basis of previously approved appropriations by the General Assembly.294 On exceptional occasions the General Assembly has authorized the Secretary-General to borrow, from UN funds or from external sources. Borrowing from external sources has generally been restricted to governments and governmental or intergovernmental institutions, and has never been done from commercial sources or banks.295In the field of peace-keeping operations, a separate Reserve Fund was established

291.

292. 293. 294. 295.

See UN Doc. A/48/503, at 9. In 1991, the UN Secretary-General suggested that the Working Capital Fund should be increased from $100 million to $250 million, but this suggestion was rejected (YUN 1991, at 860, 878). Our calculation. GA Resolutions 1739 (XVI), 1878 (S-IV), 1989 (XVIII). UN Financial Regulation 5.1. See UNJY 1995, at 432. As was reported in a Note by the UN Office of Legal Affairs, see UNJY 1995, at 432-437, in particular at 433.

§1021

Chapter 7

654

by the General Assembly in 1992, as a cash flow mechanism to ensure a rapid response of the UN to peace-keeping needs (see also above, §951).296 7.

Table of contributions

§1021. In order to compare the different systems of assessment, it may be useful to contrast the contributions of some representative states in a number of international organizations. Table 3 Percentage assessments 2003297 Member

U.N.

ILO

FAO

Unesco

ICAO

UPU

ITU

WMO

IMO

WIPO UNIDO

Belgium

1.12900

1.1120

1.1353

1.48459

0.9300

1.7100 1.4000 1.1100

0.1800 3.9600 1.6000

Brazil

2.39000

2.3530

2.4034

3.14277

1.8000

2.2800 0.8400 2.3400

1.0400 0.5200 3.3860

Burundi

0.00100

0.0010

0.0001

0.00100

0.0600

0.0600 0.0200 0.0200

Canada

2.55800

2.5190

2.5723

3.36369

2.2600

4.5700 5.0300 2.5100

0.8700 2.6400

China

0.0100 0.0010

1.53200

1.5090

1.5406

2.01453

1.3800

2.8500 2.8000 1.5000

2.8500 1.9800 2.1700

Colombia 0.20100

0.1980

0.2021

0.26432

0.2500

0.3400 0.2800 0.2000

0.0500 0.0700 0.2850

Czech R. 0.20300

0.2000

0.2041

0.26694

0.1600

0.5700 0.2800 0.2000

0.0500 0.7900 0.2880

Denmark 0.74900

0.7380

0.7532

0.98491

0.5600

1.1400 1.4000 0.7300

1.1800 2.6400 1.0610

Egypt

0.08100

0.0800

0.0815

0.10651

0.1700

0.5700 0.1400 0.0800

0.2500 0.0300 0.1150

France

6.46600

6.3670

6.5022

8.50256

5.3200

5.7100 8.3900 6.3300

1.4100 6.6100 9.1610

Germany 9.76900

9.6200

9.8237

12.84589 7.6300

5.7100 8.3900 9.5700

1.8900 6.6100 13.8410

Ghana

0.00500

0.0050

0.0050

0.00657

0.0600

0.3400 0.0700 0.0200

0.0300 0.0200 0.0070

Indonesia 0.20000

0.1970

0.2011

0.26299

0.2500

1.1400 0.2800 0.2000

0.5800 0.2600 0.2830

Iran

0.27200

0.2680

0.2735

0.35767

0.2400

0.5700 0.2800 0.2700

0.6900 0.2600 0.3850

Iraq

0.13600

0.1340

0.1368

0.17884

0.0900

0.3400 0.0700 0.0800

0.1100 0.0700 0.1930

Japan

19.51575 19.2180 19.6250 22.00000 14.3600 5.7100 8.3900 19.1200 4.2500 6.6100 22.0000

Mexico

1.08600

1.0690

1.0921

1.42805

0.9300

1.1400 0.2800 1.0700

0.3000 1.9800 1.5390

Netherl.

1.73800

1.7110

1.7477

2.28541

1.9400

1.7100 2.2400 1.7000

1.3200 3.9600 2.4620

Nigeria

0.06800

0.0670

0.0684

0.08942

0.0600

1.1400 0.5600 0.0700

0.1000 0.0300 0.0960

Pakistan

0.06100

0.0600

0.0613

0.08021

0.1600

1.1400 0.5600 0.0600

0.0800 0.0300 0.0860

Poland

0.37800

0.3720

0.3801

0.49706

0.3100

0.5700 0.2800 0.3700

0.2000 0.7900 0.5360

Russia

1.20000

1.1820

1.57796

0.8300

1.7100 1.4000 1.1800

1.7500 2.6400 1.7000

S.Arabia

0.55400

0.5460

0.5571

0.72849

0.6200

2.2800 2.8000 0.5400

0.2800 0.2600 0.7850

Slovak R. 0.04300

0.0420

0.0432

0.05654

0.0600

0.3400 0.1400 0.0400

0.0200 0.7900 0.0610

Sweden

1.02675

1.0111

1.0325

1.35014

0.7700

1.7100 2.2400 1.0100

0.6000 3.9600 1.4545

Syria

0.08000

0.0790

0.0805

0.10520

0.0700

0.1100 0.1400 0.0800

0.1100 0.0300 0.1130

Tunisia

0.03000

0.0290

0.0302

0.03945

0.0600

0.5700 0.1400 0.0300

0.0500 0.0300 0.0430

UK

5.53600

5.4510

5.5670

7.27965

5.3100

5.7100 4.1900 5.4200

3.6700 6.6100 7.8430

USA

22.00000 22.0000 22.0000

296.

25.0000 5.7100 8.3900 21.5600 3.6900 6.6100

GA Res. 47/217. See also GA Res. 57/317 and UN Financial Regulations 4.5-4.9.

655

Financing

B.

Voluntary contributions

1.

The principle of voluntary contributions

§1022

§1022. Already during the life of the League of Nations, international organizations suffered from lack of funds. The High Commissioner for Refugees, the Health Organization and the Committee on Intellectual Cooperation of the League could not function properly on the financial resources made available to them. They appealed for voluntary contributions and gifts to both governmental and non-governmental sources.298 Several UN organs have done the same. Many existing activities are strengthened by gifts and voluntary contributions; important new activities have been incorporated in “voluntary programmes”. Obviously, contributions to voluntary programmes are made only by the states (and sometimes individuals) wishing to do so. The amount is discretionary. It is these two factors which distinguish voluntary from normal contributions. But apart from this lack of obligation and freedom to decide the amount involved, voluntary contributions can also be distinguished from (other) gifts in the following two ways: (a) in principle, voluntary contributions are periodical, although the amount may vary. Gifts are usually for one occasion only. Furthermore, (b) voluntary contributions are made for particular programmes and they do not form part of the regular budget of the organization. Most gifts represent income of the organization, benefitting its entire programme. §1023. Is the growth of the number of voluntary programmes propitious?299 Should not all activities of international organizations be financed through their regular budgets? Financing by means of voluntary contributions offers several advantages: (1) Stoessinger recognizes as the main advantage that financing through voluntary contributions correlates financial support with political support. It allows states to give financial backing to an international activity only if, and to the extent that, they regard that activity as compatible with and conducive to the interests and purposes expressed in their national policies.300 For this reason, Stoessinger concludes that, as a general proposition, the most acceptable principle of cost-distribution for members of international organizations is that embodied in the scheme of voluntary contributions. (2) Financing from voluntary contributions strengthens individual programmes. A programme in which the UN and several specialized agencies participate, like that of the United Nations Children Fund (UNICEF), would be weakened if it did not receive its own income. The specialized agencies are more willing

297. 298. 299. 300.

UN Doc. A/57/265, at 8ff. Stoessinger, op. cit. note 11, at 41. See also M. Elmandjra, The United Nations System, An Analysis 151-152 (1973). Id., at 21.

§1024

Chapter 7

656

to cooperate in a separate programme than in a programme financed through the UN budget. This argument, of course, pleads as much for creating a separate organization as for separate financing. (3) Separate financing of each programme through voluntary contributions may lead to a higher income. In a centralized budget, many states will find one or more objectionable items which may move them to press for lowering the budget. Voluntary programmes will meet less resistance in the decision making organs, since the opposing members do not have to participate. In practice, members increase rather than decrease their voluntary contributions so that the yearly income for most voluntary programmes shows a tendency to rise.301 §1024. On the other hand, there are important disadvantages which militate against financing by means of voluntary contributions: (1) Voluntary financing of programmes has a disuniting effect on the organization. It is no longer the organization which acts when the action is financed by only a group of its members or even by outsiders. The separately financed programmes may become organizations within the organization. There is no longer a common responsibility for all activities. This disadvantage may not weigh heavy in organizations striving at no more than facilitating cooperation between states; it could be fatal for organizations of a supranational character. For all other organizations the disadvantage would directly relate to the degree of supranationality desired. For regional organizations, such as the Council of Europe or the African Union, activities financed separately by groups of members would endanger the very purpose of close cooperation within the entire region. In the UN, voluntary financing of development programmes may be acceptable, or even recommendable, since it increases the available funds. For peace-keeping it seems more doubtful whether activities not supported by all principal powers and by a strong majority of the other members would be beneficial. One side effect could be the splitting of the organization. In cases of voluntary financing, donors may request that goods and materials procured with their contribution are identified as donated by the government in question. The UN Legal Counsel in 1995 however recommended that the principle of multilateralism underlying UN operational activities for development or humanitarian assistance suggests “that the assistance provided is not identifiable to any particular donor, but is considered as United Nations assistance provided on behalf of all its member states”. Therefore the relevant goods and materials procured with the contribution of (a) particular donor(s) should not identify the latter’s flag or the words “donated by […]”. Instead the source of the goods and materials in question should normally be recognized by reports of the Secretary-General to the General Assembly, in press releases etc.302

301. 302.

Stoessinger, op. cit. note 11, at 208. UNJY 1995, at 475-476.

657

Financing

§1025

(2) The voluntary character of a programme may keep out indifferent states. Many states which make little or no contribution to some voluntary programmes would contribute if the expenditure were put on the regular budget (if it were put on the budget; the indifferent members might vote against the increase of expenditure). (3) Programmes financed through voluntary contributions are largely dependent on the wealthy states. The power unilaterally to increase or decrease contributions puts a strong instrument of pressure into the hands of the states which contribute, or might contribute, generously. The more specific the programme, the greater this disadvantage will be. In a general programme, like the United Nations Development Programme, the organization or organ has considerable discretion with respect to the use of the money available. A like or dislike of specific projects will usually not decisively influence individual contributions. If there are many separately financed projects, then individual donor states have a greater influence, as they can switch their financial support from one programme to another. In practice, some voluntary programmes depend largely on the contributions of a few states. The United Nations Capital Development Fund, for example, received half of its 2001 income from two countries (Denmark and Netherlands), and 85 per cent from four countries (Denmark, Netherlands, Norway and Sweden).303

(4) Voluntary contributions, particularly those from private sources, may be unstable (see below, §1045). Large fluctuations in yearly incomes prejudice planning. If a programme loses support, its financial means may fall below its requirements.304 One cannot, as in the case of regular budgets, increase the contributions by a decision of the organization. §1025. If the organization were to adopt a model scale of apportionment, as a guide to voluntary contributors, some of these difficulties might be overcome.305 Such a scale could reflect the opinion of the organization on the percentage that each state should pay. A (probably well-founded) fear that not all states would meet the moral obligations implicit in such a model has prevented its adoption so far. Whether or not the disadvantages outweigh the advantages will depend on the activity concerned. Activities with limited costs and profitable to all members, such as the functioning of the general congress or the secretariat of the organization should be financed from assessments of all members.

303. 304.

305.

UN Doc. DP/2003/15, Table 1(b). See e.g. GA Resolutions 2656 (XXV) and 3331 B (XXIX) noting with grave concern the acute financial situation of the UN Relief and Works Agency for Palestine Refugees in the Near East. See for fluctuations in voluntary contributions to UNDP, UN Doc. DP/ 1993/44, at 7. D.H. Popper, Lessons of United Nations Peacekeeping in Cyprus, 64 AJIL (1970), No. 4 (Proceedings of the American Society of International Law), at 7.

§1026

Chapter 7

658

Programmes of unlimited size, such as development programmes, which may not be of equal value to all members, seem more suitable for voluntary contributions or for voluntary financing as a supplement to regular financing. Programmes with fixed costs should rather be financed from a regular budget, flexible programmes may be more suitable for voluntary contributions. Programmes may be transferred from voluntary financing to the regular budget of the organization, or vice versa. 2.

Existing systems of voluntary contributions

§1026. Outside the UN system voluntary contributions do not play a significant role. In almost all important regional organizations the governmental share in the expenditure is based on assessments rather than on voluntary contributions. But there is some voluntary payment. In the OAS, most technical assistance work is supported by voluntary contributions,306 and certain smaller organizations also depend on such contributions. Italy meets part of the costs of the International Institute for the Unification of Private Law (UNIDROIT) by a basic annual Italian contribution of 300 million Italian lire which is subject to revision every three years. The rest of the expenses is shared among the members.307 As of January 2003, the total annual Italian contribution amounts to EUR 220.000, which is equivalent to approximately 12 per cent of the total annual contributions of the member states of UNIDROIT.308 When, in 1976, the Arab states created an Arab security force in the Lebanon, they decided that its financing should be by voluntary contributions.309

§1027. Within the UN system voluntary contributions are more important. Most operational activities other than peace-keeping operations are financed by voluntary contributions. Table 4 below gives an indication of the size of voluntary contributions to UN organs and organizations.

306. 307. 308.

309.

Stoessinger, op. cit. 11, at 45. Statute of the International Institute for the Unification of Private Law, Art. 16. Information obtained from the UNIDROIT Secretariat. In 1994 the total Italian contribution (450 million Italian lire) was 17 per cent of the sum of all contributions of the member states. See G. Fenez, La force arabe de securité, 22 AFDI 58 (1976).

659

Financing

§1027

Table 4 Voluntary contributions: expenditure (2000-2001)(thousands of US dollars)310 Organization United Nations

2000

2001

588,575

588,575

83,408 1,021,138

71,485 1,213,971

UNICEF

Administrative services Extrabudgetary funds

UNDP

Administrative budget Programme expenditure

233,503 430,483

266,892 375,092

UNFPA

Administrative budget Extrabudgetary funds

56,388 200,753

57,100 301,963

UNRWA

Regular fund Project fund

267,768 19,549

274,657 74,439

UNHCR

Unified budget

783,885

782,653

WFP

Administrative budget Operations

103,556 1,183,593

128,913 1,744,074

ILO

93,737

114,589

FAO

314,175

320,113

UNESCO

197,789

260,436

ICAO

39,026

45,763

WHO

556,512

531,652

UPU

5,997

7,177

ITU

2,732

11,388

25,930

24,047

2447

2584

216

173

UNIDO

76,872

88,311

IAEA

90,250

106,428

WMO IMO WIPO

Not all of the cost of these programmes is borne by voluntary contribution. Apart from some income from self-support (see below, §1050-1073) many programmes (especially the smaller ones) receive support from the organizations concerned which provide secretariat services free311 though they are entitled to charge the costs to the program-

310. 311.

Reproduced from UN Doc. A/57/265, at 42 (footnotes omitted). E.g. United Nations Capital Development Fund, YUN 1974, at 523.

§1028

Chapter 7

660

mes.312 Sometimes administrative costs which were to be borne by the programmes are transferred to the UN budget in order to support the programmes.313

§1028. The percentages paid by the participating states differ considerably from those paid under the regular budgets (see above, §1021, Table 3). Most striking is the large percentage borne by the Scandinavian states and the Netherlands. In the largest voluntary programme (UNDP), Denmark, the Netherlands, Norway and Sweden together contribute 24 per cent of the costs.314 In the regular UN budget they are together assessed for 4.16 per cent. 3.

Trust funds

§1029. The finances obtained for voluntary programmes, as well as those from gifts offered for the financing of specific activities (see below, §1043-1048), must be kept separate from the other funds of the organization. They are, therefore, brought into trust funds, which are separately administered. For all practical purposes, the creation of a new trust fund means the same as the creation of a new voluntary programme. International organizations create trust funds for many sorts of activities outside the regular budget.315 These funds have a wide variety of purposes. The only general condition for their establishment is that their purpose should fall within the aims of the organization. When states request and pay for the organization’s services (see below, §1053-1055), such payment may be made through a trust fund, such as, for example, the trust fund for translations into German (see above, §371) or the trust fund for the costs incurred by the UN for the transfer of West New Guinea from the Netherlands to Indonesia. After this transfer, a UN Trust Fund for the Development of West Irian was used to finance assistance to the territory. The fund was administered by UNDP and the money came from both states involved.316 When, in 1968, the Swedish government had pledged an annual contribution of $14.000 for assistance to Lesotho, a trust fund was established under the auspices of UNDP. In 1989, the UN Secretary-General established a trust fund to assist states in the settlement of disputes through the International Court of Justice. The Fund is designed to encourage states to settle their disputes peaceably by submitting them to the Court.317

312. 313. 314. 315.

316. 317.

UNJY 1971, at 221-222. See e.g. GA Res. 3331 B (XXIX), YUN 1974, at 250. See UN Doc. DP/2003/27, at 11. UN Financial Regulations 4.13 and 4.14; UN Financial Rule 104.3. On trust funds, see J. Gold, Trust Funds in International Law: The Contribution of the International Monetary Fund to a Code of Principles, 72 AJIL 856-866 (1978); R.M. Macy in UN Doc. JIU/REP/27/1, or in A/8840. For an account see GAOR 26th Session Suppl. No. 7 (A/8407), at 89. UN Doc. A/44/PV.43 (1989), at 7-17; 47 ICJ Yearbook 1992-1993 (1993), at 145. On this trust fund, see P.H.F. Bekker, International Legal Aid in Practice: The ICJ Trust Fund, 87 AJIL 659-668 (1993).

661

Financing

§1030

Regulation 5.1 of the Financial Regulations of UNDP gives the Administrator the authority to establish trust funds for specified purposes consistent with the policies, aims and activities of UNDP. This authority has often been used. By the end of 1992, 75 trust funds were covered by UNDP.318 In 1992 ten new trust funds were established by the Administrator, such as the UNDP Trust Fund for Humanitarian and Rehabilitation Assistance for Cambodia and the UNDP Trust Fund for the Baltic Republics.319 In recent years UNDP has created a number of so-called thematic trust funds to help achieve development goals. Examples are trust funds for democratic governance, poverty reduction, energy, environment, and HIV/AIDS.320 In 2002, thematic trust fund income amounted to $64 million.321

§1030. Trust funds have also been created outside the UN. In 1976, the IMF established a trust fund to provide special balance of payments assistance to developing members.322 This trust fund was financed entirely by the IMF, from net profits of the organization.323 It was terminated in 1981.324 A wide variety of trust funds is used by the World Bank. Shihata reports that at the end of 1998 over 5000 funds existed “from which billions of dollars have been committed and disbursed over the years. […] In all these trust funds, the Bank acts as the trustee (legal owner and administrator) of the funds it manages for the benefit of designated beneficiaries and purposes (trust beneficiaries) according to the terms of a resolution by its Board of Executive Directors or an agreement with donors. Some of the trust funds administered by the Bank have their own administrative structures that resemble in many ways those of separate international organizations”.325 Article 79.1 of the Statute of the International Criminal Court provides that “[a] trust fund shall be established by decision of the Assembly of States Parties for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims”. This decision was taken at the first session of the Assembly of States Parties, September 2002.326

§1031. The competence to create trust funds appears to be inherent in any international organization. Many trust funds have been created in the absence of any constitutional provision. The Inter-American Development Bank, for example, received $500 million from the US Government in the form of a trust

318. 319. 320. 321. 322. 323. 324. 325.

326.

UN Doc. DP/1993/44/Add.2, at 2. UN Doc. DP/1993/44/Add.3, at 2-4. See www.undp.org/trustfunds. UNDP Annual Report 2003, at 22. Selected Decisions of the International Monetary Fund and Selected Documents, Eighth issue 1976, at 185-195; UNJY 1976, at 118. On this fund see Gold, op. cit. note 315, at 860-866. See IMF Annual Report 1993, at 210-211. I.F.I. Shihata, Techniques to avoid proliferation of international organizations – the experience of the World Bank, in N.M. Blokker & H.G. Schermers, Proliferation of International Organizations – Legal Issues 111-134 (2001), quotations at 124-125. Res. ICC-ASP/1/Res.6.

§1032

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fund, as well as other trust funds from non-member states, despite there being no mention of such funds in its constitution.327 The amounts involved in trust funds vary. Most of them are of modest size. An exception is UNDP, which administers a number of trust funds of over $1 million per year each.328 The same is true for a number of trust funds of the World Bank.329 4.

International organizations contributing to voluntary programmes

§1032. An international organization setting up a voluntary programme or creating a trust fund may not immediately find sufficient voluntary financial support for it. In order to be able to proceed without delay it may, for an initial period, place funds of the regular budget at the disposal of the voluntary programme. This seems admissible when the voluntary programme is within the sphere of activity of the organization, in the same way as gifts may be made by one organization to another within the limits of the aims of the donating organization (see below, §1047). Sometimes, when a majority of the members of the organization favour a special programme and when voluntary contributions fall short of what is required to meeting running costs, such initial stimulus may be continued or even increased. If it becomes more permanent in nature, the programme is in fact financed from the regular budget and the requirements for financing from the regular budget should apply (see below, §1091-1104). UNIDO was originally created as an organ of the General Assembly of the UN. Its programmes were partially financed from voluntary contributions and partially from the UN regular budget.330 The UN appropriated $30 million a year to UNIDO on its 1978-1979 budget,331 which was 6 per cent of the budget of the UN and 36 per cent of that of UNIDO. In 1986 UNIDO was transformed into an autonomous international organization.

5.

Voluntary contributions from non-members

§1033. All UN programmes which solicit voluntary contributions from member states also accept voluntary contributions from non-member states which have been recognized by the organization (see below, §1845 ff.). Representatives of those states participate in pledging conferences; their contributions are often mentioned with those of the UN members in lists published by the organiza-

327.

328. 329. 330. 331.

E. Arnold, in S.M. Schwebel (ed.), The Effectiveness of International Decisions, Papers of a Conference of the American Society of International Law and the Proceedings of the Conference (1971), at 384. See UN Doc. DP/1993/44/Add.3. See Shihata, op. cit. note 325. See GA Res. 2152(XXI), YUN 1966, at 304-305. UN Doc. A/32/6/Add. 1, at 51.

663

Financing

§1034

tion.332 In the special programme they are treated in substantially the same way as members. Since they cannot participate in the decision-making process of the General Assembly they are less involved than UN members. On one hand, their influence on the programmes is thus limited, on the other hand, the General Assembly has less power to oblige them to contribute as much as possible. The Swiss contributions to many programmes were considerable before it became a member of the UN in September 2002. In 1977, Switzerland paid over $25 million to the UN voluntary programmes, which made it the sixteenth largest contributor.333 The Federal Republic of Germany also paid substantial amounts to voluntary UN programmes before it became a member of the UN.

6.

Raising voluntary contributions

a.

Pledging334

§1034. In December 1950, the General Assembly created a Negotiating Committee to consult with member and non-member states as to the amounts governments might be willing to contribute towards financing the programme for the relief and rehabilitation of Korea and the relief and reintegration of Palestine refugees.335 The Committee invited representatives of members to consult it. Non-member states were approached directly or through diplomatic channels. For the Programme of Relief and Rehabilitation of Korea large sums were pledged, but the response to the appeal for the Palestine refugees fell far short of the target.336 In 1951, the General Assembly established a similar committee but expanded its task to cover extra-budgetary funds, which actually amounted to the addition of the Expanded Programme of Technical Assistance.337 During the first year, this new “Committee for Extra-Budgetary Funds” was in touch with eighty-three Governments by means of written communication, group consultations and individual meetings. The Committee was continued during the next sessions of the General Assembly. Its task widened to embrace the United Nations International

332. 333.

334. 335. 336. 337.

See e.g. GAOR, 24th Session, Suppl. No. 7(A/7607), at 78; Suppl. No. 7A (A/7607/Add. 1), at 18-20; Suppl. No. 7E (A/7607/Add. 5), at 9. Doc. 11 (1979) of the Permanent Mission of Sweden to the United Nations, distributed at the 34th Session of the General Assembly, and based on UN Doc. A/32/11 and World Development Report 1979 of the World Bank. Several data have been taken from an unpublished seminar-paper written by J. Berteling on the Legal Aspects of Pledging Conferences (August 1971). GA Resolutions 410 (V) B and 393 (V), para. 8. Report of the Committee, UN Doc. A/1769. GA Res. 571 B (VI). Five of the seven members of this Committee had also been members of the 1950 Committee. Later the membership of the Committee was increased to 10 and subsequently to 14 (UN Doc. A/4657 and GA Res. 1556 (XV)).

§1035

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Children’s Emergency Fund (UNICEF) and other special programmes.338 The Committee was not very effective, however, and ceased to function in 1961.339 Its discussions had attracted little public attention. The Committee felt that increased publicity would focus attention on the programmes and might improve financial support. §1035. At the suggestion of the Negotiating Committee, the General Assembly, at its twelfth session (1957), introduced the procedure of convening an ad hoc Committee of the whole Assembly for the announcement of pledges of voluntary contributions by each member to the UN refugee programmes.340 The principal purpose of this pledging conference was to obtain a larger income by means of increased publicity. The procedure also enabled the General Assembly to forecast the probable level of contributions before considering and acting upon the reports of the respective agencies. The procedure of pledging conferences has been considered successful. Since 1957 they have been held regularly, usually early during the regular sessions of the General Assembly. By making the pledging conference an important event and by avoiding other meetings at the same time, an effort is made to focus the maximum attention on the pledging.341 §1036. Because of their success, pledging conferences have been introduced for many individual programmes, such as the UN Capital Development Fund, the UN Development Programme, the UN High Commissioner for Refugees, UNICEF, the UN Industrial Development Organization, the UN Relief and Works Agency for Palestine Refugees in the Near East and for the World Food Programme. Many of these pledging conferences concerned aspects of development cooperation. The scattering of all pledges over different conferences caused some confusion. In 1977, the UN General Assembly therefore decided that a single, annual UN pledging conference should be held for all UN operational activities connected with development.342 Special rules of procedure were made for these conferences.343

338. 339. 340. 341. 342.

343.

GA Res. 693 (VII). Stoessinger, op. cit. note 11, at 193. GA, Fifteenth Session, Agenda Item 55, Annexes, at 3 (UN Doc. A/4623, para. 21). See e.g. GA Res. 1729 (XVI). GA Res. 32/197, Annex, para. 31. See on these pledging conferences: UN Doc. A/48/940, at 12-13; Yearbooks of the UN, for example YUN 1991, at 367, and YUN 2000, at 822. For the year 2002, see UN Doc. A/CONF.200 Documents. To indicate the size of these pledges:as at 30 June 2000, contributions pledged or paid to 30 UN funds and programmes at the 1999 pledging conference amounted to $1,127 million (YUN 2000, at 822), as compared to $1,619.5 million at the 1990 pledging conference (YUN 1991, at 367). GA Res. 33/419.

665

b.

Financing

§1037

Collection of voluntary contributions

§1037. To what extent do pledges constitute legal obligations to pay? According to general principles of law, a formal pledge creates an obligation. But there have been several indications, that the states involved did not want to establish a legal obligation. The final acts containing the pledges made at the UN Technical Assistance conferences were open for signature but did not constitute formal international agreements.344 Furthermore, several states have taken the view that pledges are not legally binding.345 In addition, the system of voluntary contributions would prohibit any legal obligations. The essence of the system is its voluntary character.346 Firm obligations would mean fewer pledges.

On the other hand, many states make their pledges subject to approval of their national parliaments. Such reservation would not be needed if the pledges had no legal effect. Whenever pledges have been made unconditionally, they should be considered binding, unless the states concerned can show a contrary intention.347 §1038. Even when pledges create binding obligations, it may be doubted whether sanctions can be applied in case of non-payment. Sanctions are such extreme remedies in international organizations that it may be submitted that they can be applied for compulsory payments only. The constitutional provisions, providing for sanctions for non-payment of contributions (see below, §1451-1459) have been written in respect of regular contributions and it seems doubtful whether contributions to voluntary programmes are covered by those provisions. Furthermore, voluntary contributions are also requested from nonmembers, to whom sanctions cannot be applied. It may seem unreasonable to treat members differently. So far, no organization has proposed that sanctions be applied to states which are in arrears in paying their voluntary contributions.

344. 345.

346. 347.

See e.g. YUN 1952, at 816, footnote 35 or YUN 1953, at 690. The final acts are not published in the UNTS. See e.g. the discussions in the board of UNDP on the occasion of the withdrawal of a pledge by Paraguay, UN Documents DP/L.131; DP/SR.210/Add. 1; E/4884 (ECOSOC OR 49th Session, Suppl. 6A), paras. 54-61. U. Kirdar, The Structure of the United Nations Economic Aid to Underdeveloped Countries 35-37 (1966). See also Berthoud, op. cit. note 285, at 163. See also Stoessinger, op. cit. note 11, at 191-214; G. Feuer, Les aspects juridiques de l’assistance technique 116-133 (1967).

§1039

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Perhaps, there is one exception. A member may not be elected to the World Heritage Committee if it is in arrears with the payment of its compulsory or voluntary contribution for the current and the preceding years.348

§1039. The voluntary character weakens the obligation of states to pay. The organization has no power to require payment in particular currencies. The United Nations Development Programme obtained many inconvertible rubles and experienced difficulty in making use of them. After pressure by the organs concerned, the USSR agreed to pay some of its voluntary contributions in US dollars.349 All programmes financed by voluntary contributions still suffer to some extent from difficulties in using inconvertible currencies. Certain programmes, in particular the World Food Programme, receive part of the voluntary contributions in kind (agricultural surpluses). Those contributions in kind are even more inconvertible than many currencies. They may be difficult to use. On the other hand, they are often more easily obtainable than contributions in convertible currencies. C.

Gifts

1.

Gifts which benefit the budget of the organization

§1040. Sometimes international organizations receive gifts or legacies which are not destined for a specific purpose or programme. The receipt of unspecified gifts does not mean that the organization’s activities are expanded. According to their normal budgetary procedures, international organizations first estimate their costs, then detract their miscellaneous income and finally assess the rest of their financial needs to their members. By this process, gifts only result in a decrease in members’ contributions.350 The same is the case when gifts are made for activities that otherwise would have been financed from the regular budget of the organization. Only rarely do constitutions provide that gifts will be used in addition to the budget so that they will lead to an extension of the organization’s activities.351 §1041. Member states rarely donate gifts to the benefit of the organization’s budget. Only two groups of such gifts are of practical importance: a) At the establishment of an international organization many members present gifts

348. 349. 350. 351.

UNESCO Convention concerning the protection of the world cultural and national heritage (16 Nov. 1972), Art. 16 (5). See Stoessinger, op. cit. note 11, at 206. UN Financial Regulation 3.14. See Art. 12 of the constitution of the West Africa Rice Development Association, 10 ILM 663 (1971).

667

Financing

§1042

to furnish and decorate the secretariat building.352 b) The host state – which profits from the presence of an international organization in its territory – is often willing to render material support to the secretariat building. This may be an interest-free loan, a gift, or an inexpensive lease (see above, §961). §1042. To a limited extent, private persons and institutions have contributed to the work of international organizations from their early days.353 Some private gifts are not designated for any specific purpose. The UN, for example, was named as remainderman in the last will and testament of Miss Beulah Edge. In 1968, the Beulah Edge Fund provided an income of $387,321 for the organization.354 After 1969 such funds were no longer individually mentioned in the UN budget. They are collectively covered by the heading “Funds willed to the UN”, which may seem unfair to the donators. Some large sums have been given for particular purposes, such as the $8.5 million gift of John D. Rockefeller for the acquisition of land for the UN headquarters355 and the $6.2 million gift of the Ford Foundation for the UN library in New York. These gifts were not only intended to benefit the existing budgets, they provided the organization with facilities which otherwise would not have been available. For this reason, these gifts belong (at least partially) to our next paragraph. 2.

Gifts for specific programmes

§1043. Sometimes states grant special gifts to international organizations for the financing of specific projects, such as translation into a particular language (see above, §371). Such gifts are normally budgeted through a trust fund (see above, §1029-1031). A non-member may render assistance to an international organization by supporting particular activities. In 1979, the Federal Republic of Germany undertook to provide 15 million German marks for the financing of a session of the general congress of the Organization of African Unity to be held in Liberia in July 1979.356 §1044. Private gifts are often obtained for programmes which the organization has already started. The gifts represent additional income and supplement other ways of financing. Usually private gifts are composed of a large number of small individual contributions. Such contributions can be best obtained for specific humanitarian programmes. Large amounts of private gifts were obtained by the UN High Commissioner for Refugees (UNHCR) and by the

352.

353. 354. 355. 356.

See e.g. the national gifts in the UN headquarters in New York and Geneva or in the Peace Palace in the Hague. For a list of the gifts to the headquarters of the WHO see annex to Res. WHA 19.23 of May 1966. Stoessinger, op. cit. note 11, at 37. GA OR, 24th Session, Suppl. No. 7 (A/7607), at 18, 70, 71. Accepted by GA Res. 100 (I). NRC Handelsblad, 31 Jan. 1979, at 5.

§1045

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UN Children Fund (UNICEF).357 In 1993 UNHCR received $25 million from the American philantropist George Soros to help refugees in Bosnia.358 Probably the largest single donation to an international organization is the one billion dollar gift to the United Nations by Ted Turner in 1997. This gift was made in response to the financial problems experienced by the UN and the US failure to pay its full contribution. It is given to the UN in $100 million instalments over a period of 10 years. In order to administer this gift, Turner established a public charity foundation under US law, the United Nations Foundation. The money is spent on UN development and humanitarian programmes.359 In 1960, for the first time in the history of any UN programme, private contributions to the UNHCR exceeded governmental contributions. During that year the UNHCR raised more than $9 million from private sources.360 Since then, public attention for the refugee problem has fluctuated. UNHCR’s final account for 1970 only attributed $0.5 million to private donations.361 In 1977, the figure had risen again to $5.2 million, which is about 5 per cent of the contributions paid by states.362 In 1991, it rose to $19.4 million (about 2.5 per cent of the contributions by states).363In 2002, $20.2 million was received from private donors (again about 2.5 per cent of the contribution by states).

Sometimes large sums are obtained from a private source for a particular activity, such as the establishment of a library (see above, §1042) or a particular development project.364 §1045. Is financing of programmes by private contributions to be encouraged? Voluntary private contributions offer the clear advantage of public support. They considerably strengthen the political as well as the financial position of the programmes supported. On the other hand, specific objections to financing from private sources have been raised, in addition to the objections raised against voluntary contributions in general (see above, §1024). Financing from private contributions would take responsibility away from the governments. In organizations of states, the responsibility of the members should not be diluted. Financial responsibility should not be separated from decision-making

357. 358.

359. 360. 361. 362. 363. 364.

For the financing of UNICEF see K. Karunatilleke, Le Fonds des Nations Unies pour l’Enfance 241-271 (1967), and UNICEF Annual Reports. See S. Williams, A Billion Dollar Donation: Should the United Nations Look a Gift Horse in the Mouth? 27 Georgia Journal of International and Comparative Law 425-454 (1999), at 452. Information taken from Williams, op. cit. note 358. Stoessinger, op. cit. note 11, at 201. Accounts for the year 1970, GAOR 26th Session, Suppl. No. 7E (A/8407/Add.5), at 10. UN Doc. A/33/5/Add. 5, at 13. UN Doc. A/47/12, Table 3. Such as the Young World Food and Development Project, established with the help of a $500,000 grant from Massey-Ferguson, see YUN 1967, at 845.

669

Financing

§1046

power. Voluntary contributions from private sources are unpredictable. Their fluctuations endanger sound planning, especially in respect of continuous programmes. Private contributions to UNICEF jumped from $16,000 in 1947 to $5.9 million in 1948. In 1949 they fell back to $5 million, in 1950 to $1.5 million and in 1951 to $236,000. The figure remained below $1 million until 1956. Then it gradually increased over a period of eight years to $4.5 million in 1963. In 1964 and 1965 it fell back again (to $4.1 million and $3.7 million respectively), thereafter it increased steadily to $5.5 million in 1967, to $9.6 million in 1970,365 and to $12.6 million in 1977.366 In 1992, some 25 per cent of UNICEF’s total income ($938 million) came from non-governmental sources (mainly from the National Committees for UNICEF, through sales of greeting cards and private sector fund raising).367 In 2002, total contributions to UNICEF amounted to $1,454 million. Contributions from governments and international organizations accounted for 63 per cent of total contributions; 33 per cent came from non-governmental/private sector sources, while 4 per cent was derived from various other sources including interest income.368

In practice, it will depend on the character of the programme concerned whether financing from private contributions is acceptable. §1046. Some public international organizations transfer funds to other public international organizations (see above, §1032). These funds may be donations, of the same character as gifts from states. They usually originate from members’ contributions or from surpluses which otherwise would have been distributed to members. Instead of coming directly from the member states they flow indirectly, through the budget of another organization. This indirect procedure is important in two cases: (1) When the membership of both organizations differs, the gifts are partly gifts from non-member states (some of the contributions of these non-members are used for tasks of the other organization); (2) When the competence of an international organization is limited, payment to another international organization may enable it to support activities in which it cannot engage itself. The World Bank may only provide credits on strict conditions. The International Development Association (IDA) may render financial assistance on softer terms. The transfer of funds from the World Bank to the IDA makes it possible to use financial surpluses of the former organization to subsidize the task of the latter.

365. 366. 367. 368.

GAOR 26th Session, Suppl. No. 7B (A/8407/Add. 2), at 16. The income from greeting cards is not included (see below, §1060). UN Doc. A/33/5/Add. 2, at 24. UN Doc. E/ICEF/1993/2 (Part II), at 66, 75-76. See id., at 77, showing fluctuations in the development of UNICEF income over the period 1987-1992. UNICEF Annual Report 2002, at 35.

§1047

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670

§1047. The competence of international organizations to present gifts to other such organizations is nowhere clearly defined. One should be cautious. A state’s contribution to an international organization should not be used for financing other organizations which the state has not joined, perhaps for the reason that it does not consider them to be worth the expenditure. The transfer of money from one organization to another is acceptable only when the funds of the receiving organization are used in a way which fits within the general purposes of the donating organization. The more uniformity of membership there is, the less objectionable are transfers of funds between international organizations. §1048. Contributions of one international organization to another may also be paid as a consequence of particular activities which the recipient organization performs for the other’s benefit (see above, §1062).369 Non-governmental organizations may offer important financial support to public international organizations. The Red Cross, for example, gave considerable aid to the UN programmes for Palestine refugees. These contributions originated from private persons. 3.

Acceptance of gifts

§1049. Gifts may be tendered with conditions370 or a programme may become dependent on certain financial resources. To prevent possible difficulties, secretariats cannot accept gifts without the permission of the policy-making organs. In the UN, permission to accept gifts is given to the Secretary-General subject to the provision that the purposes for which the gifts are made are consistent with the policies, aims and activities of the Organization and provided that the acceptance of such gifts which directly or indirectly involve additional financial liability for the organization shall require the consent of the General Assembly.371 In the World Health Organization, the Health Assembly or the Board acting on behalf of the Health Assembly may accept and administer gifts and bequests made to the organization;372 the DirectorGeneral may accept gifts and bequests only provisionally.373 In the European

369.

370.

371. 372. 373.

See e.g. the Report of the Secretary-General of the UN on the assistance to Palestine Refugees of 4 November 1949, UN Doc. A/1060, Official Records, 4th Session of the GA, Ad hoc Political Committee, Annex, Vol. II, at 14 ff. UN Financial Regulation 3.11 and Financial Rule 103.4. For special cases concerning acceptance of gifts, see e.g. G. Woodbridge, UNRRA, The History of the United Nations Relief and the Rehabilitation Administration, Vol. I (1950), at 138-139, and the Israeli offers to UNRWA of assistance to Palestine refugees; UNJY 1992, at 445-446; UNJY 1995, at 476479. Stoessinger, op. cit. note 11, at 257. See also, for example, WMO, Financial Regulation 10.2. WHO, Art. 57. WHO Financial Regulation 7.2.

671

Financing

§1050

Union, the Commission may accept donations, and in particular foundations, subsidies, gifts and bequests.374 The competence to accept gifts does not entail a power to establish trust funds for the purpose of inviting gifts.375 The acceptance of an arrangement with the purpose of financing particular activities through gifts would not normally come within the competence of the Secretary-General, as it would not be consistent with the rule that each donation must be examined on its own merits. Such an arrangement must be expressly permitted by the constitutive document of the organ concerned.376 UN Office of Legal Affairs has given the following information to a solicitor, relating to the form of words to be used in a will to ensure that a valid receipt will be obtained in respect of a gift to the UN: “Any gift to the UN would preferably be made with an indication of the testatrix’s wishes as to its use. Such intention should be expressed in precatory language. This is desirable in order to avoid the result, most probably inconsistent with her intentions, that the monies would simply be received as miscellaneous income (i.e. applied to redeem total assessment of member states without adding to the total sum available for UN purposes).” Money given for very generally expressed purposes such as “furtherance of peace”, “humanitarian purposes” or “international assistance to children” would be directed to such programmes or activities as the Secretary-General considered would best serve the intended purpose. Unduly specific language – unless in precatory terms – might prevent acceptance.377 D.

Self-support

§1050. All international organizations have some income of their own. In most organizations this source of income is limited and plays a minor role in financing. Only the activities of some organizations yield rich sources of income. Income from self-support is impossible to predict exactly. This may obstruct the budgetary process of the organization. Trygve Lie proposed that the actual revenue be used in the next budget following the close of a year’s account. The amount available would then be known. His proposal was not accepted, partly because the Advisory Committee on Administrative and Budgetary Questions was unwilling to sacrifice the incentive for collecting the estimated revenue.378

374. 375. 376. 377. 378.

Financial Regulation, Art. 19.1. Such donations have never been made; see Strasser, op. cit. note 54, at 47. See UNJY 1966, at 234-237. See UNJY 1974, at 174-175. UNJY 1983, at 209-210. Singer, op. cit. note 200, at 143-144.

§1051

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672

A substantial amount of “own” income of an international organization increases its independence. Usually the organ permitting new activities will be aware of their budgetary consequences and may thus limit them for financial reasons. Delegates to the principal organs of international organizations are obliged to account to national authorities for their voting. They may be more ready to support new projects when they do not have to obtain national support to meet part of the costs of those projects. 1.

Income from services rendered to states

a.

Retributions

§1051. Some international organizations earn their own money by charging for the services they render. The amount actually paid by each member will then depend on the use it makes of the service offered. The best examples of earning international organizations are the organizations of the World Bank group and the regional development banks. These organizations draw part of their income from investing the large sums of money they hold (see below, §1064). But apart from that they render financial services to their members, for which they are paid. In the fiscal year ended June 30, 2002, the World Bank had an income on loans to members of $6,861 million.379 In the fiscal year ended June 30, 2002, the International Development Association received an income from development credits of $641 million.380 The IMF receives income, inter alia from periodic charges, interest on SDR holdings and service charges. In the financial year ended April 30, 2002, the Fund’s income from these sources amounted to SDR 2,232 million.381 The IMF financed its own headquarters building and accumulated considerable reserves (see below, §1122).382

§1052. Both the IAEA and the supply agency of Euratom may charge members for materials, services, equipment and facilities furnished by the organization.383 The agency of Euratom may not charge more than is necessary to cover its administrative costs. The IAEA may make a profit which is then placed in a general fund and used for technical assistance projects.384 At the time the IAEA and Euratom provisions were made, a general shortage of nuclear material was expected. If this shortage had ever materialized, the

379. 380. 381. 382.

383. 384.

World Bank, Annual Report 2002, Vol. 2, at 6. Id., at 86. IMF Annual Report 2002, at 156; see for further data, id., at 161, 163. See J. Keith Horsefield, Introduction to the Fund (2nd ed. 1965). At the end of April 2002, the Fund’s reserves (General Resources Account) amounted to SDR 3.6 billion (IMF Annual Report 2002, at 67, 157). IAEA, Art. 14E; Euratom, Statute of the Agency (Official Journal 534/58), Art. 6. Stoessinger, op. cit. note 11, at 232.

673

Financing

§1053

organizations would have enjoyed a strong position in the market as distributors of that material. But supplies remained plentiful and the income insignificant. b.

Requested services

§1053. States sometimes ask international organizations to perform a specific task at their expense. In 1934, the League of Nations sent an international force to the Saar to ensure order during and after the plebiscite. It was provided that the necessary finances would be advanced by the benefiting states (France and Germany) and that the winner would ultimately bear the entire costs. When Indonesia and the Netherlands came to an agreement on West New Guinea (West Irian), they needed an impartial authority to govern the territory during the intermediate period. The Netherlands was to transfer the administration of the territory to a United Nations Temporary Executive Authority (UNTEA), from which Indonesia would receive the administration at a later date. The costs of UNTEA were to be shared equally between the two states.385 The General Assembly of the UN accepted its responsibilities under the agreement in September 1962.386 All costs were borne by a trust fund financed by the two states (see above, §1029). A similar procedure was followed when Saudi Arabia and the United Arab Republic agreed on a disengagement in the Yemen. During the period of disengagement, a UN Yemen Observation Mission (UNYOM) would observe, certify and report on the termination of outside military intervention in Yemen.387 The Security Council of the UN requested the Secretary-General to establish UNYOM.388 The duration of UNYOM’s mission, originally intended to be two months, was extended several times. The governments of Cambodia and Thailand agreed to share, on an equal basis, the cost of a special Representative sent by the Secretary-General of the UN to examine the situation at the borders between the two states and to endeavour to find ways and means of reducing tension in the area.389 Under the United Nations Development Programme (UNDP), states sometimes request particular technical assistance for which they are willing to pay. The funds required to support this assistance are then paid into a trust fund administered by UNDP for the purpose concerned.390

§1054. The system of financing used in the above mentioned cases comes close to financing from retributions. The organization performs a service which states buy for payment. The main difference is that the organization does not offer

385.

386. 387. 388. 389. 390.

Agreement of 15 August 1962 between the Netherlands and Indonesia, Art. 24. The agreement was published by the Netherlands Ministry of Foreign Affairs in its publication No. 76, at 205-216. GA Res. 1752 (XVII). YUN 1963, at 63-68. SC Res. 179 (1963). UN Doc. S/7462; YUN 1966, at 162-163. See e.g. UN Doc. DP/L115 (Trust fund for Libya).

§1055

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specific services at fixed prices but agrees to perform a particular task at the expense of the states concerned. The organization cannot make a profit. As a method of financing, the performance of public functions for payment may seem somewhat primitive. If supervising the transfer of authority or the withdrawal of troops is a task of an international body, that task should be performed and paid for by that body. In cases where the interest in the service is limited to certain specific states it may be advantageous, however, to require them to pay the costs. Thus an increase in the organization’s expenditure can be avoided. Since the approval of new expenditure of international organizations is hard to obtain, this may facilitate useful activities. In order to limit unfair treatment of states which are less able to purchase an organization’s services, the latter should not perform activities which could not be carried on within the scope of the budget. §1055. In a number of cases international organizations have initiated programmes in which only some of their members participate. Such programmes may be arranged in special conventions establishing separate funds or organs financed by the participating states only. In these cases, programmes are involved which may be substantially within the scope of an international organization, serving its purposes, but which are formally outside their fields since they are incorporated in separate treaties. One example of this procedure is the Agreement on North Atlantic Ocean Stations, drafted at a conference convened by the ICAO on 25 February 1954.391 The agreement provides for the establishment of weather stations in the North Atlantic, at the expense of a limited number of participating states. ICAO has some rights and obligations under the agreement, but does not bear any of its expenditure. Other examples are the partial agreements made in the OECD.392 The mandatory activities of the European Space Agency (space science programmes and the general budget) are paid by all members. In addition, ESA carries out a number of optional programmes; these are financed by those members who decide to participate.393

c.

Cost sharing for specific projects

§1056. In most economic assistance projects some participation of the recipient countries is required. They usually provide local staff, housing, and other facilities. In the tradition of self-help underlying the United Nations Development Programme (UNDP), more than half of the $4,600 million cost of the 8,000 projects which UNDP was financing in 1975 was borne by the developing countries themselves.394

391. 392. 393. 394.

215 UNTS, at 268; Trb. 1955, No. 80. OECD, Art. 6, para. 2. See www.esa.fr. YUN 1975, at 405.

675

Financing

§1057

In some projects of the UNDP express provisions have been made for the payment of local costs by the recipient states. The UNDP also administers cash counterparts as integral features of the budgets of some projects, but the greater part of the participation of the developing states – through services and local staff – remains outside the UNDP budget. d.

Special payment by the states responsible for the expense

§1057. When states ask for a particular service of an international organization, they are often prepared to pay all or part of the costs involved. Would it be reasonable to require states to pay an extra share of the expense which they directly or indirectly caused? Several states submitted that the costs of the First United Nations Emergency Force (UNEF I) should, at least for the larger part, be borne by the states which attacked Egypt in 1956 as their aggression required the creation of UNEF.395 There are good reasons for requiring extra payment from aggressor states, whenever it is possible to establish which state is the aggressor. Such payments could be assessed to those states by the organ competent to apportion the costs of the organization to the members. Considering existing problems regarding the collection of contributions it seems doubtful whether an organization would ever succeed in collecting such extra assessments. A member might be willing to pay an extra share voluntarily when it admits its own particular responsibility for the costs. Usually, however, no member will accept such responsibility. The states which might be considered as having caused the expenditure for UNEF I or for the UN operation in Congo did not pay particularly high voluntary contributions towards the expenditure involved. So far, an international organization has never obliged a member to meet an extra share of the expenses on this ground. 2.

Income from services rendered to individuals

§1058. Most international organizations sell documents and other publications. Additionally, they often operate their own restaurant and sell souvenirs, while guided tours, parking facilities etc. may also produce some income. For 1978 and 1979, the UN expected a yearly net income of $0.2 million from the sale of publications and nearly $0.14 million from services to visitors and guided tours. The income from the souvenir shop, gifts centre and catering service was estimated at $0.6 million and the rental of garage parking at $150,000 net.396 For some technical organizations, the sale of documents is an important source of income. In the International Telecommunication Union the expenditure and the revenue of publications is shown in a supplementary publications budget.397

395. 396. 397.

YUN 1956, at 42; YUN 1957, at 51. GAOR 25th Session, Suppl. 6A (A/8006/Add. 1), at 31-32; GAOR 25th Session, Suppl. 8(A/8008), at 136, para. 383. See for example Report of the Activities of the ITU in 1991, at 123.

§1059

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§1059. A few international organizations receive a considerable income from the sale of postage stamps. In 1975, the gross revenue of the United Nations Postal Administration from the sale of philatelic items exceeded $7.3 million.398 This source of income is not open to all international organizations. Stamps can only be used in international mail if they are recognised by the postal authorities. According to the agreement between the UN and the US Post Office, revenue from stamps used for postage purposes is retained by the US Post Office; only revenue derived from the sale of stamps for philatelic purposes is retained by the UN. Another method of obtaining income from stamps is through the cooperation of national postal administrations. In 1961 and 1962, the UN High Commissioner for Refugees raised $1.5 million from special stamps issued by seventy-five postal administrations to commemorate World Refugee Year.399 In 1961, the WHO received approximately $1 million from a similar project.400 In the UPU, the host state to the session of the general congress recovers a substantial part of its costs by issuing special stamps.

§1060. UNICEF receives a significant amount of income from the sales of greeting cards. This income, though representing remuneration for services rendered to individuals, is also a form of donation. More than in the case of UN stamps, purchasers of greeting cards do so in order to support the organization. During the 1976 season over ninety million greetings cards were sold, 8 million more than in 1975. The net profit of $10.9 million was attributed to the 1977 budget. It represented 7.8 per cent of the income of UNICEF in 1977.401 Since then, this income has further increased. During the 1991 season (the year ended 30 April 1992), the net operating income from the sale of greeting cards and other products was $61 million (6.5 per cent of total UNICEF income in 1992).402

§1061. The international development banks usually charge a commission on loans and guarantees to individual firms.403 In some international organizations remuneration for services rendered to individuals represents a major source of income. The WIPO for example, charges fees paid by private parties for the registration of marks, industrial

398. 399. 400. 401. 402. 403.

YUN 1975, at 972. Stoessinger, op. cit. note 11, at 201. Id., at 226. UN Doc. A/33/5/Add. 2, at 65. UN Doc. E/ICEF/1993/2 (Part II), at 72, 76. E.g. Inter-American Development Bank, Art. 3, Section 12.

677

Financing

§1062

designs, patents, etc.404 In 2001 these fees represented some 90 per cent of the income of WIPO.405 In 1967, the income of the registration of marks (2.6 million Swiss francs) and industrial designs (0.3 million Swiss francs) represented 61 per cent of the total income of WIPO’s predecessor (the Bureaux internationaux réunies pour la protection de la propriété intellectuelle). In 1991 the income of the registration of patents under the Patent Cooperation Treaty (in force since 1978) was 41.1 million Swiss francs, whereas registration of marks yielded 21.5 million Swiss francs, and industrial designs 3.2 million Swiss francs. Together, income from these three sources represented 71.5 per cent of total WIPO income in 1991, and some 90 per cent in 2001.406 The services rendered under, for example, the Patent Cooperation Treaty are essentially the following. This Treaty facilitates the obtaining of patents for an invention where patents are desired in several countries. A single patent application has to be filed, which has effect in as many of the (approximately 120) states parties to this Treaty as the applicant desires. The applicant may also obtain information enabling him to assess the likelihood of the invention’s patentability. In 1979, 2,625 applications were made, and this figure grew sharply to 22,247 in 1991,407 and to 104,000 in 2001.408

3.

Income from services rendered to other international organizations

§1062. International organizations may let their conference halls to other international organizations during periods when these are not in use or they may hire out staff during slack periods to organizations holding a congress session or other special activities. Such transactions will yield some income but the amount is negligible, once the costs involved are deducted. The UN estimated its yearly income for 1978 and 1979 at $791,000 for the rental of office space in New York and Geneva,409 which covers 0.3 per cent of its regular budget. Normally, conference halls are only let to carefully selected applicants and even then only under strict conditions. Inevitably, the organization will to some extent be held responsible for activities performed in its building. When Amnesty International was permitted to use the UNESCO building in Paris on 11 and 12 December 1973, it had to promise that no unkind words would be spoken of UNESCO’s members.

§1063. The only large sources of income which may be considered as payment for services rendered are the funds of the UNDP. This programme receives an income of approximately $2.5 billion a year from voluntary contributions.

404. 405. 406. 407. 408. 409.

Under the Madrid Union, the Patent Cooperation Treaty and the Hague Union respectively. See www.wipo.org. In 1991 this was 71.5 per cent, see A. Bogsch, Brief History of the First 25 Years of the World Intellectual Property Organization 95 (1992). Id. Bogsch, op. cit. note 405, at 25. See www.wipo.org. GAOR 25 Suppl. No. 8(A/8008), para. 383.

§1064

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It does not spend the income itself but distributes it to the participant organizations. When a development project is carried out, the organizations able to provide the necessary assistance are invited to do so at the expense of UNDP. This permits most specialized agencies to donate far more development aid than they would be able to finance from their own budgets. But they cannot decide independently on this aid, which is actually given as a paid service to UNDP. Although the service is hardly a service rendered to another international organization (since the UNDP is a common activity of the participating organizations and not an independent international organization) the effect is practically the same. The organization receives funds and is obliged to perform specific activities. In particular the funds paid for secretariat services of the agencies have the character of retributions. 4.

Income from investments and borrowing

§1064. The financial agencies invest their capital and draw considerable income from it. For example, in the fiscal year ended June 30, 2002, the World Bank had an income from investments of $734 million.410 §1065. Apart from the financial organizations,411 the European Atomic Energy Community (Euratom) and the IAEA also have the power to contract loans. The UN and certain other organizations have raised loans for specific purposes, such as the Secretariat building.412 In 1947, the UN borrowed $65 million for the establishment of its headquarters.413 The loan was interest-free and it is being amortized over 35 years (last payment in 1982).414 In 1961, the General Assembly authorized the Secretary-General to issue bonds for the amount of $200 million to overcome the financial crisis caused by numerous deficits in the UN budget.415 Almost $170 million of this sum was used, carrying an interest of 2 per cent per year and being amortized over 25 years.416 To a limited extent the administrator of the UNDP is entitled to make loans.417 The general conference of UNESCO agreed to several loans but refused a loan to pay for the Nubian monuments.418

410. 411. 412. 413. 414. 415. 416. 417. 418.

World Bank, Annual Report 2002, Vol. 2, at 6. See for the IMF J. Gold, Borrowing by the IMF, Ultra Vires and Other Problems, in International Financial Policy: Essays in Honor of Jacques J. Polak 173-243 (1991). See Jenks, op. cit. note 83, at 178-188, who also discusses the question of the law applicable to such loans. Authorized by GA Res. 182 (II). UN Doc. A/32/6, Vol. II, at 457. GA Res. 1739 (XVI). On this loan, see J. Salmon, L’emprunt de 200 million de dollars de l’Organisation des Nations Unies, 8 AFDI 536-575 (1962). Everyman’s United Nations 479 (8th ed. 1968). See GA Res. 31/165. J.J.A. Salmon, De certains aspects juridiques et financiers de la campagne internationale pour la sauvegarde des monuments de Nubie, 9 AFDI 639-669 (1963).

679

Financing

§1066

§1066. The borrowing power of the EC is less clearly defined. Until 1976, this Community had never raised money on loan in its own name although, indirectly, it had access to the capital market through the European Investment Bank. In 1975, the Council of the Communities accepted that the EEC could contract loans419 and from 1976 onward the EEC has frequently done so.420 It may be disputed whether the contracting of loans is part of the budgetary powers of the Community. If so, the European Parliament must participate in decision-making, which is not necessary if these contracts fall under the normal decision-making powers of the Community.421 In 1976, the EEC contracted loans amounting to approximately $1,300 million.422 Borrowing operations during the year 1992 totalled ECU 2,683 million.423

§1067. Loans can only be made in the capital markets of states. Larger loans may cause balance of payments problems for those states and may for that reason be refused. Income from loans, of course, leads to an increase of expenditure for repayment and interest. In the UN this expenditure is financed from the regular budget. In the financial organizations, the loans themselves are used for lending, and this creates an income sufficient to cover the costs. §1068. Most international organizations draw some income from bank interest.424 This interest is directly related to the cash position of the organization. When members pay their contributions promptly and when the organization has a substantial capital fund, the income may be significant. In many organizations the yield of this source is low. For 1978 and 1979, the UN estimated a yearly income of $189,000 from bank interest, which was only 0.08 per cent of its budget.425 For 1979, the Council of Europe estimated its income from bank interest at 3.3 million French francs, which was 1.9 per cent of its budget.426

§1069. Investment in property may also provide some income. The renting of office space (see above, §1062) may be brought into this category as well.

419. 420. 421. 422. 423. 424. 425. 426.

EEC Regulations 397/75 and 398/75 of 15 Feb. 1975, OJ 1975, No. L 46. These Regulations referred to Art. 235 EEC (now Art. 308 EC) as their legal basis. Couzinet, 224 RMC (Febr. 1979), at 58; Strasser, op. cit. note 54, at 100-109. Couzinet, 225 RMC (March 1979), at 121-135; Strasser, op. cit. note 54, at 106. Couzinet, 226 RMC (April-May 1979), at 209. XXVIth General Report on the Activities of the European Communities 1992, at 416. UN Financial Regulations 4.16-4.18 empower the Secretary-General to invest funds. UN Doc. A/32/6 Vol. II, at 464. CoE budget 1979, at 78.

§1070

5.

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Income from staff assessment

§1070. Originally, international civil servants paid no taxes. They were immune from national taxation (see above, §530) and no international taxation existed. As a result, the organizations could pay more modest salaries, so that their budget would remain lower, to the benefit of all member states. Difficulties arose in the UN when the US refused to grant American officials of the UN exemption from taxation.427 It was mainly for this reason that the US did not adhere to the Convention on the Privileges and Immunities of the UN until 1970. This meant that the net income of American UN officials in New York was lower than that of others. After three years of discussion,428 the UN decided on the one hand to increase the salaries of its personnel, but on the other hand to impose a staff levy, a tax to be paid to the organization itself.429 The net salary of the civil servants was unaffected by the change, but in this way the problem of unequal treatment of American UN staff as compared to staff of another nationality was solved. Furthermore, this staff levy also met objections from some member states to the existence of a category of persons who pay no taxes. In addition, the (fictitious) increase of salary, as a result of the introduction of the staff levy, could have a favourable impact on the recruitment of personnel. A high gross salary is more attractive, or at least easier to compare with national salaries, than a lower net salary. As the staff levy is paid to the organization, the objections to taxation by a member (see above, §530) are eliminated. The social possibilities of a tax system are, in principle, also valid for a staff levy (the possibility of taxing the rich more heavily, giving relief to large families, and exempting certain expenses from taxation). The percentage of the staff levy depends on the salary. According to the revised staff assessment scale for staff in the professional and higher categories, the following rates are applicable within the UN common system.

427. 428. 429.

J.H. Christiaanse, De inkomstenbelastingvrijstelling voor de internationale ambtenaren 79 (1960). Id., at 78, 84. GA Res. 239 (III). See also UNJY 1975, at 192.

681

Financing

§1071

Table 5 UN common system, staff assessment rates used in conjunction with gross base salaries (effective 1 March 2000)430 A. Staff assessment rates for staff member with dependants Assessable payments (United States dollars)

Staff assessment rates for those with a dependent spouse or dependent child (percentage)

First 30,000 per year Next 30,000 per year Next 30,000 per year Remaining assessable payments

18 28 34 38

B. Staff assessment for staff members without dependants Staff assessment amounts for those with neither a dependent spouse nor a dependent child would be equal to the differences between the gross salaires at different grades and steps and the corresponding net salaries at the single rate.

§1071. From the total cost of approximately $130 million431 appropriated for staff expenses on the UN budget 1971, $20 million or 15 per cent returned to the UN as income from staff assessments. In subsequent UN budgets, staff expenses are no longer separately mentioned, as they are incorporated in the different programmes. The income from staff assessment for the biennium 2002-2003 was estimated at $352.5 million.432 But this income cannot be spent freely. It is returned to the member states according to their shares in the contributions, with the restriction that the amount of the taxes which a member state might levy from personnel having its nationality is deducted from their returns and refunded to those staff members who paid the national taxes.433 The actual outcome is that states do not profit from taxes levied from staff members, and that staff members do not pay double taxes.434

430. 431.

432. 433. 434.

See UN Doc. ST/SGB/2003/5, at 6, and www.icsc.un.org. Budget for the financial year 1969 (UN Doc. A/7205/Add. 1), at 24-25. To the staff costs of Part II of the budget, the staff costs from Sections 12, 17, 18, 19, 20 and 21 have been added. GA Res. 56/254 B. GA Res. 973 (X), UN Financial Regulations 4.10-4.12. In individual cases problems may arise. See UNAT judgment No. 207, UNJY 1975, at 136-138, on the amount to be paid to a civil servant, or ILO Administrative Tribunal, judgment No. 177, 17 AFDI 454-455 (1971), on a civil servant domiciled outside the seat of the organization.

§1072

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Many, but not all,435 international organizations have followed the example of the UN and impose a staff levy on the salaries of their officials.436 Most specialized agencies derive an income from staff assessments which is between 15 and 19 per cent of their expenditure for personnel.437 §1072. Are the staff assessments taxes and, if so, are international organizations competent to levy taxes? In many international organizations the constitution provides that the expenditure is to be borne by the members, which seems to exclude a taxation of particular groups of persons.438 Considering the history and the application of staff assessments it seems proper not to classify those assessments as taxes. The organizations introducing them have paid compensation to the staff concerned. This has almost the same effect as a revision of the salary scales. The assessments are not used for social purposes (small and large families are assessed at the same rate), and they do not increase the wealth of the organizations. They may be classified as a form of “book-keeping income” of the organization (see below). 6.

“Book-keeping” income

§1073. Singer lists as “book-keeping incomes” a number of items which add nothing to the actual net income of the organization.439 This source of income includes the revenues from the sale of property.440 In 1969, the UN received $53,060 from this source. For 1978 and 1979, the yearly income from the sale of used equipment was estimated at $100,000. Reimbursement of the loans made by the organization could also be brought under this heading. Between 1966 and 1976 the UN received about $100,000 yearly on the basis of an agreement with the

435. 436.

437.

438. 439. 440.

E.g. ICAO, the International Sugar Agreement and the African Civil Aviation Commission (UN Doc. ST/LEG/17, at 239-240 (1987)). Christiaanse, op. cit. note 427, at 95 ff. E.g. the International Tribunal for the Law of the Sea (see Doc. SPLOS/98, decision of the Meeting of States Parties relating to the staff assessment fund of the International Tribunal for the Law of the Sea). Also: the Organization for the Prohibition of Chemical Weapons (OPCW). See Judgment No. 2032 of the ILO Administrative Tribunal, Krutzsch v. OPCW (31 January 2001). In this judgment the Tribunal emphasized (para. 16) that one of the purposes of staff assessment “is surely to put the Organization in funds to protect its employees against states which refuse to recognize their tax-exempt status”. Reimbursement by the organization is a right of such employees. It cannot be made dependent on the availability of budget or resources (in the case of the OPCW: refunds by the state concerned to the OPCW for the amount of the taxes collected) from which such taxes can be refunded . UN Doc. A/6911. For the staff assessment in the European Communities, see OJ 1462/62; Protocol of 8 April 1965, concerning the Privileges and Immunities of the European Communities, Art. 13. See e.g. UN Charter, Art. 17.2. Singer, op. cit. note 200, at 142. His list seems too extensive, fees levied for garage and parking on UN premises accrue to the income of the organization. UN Financial Rule 106.6, classifies this as miscellaneous income.

683

Financing

§1074

Government of Chile, obliging the latter to reimburse the total costs of $1.2 million for the UN building in Santiago over a period of ten years.

The income from staff assessment (see above, §1070-1072) is also of a “bookkeeping” character. E.

Taxation

1.

Definition of taxation

§1074. When discussing tax as a source of income of an international organization, we shall consider all levies which fulfil the following conditions. a. the size of the levy should be established from factors other than the expenditure of the organization. Levies directly and entirely dependent on the expenditure of the organization have been classified as contributions (see above, §966). b. the levy should not be related to particular services rendered by the organization; its level should not be determined by the amount of services rendered to the contributor. Levies in payment for services are considered as retributions (see above, §1051). c. the levy should be imposed on funds obtained from outside the organization. Levies from funds of the organization do not add to its income. They have been classified as “book-keeping” income. (see above, §1073). Staff assessments do not increase the income of the organization concerned. Organizations which do not levy them, and which can therefore pay lower salaries to their personnel, are no poorer than organizations which pay higher salaries and impose staff assessments (see above, §1070). d. Payment of the levy should be obligatory. Voluntary levies must be regarded as voluntary contributions or gifts (see above, §1022, §1040). 2.

Conditions for international taxation

§1075. The main advantage of taxation by an international organization is the high degree of independence which the organization gains from it. In several international organizations, progress is often obstructed by the reluctance of members to grant sufficient funds, especially for new staff. Levying its own taxes makes an organization financially independent. It has more freedom to choose the methods of fulfilling its tasks, although the decisions by which new duties are defined will remain in the hands of the member states united in the policy-making organs of the organization. Independence will only be achieved when it becomes unnecessary to supplement the income from taxation by governmental contributions. It is the top slice of the budget which renders independence, not the bottom. When only part of the income is derived from taxation, limited independence can be obtained by earmarking the income from taxation for one or more particular purposes. Only these purposes will then have independent financing.

§1076

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§1076. Greater financial independence is not always desirable. It may lead to mistrust by some members. This again may create a tendency to limit the functions of the organization to that of “an innocuous international philanthropic agency”.441 In the UN, for example, the influence of the larger states on the financing is greater than that on the establishment of new projects. Financial independence might mean a considerable loss of control by the principal powers. This may be advantageous for the independence of the organization, but only at the price of losing essential political support of those principal powers. Taxation by international organizations should only be permitted when all important groups of members agree to grant the organization greater autonomy. Mainly due to income of the registration of patents (see above, §1061), WIPO faced an excess of income over expenditure since the 1980s. In the biennium 1990-1991, this excess was 26.3 per cent. Over the years, the share of contributions by the member states in total income has decreased (26 per cent in 1991). WIPO’s Director General observed that, if registration activities continue to grow, one could finance all WIPO activities from this resource, and states would not need to pay any contribution. In 1991, he therefore proposed a reduction of these contributions by one-half, but this was rejected. This might be difficult to understand in a period characterized by expenditure cuts by governments. The main explanation is that member states are afraid of losing control over ‘their’ organization, which becomes more independent if it can finance all activities from “own resources” (in this case, from retributions).442 He who pays the piper calls the tune.

§1077. Who should pay the taxes levied by an international organization? As the budgets of all international organizations are relatively low, it would be administratively impossible to levy taxes on all persons who profit from the organization. Distribution of the UN budget to everyone who benefits from maintenance of peace and security would be virtually impossible. Even in the European Communities it is extremely difficult to find a workable criterion for the distribution of taxes. In practice, the right of taxation implies the levying of one or more special taxes, and this will usually weigh unfairly on the taxpayer. Only organizations which perform functions to benefit a limited number of specified persons are able to levy equitable taxes. The levy imposed by the European Coal and Steel Community was only fair as long as all the enterprises concerned shared the burden equally. After the merger of the High Authority with the Commissions of the other European Communities there has been one Commission working as much for the benefit of other industries as for the profit of the coal and steel firms but only coal and steel enterprises have to pay for the activities of this Commission which is difficult to justify.

441. 442.

Stoessinger, op. cit. 11, at 32. Bogsch, op. cit. note 405, at 93-94, and information obtained from the WIPO Secretariat. Of the budgeted expenditure for the 2002-2003 biennium, only some 15 per cent is financed from member state contributions (www.wipo.org).

685

Financing

§1078

When governmental contributions are replaced by international taxes, care should be taken to establish a system which distributes the burden as equitably as possible. The experience of the European Communities shows that the replacement of contributions by taxes will be more easily acceptable when these taxes burden (the inhabitants of) the members in the same proportion as the contributions did before.443 §1078. How should international taxes be levied? Either new taxation can be introduced, or the revenue of an existing national tax can be transferred to the organization. In both cases, detailed rules are required. The method of levying the tax and the amount must be clear. Discrepancies in national tax laws and traditions may result in differences in the amounts actually collected. Some states are very meticulous in their collection of taxes, others have a tradition which permits wholesale evasion. In order to prevent such differences occurring, an international tax system should be simple and easy to supervise. §1079. Taxes which represent the sole income of an international organization should be flexible. Within certain limits, an organization must be able to adapt its revenue according to its requirements. Among the main sources of income of the European Communities are duties levied by the common customs tariff of the Community. These duties are intended to protect the “national” industry of the Community in so far as is necessary, but they should not unnecessarily restrict international trade.444 It would not be justifiable to increase these duties merely because the Community needs more revenue. Similarly, there should be no decrease in the duties for the reason that they produce a surplus. Thus the duties cannot be adapted to the needs of the organization. However useful they may be as part of the Communities’ income, they are too inflexible to form the sole basis of financing. §1080. There should be some form of international parliamentary control over the financing of international organizations by means of taxation. As long as international organizations are financed from contributions of member states, those who bear the burden of national taxes may, through their elected national parliaments, exercise some control over the national contributions to international organizations. This small influence of the taxpayer disappears when the organization is able to levy taxes independently. To protect the fundamental rule of democracy whereby taxpayers should be able to influence the level of taxation and the way in which taxes are spent (“no taxation without representation”), international parliamentary organs ought to take over the task of supervising the budget.

443. 444.

Discussions in the EC Council of Ministers in Dec. 1969. EC Preamble, para. 6, Arts. 18 (original text; now deleted) and 27, para. (a).

§1081

3.

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Existing systems of taxation

§1081. Only a few international organizations levy taxes. The levies on the so-called “Nansen passports” issued to refugees between the two world wars were similar to taxes. These passports could be obtained free of charge, but the wealthier refugees were required to pay five gold francs for their passports.445 This payment was not a remuneration for services rendered as the passports would have been issued anyway. §1082. The most far reaching provisions were made in the East African Community, which has ceased to function.446 This community not only collected income tax, customs duties and excise duties for its own benefit but also on behalf of its three members, which, to a large extent, formed an economic union. The income from taxation considerably exceeded the costs of the organization, during the time when the organization functioned properly. §1083. Some international commodity councils have charged a levy on, for example, each bag of coffee or pound of cocoa,447 in order to finance a buffer stock or other activities which are essential for the performance of their tasks. In a sense these levies can be seen as special taxes. Furthermore, the contributions which the large users of oil must pay to the International Fund for Compensation of Oil Pollution Damage are a form of taxation.448 Only states are members of this Fund. It is financed by contributions levied on any person who has received in one calendar year more than 150.000 tonnes of oil in a state party. These persons pay their contributions directly to the Fund. The amount levied is decided annually by the Assembly (the Fund’s general congress). In 2002 total contributions amounted to £31 million.449

445. 446. 447.

448.

449.

Stoessinger, op. cit. note 11, at 41. Treaty for East African Cooperation, 6 June 1967, Arts. 65-68. International Coffee Agreement 1976 (extended on several occasions), Art. 55; International Cocoa Agreement 1986, Art. 32 (expired in 1993, and replaced by a cocoa agreement without a bufferstock). As at July 2003, there are two Funds: the 1971 Fund and the 1992 Fund. The 1971 Fund was established by the Convention of 18 Dec. 1971 on the Establishment of the International Fund for Compensation for Oil Pollution Damage. This Convention ceased to be in force on 24 May 2002. The 1971 Fund however still deals with incidents that occurred in 1971 Fund member states before this date. The 1992 Fund was created by a Protocol to the 1971 Convention; it entered into force on 30 May 1996. The main difference between the two Funds is that the amount of compensation from the 1992 Fund can be much higher. The Funds were established under the auspices of the IMO but are separate international organizations. See further: The International Oil Pollution Compensation Fund 1992 – Explanatory note prepared by the 1992 Fund Secretariat (available at www. iopcfund.org/npdf/gen-note.pdf). See the explanatory note prepared by the 1992 Fund Secretariat, op. cit. note 448, at 4-5.

687

Financing

§1084

§1084. The UN used a system of taxation to repay the loans contracted for financing the clearance operation of the Suez Canal between 27 December 1956 and 10 April 1957.450 The total costs of the operation amounted to $7.2 million. The General Assembly authorized the Secretary-General to meet these costs by applying a surcharge of 3 per cent on all shipping and trade using the Suez Canal.451 It was at least doubtful whether this resolution could create a binding obligation for private carriers. A large majority of them refused to pay.452 Eight governments assumed financial responsibility for the surcharges incurred by their national shipping either by offsetting these liabilities against the loans they had made to the UN or by paying in cash.453 Other states permitted their carriers to increase shipping rates and under these conditions, they agreed to pay the surcharge. By January 1961, all costs had been repaid and the UN Suez Canal Surcharge Operation could be successfully concluded.454 §1085. In Europe, the first important tax collecting organization was the European Coal and Steel Community (ECSC). The High Authority, principal organ of the ECSC, was empowered to impose levies on the production of coal and steel.455 Those levies are usually considered as the first “European taxes”. The ECSE levies were gradually reduced in the course of the 1990s, and eliminated with the expiry of the ECSC Treaty (23 July 2002).456 The ECSC levies were determined as follows. The companies concerned reported their production to the High Authority (since 1967: the European Commission) at monthly intervals. Based on an average value of the products, the High Authority (Commission) established the tax to be paid. In case of delay in payment, or of fraud, that amount was increased.457 How the ECSC tax should be technically classified is not clear. Its classification has been disputed, particularly with regard to German categories of taxation.458 The annual levy by the High Authority was intended to raise the funds needed in order to accomplish the mission of the Community. Without previous authorization of the Council the levy could not exceed one per cent of the average value of the products concerned.459 In its first year, the High Authority fixed the levy at 0.9 per cent. Subsequently it has gradually been reduced.460 In the first half of the 1990s, it

450. 451. 452. 453. 454. 455. 456. 457. 458. 459. 460.

Stoessinger, op. cit. note 11, at 276. GA Res. 1212 (XII) of 14 December 1957. Stoessinger, op. cit. note 11, at 277. GAOR, 15th Session, Suppl. No. 6 (A/4380), at 55. GAOR, 20th Session, Suppl. No. 6 (A/6006), at 39. ECSC, Art. 49. XXVIIIth General Report on the Activities of the European Union 1994, at 405-406. See G. Olmi, Les ressources propres aux Communautés européennes, 7 CDE 387 (1971). For a detailed study on the ECSC levy, see N.P. Weides, Das Finanzrecht der Europäischen Gemeinschaft für Kohle und Stahl (1960), in particular at 111-116. ECSC, Art. 50.2, first sentence. Stoessinger, op. cit. note 11, at 51.

§1086

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has fluctuated between 0.5 and 0.1 per cent.461 Since accumulation of taxes must be avoided,462 a system of value added taxation was used.463 When the 1965 Merger Treaty came into force (1 July 1967), the High Authority was incorporated in the Commission of the European Communities. It would have been impossible to determine what part of the expenditure of this Commission was made under the ECSC Treaty. The merger treaty therefore fixed the administrative expenditure of the ECSC at 18 million Units of Account (then $18 million).464 This amounted to 0.8 per cent or, if the agricultural fund was disregarded, to almost 14 per cent of the 1968 budget (the first full year after the merger). Because of the increases in the budget, this percentage gradually fell to under 0.2 per cent (respectively to under 1 per cent). The amount could be adapted by the Council, as the latter did during the steel crisis in the late 1970s when the amount was lowered to 5 million Units of Account, about 0.04 per cent of the 1978 budget.

§1086. The income of the European Union is at present composed of (1) the levies and contributions under the common agricultural policy, (2) customs duties imposed under the Common Customs Tariff, (3) the application of a uniform rate valid for all member states to the harmonized value added tax assessment bases determined according to Community rules, and (4) a contribution from the member states, based on the sum of all member states’ GNPs.465 In addition, there is “miscellaneous revenue”, comprising items such as the proceeds of the tax on the remuneration of the staff of the various agencies, fines imposed on firms, penalty payments and lump sums imposed on member states for not complying with judgments of the Court of Justice and the proceeds from the sale of movable or immovable assets.466 Most of this “miscellaneous revenue” can be classified under Section D above (e.g. retributions, staff assessments). Income from “miscellaneous revenue” for 2003 was estimated at approximately EUR 837 million (which is less than 1 per cent of total revenue for that year.467 The fourth above-mentioned source of income has been discussed under A above (contributions). The first and second above-mentioned resources are usually described as the two traditional own resources. They result directly from the operation of

461. 462. 463. 464. 465.

466. 467.

For 1995 it was 0.21 per cent; see the 1994 General Report on the Activities of the European Union, at 396. See also Strasser, op. cit. note 54, at 74-76. ECSC, Art. 50.2, second sentence. Weides, op. cit. note 458, at 116-125. Merger Treaty 1965, Art. 20. Act of the Council of 21 April 1970, 13 OJ (1970), No. L 94. Approval was given by the European Parliament in January 1970 (13 OJ (1970), No. C 2, at 13) and confirmed in October 1970. The national parliaments also expressed their approval and the act entered into force on 1 January 1971 (see 14 OJ (1971), No. L 2, at 12). This Decision has been amended most recently by Decision 2000/597 EC, Euratom (OJ 2000, L 253/42), the “Fifth Own Resources Decision”. Strasser, op. cit. note 54, at 88-98; see also the general budget of the European Union for the financial year 2003, OJ 2003, L 54, at 54-107. See the general budget of the European Union for the financial year 2003, OJ 2003, L 54, at 12.

689

Financing

§1087

the common market.468 The European Union has no means for collecting these traditional own resources. This is done by the member states, which retain 25 per cent of the funds collected to cover their administrative expenditure.469 In the 1994 budget, this amounted to approximately EUR 3 billion (3 per cent of total revenue for that year).470 §1087. The first above-mentioned source of income covers all levies, premiums, supplementary or compensatory amounts, additional amounts or items, and other duties established in respect of trade with non-member countries, within the framework of the common agricultural policy, and any contributions and other duties established under the common organization of the markets in sugar. The share of this source in the budget has decreased over the years; in the 1994 budget it was 3.2 per cent of total revenue, in 2003 it was 1.5 per cent.471 Under the agricultural policy, domestic agricultural prices in the Union are higher than world market prices. In order to protect the market, there is a levy on agricultural imports and a subsidy on agricultural exports, bridging the price gaps. When the system was established, agricultural imports considerably exceeded agricultural exports and thus caused a net profit to the agricultural fund, which could be used for improving European agriculture. The improvements in European agriculture caused an increase of production, which meant less imports and more exports and, therefore, less income and more expenditure. §1088. The share of customs duties in the budget is significant but decreasing: in the 1994 budget it was 20 per cent of total revenue, in 2003 11 per cent.472 These duties result from the application of the Common Customs Tariff to the customs value of goods imported from non-member states. It is related to the free movement of goods within the Union. Imports are no longer realized in the country of consumption: for example, all Luxembourg’s imports arrive via other members, while many German imports pass through Rotterdam. It would not be fair to allow the state where the import harbour is situated to pocket all levies and tariffs. Distribution according to state of final destination would introduce a new administrative obstacle to free trade. It therefore seemed appropriate to earmark this income for the Union.

468. 469. 470. 471.

472.

Strasser, op. cit. note 54, at 88-90. Decision 2000/597 EC, Euratom (OJ 2000, L 253/42), Art. 2.3. General budget of the European Union for the financial year 2003, OJ 2003, L 54, at 12. See the general budget of the European Union for the financial year 1994, OJ 1994, L 34, at 5, 8 and 16; general budget of the European Union for the financial year 2003, OJ 2003, L 54, at 12, 22. General budget of the European Union for the financial year 1994, OJ 1994, L 34, at 5, 18; General budget of the European Union for the financial year 2003, OJ 2003, L 54, at 12, 23.

§1089

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690

The size of this source of income, as is the case for the agricultural levies and contributions, depends on the agricultural and customs policy, rather than on the needs of the Union. Because of the insufficient flexibility of this income and in order to prevent the Union from following a protectionist policy for the sole purpose of obtaining funds, an additional source of income was required. The value added tax seemed acceptable as a source, equitably burdening all member states and large enough to cover all insufficiencies of the other sources of income.473 §1089. The third source of income for the Union is the application of a uniform rate valid for all member states to the harmonized value added tax assessment bases determined according to Community rules . This uniform basis was fixed only in the Sixth Value Added Tax Directive of May 1977.474 The share of this resource in total income of the Union has grown rapidly but is now decreasing. In the 1994 budget, its share in total revenue was 51.3 per cent,475 in the 2003 budget it was 24.7 per cent.476 §1090. Thus, the main financial resources for the European Unionhave developed from a classical system of contributions by the member states (1958-1970; legal basis: Article 200 EEC (original text)) to a system of own resources (since 1971; legal basis: Article 269 EC). Nevertheless, in practice this distinction is less clear-cut.477 Moreover, although the four main financial resources all have been classified as “own resources”, the fourth source of income (a percentage of the GNP of the member states) concerns in fact no own resource, but contributions by member states. In addition, the third (VAT) source also lacks certain characteristics of an own resource, in particular since 1988, when it was linked to the members’ GNP. Also, unlike agricultural levies and customs duties, this source is not transferred to the Union by the member states (it is still included in their budgets). Therefore, the conclusion seems justified that the European Union is less financially independent than might be concluded from the name and concept of “own resources”.

473. 474.

475. 476. 477.

See Olmi, op. cit. note 457, at 410. Council Directive 77/388 (OJ 1977, L 145/1). In 1988 it was decided that the assessment base to be taken into account for each member state may not exceed 55 per cent of its GNP (Decision 88/376, OJ 1988 L 185/24 (Third Own Resources Decision), Art. 2(1)(c). See Strasser, op. cit. note 54, at 90-93). See the general budget for the European Union for the financial year 1994, OJ 1994, L 34, at 5, 20. General budget of the European Union for the financial year 2003, OJ 2003, L 54, at 12, 23. See C.-D. Ehlermann, The Financing of the Community: The Distinction between Financial Contributions and Own Resources, 19 CMLRev. 571-589 (1982).

691

Financing

III.

Budget

A.

Use of the budget

1.

Purpose

§1091

§1091. The budget is the legal act by which the income and expenditure of an international organization is estimated. It authorizes the organization to incur certain expenditure and it constitutes the legal basis for the payment of contributions. Singer recognizes four other functions of the budget: (1) It provides the decision-making organs with an adequate basis for expanding, curtailing, postponing or altering programmes and activities; (2) It offers an operational plan according to which the secretariat will execute its responsibilities; (3) It permits the secretariat to estimate its operating costs and to evaluate its structure; (4) It serves as an essential yardstick by which the auditing agency may compare expenditure with appropriation.478 §1092. The budget is a unit of income and expenditure. All members must participate in it. Sometimes an international organization wants to leave its members free to decide whether or not they will participate in the financing of specific projects. It can do so by establishing a separate budget for such activities. The Latin American Economic System (SELA), for example, has separate budgets for the financing of its Action Committees.479 An activity which is not expressly brought under a separate budget cannot be singled out by individual members which do not participate in it or which would rather not see it performed. All the activities which are in one budget are to be financed as one unit. The sole exception which is sometimes made, and even that is disputed, is for activities which are illegal. When an organization is not entitled to perform an activity, then the members cannot be obliged to pay for it. §1093. The budget provisions define the responsibilities of the organs involved. The secretariat drafts the budget, the general congress (sometimes the board) establishes it, the secretariat again executes it and the general congress (sometimes the board) supervises its execution. All major international organizations have their own financial regulations, often further specified in financial rules. The financial regulations of the UN are of particular relevance, having served as a model for many other international organizations.480

478. 479. 480.

Singer, op. cit. note 200, at 54-55. SELA, Arts. 20-26. See for the UN Financial Rules and Regulations as presently in force UN Doc. ST/SGB/ 2003/7.

§1094

2.

Chapter 7

692

One budget?

§1094. According to the rule of budgetary unity, any official public body has to bring its income and expenditure together in one single budget.481 If applied to international organizations, this would increase the organization’s autonomy and prevent member states from concentrating their financial contribution on certain specific activities of the organization only (participation “à la carte”). If this rule were to be neglected, member states would no longer pay to the organization “as a whole”, and the classical distinction between compulsory and voluntary contributions would become blurred. §1095. In the UN, the rule of budgetary unity was originally respected. The first budgets of the UN basically covered all income and expenditure. But expenditure then mainly consisted of administrative expenses. Gradually, the UN initiated more and more, sometimes relatively costly, operational activities (development cooperation, peace-keeping). It was the intention of the founders of the UN to include all administrative and operational costs in the UN budget; this was confirmed by the International Court of Justice.482 But in practice, an increasing number of special accounts and other funds have been created separate from the regular budget.483 For example, each peace-keeping force has its own account. One advantage of such special accounts is that a different scale of assessments may be agreed upon, as compared to the scale used for the general budget.484 But a disadvantage is that it becomes easier for members to withhold payments if they disagree with the particular activity that is now set apart from the general budget. Moreover, disintegration is the result of the use of special accounts. Within the UN, the regular budget only covers less than 40 per cent of all expenses.485 §1096. In the European Union, the rule of budgetary unity is largely respected. A main exception is the European Development Fund, which has always been financed from contributions by the member states, outside the general budget.486 The second significant exception is borrowing and lending activities. Since these two items are excluded from the budget of the Union, the European Parliament has no control over the related income and expenditure. Partly for this reason, it rejected the proposed budget for 1980.487

481. 482. 483. 484. 485. 486. 487.

Strasser, op. cit. note 54, at 41-42. Certain Expenses Case, ICJ Rep. 1962, at 157-161. This is permitted under Financial Rule 104.3. As has been done for peace-keeping operations, see GA Res. 55/235. Cot and Pellet, op. cit. note 12, at 358; Simma, op. cit. note 12, at 335. Strasser, op. cit. note 54, at 44-45 and 116-117; further information has been obtained from www.europa.eu.int. Id., at 45.

693

3.

Financing

§1097

Structure

§1097. Budget estimates are usually divided into parts, sections, chapters and articles. Such detailed division is necessary in order to give a clear indication of the purposes for which the appropriations may be used. Of these divisions, sections are the most important. Funds may not usually be shifted from one section to another without authorization by the general congress, or in some cases the board.488 Within each section, the secretariat489 may transfer funds from one article to another, and even from one chapter to another, provided that such transfers are reported to the competent organs. This freedom to transfer within sections of the budget gives real power to the secretariat to favour some activities to the detriment of others. In 1948, Mr. Litauer from Poland observed that the total costs of the Department of Public Information of the UN Secretariat were much higher than the budget figures.490 In 1949, Mr. Khosrovani of Iran remarked that, for two years, appropriations had been made for an information centre in Teheran. No staff had been appointed however, and the sums had been used for other purposes.491

§1098. The only way to prevent every possible abuse would be to appropriate funds to every separate project without allowing any opportunity for transfer. This would leave no administrative flexibility and would render a budget practically unworkable. The general congress cannot fully anticipate all needs and priorities and it should therefore relinquish some power to the secretariat. Only when the budget is divided into a few, large sections can the secretariat make effective use of the funds attributed to each section. Supervision of the expenditure by specialized officials is also facilitated when large funds are attributed to the secretariat as a whole, instead of every subsection of the secretariat having its own funds. The latter situation might encourage these subsections to spend all the funds put at their disposal.492 §1099. Between 1948 and 1957 the number of sections of the UN budget multiplied. The Secretary-General finally considered that the detailed budget endangered the unity of the Secretariat and led to inefficiency, such as expen-

488.

489. 490. 491. 492.

UN Financial Regulation 5.6. Some organizations use names other than “sections” to denote the limits within which funds can be transferred. But the principle is generally accepted by international organizations. See e.g. UN Doc. A/7323 (GA, 23rd session, annexes agenda item 80), para. 6(d), juncto UN Doc. A/6343, para. 37; European Communities, Financial Regulation (OJ 2002, L 248), Arts. 21-26. In the European Union: the Commission. GAOR,3, part I, 1948, 5th Committee, at 221 (124th meeting); Singer, op. cit. note 200, at 63. GAOR, 4, 5th Committee, at 256 (231st meeting, para. 20); Singer, op. cit. note 200, at 158. Singer, op. cit. note 200, at 135.

§1100

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694

diture splitting, inter-office vouchering and frequent allotment readjustments.493 After 1957 the UN budget was simplified. In practice, even the division into sections does not create insurmountable barriers as general conferences are willing to permit transfers provided that the total budget is not increased. Whatever the structure of the budget, frequent changes should be avoided. Comparisons of expenditure are of great importance. It is very difficult, if not impossible, to estimate a mere figure of expenditure. It can only be done by comparison of similar figures in other years and in different organizations. In order to evaluate each item of expenditure correctly, it would be advisable for international organizations to structure their budgets in more or less the same way and to refrain from altering that structure too frequently. Only then would it be possible to examine each budgetary item in depth. Most organizations of the UN family strive for such budgetary uniformity.494 With the exception of the financial agencies, all specialized agencies have agreed to submit their budgets to the General Assembly.495 The Advisory Committee on Administrative and Budgetary Questions examines the administrative budgets of the agencies and the General Assembly may recommend changes on its proposals. In December 1965, an Ad Hoc Committee of Experts was appointed to examine the finances of the UN and the Specialized Agencies.496 It recommended a number of measures to facilitate mutual comparison and to improve budgetary proceedings.497 The General Assembly recommended full and speedy implementation of these recommendations.498 Most of them have been put into effect by the agencies.499

4.

Explanatory memorandum

§1100. Budget estimates shall be accompanied by such information annexes and explanatory statements as requested by the general congress or deemed useful by the secretariat, including a brief statement on the main changes in the programme content in comparison with the previous budget.500 The budget contains the financial reflection of the entire policy of the organization. Its adoption procedure therefore offers a possibility to discuss and review the policy. However, general congresses hardly ever use the budgetary procedure

493. 494.

495.

496. 497. 498. 499. 500.

Id., at 64; see also the Geneva proof-readers case, quoted below, §1120. See the Report of the Group of High-level Intergovernmental Experts to Review the Efficiency of the Administrative and Financial Functioning of the United Nations, Recommendation 13 (UN Doc. A/41/49). See also Simma, op. cit. note 12, at 350-352. UN Charter, Art. 17.3; Agreements between the UN and the Agencies. See for the most recent agreements: GA Res. 3346 (XXIX) (WIPO), GA Res. 32/107 (World Tourism Organization) and GA Res. 40/180 (UNIDO). GA Res. 2049 (XX). UN Doc. A/6343. See GA Resolutions 2150 (XXI), 2360 (XXII) and 2475 (XXIII). For a table showing which organizations implemented each of the recommendations, see UN Doc. A/6803, Annex I. UN Financial Regulation 2.3.

695

Financing

§1101

for this purpose. Some organizations, such as the UN, hold general debates (see above, §340) and therefore do not require discussions during the budgetary proceedings, while others find discussion of their overall policies practically unnecessary. In the European Union it is the European Parliament that finally adopts the budget (see below, §1110). It also discusses the policies of the Union and therefore requires detailed explanation of the budget, enabling it to review the Union’s policies in the same way as national parliaments review national policies during budgetary proceedings. For this reason the budget must show estimates not only for the financial year in question but also for the preceding financial year, as well as “appropriate remars on each subdivision”.501 5.

Budgetary periods

§1101. Most regional organizations502 and some specialized agencies503 have yearly budgets, other specialized agencies and the UN adopt their budgets on a biennial basis.504 A two-year budget cycle saves considerable time and work on the part of the secretariat and of the organs which discuss the budget. Also, longer-term planning will be easier when funds are appropriated for a longer period. On the other hand, flexibility will be affected when budgets are fixed prematurely. It should be remembered that the preparation of a budget takes a considerable amount of time, so that some of the estimates will be more than a year old when the budget comes into effect. This means that they are two years old at the end of a one-year budget and three years old at the end of the second year of a two-year budget. The UN originally used yearly budgets, but changed over to a two-year budget cycle in 1973.505 It was preceded by the FAO and UNESCO, and followed by the ILO, the WHO and UPU.506 The IAEA decided to continue yearly budgeting.507 §1102. The problem of long-range forecasting of expenditure is particularly relevant in organizations where the general congress does not meet every year. On the one hand, it is undesirable to take the decision on the expenditure out

501. 502. 503. 504.

505. 506.

507.

European Communities, Financial Regulation, Art. 46. For example the European Union, Financial Regulations, Art. 6. For example ITU and IAEA. Until 2001, UPU had a yearly budget. For example ILO, FAO, UNESCO, WHO, IMO and UPU (since 2001). See for the UN: Financial Regulation 1.2. The financial period for peace-keeping operations with special accounts is one year (from 1 July to 30 June); UN Financial Regulation 1.2. YUN 1973, at 832. On WHO see Res. WHA 26.37 and UNJY 1973, at 79-80. See also UN Doc. A/6343 para. 56. In the interest of comparability, the biennial period of the UN and the specialized agencies mentioned should cover the same years. As UNESCO had a budgetary period different from the others, it has used one budget period of three years (1980-1983) in order to draw into line with the others. UN Doc. A/7323, GA 23rd Session, Annexes Agenda Item 80.

§1103

Chapter 7

696

of the hands of the general congress. An executive board may be competent to take all budgetary decisions, but governments not represented on the board often object to their financial obligations being established in their absence. On the other hand, it would be undesirable to fix a budget too far in advance. In some organizations, where the general congress meets only once every five years,508 the general congress only sets the maximum for each of the five yearly budgets and leaves it to the board to establish the budgets up to those maxima. The WMO adopts an intermediate position. Its general congress, which meets every four years, does not establish two budgets for two biennial budgets, but neither does it limit itself to two general maxima. It establishes the maximum expenditure, divided into parts, sections, chapters and articles for the entire period of four years. Within these maximum expenditures, the Executive Council (the board) is authorized to approve appropriations forthe two bienniums. In doing so it may transfer appropriations from one section to another on the condition that the total of such transfers does not exceed three per cent of the total maximum expenditure authorized for the entire financial period of four years.509

6.

Medium-term financial plans

§1103. In addition to annual or biennial budgets, some organizations or organs use medium-term financial plans. Such plans serve financial as well as planning purposes. In the UN, the medium-term plan is at present concluded for a periods of four years.510 These UN plans obviously have financial implications, but they primarily serve planning purposes. This is somewhat different for, for example, UNICEF medium-term plans, which contain rather more detailed estimations of income and expenditure.511 §1104. In the European Union, the European Parliament, the Council and the Commission have concluded so-called interinstitutional agreements on budgetary discipline and improvement of the budgetary procedure.512 These agree-

508. 509. 510.

511. 512.

UPU, ITU. WMO Financial Regulations, Arts. 2-4. The preparation, format and content of this plan and its revisions are governed by the Regulations and Rules Governing Programme Planning, the Programme Aspects of the Budget, the Monitoring of Implementation and the Methods of Evaluation (UN Doc. ST/SGB/PPBME/Rules/1(1987)). See also UN Doc. A/49/301 (prototype of a new format of the medium-term plan). Medium-term plans are revised as necessary every two years. See e.g. Medium-term Plan for the Period 2002-2005 (UN Doc. A/55/6; GA Res. 55/234. See further Simma, op. cit. note 12, at 338-339. For the 1992-1995 medium-term plan, see UN Doc. A/ICEF/1992/3. See further UNICEF Annual Report 2002, at 35. The first one is of 29 June 1988 (OJ 1988, L 185). It covered the period 1988-1992. See P. Zangl, The Interinstitutional Agreement on Budgetary Discipline and Improvement of the Budgetary Procedure, 26 CMLRev. 675-685 (1989). The second interinstitutional agreement covers the period 1993-1999 (OJ 1993, C 331/1). The third is for the 2000-2006 period (OJ

697

Financing

§1105

ments intend to lay down a medium-term financial perspective. They have to ensure that expenditure, broken down by broad category (e.g. “agriculture”, “administrative expenditure”), develops in an orderly manner.513 These interinstitutional agreements are frameworks within which the annual budgets must be adopted, which continue to be the sole legal basis for expenditure by the Union.514 B.

Preparation

1.

Regular estimates

§1105. The estimates for a budget are usually made by the secretariat.515 This gives the secretariat some power of initiative. Within the organization’s field of operation, the secretariat may propose new expenditure which may lead to new activities. As a rule, a secretariat will not be competent to initiate new fields of activity by its budgetary estimates. This would only be permissible where the secretariat has a right to make proposals (see above, §461). In the absence of such a right, the budgetary estimates must be for activities which stem from decisions taken by the competent (governmental) organs. In the European Union, the European Parliament, the Council, the Court of Justice, the Court of Auditors, the Economic and Social Committee, the Committee of the Regions, the Ombudsman and the European Data-Protection Supervisor shall, each year before 1 July, draw upan estimate of their revenue and expenditure for the following year. These estimates shall be forwarded to the European Commission and no later than 1 July. The Commission shall draw up its own estimates before the same date.516 The Commission shall place a preliminary draft budget before the Council by 1 September each year. At the same time this preliminary draft budget shall be transmitted to the European Parliament.517 Most of the estimates will refer to the functioning of the organization itself (meetings of organs, distribution of documents, etc.) and to the continuation of projects already commenced by the organization. Other estimates will be for new projects which the organization has decided to initiate. All departments of the secretariat submit estimates for their departmental activities when the project for a budget is drafted.518 These estimates are collected by the budget office (or the controller’s office) of the secretariat. In

513. 514. 515. 516. 517. 518.

1999, C 172). 1999 Interinstitutional Agreement, OJ 1999, C 172. See Zangl, op. cit. note 512, at 677. See for example Benelux, Art. 37.1. European Communities, Financial Regulation, Art. 31. Id., Art. 33.1. The reports of a UN Ad Hoc Committee of Experts (in particular UN Doc. A/6343) and the reports on the agencies by the ACABQ (e.g. UN Documents A/6905, A/7354 and A/8031) offer further illustrations of budgetary procedures.

§1106

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698

many international organizations (for example, the UN),519 this office holds a powerful and almost independent position in the secretariat. It examines the requirements in relation to the past budgetary decisions of the general congress and with respect to the financial situation of the organization. It also considers whether necessary activities can be carried out at lower cost. Frequently there are heated debates between the Secretary-General, the controller and the heads of departments before a final project can be decided upon. Before the project is passed on to the governmental organs, other bodies may have to be consulted, such as the parliamentary organs of several European regional organizations.520 §1106. When it has been sufficiently discussed by the secretariat and the organs which must be consulted, the project is transferred to a board. In most universal organizations this will be the executive board of the organization. The UN has a special organ for this purpose: the Advisory Committee on Administrative and Budgetary Questions (ACABQ) of the General Assembly,521 composed of sixteen members, including at least three financial experts of recognized standing. Most members of the ACABQ retain close links with their governments. From the way it functions, Singer concluded that it is little more than a Fifth (budgetary) Committee in microcosm.522 The ACABQ also studies the budgets of the specialized agencies (though often after their entry into force). Through its remarks on those budgets it strives to attain a greater degree of uniformity in the financial procedures of the organizations of the UN family.

§1107. Usually a deadline is fixed before which the project for the budget should be submitted to the board or committee concerned. In the UN it is twelve weeks prior to the opening of the regular session of the General Assembly in the second year of a financial period.523 Before making any changes in the project, the board or committee concerned will consult the Secretary-General. Again, there may be long discussions in an attempt to find compromises. Subsequently, the project may be amended and will be passed on to the general congress which will finally decide on the budget. In the procedure of establishing the budget, most of the reductions in the original proposals are made during the internal discussions in the secretariat.

519. 520.

521. 522. 523.

Singer, op. cit. note 200, at 54. See, e.g., CoE Res. (53) 38 of the Committee of Ministers and Resolution 50 of the Consultative Assembly, Sixth Ordinary Session, Second part, September 1954, or Recommendation 261 (1960) of the Consultative Assembly. Created by GA Res. 14 (I), of 13 February 1946, YUN 1946-47, at 93; GA Rules of Procedure 155-157, UN Financial Regulation 2.5-2.7. Singer, op. cit. note 200, at 176. UN Financial Regulation 2.5, juncto GA Rule 1.

699

Financing

§1108

The financial officers know what level the total may reach and try to remain within reasonable limits.524 When a general congress is too restrictive it may jeopardize budgetary cooperation with the secretariat; this may lead to a vicious circle: knowing that all estimates will be decreased, staff officers will overestimate their original drafts, which, in turn, may lead to more drastic cuts. 2.

Revised estimates

§1108. Not every item of expenditure is suitable for the long procedure of drafting, correcting and establishing budget estimates. While the budget is being prepared, urgent problems may arise which require budgetary appropriations. Boards and commissions of the organization may adopt new programmes. During the same session that discusses the budget, the general congress may decide on new projects. How can the necessary appropriations be made in the new budget? Since the projects are not mentioned in the original drafts, their costs have to be submitted as revised estimates. In all international organizations, revised estimates are permitted in those cases where costs could not be foreseen in the regular estimates.525 Revised estimates have to be passed on to the general congress or to the members of the organization before the session where the budget is discussed or otherwise at the earliest possible date. When costs arise after the approval of the budget, revised estimates are no longer possible. The costs must then be included in supplementary estimates (see below, §1121). C.

Adoption and execution

1.

The decision establishing the budget

§1109. As a general rule of international institutional law, the final decision on the budget must be taken by the general congress. Since all members contribute towards the expenses, only the organ in which all are represented can be considered suitable to fix the expenditure (“no taxation without representation”). The general congress rarely makes amendments. In the International Atomic Energy Agency it does not even have the power to do so. In that organization the general congress must return the project to the board if it wants alterations to be made.526 Unlike in the case of many other proposals, decision-making on the budget cannot be postponed when the members of the organization fail to agree. Some

524.

525. 526.

In an early study, Stoessinger has observed that in the UN, the governmental organs do not make cuts of more than one or two per cent. Only in a few cases – particularly in cases concerning economic development – have general conferences granted more funds than requested (op. cit. note 11, at 228). See e.g. UN Financial Rule 102.4. IAEA, Art. 14 A.

§1110

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700

decision must be taken. For that reason, the voting requirements on the budget should not be too stringent. Most international organizations approve their budgets either by simple or by two thirds majority.527 §1110. In the European Union the budget is adopted by the European Parliament (see above, §583). It was felt that this institution, which represents the peoples of the member states, should exert the financial control on expenses which can no longer be supervised by national parliaments.528 The European Union has detailed rules in case no budget is adopted at the beginning of a new financial year. In that event expenditures may be effected on a monthly basis per section529 of the budget up to one-twelfth of the appropriations for the preceding year, provided that the total amount per month shall not exceed one-twelfth of the total appropriations of the draft budget in course of preparation.530 Similar procedures exist in Benelux.531 2.

Power of the organ adopting the budget

§1111. To what extent may budgetary organs review decisions?532 Depending on the structure of the budget two kinds of question may arise: (a) when in a budget structured according to field of activity a new project has been added by the competent organs, may the budgetary authorities then veto such a project by withholding the necessary finances? (b) when in a budget structured according to instrument a particular organ needs more funds, may the budgetary authorities then withhold such funds, even if they could be made available, on the ground that the organ does not function properly or does not merit further expenditure? §1112. Ad (a). There is no reason to suppose that even a supreme organ could not be legally bound to provide funds for specific activities.

527.

528. 529.

530. 531. 532.

NATO, OECD, EFTAand Benelux require unanimity. Two-thirds majority is needed in e.g. the UN (Art. 18.2); ILO (Art. 13.2); FAO (Art. 18.5); WMO (Art. 11b); IAEA (Art. 14H); CoE (Art. 20d); EC (Art. 272); OAS (Art. 54). Simple majority is sufficient in, e.g., UNESCO (Art. IV.8; Rules 84-85); IMO (Arts. 55, 57); IMF, World Bank, IFC which use weighted voting. For problems which arise in the absence of the required majority see UNJY 1976, at 195-200. On the procedure see C.D. Ehlermann, Applying the New Budgetary Procedure for the First Time, 12 CML Rev. 325-343 (1975); Strasser, op. cit. note 54, at 190-203. The treaties use the word “chapter”. We replace this by “section” to indicate that the appropriation lines are referred to, across which funds cannot be transferred (see above, note 488). EC, Art. 273; Financial Regulation, Art. 13. See I.E. Druker, Financing the European Communities (thesis Leiden, 1975), Chapter II A 5 and Chapter II B 4. See also T. Meron, Budget Approval by the General Assembly of the United Nations: Duty or Discretion? 42 BYIL 91-122 (1967).

701

Financing

§1113

In national legal orders even the highest budgetary authorities may be so bound. For example, national parliaments have to vote funds for contributions to international organizations when their states are legally committed to pay such contributions.

In 1949 the UN General Assembly established the UN Administrative Tribunal (see above, §642). When in 1953 this Tribunal awarded substantial compensation to several staff members who were illegally dismissed, some states claimed that this compensation could not be paid without the previous agreement of the General Assembly as the budgetary authority. In their opinion the General Assembly could not, by establishing an administrative tribunal, divest itself of the power conferred by paragraph (1) of Article 17 of the Charter, which reads: “The General Assembly shall consider and approve the budget of the Organization”. The International Court of Justice did not accept this contention. It considered: “... the function of approving the budget does not mean that the General Assembly has an absolute power to approve or disapprove the expenditure proposed to it; for some part of that expenditure arises out of obligations already incurred by the Organization, and to this extent the General Assembly has no alternative but to honour these engagements”.533

After quoting this opinion the Court added in a later case: “Similarly, obligations of the Organization may be incurred by the Secretary-General, acting on the authority of the Security Council or of the General Assembly, and the General Assembly has no alternative but to honour these engagements”.534

The view of the Court underlined that, whenever an obligation has been legally incurred, its payment should be satisfied. This does not mean, however, that organs are always free to enter into financial obligations. As a general rule, their power to do so is restricted by the budget; they can incur expenditure only within the existing appropriations. In principle, when there are no funds, the previous agreement of the general congress is needed.535 §1113. Such previous agreement may cause problems in the few cases where the general congress has no authority over the organ which requires the funds. When, for example, the Security Council requests additional funds for a particular peace-keeping project, the General Assembly may be tempted to discuss the project itself when it has to provide the funds. This would be contrary to the separation of powers as provided in the UN Charter. In such

533. 534. 535.

Effect of awards of compensation made by the UN Administrative Tribunal, Advisory Opinion of 13 July 1954, ICJ Rep. 1954, at 59. Certain expenses of the United Nations (Article 17, para. 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ Rep. 1962, at 169. See e.g. UN Financial Regulation 2.11.

§1114

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cases, the general congress must restrict itself and limit its discussions to the financial aspects of the proposed project. For example, it may decide upon a scale of assessments which is different from the one for the regular budget. In cases where the general congress has authority over the organ, it seems acceptable that it may discuss a new project before appropriating extra funds for it. §1114. Conversely, in these few cases where the general congress has no authority over the organ which requires the funds, the latter organ may also be tempted to discuss the finances of the projects for which it is responsible. This happened, for example, in 1993 when the UN Security Council decided that the costs of the UN Force in Cyprus (UNFICYP, see below, §1497) that are not covered by voluntary contributions should be treated as expenses of the organization under Article 17.2 of the UN Charter.536 Subsequently, the UN General Assembly, although it agreed to this approach, also expressed “concern that advice given to the Security Council by the Secretariat on the nature of the financing of the Force did not respect the role of the General Assembly as set out in Article 17 of the Charter”.537 The same happened in relation to the financing of the International Criminal Tribunal for the Former Yugoslavia (see above, §608). Article 32 of the Statute of this Tribunal, adopted by the Security Council, provides that the expenses of the Tribunal shall be borne by the regular budget of the UN in accordance with Article 17 of the Charter of the UN. Thus, the Security Council approved the approach of the Secretary-General, who recommended the Council to finance the Tribunal in this way, and not through voluntary contributions or through a special account separate from the regular budget.538 Subsequently, the General Assembly criticized this attack on its budgetary powers and decided, “pending a final decision on the manner of apportioning the expenses of the International Tribunal, to finance its activities through a separate account outside the regular budget”.539 At present the Tribunal budget is still separate from the regular budget. The scale of assessments used for this budget is a combination of the scales used for the regular budget and those for peace-keeping operations.540 §1115. Problems of conflicting substantive and budgetary powers have also arisen in the EC. In 1988, the Commission asked the EC Court to declare that Article 6.4 of Council Regulation EEC No. 3252/87 on the coordination and promotion of research in the fisheries sector was void. This regulation was adopted with a view to establishing Community research programmes in areas

536. 537. 538. 539. 540.

SC Res. 831. GA Res. 47/236. See also GA Decision 48/474 and GA Res. 48/244. UN Doc. A/47/1002. GA Res. 47/235. Simma, op. cit. note 12, at 345. See GA Res. 57/288.

703

Financing

§1116

of special importance for the common fisheries policy and Community research coordination programmes. By Article 6 of this regulation, the Council empowered the Commission to ensure that the Community research programmes are carried out by concluding for that purpose cost-sharing research contracts with research institutes and centres and to ensure that the Community research coordination programmes are carried out by organizing for that purpose seminars, conferences, study visits etc. Article 6.4 specified that decisions concerning the execution of those programmes are to be adopted by the Commission under the so-called management committee procedure, which allowed the Council to act itself in the Commission’s stead in case of disagreement with the measures envisaged by the Commission (see above, §275). The Commission contested the use of that procedure, inter alia because this was considered an infringement of Article 205 of the EEC Treaty (now: Article 274 EC), giving the Commission the task to implement the budget. It took the view that, by making use of the management committee procedure, the Council had encroached upon the Commission’s own power of decision conferred upon it by Article 205. The EC Court rejected this view. It stressed that “... the Commission’s power to implement the budget is not such as to modify the division of powers resulting from the various provisions of the Treaty which authorize the Council and the Commission to adopt generally applicable or individual measures within specific areas, such as Article 43 [- now: Article 37 -], which is in issue in the present case (...). Even though an individual measure may almost inevitably entail the commitment of expenditure, the two must be distinguished – particularly since the power to adopt the administrative decision and the power to commit the expenditure may be entrusted, within the internal organization of each institution, to different officials.”541

Thus the conclusion drawn by the EC Court is similar to the earlier conclusion drawn by the International Court of Justice: finance follows substance. The scope of the Commission’s power to implement the budget is limited: it has no alternative but to honour the engagements incurred in accordance with the division of substantive powers in the Treaties. §1116. May a general congress reopen discussion of its own projects when the necessary budgetary appropriations are made? Legally it can hardly be denied that a general congress may reconsider its own projects whenever it

541.

Case 16/88, Commission v. Council, ECR 1989, at 3486-3487. Another example is Case C106/96, UK v. Commission, ECR 1998, at I-3231, in which the Court concluded (para. 26) that “implementation of Community expenditure relating to any significant Community action presupposes not only the entry of the relevant appropriation in the budget of the Community, which is a matter for the budgetary authority, but in addition the prior adoption of a basic act authorizing that expenditure, which is a matter for the legislative authority […]”.

§1117

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wishes to do so. In practice, however, such reconsiderations are inappropriate. In budgetary matters people other than those who accepted the projects may represent the members in the general congress. It is not their function to revise decisions for other than budgetary reasons. The Eastern European members of the UN considered that the first peace-keeping forces and several other activities of the organization (such as the issuing of service ribbons for troops which served in Korea and the establishment of certain bodies)542 were in violation of the UN Charter. In these cases, it is their right to object to such activities. When, however, the decisions to carry out these activities are nevertheless adopted, the budgetary organs do not seem the proper place to reopen discussion on the legality of the activities.

§1117. Reconsideration of a proposal is acceptable in the preparatory stage of decision-making. In the General Assembly of the UN virtually all decisions are prepared by one of the main committees (see above, §402). After a Committee has drafted a decision, another committee (the Fifth Committee) discusses the budgetary aspects. This may lead to changes in the ultimate decision. During the 27th session of the General Assembly, the Third Committee had approved a suggestion of the Committee on Racial Discrimination that it would meet in Geneva instead of New York. The Fifth Committee, however, refused to approve the extra costs involved ($70,000) and the decision was changed.

§1118. Ad (b). May funds be withheld from an organ because it does not function properly? In the very beginning the UN tried to separate budgetary and administrative questions. When the Charter was drafted in 1945, Committee VI of the Executive Committee prepared the organization of the secretariat, while Committee VII drafted the financial structure. Practice demonstrated that the two cannot be separated.543 The principal value of financial authorities is their power to supervise not only the amount of expenditure but also the methods of spending it. It is one of their primary tasks to examine whether expenditure can be cut by increasing the efficiency of the instruments through which the organization operates. Budgetary authorities should deny funds where the organ concerned could function at lower cost (and therefore does not need the extra funds) and where the work of the organ can be better performed by another organ. This can only be done when opportunity is given for discussion of the operation of the instruments involved. In the UN, budgetary authorities rarely review activities. Whenever other committees of the General Assembly adopt projects, the Fifth (budgetary) Committee will appropri-

542. 543.

Singer, op. cit. note 200, at 106. Id., at 9-16.

705

Financing

§1119

ate the funds. One rare example of a denial of funds occurred in 1966 when the International Court of Justice was refused an increase. The Fifth Committee of the General Assembly considered that the Court of Justice had demonstrated in the South West Africa case that it did not substantially contribute to the principles of the UN. The money could therefore be better spent on other projects.544

§1119. An international organization may be legally obliged to spend more on a certain instrument. In particular, there will often be legal obligations to increase salaries of personnel. This does not necessarily mean that more funds must be appropriated to the organ concerned. Inflation apart, raises in salary will represent more skill of the staff members concerned and, consequently, increased productivity. Annual salary increases and promotional raises will be offset by the fact that new staff will be paid on a considerably lower scale than senior personnel who leave the organization. Furthermore, salary increases are usually predictable so that the organ concerned can deal in other ways with the financial consequences (by restricting recruitment). §1120. As a rule, increases in salary would not entitle the organs to raise their budgetary appropriations. The organs appropriating funds are obliged, however, to take into account the obligations undertaken in favour of the personnel. It would be illegal to restrict the budget to such an extent that it would be impossible to pay the required salaries. Mr. Jean Maudet was head of the real estate department of the EC Commission. He was fully qualified for the rank of head of department (A3) but was classified in a lower rank (A4). He brought his case before the Court of Justice. The Commission recognized the qualities of Mr. Maudet, but pleaded that the number of A3 posts provided in the budget was insufficient which made promotion impossible. The Court of Justice did not accept this plea and decided that Mr. Maudet had a right of promotion to the rank A3.545 After some internal changes in the staff, Mr Maudet was subsequently promoted. The proof-readers of the UN in Geneva were classified at a lower level (P-1) than their colleagues in New York (P-2), while fulfilling the same functions. They applied for promotion. The Secretary-General requested the necessary funds in the 1956 budget. The organs of the General Assembly (Advisory Committee on Administrative and Budgetary Questions and Fifth Committee of the Assembly) discussed the grades of the proof-readers. They regarded the New York proofreaders as being over-graded rather than the Geneva proof-readers being classified too low. The $3,000 requested for reclassification of the Geneva proof-readers were expressly rejected. Subsequently, the Secretary-General refused promotion of the Geneva proof-readers. In 1957, the proofreaders appealed to the Joint Appeals Board, which unanimously recommended their reclassification. The Secretary-General rejected that recommendation on the ground

544. 545.

YUN 1966, at 953. Court of Justice of the European Communities, consolidated Cases 20/63 and 21/63, Maudet, ECR 1964, at 113. See also consolidated Cases 79/63 and 82/63, Jean Reynier and Piero Erba, ECR 1964, at 259.

§1121

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that any action by him on the classification of the proof-readers in Geneva had to conform with the recommendations of the Fifth (Budgetary) Committee as approved by the General Assembly. The proof-readers appealed to the UN Administrative Tribunal. This Tribunal annulled the decision of the Secretary General.546 It considered that the General Assembly had not laid down a “principle” within the meaning of Staff Regulation 2.1, (which would have been binding on the Secretary-General). The General Assembly decision regarding the appropriations for the 1956 budget produced legal consequences only with respect to that budget. The rejection in 1957 by the SecretaryGeneral of the recommendation of the Joint Appeals Board therefore had insufficient legal basis. In the meantime, a new budgetary procedure had been accepted under which the General Assembly approved the total number of P-1 and P-2 posts, leaving it to the Secretary-General to distribute them among the services of the Secretariat. By this procedure the Secretary-General had sufficient discretionary power to reclassify the Geneva proof-readers.

3.

Execution and supplementary estimates

§1121. During the financial year the departments of the secretariat (supervised by the Controller’s Office) may spend within the limits set by the budget. Special funds are provided by the budget to cover unforeseen and extraordinary expenditure. In order to use these funds, the departments require authorization from the Secretary-General or from the officer of the secretariat charged with the budgetary control (the Controller).547 When there are substantial extraordinary expenses, it may be necessary to add items to the budget during the financial year. In the UN, supplementary estimates in respect of the current financial year are to be submitted to the session of the General Assembly meeting at the end of that year.548 Since the reform of the budgetary procedure of the UN, agreed upon in 1986 following the work of the Group of 18 (see above, §1011), the biennial budget includes a so-called contingency fund, expressed as a percentage of the overall budget level, to accommodate additional expenditures relating to the biennium derived from legislative mandates not provided for in the budget.549 The level of the contingency fund is 0.75 per cent of the overall budget level.550 During the 1986 reform of the budgetary procedure it was also agreed that, if additional expenditures are proposed that exceed resources available within the contingency fund, such expenditures can only be included in the budget through redeployment

546. 547. 548. 549.

550.

Judgment of the United Nations Administrative Tribunal, Number 76 (Champoury against Secretary-General), 17 August 1959. UN Financial Rule 102.7. On this rule see UNJY 1969, at 218-221. UN Financial Regulations 2.8 and 2.9; Financial Rule 102.5. GA Res. 41/213, Annex I (C). GA Res. 42/211 contains criteria for the use of the contingency fund. In 1993, the Secretary-General concluded that the level and general operation of the contingency fund appeared to be satisfactory; see UN Doc. A/48/281, at 15. See GA Res. 57/280, para. 15. This amounted to $21.6 million.

707

Financing

§1122

of resources from low-priority areas or modifications of existing activities. Otherwise, such activities have to be deferred until a later biennium.551 At the close of a financial year not all appropriations will have been exhausted. Some will not be needed at all, others may be required later to discharge obligations incurred during the financial year. Appropriations usually remain available for twelve months following the end of the financial year. Those obligations which still remain undischarged will be cancelled or, where the obligation remains valid, transferred to the next financial year.552 Appropriations which remain untapped are annulled. 4.

Budgetary surpluses

§1122. Budgetary surpluses arise: (a) when the income of the organization surpasses the estimated expenditure, or (b) when the expenditure falls short of the estimate. Ad (a). The first situation can only arise when the income is established independently from the expenditure. This will not be usually the case. Most international organizations draw the main part of their income from the contributions of the member states. Those contributions are fixed at the minimum level necessary to cover the expenditure. In some organizations, however, the income from sources other than contributions may exceed the total expenditure. The World Bank obtains more funds from interests and from services rendered to states than its total expenditure (see above, §1051, §1064). Its general congress (the Board of Governors) determines annually what part of the net income, after making provisions for reserves, shall be allocated to surplus and what part, if any, shall be distributed to the members.553 On 30 June 2002, the general reserve of the World Bank amounted to $19,132 million.554 Since 1964, the Bank also transfers part of its net income to the International Development Association in the form of grants. In June 1992, a grant of $300 million was made.555

The Board of Governors of the IMF (its general congress) determines annually what part of the net income obtained from services rendered to states (see above, §1051) shall be placed in reserve and what part, if any, shall be distributed.556

551. 552. 553. 554. 555. 556.

GA Res. 41/213, Annex I (C). UN Financial Regulations 5.3 and 5.4; European Communities, Financial Regulation, Art. 9. World Bank, Art. 5, Section 14. World Bank, Annual Report 2002, Vol. II, at 18. World Bank, Annual Report 1993, at 207. See also World Bank, Annual Report 1994, at 191. IMF Art. 12, Section 6. See also IMF Annual Report 2002, at 161.

§1123

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Before 1968, the IMF used to add all net income to its reserves. Since 1968, it has occasionally distributed part of its surpluses to the members (in 1970, $27 million).557

The general congresses of the international development banks may determine periodically what parts of the net profits and the surplus shall be distributed.558 Ad (b). When the actual expenditure of an international organization falls short of the estimated sum, the surplus funds will be returned to the members. Generally, this is done by reducing the contributions for the next financial year.559 D.

Audit

1.

Internal audit

§1123. The secretariat maintains an internal financial control which allows for day-to-day examination of all financial transactions.560 It aims to ensure the regularity of those transactions as well as the efficient use of the organization’s resources. An internal auditing service reviews transactions having financial implications, as to the regularity of the receipt, custody and disposal of all funds and other financial resources of the organization, the conformity of obligations and expenditures with the appropriations made in the budget, and the effective, efficient and economic use of the resources of the organizations.561 Usually, the controller is directly attached to the office of the Secretary-General. The thoroughness with which the internal audit is conducted guarantees that funds are used only in the approved manner, but the ultimate responsibility still rests with the Secretary-General, under whose authority the audit is carried out. For discharging the Secretary-General an external audit is necessary. §1124. In 1993, the UN Secretary-General established the Office for Inspections and Investigations,562 in response to concern expressed by UN member states about the way the UN manages its resources and also in reaction to criticism about the alleged inadequacies of monitoring, evaluation and reporting on implementation of UN programmes. This Office is an integral part of the UN Secretariat and has to provide comprehensive audit, inspection and investigation services. Inter alia, it has to investigate mismanagement and other practices

557. 558. 559. 560. 561. 562.

IMF Annual Report 1968, at 22; Annual Report 1970, at 38. E.g. Inter-American Development Bank, Art. 7, Section 4. UN Financial Regulation 3.2(d). UN Financial Regulation 5.8. On internal audit, see Y. Beigbeder, Management Problems in United Nations Organizations 54-55 (1987). UN Financial Regulations 5.8(d) and 5.15. See UN Doc. ST/SGB/262.

709

Financing

§1125

with a view to preventing wastes, abuse and malfeasance.563 Its tasks partly overlap with those of other UN bodies. Therefore, it has to “maintain a close working relationship” with the internal audit services of the UN system, and it has to coordinate its activities with the UN Board of Auditors and the Joint Inspection Unit (see below, §1125-1126), “with respect to the implementation of their recommendations and in order to minimize duplication of effort”.564 2.

External audit

§1125. As there is little parliamentary control over the expenditure of international organizations, the external audit is of greater relative importance than in national government financing.565 Partly for the same reason, the UN has sometimes received from potential donors, either individual member states or intergovernmental organizations, offers of voluntary contributions which are subject to conditions on the granting of audit access to, or the conduct of management reviews by, representatives of the donor. The UN SecretaryGeneral has consistently rejected such conditional offers, in view of their incompatibility with the UN Financial Regulations. In particular, Financial Regulation 7.6 stipulates that the Board of Auditors shall be completely independent and solely responsible for the conduct of the audit. To perform the external audit of an international organization, the general congress usually nominates a board of auditors,566 the auditor general of the host-state567 or a private firm.568 Auditors report to the general congress. The report should mention, inter alia, expenditures not properly substantiated, cases of fraud or wasteful expenditure, defects in the system governing financial control, expenditure likely to commit the organization to further outlay on a large scale and expenditure in excess of appropriations or not in accordance with the intentions of the general congress. In 1949, the UN General Assembly approved principles regarding a joint system of external audit for the UN and the specialized agencies. It decided that “in principle there should be a panel of external auditors of the UN and the specialized agencies composed of persons having the rank of auditorgeneral in their own state”. Each participating organization should select one

563. 564. 565. 566.

567.

568.

UN Doc. A/48/428, at 25. UN Doc. A/48/640, at 2. Druker, op. cit. note 531, at 21. E.g. three persons in the IMF, who “shall have general oversight of the annual audit, which is carried out by an external audit firm” (By-laws, Section 20(c); see also IMF Annual Report 2002, at 154); three national auditors-general in the UN (Financial Regulation 7.1). On external audit, see Beigbeder, op. cit. note 560, at 55-64. For example, until recently, UPU; see UPU, Constitution, General Regulations (Vol. 1 of the Annotated Code), 131 (footnote 15) (1991). At present the Swiss government appoints an external auditor who makes a formal and material audit of all the UPU’s accounts and certifies their correctness; see UPU General Regulations, Art. 125.15, second sentence. See for example World Bank, Annual Report 2002, Vol. II, at 37.

§1126

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or more members of the panel to perform its audit. The members of the panel should meet annually to coordinate their audits and to exchange information on methods and findings.569 In the same resolution, the UN General Assembly recommended certain principles to govern auditing procedures for the UN and the specialized agencies.570 According to these principles the board of auditors is to have free access to all books of account and records, even if confidential. Its members and its staff are obliged by oath to use discretion. They will not report any criticism without first affording the Secretariat an opportunity to explain. §1126. The above-mentioned system developed by the General Assembly, did not function satisfactorily. In practice, each organization chooses its own auditors.571 In 1959 the General Assembly revised the terms of reference of the panel of external auditors; its task became “to further the coordination of the audits for which its members are responsible and to exchange information on methods and findings”.572 The panel is composed of the members of the UN Board of Auditors and appointed external auditors of the spcialized agencies and the IAEA.573 The Ad Hoc Committee of Experts to Examine the Finances of the United Nations and the Specialized Agencies reported in 1966 that the external controls over the financial management were, generally speaking, less developed than in many member states. It recommended, inter alia, an extension of the powers of the external auditors to make observations on administration and management and the creation of a joint inspection unit for all organizations.574 The General Assembly endorsed these recommendations.575 As a result, the Joint Inspection Unit has been established and has issued a large number of reports.576 Gradually, the task of the Joint Inspection Unit has been expanded, so that, apart from management questions and budgeting,

569. 570. 571. 572. 573.

574. 575. 576.

GA Res. 347 (IV), Annex B; see also ECOSOC Res. 259 (IX). GA Res. 347 (IV), Annex A, and ECOSOC Res. 259 (IX). Simma, op. cit. note 12, at 351. GA Res. 1438 (XIV). Id. In 1995 the UN Office of Legal Affairs concluded that “all designated external auditors employed by the specialized agencies, irrespective of whether they work for a private company or a government institution are entitled to be members of the Panel for the duration of their service as external auditors of the specialized agencies concerned” (UNJY 1995, at 450). UN Doc. A/6343, paras. 60-67. GA Res. 2150 (XXI). See e.g. JIU/REP/92/1 (UN system cooperation with multilateral financial institutions); JIU/REP/92/6 (Decentralization of Organizations within the United Nations System); JIU/REP/2000/1 (Administration of justice at the United Nations); JIU/REP/2000/8 (Review of management and administration in the Registry of the International Court of Justice). On the Joint Inspection Unit, see Beigbeder, op.cit. note 560, at 65-78.

711

Financing

§1127

development cooperation, inter-organization coordination and evaluation of policies and methods were also part of the work programme.577 §1127. Until recently, each organization of the UN system used its own accounting standards. However, this led to differences in matters such as the consistent treatment of material transactions and in the levels of their disclosure. It had caused member states and other users of accounts, including potential donors, difficulties in the interpretation of financial statements.578 In 1993, the UN General Assembly took note of the accounting standards for the UN system, prepared by the UN Secretary-General, and requested the Secretary-General and the executive heads of the UN organizations and programmes to take those standards into account in the preparation of their financial statements for the period ending 31 December 1993.579 The primary objective of the standards is to provide a framework for accounting and financial reporting in the UN system which reflects generally accepted accounting principles, while taking account of the specific characteristics and needs of the system. A further objective is to promote consistent accounting and financial reporting practice between the organizations.580 §1128. The external audit of most other international organizations is basically no different from that of the UN. In Benelux, which has no internal audit, the external audit is somewhat stricter. Three auditors must report four times a year and their reports are submitted to the three national audit officers, who may again verify data.581

§1129. In most international organizations the external audit can be completed within a few weeks or months.582 The European Union has a more thorough audit procedure. By a Treaty of 22 July 1975, the Court of Auditors of the European Communities was created; by the end of 1977 it became fully operational. The Treaty on European Union has “upgraded” the Court of Auditors, which is now one of the five institutions of the Communities mentioned in Article 4.1 EC.583

577. 578. 579. 580. 581. 582. 583.

See UN Doc. A/C.5/35/L.2. YUN 1991, at 890. GA Res. 48/216. See UN Doc. A/48/530 at 2, 5. Benelux convention in execution of Article 37.2 of the Benelux treaty (Benelux Publikatieblad 1966-2, at 3-8), Arts. 4, 8 and 9. Szawlowski, op. cit. note 112, at 346. Earlier, by the Financial Regulation of 21 December 1977 the Court of Auditors was already given the status of an institution with the same administrative autonomy as the other four institutions. See Strasser, op. cit. note 54, at 271. See in general on the Court of Auditors, Strasser, op. cit. note 54, at 269-283; C.-D. Ehlermann, De Europäischen Rechnungshof (1976); C. Kok, The Court of Auditors of the European Communities: “The Other European Court in Luxembourg”, 26 CMLRev. (1989), at 345-367; D. O’Keeffe, The Court

§1130

Chapter 7

712

The Court of Auditors is the successor of the ECSC Auditor and the Audit Board of EEC and Euratom. It is now composed of fifteen independent members. These members are appointed by the Council for six years and serving full-time. They are required to be members or former members of external audit bodies in their own countries, or persons especially qualified for this task whose independence is beyond doubt.584 It is the Court’s task to examine whether all revenue has been received and all expenditure incurred in a lawful and regular manner, and whether the financial management has been sound.585 It draws up an annual report which is forwarded to the other institutions and subsequently published together with the replies of the institutions.586 In addition, it “shall provide the European Parliament and the Council with a statement of assurance as to the reliability of the accounts and the legality and regularity of the underlying transactions”.587 Who audits the Court of Auditors? This is done by an external auditor, whose reports are made public.588 §1130. In most international organizations, the general congress has to accept the report of the auditors. In this way it finally discharges the secretariat and closes the financial proceedings.589 Again, in this respect the situation in the European Union shows a further development. The European Commission is the institution charged to implement the budget.590 Originally, it was for the Council to give a discharge to the Commission in respect of this task. Between 1970 and 1977 this power to grant discharge had been in the hands of the Council and Parliament together. Since 1977 it is an exclusive right of the European Parliament, acting on a recommendation from the Council.591 To this end, the Council and the European Parliament examine, inter alia, the annual report of the Court of Auditors together with the replies of the institutions under audit.592 In practice, the European Parliament has used its power

584. 585. 586. 587. 588. 589.

590. 591. 592.

of Auditors, in D. Curtin and T. Heukels (eds.), Institutional Dynamics of European Integration, Essays in Honour of Henry G. Schermers, Vol. II (1994), at 177-194; J. Inghelram, The European Court of Auditors: Current legal issues, in 37 CMLRev. (2000), at 129-146. EC, Art. 247. EC, Art. 248.2. EC, Art. 248.4. EC, Art. 248.1. See OJ 1994, C 299/6. For example, UN GA Res. 47/211. In this resolution, the Assembly “notes with concern the findings of the Board of Auditors” (para. 9). It requested the UN Secretary-General and the executive heads of UN organizations and programmes, inter alia, to strengthen budgetary control and to make purchasing policy on the acquisition of goods and services more cost-effective. See for the report of the UN Secretary-General prepared in response to these requests: UN Doc. A/48/516. Art. 274 EC. Art. 276 EC; Strasser, op. cit. note 54, at 287. Art. 276.1 EC. E.g. Annual Report concerning the Financial Year 2001 together with the institutions’ replies, OJ 2002, C 295.

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to refuse discharge in 1984, concerning the accounts for 1982,593 and in 1998, concerning the accounts for 1996 (this finally led to the resignation of the Commission on 15 March 1999, see above, §577).594

IV.

Concluding observations

§1131. This chapter is somewhat different from most others in this book. Sections I and II, devoted to expenditure and income of international organizations, are more of a factual than of a legal nature. Most legal issues with respect to finances arise in connection with the budget of international organizations (Section III). Nevertheless, the description of expenses and revenue (Sections I and II) is important as it gives us a better understanding of the position and nature of international organizations and, more in particular, of their finance and budget rules. §1132. One of the most urgent problems facing many international organizations is that member states often fail to pay their contribution or pay only a part of it. As indicated above (§926), the financing of international organizations follows a rule opposite to that of the financing of normal households. Instead of the expenditure following income, income follows expenditure. This is similar to all governmental budgeting; states also adapt their income to estimated expenditure. Once it has been established that during a particular period a certain amount of money will be needed, taxation systems can be adapted to these requirements. The fundamental difference between governmental budgeting and the budgeting of international organizations is that governments adapt their income to the estimated expenditure with some flexibility. If the income falls short of the expenditure they can borrow the necessary funds and increase taxation in a future year. If expenditure is less than the income they can keep the money without being obliged to repay the taxation. If some taxes are not paid the deficit can be made up by the taxation of others. International organizations lack this flexibility. Income is not adapted to the estimated expenditure but to actual expenditure. Once the actual expenditure in a particular year has been established the members are obliged to pay exactly their share of the expenditure. The members are obliged to make extra payments if the expenditure is higher than estimated, and their money will be returned if the actual expenditure is lower than the estimates. This system works well in organizations in which all members pay their contributions on time. However, the budget system of international organizations does not take account of defaulting members. All expenditure is finally

593. 594.

See for a detailed analysis of this refusal Strasser, op. cit. note 54, at 408-416. See Europe No. 7367 (18 December 1998), at 8-9; General Report on the activities of the European Union 1998, at 361, and General Report on the activities of the European Union 1999, at 426-427.

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distributed to the members in accordance with the scales of contribution. If the expenditure is reduced through careful management, the contributions of all members will be lowered in proportion to the scales of assessment. Donations or savings cannot be used for extra activities, because they will just lead to lower contributions of the members. Eventually, each member pays its share in the actual net expenditure. Any failure in payment of contributions leaves a gap in the budget which cannot be filled unless others pay more than the percentage allotted to them, which can only be required after the scales of assessment have been amended. As a rule, an organization will not wish to reward failure to pay by lowering the contribution required of the defaulting state. As a consequence of this system, international organizations are always plagued by financial difficulties when members do not (fully) pay their contributions. The problems are the same for large and for small budgets, for thrifty and for squandering organizations. One solution is to allow organizations to use savings and gifts for filling gaps in their receipts, which in fact means that defaulting states pay less than their share. Another solution could be to permit international organizations to sell letters of credit against defaulting members to other members. Another state could then take over the contribution of the defaulting member against a letter of credit which it could later use as payment in its contractual relations with the defaulting member.595 §1133. He who pays the piper calls the tune. This saying holds true for most international organizations, whose main source of income are contributions from the member states. This way of financing international organizations contributes to their dependence on the member states. The developments discussed above in relation to the World Intellectual Property Organization (§1076) show that, in spite of austerity policies of many states vis-à-vis international organizations, members prefer to at least partly pay the piper, to be at least partly in the position to call the tune. Although there are other organizations which have their own resources, as opposed to being dependent upon contributions from member states, the European Union’s system of own resources is the most developed. Nevertheless, although the Union’s income continues to be named “own resources”, it should be noted that the most recently added (“fourth”) resource – which is considered by the Commission as the keystone in the current system of financing of the Union – is in fact a contribution from the member states.

595.

H.G. Schermers, in: 16 Liechtensteinische Juristen-Zeitung 74-76 (1995). The last mentioned solution is criticized by I. Seidl-Hohenveldern, Die mißliche Finanzlage der Vereinten Nationen, in A. Weber (ed.), Währung und Wirtschaft – Das Geld im Recht (Festschrift für Prof. Dr. Hugo J. Hahn 555-562 (1997)), in particular at 561.

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§1134. He who pays the piper calls the tune. This also holds true for the shares in the budget paid by the members. It was the basis for US opposition to decision-making concerning the budget in the UN (“who has the vote does not pay the note”). For this reason, the concept of a maximum contribution is used in international organizations, to restrict the organization’s dependence on one or a few member states. As in the case of the minimum contribution, this concept – which is in fact a correction to the generally accepted capacity-topay principle – can be explained by the notion of sovereignty, and more particularly by the principle of sovereign equality. If states are considered formally equal, the differences between their levels of contributions should at least remain within certain bounds. But at the same time, the percentages of these bounds (0.001 and 22 per cent in the UN) clearly demonstrate that sovereign equality of states is in fact a fiction. §1135. By far the largest part of the budgets of by far the largest part of international organizations is used to cover administrative costs. It is only in some organizations, such as the European Union and the European Space Agency, that most expenditure relates to operational costs. This confirms that most organizations are principally centres for the coordination of policies of member states. Only exceptionally are they empowered to carry out operational activities themselves. §1136. Two observations relating to the UN system are apposite against this background. First, since 1945 there has been a remarkable increase of operational activities (development projects or technical assistance, peace-keeping operations). Secondly, although the International Court of Justice took the view that the UN budget not only covers administrative, but also operational expenses,596 in practice most of these projects were financed from outside the regular budget. Ad-hocracy reigns. Special accounts have been created, with special scales of assessments, and a large number of activities have been financed from voluntary contributions. At the same time, the practice has become widespread to withhold specific parts of the compulsory contribution for the general budget because the corresponding activities are considered to be ultra vires. Contributing to operational activities has increasingly been considered as a rather voluntary matter, free of obligations. From a legal point of view, however, this is obviously a dangerous development, to the extent that compulsory contributions come to be regarded as voluntary contributions. This leads to the disappearance of the sense of obligation, which is inherent in compulsory contributions. More generally, the resulting danger is the fragmentation of the work of the organization. If members can eat à la carte from the menu of the organization, at the end of the day, the price to be paid will be a loss of cohesion. This danger has been recognized by the European Union. With only a few exceptions, all income and expenditure of the Union

596.

Certain Expenses Case, ICJ Rep. 1962, at 157-161.

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is included in one budget (principle of unity), and budgetary revenue may not be allocated to specific expenses (principle of non-assignment). §1137. This is another area of conflict between state sovereignty and the functionality of international organizations. The idea of a single budget for an organization results from the fact that member states are united to pursue one common objective. All administrative, normative and operational action undertaken is ultimately geared towards this objective, however broad it might be. Therefore, the related expenditure should be included in one budget, instead of financing each organizational activity independently. Membership implies the willingness to compromise and the impossibility for members to be in full agreement with every single activity (and the related expenditure) carried out by the organization in pursuing its goals. Although all member states usually have a say in budget decisions (“no taxation without representation”), these decisions can be taken by majority vote, which implies that members might have to contribute to individual projects of which they disapprove (“taxation without approbation”). In this way, the idea of one single budget puts an international organization in the position to carry out its functions with some measure of independence, in the common interest of the member states. However, developments relating to decision-making in international organizations – in particular the rise of decision-making by consensus – show how difficult it is in practice to “share sovereignty”, to accept the transfer of certain state functions to an international organization (above, §771-786). More evidence of this is given in this chapter on financing. Formally, the only option left for states which reject certain expenditure agreed upon by the budgetary authority is to leave the organization. But this step is not taken easily, because the underlying need to cooperate usually remains. The practice of withholdings has become a (usually unlawful) way out of this dilemma. Other “solutions” are the special accounts, separate from the general budget, and individual programmes financed by voluntary contributions. In general, the notion of state sovereignty explains why and how member states of a number of organizations have increasingly had recourse to such exceptions to the idea of one single budget. The quest for control not only occurs in the area of decisionmaking, but also in the field of financing, as has been illustrated by the caselaw of the International Court of Justice and the EC Court (above, §1111-1115). These developments in the field of financing and the long-term development towards decision-making by consensus are no isolated phenomena, but form part of the same quest for control inherent to the notion of sovereignty. §1138. Finally, the subject matter discussed in this chapter clearly demonstrates how and to what extent “classic” institutional rules of international organizations have undergone a further development within the European Union, sometimes from the outset (ECSC levies), but mostly during its life. Some of these further developments have also taken place in other organizations (own

717

Financing

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resources), but most are preserved for the Union only (adoption of the budget by the European Parliament, the relatively prominent position of the Court of Auditors). At the same time, these characteristics are the expression of, and contribute to the relatively great potential for the Union to carry out its functions independently.

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Chapter 8

Legal order

I.

Introduction

§1139. The legal order of international organizations comprises a number of elements, which will be analyzed in this chapter. Following some brief observations concerning the concept of a legal order, Part II discusses the constitution of international organizations, as the foundation of the legal order. The largest part of this chapter (Part III) is devoted to the different types of decisions of international organizations. If the constitution is the framework, the skeleton of the legal order of an international organization, its decisions are its flesh and blood. These decisions partly deal with the internal functioning of international organizations (e.g. a decision to create a subsidiary organ), and are partly directed towards the external environment (e.g. a recommendation to the member states to tackle the problem of street children).1 In Part IV other sources of international law which are part of the legal order of international organizations (ius cogens, general principles of law, and customary law) will be discussed briefly. Part V offers some concluding observations. §1140. Whenever there is a law-maker there is a legal order. Each state has its own legal order, composed of the totality of legal rules regulating the national community. At the global level the law-maker is still underdeveloped, international law being made principally by states. Global law-making is not centralized, in contrast to law-making at the national level and consequently, international law lacks the unity that characterizes domestic legal orders. For this reason, it has sometimes been asked whether an international legal order exists at all. An affirmative answer is given by some writers,2 while a negative answer is given by others.3 The decisive factor seems to be what criteria are used for the definition of a legal order.4

1. 2. 3. 4.

UN GA Res. 47/126. For example, by J. Combacau, Le droit international: bric-à-brac ou système?, 31 Archives de philosophie du droit 85-105 (1986). H.L.A. Hart, The Concept of Law (1961), Chapter X. For a general study into this question, see J. Raz, The Concept of a Legal System – An Introduction to the Theory of Legal System (1970; second edition, with a postscript, published in 1980).

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§1141. Regardless of the conclusion that is reached regarding the existence of an international legal order, there is general agreement that international law lacks the coherence of national law. This lack of unity is to some extent compensated by international organizations, each of which has a legal order of its own. This legal order is not similar to domestic legal orders.5 It is a partial and functional legal order, because it is limited to the field of operation of the organization and to those states that participate in it. Within the limits of their competence, international organizations are used by the member states as frameworks for law-making. In addition these organizations may also be involved in the supervision of the rules in question. In this way, international organizations provide some unity, some coherence in the international legal order.6 §1142. The creation of international organizations since the 19th century did not immediately lead to the recognition that international organizations can have their own legal order. Such recognition developed gradually in the 1920s and 1930s, and has become definitively accepted since 1945. Apart from the mushrooming in the number of international organizations and their increasing complexity, a more specific reason explaining the acceptance and development of the concept of a legal order of international organizations has been the need to have a coherent body of law for the relations between international organizations and their staff. It is now generally recognized that international organizations have a legal order of their own, distinct from that of the member states.7 There is more difference of opinion as to whether the legal orders of international organizations are also separate from the international legal order. Some writers simply consider the law of international organizations as derived from international law and therefore part of the international legal order.

5.

6.

7.

Cf. H. Mosler, The International Society as a Legal Community, 140 RdC (1974 IV), at 191: “States have their own exclusive domestic sphere which is protected by international law, while the legal order of international organizations is created by the constituent members and is therefore not so complete. It is, in fact, limited to the exercise of the functions entrusted to the organization by its constituent treaty”. See D. Vignes, The Impact of International Organizations on the Development and the Application of Public International Law, in R.St.J. MacDonald and D.M. Johnston (eds.), The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory 809-855 (1983); I. Detter, Law Making by International Organizations 328-329 (1965); N. Valticos, Pluralité des ordres juridiques internationaux et unité du droit international, in J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21th Century – Essays in honour of Krzysztof Skubiszewski 301-322 (1996). In general: W. Meng, Das Recht der Internationalen Organisationen – eine Entwicklungsstufe des Völkerrechts (1979); M. Sørensen, Autonomous Legal Orders: Some Considerations Relating to a Systems Analysis of International Organizations in the World Legal Order, 32 ILCQ 559-576 (1983). About the role of international organizations, in particular the UN, in the creation of rules of international law, see H.H. Han, International Legislation by the United Nations (1971); H. Bokor-Szegö, The Role of the United Nations in International Legislation (1978). P. Cahier, L’ordre juridique interne des organisations internationales, in R.J. Dupuy (ed.), A Handbook on International Organizations 377-397 (2nd ed. 1998), at 377-382.

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Others take the view that the legal order of international organizations is autonomous (and similar to national legal orders), separate from the international legal order.8 These opposing views are the consequence of the Janusfaced character of the constituent instrument of the international organization: a treaty between states and, at the same time, the constitution of a new international entity (see below, §1148 ff.). §1143. The cohesion of the legal orders of international organizations varies greatly, depending upon the purposes and functions of the organization as specified or implied in its constituent documents and developed in practice.9 For example, the Court of Justice of the European Communities, looking at the objectives of the E(E)C, concluded that “the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights”.10 The Community’s objectives have been employed by the Court as principles of (teleological) interpretation to guide the development of a distinct and unitary Community legal order,11 which stands in stark contrast to the generally much looser legal orders of other international organizations, the objectives of which are less far-reaching than those pursued by the European Union. More specifically, these other international organizations lack law-making and judicial supervision procedures similar to those in the Union. §1144. What is the secret of the coherence of the legal order of the European Communities? While the objectives of the Communities provide the main explanation for their much stronger legal order as compared to those of other international organizations, there are two principles, elaborated by the EC Court on the basis of these objectives, which to a great extent have shaped the development of a coherent Community legal order: direct effect of Community law and supremacy (or precedence) of Community law over national law (see below, §1535-1536). Other international organizations generally follow traditional principles of international law, which do not require that rules of international law are applied directly within the national legal order or that these rules have priority over national law. Thus, the effect of decisions of the organization depends solely upon the national legal order in question, which has obvious consequences for the coherence of the legal order of the organization. Community law has been able to avoid this situation by develop-

8.

Id., at 242-247. The most complete analysis of doctrine in this area is that by W. Meng, Das Recht der Internationalen Organisationen – eine Entwicklungsstufe des Völkerrechts (1979), in particular Chapter 5. 9. Cf. International Court of Justice, Reparation for Injuries Case, Advisory Opinion of 11 April 1949, ICJ Rep. 1949, at 180. 10. Case 26/62, Van Gend & Loos, ECR 1963, at 12. 11. See P. Pescatore, Les objectifs de la Communauté Européenne comme principes d’interprétation dans la jurisprudence de la Cour de Justice, in: Miscellanea W.J. Ganshof van der Meersch II (1972), at 325-262.

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ing the principles of direct effect and supremacy of Community law, which independently of national constitutional law require that a number of rules of Community law have direct effect within the legal order of the member states, and that Community law is of a higher status than national law.12 In this way, Community law has pierced the national legal orders of the member states, and has become “a common internal law in the member states rather than a law between these states”.13

II.

Constitution

“... the question of what international organizations are is really much less important than the question of what they can do; and the answer in each case is largely dependent upon the relevant constitution. An international organization is an artificial and deliberate creation. It owes not only its existence but also its ability to act to the instrument which founds it.”14

§1145. The constitution sets the pattern for the legal order of the international organization. Further rules develop from the operation of its organs.15 The power of these organs to take decisions stems from the constitution. From this common source, a hierarchy of the various legal rules is developed, and a single legal order thus created. The validity of each rule will depend on the constitution, the basis of the legal order. Thus no organ can take valid decisions outside its own field of competence or in contravention of the constitution, and the decisions of inferior organs may generally be overruled by higher organs.16

12. See more extensively J.-V. Louis, The Community Legal Order (2nd rev. ed. 1990), in particular Chapter 3; E. Denza, Two Legal Orders: Divergent or Convergent?, 48 ICLQ 257-284 (1999). 13. P.J.G. Kapteyn and P. VerLoren van Themaat, Introduction to the Law of the European Communities (3rd ed., edited and further revised by L.W. Gormley, 1998), at 77. 14. E. Lauterpacht, The Development of the Law of International Organization by the Decisions of International Tribunals, 152 RdC (1976 IV), at 414. 15. See A.J.P. Tammes, Decisions of International Organs as a Source of International Law, 94 RdC (1958 II), at 265-363; N. Blokker, Decisions of International Organizations: the Case of the European Union, 30 NYIL 1999, at 3-44. See further on constitutions of international organizations R. Monaco, Le caractère constitutionnel des actes institutifs d’organisations internationales, in: Mélanges Rousseau 153-172 (1974); R. Monaco, Les principes régissant la structure et le fonctionnement des organisations internationales, 156 RdC (1977 II), at 101-108; S. Rosenne, Developments in the Law of Treaties 1945-1986 (1989), at 181-258 (Chapter 4: Is the constituent instrument of an international organization an international treaty?); C.F. Amerasinghe, Principles of the Institutional Law of International Organizations (1996), at 405-421; P. Sands and P. Klein, Bowett’s Law of International Institutions (5th ed. 2001), at 442-454. 16. Except when the lower organ has an independent function e.g. international tribunals (see above, §231(1)).

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Coherence within the legal order of international organizations is often promoted by including a general “priority rule” in the constitution. For example, Article 4.4 (No. 32) of the ITU Constitution stipulates, inter alia, “In the case of inconsistency between a provision of this Constitution and a provision of the Convention or of the Administrative Regulations, the Constitution shall prevail”.17

The constitution and the decisions based upon it will never constitute the complete legal order. For many of the required rules, the organization will refer (usually tacitly) to general principles common to the laws of its members. A.

Legal force

§1146. The express agreement between states, by which an international organization is formed (see above, §34-43), is usually called the “constitution” of the organization.18 Some international organizations use an even more formal title19 while others attribute no special name to it.20 A constitution is not necessarily contained in a separate legal document. The ICAO constitution forms part of the Chicago Convention on International Civil Aviation;21 the Covenant of the League of Nations and the constitution of the ILO were originally included in the 1919 peace treaties; the constitution of the International Energy Agency is part of the Agreement on an International Energy Programme of 18 November 1974.22 Many constitutional treaties also contain mutual treaty obligations for the participating states.23 On the other hand, constitutional provisions may have been codified elsewhere. For that reason, the International Law Commission has defined “constitution” in a much wider sense, as “the constituent treaty together with

17. Other examples are Art. XVI.3 of the Agreement establishing the World Trade Organization and Art. 12.3 of the International Agreement on Jute and Jute Products (1989). The most well-known example of such ‘priority rules’ is Art. 103 UN Charter. On the relationship between the ‘constitutional’ character of constitutions of international organizations with ‘primacy clauses’ such as Art. 103, see E. Suy, The Constitutional Character of Constituent Treaties of International Organizations and the Hierarchy of Norms, in U. Beyerlin et al. (eds), Recht zwischen Umbruch und Bewahrung – Festschrift Rudolf Bernhardt 267-277 (1995). 18. E.g., the constitutions of ILO, FAO, WHO, UNESCO. For a list of names, see Peaslee (2nd ed., 1961), Vol. I, at XXIX-XXXI. 19. E.g., the Charter of the United Nations, the Statute of the Council of Europe, the Covenant of the League of Nations. 20. E.g. Treaty on European Union; Treaty on a European Economic Area; Treaty establishing a common market between Argentina, Brazil, Paraguay and Uruguay (“Mercosur”); the Convention on the Organization for Economic Cooperation and Development; Convention on the International Maritime Organization; Marrakech Agreement establishing the World Trade Organization. 21. 15 UNTS, at 295. 22. Trb. 1975, No. 47. 23. P. Pescatore, Les Relations Extérieures des Communautés Européennes, 103 RdC (1961 II), at 153, note 1, uses GATT and the commodity agreements as examples.

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the rules in force in the organization”.24 In this definition the notion “constitution” includes all legal rules establishing and regulating the organization. Here however “constitution” will be used to denote only the basic legal text, the constituent treaty of the organization. B.

Characteristics

§1147. Although the constitution of an international organization is not necessarily drafted in the form of a multilateral treaty (see above, §35), it usually is. Such constitutions differ from ordinary treaties in some respects and these differences tend to increase with the further development of international institutional law.25 1.

Creation of a legal person

§1148. Unlike ordinary treaties, constitutions not only regulate rights and duties between states, but also – and even primarily – create new subjects of international law. As the International Court of Justice has observed: the object of constitutions “is to create new subjects of law endowed with a certain autonomy, to which the parties entrust the task of realizing common goals”.26 These subjects have their own organs and will themselves take part in international intercourse, and may even become parties to new international agreements. Accordingly, the primary aim of a constitution is to determine the structure and regulate the functions of the new organization, attributing legislative power – at least on internal matters – to organs of the organization. Legislation being one of the basic powers of government, such an attribution can be seen to assimilate, to some extent, the constitutions of international organizations with those of states.27

24. Report of the ILC, GAOR 17th session, Suppl. No. 9 (A/5209), at 7, commentary to Art. 3, para. 3. See also H.J. Hahn, Constitutional Limitations in the Law of the European Organizations, 108 RdC (1963 I), at 195-200. 25. See also K. Zemanek, Internationalen Organisationen als Handlungseinheiten in der Völkerrechtsgemeinschaft, 7 ÖZöR (1956), at 335 ff.; F.A. Vallat, The Competence of the United Nations General Assembly, 97 RdC (1959 II), at 248 ff.; H. Mosler, Die Aufnahme in internationalen Organisationen, 19 ZaöRV (1958), at 305; P. Pescatore, Die Gemeinschaftsverträge als Verfassungsrecht, Festschrift Kutscher 319-338 (1981), in particular at 321-322; T. Sato, Constituent Instruments of International Organizations and their Interpretative Framework, 14 Hitotsubashi Journal of Law and Politics 1-22 (1986); T. Sato, Evolving constitutions of international organizations (1996). The Vienna Convention on the Law of Treaties (1969) applies to treaties which constitute international organizations “without prejudice to any relevant rules of the organization” (Art. 5). 26. ICJ Reports 1996 (Advisory Opinion requested by the WHO), at 75. 27. At the same time, one should be careful in comparing constitutions of international organizations too easily with constitutions of states. For a critical view of such comparison see G. Arangio-Ruiz, The ‘Federal Analogy’ and UN Charter Interpretation: A Crucial Issue, in EJIL (1997), at 1-28.

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Thus constitutions of international organizations are Janus-faced. On the one hand, as for their form, they are treaties, covered by the general rules on treaties of the 1969 Vienna Convention. On the other hand, as for their substance, they contain the ground rules for a living body, the practical operation of which may increasingly go beyond the intentions of its creators.28 Both faces are in fact identified in Article 5 of the 1969 Vienna Convention on the Law of Treaties, which stipulates that the Convention “applies to any treaty which is the constituent instrument of an international organization ... without prejudice to any relevant rules of the organization” (emphasis added). “Rules of the organization” were defined in subsequent conventions as meaning, “in particular, the constituent instruments, decisions and reso-lutions adopted in accordance with them, and established practice of the organization”.29

§1149. Constitutions of international organizations always display static and dynamic characteristics simultaneously. Like the constitutions of states, they “should provide for enough rigidity so as to have sufficient normative grasp on real events, but also for enough flexibility so as not to be swayed away”.30 Member states often disagree as to how flexible an international organization should be in responding to the challenges it is confronted with. Depending on their interests, some members will advocate an active response, whereas others might prefer a more limited role. In 1966, Tunkin observed that “the role of United Nations practice in developing or modifying the provisions of the Charter has become one of the major legal and political problems”.31 This observation retains its accuracy today, not only for the UN but also for most other international organizations, as it refers to a basic constitutional problem. The creative, dynamic function of a constitution sets it apart from ordinary treaties. The differences now to be outlined flow directly from this function.32

28. As Monaco has written, “... l’acte institutif revêt la forme du pacte mais possède la substance de la constitution: né sur la base d’une convention, il dépasse, avec le temps, son origine formelle, jusqu’à devenir une constitution de durée indéterminée dont le développement déborde le cadre à l’intérieur duquel elle avait été initialement conçue”. (R. Monaco, Les principes régissant la structure et le fonctionnement des organisations internationales, 156 RdC (1977 II), at 101.) The ICJ referred to the character of constitutions as “conventional and at the same time institutional” (WHO Advisory Opinion, op. cit. note 26, at 75). 29. Art. 2.1 (j) of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (not yet in force); a slightly different description is given in Art. 1.1 (34) of the 1975 Vienna Convention on the Representation of States in Their Relations with International Organizations of a Universal Character (not yet in force). 30. H.G. Petersmann, The Legal Evolution of the International Monetary System since Bretton Woods, in 25 GYIL 376-402 (1982), at 395. 31. G.I. Tunkin, The Legal Nature of the United Nations, 119 RdC 25 (1966 III). 32. See also id., at 103-108.

§1150

2.

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726

Limitation on reservations

§1150. Reservations to multilateral treaties usually create administrative problems and affect the uniformity of the rights and duties of the participating states. However, where the treaty-making states are in agreement, there will be no fundamental objections to the practice. Reservations to constitutions are particularly undesirable, however, for two reasons.33 (1) A member state not only cooperates with the organization and with the other members, it also forms part of the organization. It participates with the other members in the decision-making of the organization, in which capacity it cannot be bound by different rules with regard to the functioning or purposes of the organization. The equality of the members – or at least of groups of members – which forms the basis of almost all international organizations precludes the making of reservations to institutional provisions. If, for example, a state were to exempt itself from the binding force of the organization’s decisions, not only would the terms on which it participated be changed, but it would also become an anomalous participant in the decision-making process. Since it would not be bound in the same way as other members, its attitude towards the drafting of legislation, and towards voting, would be affected accordingly.34 Reservations to many functional provisions, such as the size of the executive board or the seat of the secretariat, are virtually impossible. A reservation regarding the purpose of the organization would fundamentally alter the position of a member. The constitution of the WHO, for example, states in its preamble that health is not merely the absence of disease or infirmity, but is a state of complete physical, mental and social well-being. If a state were to make a reservation as to this wider meaning of health, its voting on all health matters would be affected.

(2) Reservations are made with respect to the original text of the constitution. Some organizations frequently amend their constitutions, others implicitly alter its interpretation or may transfer emphasis from certain articles to others. Reservations relating to the original constitution cannot keep abreast of such alterations. §1151. The Vienna Convention on the Law of Treaties requires that any reservation made to the constitution of an international organizations be approved by the organ of the organization competent to do so.35 This formal acceptance by the organization itself changes the reservation into a bilateral act, an agreement between the organization and its new member.

33. See E.C. Hoyt, The Unanimity Rule in the Revision of Treaties, a Reexamination (1959), at 80, and his quotation of the US argument for the International Court of Justice concerning reservations to the Convention on Genocide (1951); H.G. Schermers, The Suitability of Reservations to multilateral Treaties, 7 Ned. TIR 350-361 (1959). 34. H.G. Schermers, De Gespecialiseerde Organisaties, hun bouw en inrichting 32-36 (1957); Tammes, op. cit. note 15, at 344-359. 35. Vienna Convention on the Law of Treaties (1969), Art. 20.3. See UNJY 1992, at 467-468.

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Some constitutions expressly forbid reservations;36 in others, the absence of a rule is interpreted as a prohibition (for example, see §1152). States rarely wish to make reservations to constitutions, but where such a reservation is deemed desirable they can usually achieve their purpose more easily by making a special agreement with the organization. Only rarely do express provisions allow reservations to constitutions of international organizations to be made. §1152. There are few examples of states wishing to enter an international organization under special conditions when no provisions for reservations have been made. On being admitted to the League of Nations, Switzerland wished to safeguard its permanent neutrality. It therefore wanted to abstain from possible League sanctions. The Council of the League accepted the special position of Switzerland in February 1920.37 Austria issued an official declaration of neutrality before acceding to the United Nations. As no member objected to this declaration, it may be regarded as having been tacitly accepted by the organization.38 The United States accepted the constitution of the WHO – which contains no provision for withdrawal – subject to “the understanding that the United States reserves its right to withdrawal from the Organization on a one-year notice, provided, however, that the financial obligations of the United States to the Organization shall be met in full for the Organization’s current fiscal year”.39 The Secretary-General of the UN, in his capacity as depositary, did not request the approval of the other states which had accepted the constitution, but forwarded the US acceptance and reservation to the World Health Assembly, the supreme organ of the organization. The World Health Assembly accepted the reservation without dissent, thereby creating an agreement between the organization and the USA. It might be argued that the unanimous approval of the World Health Assembly is equivalent to the unanimous approval of the states parties to the WHO constitution and that, therefore the classic formula for approving reservations was followed. Two observations should however be made. Firstly, states were represented in the World Health Assembly which had not yet accepted the WHO constitution at the time the US reservation was made,40 while Jordan, although having accepted the WHO constitution, was not represented at the Assembly. Approval was therefore requested from states other than those which would have been consulted if the traditional system had been followed. Secondly, the World Health Assembly can, according to Article 60 of the WHO constitution, take decisions either by a two-thirds

36. See, e.g. the International Coffee Agreement (1994), Art. 42; International Tropical Timber Agreement (1994), Art. 47; World Trade Organization, Art. XVI.5; International Cocoa Agreement (2001), Art. 59. 37. See W. Schücking und H. Wehberg, Die Satzung des Völkerbundes 299-302 (Dritte Auflage, 1931); M.O. Hudson, Membership in the League of Nations, 18 AJIL 439-440 (1924); H. Haug, Das Verhältnis der Schweiz zu den Vereinten Nationen 61-64 (1972). 38. For literature, see above, §95, note 98. 39. Official Records of the WHO, No. 13, Annex 8, at 382-383. 40. Argentina, Belgium, Philippines, Salvador and Venezuela.

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majority or by a simple majority, unanimity never being required. The reservation of the US would therefore have been accepted even if a number (less than a third) of the members had objected to it. In 1948, San Marino applied for membership of WHO. It made a reservation concerning its financial contribution. The World Health Assembly discussed the matter and decided that it could not accept San Marino’s application for membership with such a reservation.41 In 1953, the USSR communicated to the Director-General of the ILO its desire to adhere to the ILO, subject to specified reservations. The Director-General replied that the ILO constitution does not permit acceptance subject to reservations. In the following year, the USSR acceded without reservations.42 In February 1954, Yugoslavia deposited an instrument of ratification of the constitution of the ICAO, with a reservation relating to Article 5 of the constitution. Although the French delegation believed that a decision on the acceptance of the ratification could be taken by majority vote, the depositary state (US) considered approval by all members necessary. Since eight members had objected, Yugoslavia could not be admitted. It deposited a new instrument of ratification, without reservation, in 1960.43 Other reservations to the ICAO constitution have likewise been refused.44 In January 1959, India deposited with the UN Secretary-General its instrument of acceptance of the constitution of the Intergovernmental Maritime Consultative Organization (IMCO, the predecessor of IMO), subject to what it termed a “condition”, to the effect that any measures of assistance India might take with regard to its own national shipping “are consistent” with the IMCO Convention. This instrument was circulated among the member states of IMCO. Formal objections were received from France and Germany. The question was discussed in the General Assembly of the UN (14th session). The Indian government stated that it had merely made a declaration of policy and that this did not amount to a reservation.45 India was subsequently accepted as a member of IMCO by the IMCO Council, on 1 March 1960. Before 1966, all reservations concerning acts of the UPU were included in Final Protocols. The UPU Congress had to approve these protocols and could thus reject reservations which it considered violated the basic principles of the Union. Reservations at the time of ratification were inadmissible.46 In the 1964 Constitution (which entered into force on 1 January 1966), the existing practice was codified with respect to reservations to acts other than the constitution and the General Regulations.47 The possibility of making reservations to the constitution or to the General Regulations is not mentioned in the constitution. Therefore such reservations should be considered inadmissible. In practice, reservations to acts of UPU, as well as to those of the ITU,48 do not affect the constitutional provisions of the organization. Most reservations concern questions such as the sovereignty of the Falkland Islands, the status of Israel, or the representation of China, and should be regarded as declarations of policy rather than

41. 42. 43. 44. 45. 46. 47. 48.

Official Records WHO, 21.312; Res. WHA 2.98. G.A. Johnston, The International Labour Organisation 20 (1970). T. Buergenthal, Law-Making in the International Civil Aviation Organization 24-25 (1969). Id., at 25-29. YUN 1959, at 407-408. See also UNJY 1969, at 223-224. E. Yemin, Legislative Powers in the United Nations and Specialized Agencies 94 (1969). UPU, Art. 22. See also UNJY 1974, at 83. Which allows reservations: ITU Convention, Art. 32.B.

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as “real” reservations. The 1964 congress of the UPU incorporated reservations of this kind in a separate document, which was not submitted for the approval of the Congress.

§1153. When a provision of a treaty is not entirely clear, states favouring a particular interpretation sometimes make a declaration to the effect that they understand the provision to mean the “following”, after which their own interpretation is added. In doing so, they preserve their rights should the organization subsequently adopt another interpretation. When entering the IMF and the World Bank, the US did not make declarations of that kind. It followed a neater procedure, by charging the US executive director to obtain an official interpretation of certain provisions and to propose an amendment if the interpretation differed from that favoured by the US. Apparently, the position of the US was considered so strong that the desired result could be obtained through the machinery of the organization, thus making a reservation unnecessary. Both organizations interpreted the provisions concerned in conformity with the US point of view.49 3.

Withdrawal

§1154. A party may withdraw from a treaty only if the treaty expressly allows such withdrawal, if all other parties agree, if it is established that the parties intended to admit withdrawal or if a right of withdrawal is implied by the nature of the treaty.50 When discussing the termination of membership, the view was rejected that this rule would not be applicable to constitutions of international organizations (see above, §135). However, if it were to become generally accepted – having apparently been accepted in some regions – then it would represent another important difference between constitutions and other treaties. 4.

Tacit renewal

§1155. A gradual transformation of contractual treaty obligations is feasible but rare, since all states involved must simultaneously alter their original conceptions. Such an alteration is not contemplated when contractual treaties are made. A constitution, on the other hand, changes constantly. The organization must adapt itself to the development of society, and is intended to do so. It has its own organs, capable of realizing changes. The vast majority of constitutions contain provisions for their amendment (see below, §1165-1187). Even without the use of such provisions, constitutions do change. The principal organs of international organizations can go a long way towards interpreting the constitution to suit the purposes of the organization. If the members do

49. E.P. Hexner, Interpretation by Public International Organizations of their Basic Instruments, 53 AJIL 343 (1956). 50. Vienna Convention on the Law of Treaties (1969), Art. 56.

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not object, the interpretation will gradually become binding. Otherwise, a dispute arises which has to be settled. The present UN is different from that of 1945, although the Charter has barely been altered.51 The clearest example is probably Article 27.3 of the Charter. This article requires the “concurring votes” of the permanent members of the Security Council for the taking of decisions in non-procedural matters. Through “jurisprudence in the Security Council”,52 the expression “concurring votes” has come to include abstentions (see below, §1339).

§1156. The same is true for most other international organizations. They have what is called a “living constitution”, the interpretation of which changes with the development of society.53 The foundation of the original organization may be contained in a contractual treaty, but after the establishment of the organs, and during the functioning of the organization, the contractual element gradually disappears and the institutional element takes over.54 Nevertheless, there is a limit to the possibilities for tacit renewal, through interpretation of the constitution with the development of society. Fundamental changes require amendment of the constitution.55 The living character of a constitution is also reflected by the vast scale of possibilities provided for

51. The only amendments being the enlargement of the Security Council to 15 and of the ECOSOC to 27 and subsequently to 54 members (see below, §1174). On changing without amendment, see e.g. F.O. Wilcox, How the United Nations Charter has developed, 296 Annals of the American Academy of Political and Social Science (1954), at 1 ff; E. Giraud, La Revision de la Charte des Nations Unies, 90 RdC 385-394 (1956 II); R.B. Russell, Changing Patterns of Constitutional Development, 19 International Organization 410-425 (1965), also published in R.S. Wood (ed.), The Process of International Organization 121-136 (1971); S. Engel, Procedures for De Facto Revision of the Charter, ASIL Proceedings 108-116 (1965); F. Meyer, Bestrebungen zur Satzungsreform der Vereinten Nationen, 16 Jahrbuch 32-59 (1973). 52. The expression was used by the President of the Security Council in 1947, see R. Zacklin, The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies (1968), at 183. 53. C.A. Beard on the American Constitution in The Annals, Vol. 185 (1936); See also C. van de Wetering, Enige aantekeningen over de afbakening der bevoegdheden van internationale organisaties, in: Volkenrechtelijke opstellen, aangeboden aan Prof. Dr. C.H.J. van der Molen 185-200 (1962). For a different point of view, see Sir Percy Spender in his dissenting opinion in the Certain Expenses case, ICJ Rep. 1962, at 195-197, quoted by R.A. Falk and S.H. Mendlovitz, The Strategy of World Order 3 (1966), at 91-93. 54. Pescatore, op. cit. note 23, at 152; see also Vallat, op. cit. note 25, at 248-250, and Zemanek, op. cit. note 25, at 341. Cf. also Amerasinghe, op. cit. note 15, at 417-421. 55. This has also been been recognized by the EC Court. In Case C-50/00 P, Unión de Pequeños Agricultures, judgment of 25 July 2002, not yet reported, at 45, the Court concluded that it is for the member states through amendment of the constitution (and not for the Court) to reform the existing system of judicial review of the legality of Community measures of general application. An earlier example is Opinion 2/94 of the Court, Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms, ECR 1996, at I-1759.

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amendment. Amendment procedures are foreseen more easily, and used more frequently, than in ordinary multilateral treaties. C.

Amendment of the constitution56

1.

Necessity for amendments

§1157. A constitution drafted to establish an international organization will gradually prove defective. This may be caused by misjudgment at the time of drafting.57 The UNESCO constitution, for instance, originally contained no provision for withdrawal (since the founders strived for universality). According to the law of treaties, this meant that no member could leave the organization without the consent of all the other members. The withdrawal of several members in 1952 and 1953 caused problems (see above, §125-128) which provoked the organization to amend its constitution.

§1158. More often, unforeseeable developments will necessitate amendment of the constitution. The 61 amendments of constitutions of specialized agencies made between 1945 and 1966 formed the subject of research by Phillips, who divided the amendments into five categories.58 Almost half of the amendments concerned the structure of the organizations, notably the size of the executive boards which had to be extended when membership grew. Eleven amendments concerned membership, withdrawal or expulsion,59 eleven others the powers and duties of the organization or its organs.60 Only rarely, however, were new powers added to those of the original organization. Ten amendments produced revisions in institutional procedures (such as the frequency of sessions of organs).61 Many of the amendments also mentioned made editorial changes to improve the clarity of the constitutions.

56. Zacklin, op. cit. note 52; L.H. Phillips, Constitutional Revision in the Specialized Agencies, 62 AJIL 654-678 (1968). 57. Apart from corrections which may be needed after a text has been in operation for a period of time, there may be rectifications required of errors made in the original text (e.g. errors in translation). In such cases the official procedure for amendment is not always necessary. See UNJY 1964, at 251-254. 58. Phillips, op. cit. note 56, at 658-662. 59. To the amendments mentioned in category (2) (id., at 660), two of the amendments mentioned as editorial (at 662), could be added. 60. Apart from the amendments mentioned in category (3) also the FAO amendment of 1965 which Phillips classifies as editorial. 61. To this category we added the FAO amendment of 1951, making English, French and Spanish equally authentic languages, which Phillips classifies as an editorial change, but which seems to have wider implications.

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§1159. In order to permit improvement and adaptation, most constitutions contain a provision laying down procedures for amendment. Sometimes amendments must be considered after a specified period. The Charter of the UN, for example, expressly provides for discussion, after ten years, of a proposal to convene a conference for the purpose of reviewing the Charter.62 The General Assembly can now adopt such a proposal by simple majority, while before 1955 a two-thirds majority was required. The 1992 Treaty on European Union originally provided that in 1996, a conference had to be convened to “examine those provisions of this Treaty for which revision is provided, in accordance with the objectives set out in Articles A and B”.63 This conference resulted in the 1997 Amsterdam Treaty.

§1160. The precise requirements which amendments will have to satisfy depend mainly on the obligations contained in the constitution and on the number of members in the organization. Obviously, amendment should be more difficult if a constitution imposes stringent obligations. It would for example be politically unacceptable to change the fundamental articles of the agricultural system of the European Community without the approval of all members. On the other hand, for amendment of the non-binding agricultural system of the FAO, a majority decision would seem quite acceptable. Amendment by unanimity is workable if the number of members is small, but becomes practically impossible in large organizations. The frequent amendment of a constitution is open to objection. The functioning of an organization will be hampered if its mode of operation is often changed. Civil servants and member states must be given the opportunity to become acquainted with new constitutional provisions. All international organizations impose more or less exacting restrictions on constitutional amendment. §1161. When amendment is too difficult, a new international organization may be created as an alternative to amending the constitution of an existing one. Such a new organization may replace its predecessor, as in the case of the United Nations, or it may exist alongside the earlier body, as in the case of the International Finance Corporation and the International Development

62. UN Charter, Art. 109. See Giraud, op. cit. note 51. For the amendment of Art. 109 after the enlargement of the Security Council, see E. Schwelb, The 1963/65 Amendments to the Charter of the United Nations: an Addendum, 60 AJIL 371-378 (1966). The constitution of the IAEA contains a similar provision (Art. 18). See also: ICC Statute, Art. 123. The UN Office of Legal Affairs has observed that revision (which seems close to ‘review’) “refers to the examination at a special meeting of all the provisions of a treaty concerned ‘with a view to ensuring that its object and purpose are being realized’” , whereas amendment “usually entails changing one or several specific provisions of a treaty at the request of either a party or a group of parties to the treaty” (UNJY 1991, at 315). 63. TEU, Art. N.2 (original text). See on amendment of the TEU, B. de Witte, Rules of Change in International Law: How Special is the European Community?, in 25 NYIL 299-333 (1994).

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Association, the creation of which was considered preferable to alteration of the competences of the World Bank.64 §1162. In some international organizations, the need for constitutional amendment is reduced by a power, granted to the organs of the organization, to vary provisions of the constitution.65 Gold offers as examples the constitutions of international banking organizations, prescribing the amount of the authorized capital stock but empowering the organization to increase this,66 and the constitution of the Intergovernmental Maritime Consultative Organization (IMCO, now IMO) which provided that the headquarters of the organization would be in London, but which empowered the general congress of the organization to change the site of the headquarters if necessary.67 Variation should be distinguished from amendment: if a variation occurs, no change is made to the text of the constitution, although the actual result of the variation may prove identical to amendment. Thus, a decision by IMCO to move outside London would have had the effect of amending Article 44 of IMCO’s constitution. Variation is often possible in individual cases, but even where granted “individually” to all members of the organization, it will in fact amount to amendment. After some time, customary law will make it virtually impossible to refuse the same variation in future cases. 2.

Constitutional requirements for amendments

a.

Legal character of constitutional provisions on amendment

§1163. Most constitutions contain provisions regulating their amendment. Must such provisions be followed under all circumstances, or is there a prevailing general rule of international law that permits states to amend treaties (and their amendment clauses) by mutual agreement?68 Many authors take the view that the members may overrule an amendment clause by unanimous

64. J. Gold, Membership and Non-membership in the International Monetary Fund 310 ff. (1974); I.F.I. Shihata, Techniques to avoid proliferation of international organizations – the experience of the World Bank, in N.M. Blokker & H.G. Schermers (eds.), Proliferation of International Organizations – Legal Issues 111-134 (2001), in particular at 113-120. 65. See Amerasinghe, op. cit. note 15, at 417; Sands and Klein, op. cit. note 15, at 454. See also more in general about the variation technique: the Decision of the Eritrea-Ethiopia Boundary Commission (13 April 2002), paras. 3.1-3.13 (reproduced in 41 ILM 1057 (2002)). 66. World Bank, Art. II(2b); Inter-American Development Bank, Art. 2(2e); Asian Development Bank, Art. 4(3). 67. IMCO, Art. 44. See J. Gold, The Amendment and Variation of Their Charters by International Organizations, 9 RBDI (1973), at 51, 65; reproduced in J. Gold, Legal and Institutional Aspects of the International Monetary System: Selected Essays 336 (1979). 68. Vienna Convention on the Law of Treaties (1969), Art. 39, first sentence.

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decision.69 It does however seem doubtful whether the general law of treaties always prevails over express constitutional provisions. The answer given to this question depends mainly on whether any third parties are involved, such as when specific rights have been given to non-governmental organs of the organization, such as the right of the Commission and the European Parliament to be consulted on amendments of Treaties on which the European Union is founded.70 Amendments made to the Treaty on European Union without respecting the required consultation procedures would be unlawful, even if the members acted unanimously. While the Court of Justice might ignore an illegal amendment, it could not annul it, since the amendment would be an act of the member states and, as such immune to challenge under Article 230 of the EC Treaty. The only procedures to challenge such a course of action would probably be those provided by Article 226, leading to a possible declaration that the member states had not fulfilled their treaty obligations or by Article 234, leading to a preliminary ruling on the interpretation of the amended provision. In 1957, the Dutch government took the view that the parties to the Community treaties could overrule the articles on amendment by mutual agreement, a position subsequently rejected by the national parliament which adopted the opinion that amendment could only take place in accordance with the treaty provisions. As a result of this, the government announced that it would abide by the conclusion reached by parliament.71

§1164. In practice however, amendment contrary to a constitution’s amendment procedure is rare. In 1968, the IMF, introducing special drawing rights, accepted an extra-constitutional amendment procedure.72 The European Coal and Steel Community has amended its constitution despite a constitutional provision prohibiting amendment (see below, §1166).

b.

Existing constitutional requirements

§1165. Constitutional requirements on amendment vary widely. Some of the differences are a result of the variety of purposes and tasks of the organizations, while others can only be explained by the age of the organization or by the incidental opinions of the drafters.

69.. E.g. I. Seidl-Hohenveldern and G. Loibl, Das Recht der Internationalen Organisationen einschließlich der Supranationalen Gemeinschaften 234 (7th ed. 2000); See also J.A. Frowein, Are there limits to the amendment procedures in treaties constituting international organizations?, in G. Hafner et al. (eds.), Liber Amicorum Professor Ignaz Seidl-Hohenveldern – in honour of his 80th birthday 201-218 (1998), in particular at 204. 70. TEU, Art. 48. See also B. de Witte, op. cit. note 63. 71. Kapteyn and VerLoren van Themaat, op. cit. note 13, at 96. 72. Only those members which had ratified were bound by the new provisions (Art. XVII(1)).

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The latter must be the only satisfying explanation for the ability of both the UNESCO and the FAO to amend their constitutional provisions “relating to” the size of the board by decision of the general congress, while in the ILO and the ICAO similar amendments require subsequent ratification by the members. In 1968, ICAO adopted an additional protocol to its constitution, in order to render the French and Spanish texts authentic. In 1977, it did the same for the Russian text.73 Both protocols needed ratification and entered into force only for those members which had ratified (see below, §1347). In 1969, FAO added Arabic to the list of authentic texts of its constitution by a decision of the general congress, binding upon all members.74 In the same way, Chinese became authentic in 1977.75

(i) Temporary exclusion of amendments §1166. The constitution of the European Coal and Steel Community (ECSC) could not be changed during the transitional period (9 February 1953-9 February 1958).76 For a revolutionary organization such as this first European Community, a period of probation seemed useful before allowing amendments to the system. For the same reason, amendments to the Statute of the International Criminal Court (ICC) may only be proposed after the expiry of seven years from its entry into force.77 Nevertheless, the ECSC constitution was amended twice during the transitional period. The first amendment, adopted on 27 October 1956, was necessary to maintain France’s position as one of the two major coal and steel producers after the transfer of the Saar to Germany. It entered into force on 9 October 1958, after the end of the transitional period. The second amendment was made by the Convention Relating to Certain Institutions Common to the European Communities, of 25 March 1957. This convention made some fundamental changes in the ECSC Articles concerning the parliamentary and judicial organs, in order to merge them with the equivalent organs of the EEC and Euratom. The amendments entered into force on the same date as the EEC and Euratom treaties, 1 January 1958.

§1167. It may be argued that the amendments were permissible, as the founding states had created the organization to perform particular functions which they themselves had attributed to it. The same states that had decided not to permit amendments during a transitional period could also decide to permit exceptions to this rule.

73. 74. 75. 76.

ICAO Doc. 9208. See also Doc. 9217. FAO Conference Res. 10/69; UNJY 1969, at 166. FAO Conference Res. 18/77. ECSC, Art. 95.2; Art. 96. The Information Service of the European Parliament published a survey of the application of the ECSC Treaty during the transitional period (1958). Another example is the NATO constitution, Art. 12 of which provides that “after the Treaty has been in force for ten years, or at any time thereafter, the parties shall, if any of them so requests, consult together for the purpose of reviewing the Treaty, [...]”. 77. ICC Statute, Art. 121. Only amendments to specifically indicated provisions of an institutional nature may be proposed “at any time”, i.e. also within this seven year period (Art. 122).

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On the other hand, the ECSC Treaty had created a new subject of law (the Community) in which an independent supranational organ (the High Authority) played an important part. This organ also had an interest in the constitution remaining unchanged until it had developed a workable machinery, an interest reflected in the requirement for its approval of any proposed amendment. The amendment of 25 March 1957 was legal. Not only the Council of Ministers, but also the ECSC High Authority and the European Parliament accepted the amendment, allowing the conclusion to be drawn that the Community itself agreed to set aside the provision prohibiting amendment of its constitution. (ii) Amendment requiring the cooperation of organs in addition to unanimity of the members §1168. The constitution of the European Union requires some form of cooperation by Union organs in amendments to the Treaties on which the Union is founded,78 which seems entirely logical in an organization possessing supranational organs charged with serving community interests, which may differ from the individual interests of the member states. According to Article 48 of the Treaty on European Union, no amendments can be made of the Treaties without prior consultation of the European Parliament and, where appropriate, the Commission. Since consultation does not actually require agreement, the role of the European Parliament and the Commission is limited in this procedure. If there would have been no separate role for the Commission and the Parliament in the amendment procedure, Article 48 would only have the value of a declaration of intent. By making an amendment in violation of that article, the member states would be ignoring their original intention (expressly or tacitly). This method of ignoring the article would not entirely deprive it of its meaning, since the national parliaments to which any amendments must be submitted for approval, would be more likely to subject such “irregular” amendments to more stringent scrutiny. (iii) Amendment by unanimous approval of the members §1169. It is difficult, and generally undesirable, to impose obligations on a state against its will. New constitutional provisions should not impose important new obligations on the members without their express agreement. The constitutions of those organizations that interfere most directly with the legal orders of their members therefore require (at least) the unanimity of the members for all amendments. Therefore, it is hardly surprising that amendments of the Treaties on which the European Union is founded require unanimous approval

78. TEU, Art. 48; see above, §1167.

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(“common accord”) of the governments of the member states, and that such amendments can enter into force only after being ratified by all the member states in accordance with their respective constitutional requirements.79 De Witte has rightly concluded that this procedure is based on the very traditional principle of unanimous consent for treaty amendment, and is thereby more respectful of national sovereignty than the amendment procedures of many other multilateral treaties which allow for some form of majority decisionmaking.80 Sometimes, unanimity of all members is only required for the amendment of certain articles.81 When there is no specific basis for invoking another rule, unanimity should also be required for amending those constitutions which contain no provision for their amendment.82 According to the law of treaties, amendment would also be possible by majority, but, as such amendments could not be invoked against the dissenting members,83 this procedure would in practice be unsuitable for constitutional amendments. Several authors have stressed the need for amending multilateral treaties by a more flexible procedure than one requiring unanimity of all parties.84 In practice however, problems rarely arise since most constitutions contain provisions for amendments.

§1170. When agreement of all members is required, separate ratification is usually also needed, a positive vote by the delegates not being sufficient. When members are empowered to agree to an amendment at the session of the general congress of the organization, without the need for ratification, then the amendment will actually be made by decision of the general congress (see below, §1178-1186). The IMF and the World Bank require unanimity of all members for any amendment modifying: (a) the right to withdraw;85 (b) the provisions that no change in a member’s quota shall be made without its consent;86 (c) the provision that no change shall be made in the par value of a member’s currency except on its own proposal;87

79. TEU, Art. 48. Another example is EFTA, Art. 44. 80. De Witte, op. cit. note 63, in particular at 331-333. 81. IMF, Art. XXVIII; World Bank, Art. VIII; Agreement establishing the World Trade Organization, Art. X.2 (see also below, §1193). For the procedure in the IMF, see Gold, op. cit. note 67, at 51-55. 82. Benelux, OECD. 83. Vienna Convention on the Law of Treaties (1969), Arts. 39-40. 84. R. Yakemtchouk, La révision des traités multilatéraux en droit international, 60 RGDIP (1956), in particular at 359-370; Hoyt, op. cit. note 33. 85. IMF, Art. XXVI; World Bank, Art. VI. 86. IMF, Art. III, Section 2. 87. IMF, Schedule C, para. 6.

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(d) the right to a proportional share in the increase of stock;88 (e) the limitation of liability on shares.89 The European Bank for Reconstruction and Development (EBRD) requires acceptance of amendment proposals by all members in a limited number of cases, such as amendments modifying the right to withdraw from the EBRD and amendments modifying the purpose and functions of the Bank.90

§1171. The requirement of unanimity can prevent tensions in the organization, particularly when members object strongly to an amendment. On the other hand, it can paralyse the organization, especially where it has many members. The three ratifications required for amendment of the Benelux Treaty can be expected within a reasonable time but if, in another organization, one hundred or so ratifications have to be awaited, any amendment will be almost impossible. There will usually be at least one member where lack of interest, negligence or a change of government halts the national ratification procedure. However reasonable the principle of unanimity may appear, it would be equally unfair for one member to be able to prevent the whole organization from introducing an amendment desired by all its other members. In general, it would be better practice to introduce the amendment and allow the dissenting member to withdraw from the organization. If, however, the organization is unwilling to risk losing particular members (such as Russia and the US), it should not adopt amendments contrary to the wishes of those states. §1172. The difficulty of obtaining ratification by all states concerned can be demonstrated by the proceedings in the League of Nations to obtain all the required ratifications of unanimously adopted amendments to the Statute of the Permanent Court of International Justice.91 When, after more than six years, the amendments had still not entered into force, the organization adopted a negative clause for approval (see below, §1288-1294) on the basis that those members that had not ratified would be presumed to have agreed unless they had registered objections before 1 February 1936.92 When no objections were received, the amendments were finally able to take effect.93 Since the dissolution of the League of Nations, the number of states has increased considerably. It would now be even more difficult to obtain unanimity in a universal organization. But also in regional organizations the problem has occurred.

88. 89. 90. 91. 92.

World Bank, Art. II, Section 3(c). World Bank, Art. II, Section 6. EBRD, Art. 56.2. No provision was made for these amendments; unanimity was therefore needed. See M.O. Hudson, The Cuban reservations and the revision of the Statute of the Permanent Court of International Justice, 26 AJIL 590 (1932); E. Schwelb, The process of amending the Statute of the International Court of Justice, 64 AJIL 880-891 (1970). 93. Zacklin, op. cit. note 52, at 92-100.

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According to the constitution of the Council of Mutual Economic Assistance (now dissolved), amendments required ratification by all members. Since 1961, Albania ceased to participate in this organization, but formally remained a member. Amendments ratified by all members except Albania were nevertheless accepted as valid in practice.94

(iv) Amendment by qualified majority of the members §1173. Many constitutions require ratification by a qualified majority of the members before a decision for amendment can enter into force. The decision will then bind all members. This procedure is found, for example, in the UN,95 the ILO,96 the WHO,97 IAEA,98 the ICC,99 and the AU.100 It is also applied, for most types of amendment, by the IMF,101 the World Bank,102 the World Trade Organization,103 regional development banks104, the EBRD105 and the Council of Europe.106 UNESCO uses it for amendments which involve fundamental alterations to the aims of the organization or new obligations for the members.107

With the exception of the financial organizations (that have a different voting procedure, requiring a larger majority), the general congress must first adopt the proposal to amend the constitution by a two-thirds majority. In most cases, the amendment will subsequently enter into force as soon as two-thirds of the members have ratified it.108 Within the UN, the two-thirds majority must include the five permanent members of the Security Council, while, in the ILO, five of the ten members of chief industrial importance must be included. In

94. 95.

96. 97.

98. 99. 100. 101. 102. 103. 104. 105. 106. 107. 108.

N.W. Faddejew, Der Rat für Gegenseitige Wirtschaftshilfe 47 (1965); R. Szawlowski, The System of the International Organizations of the Communist Countries 49-52 (1976). UN Charter, Art. 108. On amendment of the UN Charter, see B. Broms, The Special Committee on the Charter of the United Nations and the Strengthening of the Role of the Organization, 20 GYIL 77-102 (1977). ILO, Art. 36; Arts. 46-47 of the Standing Orders of the International Labour Conference. WHO, Art. 73. It has been considered to amend this article, but in the end no formal proposals for amendment have been introduced. See WHO Doc. EB102/3 (25 March 1998; additional information obtained from the WHO Legal Office, August 2003). IAEA, Art. 18 C. ICC, Art. 121. AU, Art. 32.4. IMF, Arts. XXVIIIa and c. World Bank, Arts. VIIIa and c. Agreement establishing the WTO, Art. X. J. Syz, International Development Banks 80 (1974). EBRD, Art. 56. CoE, Art. 41. UNESCO, Art. 13, General Conference, Rules 103-106. On the application of this provision, see R. Monaco, Les amendements de l’acte constitutif de l’UNESCO, 27 LCI 275-290 (1972). Amendments to the ICC Statute require ratification by seven-eights of the states parties (Art. 121.4).

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the League of Nations, ratification was required by all members of the Council and by a majority of the other members.109 The UPU also amends its constitution by a vote in the general congress, followed by ratification by the members.110 Its procedure differs from those already discussed in that the amendments enter into force on specific, previously arranged, dates, even if the required number of ratifications have not yet been obtained.111 It therefore uses the same procedure as is employed for conventions (see below, §1314). In practice, this means that the decision of the general congress to amend the constitution is final. Subsequent ratification is required but has no practical influence on the entry into force of the amendment. It may be true that members are not formally bound until they have ratified,112 but for all practical purposes they are bound by the amended version, so that the UPU could be included in the next category (amendment by decision).

§1174. A system whereby all members are bound by an amendment which has been ratified by only two-thirds of the members has obvious advantages in terms of practicability. It allows amendments, even in large organizations. The UN amended the Charter by increasing the number of members of ECOSOC (from 18 to 27) and of the Security Council (from 11 to 15), as of 1 January 1966,113 and in September 1973, ECOSOC was again enlarged, this time to its current size of 54 members.114 The ILO has amended its constitution several times,115 as has the WHO.116

109. 110. 111. 112. 113.

Zacklin, op. cit. note 52, at 80-92. UPU, Art. 30. See UPU, Vol. 1 of the annotated code (1991), at 47. Zacklin, op. cit. note 52, at 42; G.A. Codding, The Universal Postal Union 110 (1964). GA Res. 1991 (XVIII), later completed by Res. 2101 (XX). On these amendments see E. Schwelb, 59 AJIL 834-856 (1965); P. de Visscher, Les premiers amendements apportés à la Charte de l’Organisation des Nations Unies, 2 RBDI 332 (1966). 114. GA Res. 2847 (XXVI). See E. Schwelb, The 1971 Amendment to Article 61 of the United Nations Charter and the Arrangements accompanying it, 21 ICLQ 497-592 (1972); E. Schwelb, Entry into Force of the Second Amendment to Article 61 of the UN Charter, 68 AJIL 300-305 (1974). On proposals and discussions on further amendment of the Charter, see C.P. Economides, La révision de la Charte des Nations Unies, 30 RHDI 20-41 (1977); C.L. Willson, Changing the Charter: The United Nations Prepares for the Twenty-first Century, 90 AJIL 115-126 (1996). 115. In 1922 (entry into force: 1934); 1945 (2 UNTS, at 18, entry into force: 20 April 1948); 1953 (191 UNTS, at 144, entry into force: 20 May 1954); June 1962 (466 UNTS, at 323, entry into force: 22 May 1963); July 1964 (Trb. 1965, 41); 22 June 1972 (entry into force 1 November 1974). In 1986, important amendments were adopted by the ILO’s general congress, but these amendments have not yet entered into force (as of August 2003, 89 members had ratified, which is about half of total ILO membership, whereas two-thirds is needed; information obtained from the ILO Legal Office). The text of the 1986 amendments is published in ILO Official Bulletin, Vol. LXIX, 1986, Series A, No. 2, at 60. See on the 1986 amendments F. Maupain, La réforme de l’Organisation Internationale du Travail, 23 AFDI 478-497 (1987); V.-Y. Ghebali, The International Labour Organisation 188-203 (1989). In 1997, another amendment was adopted that has not yet entered into force (information obtained from the ILO Legal Office, August 2003). This amendment is less far reaching than the 1986 amendments; it concerns the abrogation of obsolete ILO Conventions.

741

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§1175

§1175. The main disadvantage of this system of amendment is that states can be bound against their will. This drawback will particularly affect states which usually belong to a minority within the organization and which may therefore expect to be overruled regularly. The amendment procedure may even dissuade such states from joining the organization. This disadvantage can be moderated by allowing opponents to withdraw from the organization when an amendment enters into force, even if prior notice would normally be required (see above, §122). It is also moderated by recognizing that there are limits to constitutional amendments against the will of a minority. Such limits prohibit the use of such amendments to completely change the object and purpose of the constitution.117 Another disadvantage of the system is that even obtaining ratification by two-thirds of the members often takes some considerable time. The first amendment to the ILO Constitution took 12 years (before 1945, three quarters as opposed to two-thirds of the members had to ratify, and these had to include all members of the Council of the League of Nations; on the other hand, at that time there were fewer members). The 1965, 1978 and 1998 amendments to the WHO Constitution have not yet entered into force.118 The important 1986 amendments to the ILO constitution still lack a substantial number of ratifications required before their entry into force (89 ratifications obtained as of August 2003; it is no longer expected that these amendments will enter into force).119 The amendments to the UN Charter entered into force within two years of their adoption. The amendment of 17 December 1963 obtained the required number of ratifications by 31 August 1965; the amendment adopted in December 1971 entered into force on 24 September 1973.

116. The WHO amendments of 1959 (entered into force on 25 October 1960), 1967 (entered into force on 21 May 1975), 1973 (entered into force on 3 February 1977), 1976 (entered into force on 20 January 1984), and 1986 (entered into force on 11 July 1994). Further amendments, adopted in 1965, 1978 and 1998 have not yet entered into force. See P.J.G. Kapteyn et al. (eds.), International Organization and Integration (Suppl. to 2nd compl. rev. ed., 1995), at I.B.1.5; WHO, Basic Documents (updated regularly); additional information obtained from the WHO Legal Office (August 2003). 117. On this issue see Frowein, op. cit. note 69. Frowein analyzes amendment clauses, state practice and doctrine, and draws the conclusion that “amendment procedures must respect limits and cannot be used to force the minority of member states into a position which they could never have expected when joining the international organization. Fundamental changes as to structure and functions of international organizations cannot be effected by use of the normal amendment procedure against a minority of parties to the treaty establishing the organization” (at 217-218). 118. International Organization and Integration, op. cit. note 116, at I.B.1.5.; information obtained from the WHO Legal Office (August 2003). 119. Information obtained from the ILO Legal Office (August 2003).

§1176

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Never in the long history of UPU have all members been legally bound by the same text of the constitution.120

§1176. Procedural questions may arise as to the date on which a two-thirds majority should be calculated. Two-thirds of the members at the date of adoption of the amendment may differ from two-thirds of the members at the date when the amendment is to enter into force. During the ratification process, new members may have been admitted, and old ones withdrawn. It seems reasonable to count only those members which were members at the date of adoption of the amendment and remain members at the date the amendment is to enter into force. There is no reason to include withdrawing members, as they will not be bound by the amendment; nor is it necessary to count new members, as they will have known of the possible amendments when joining the organization. Their acceptance of the constitution can be regarded as including amendments adopted and awaiting ratification.121 In the ICAO, where the amendments, in principle, enter into force only for those members which have ratified them (see below, §1187-1188), this problem has been solved by stating in each constitutional amendment how many ratifications will be needed for its entry into force, and by calculating two-thirds by reference to the membership date on which the amendment is adopted. §1177. The procedure according to which amendments accepted by a qualified majority of the members enter into force for all members is also used, with some variations, by some commodity councils. Whilst, in most organizations belonging to this “qualified majority” category, the amendments are binding also on members which have not ratified, unless these members withdraw from the organization, in a number of commodity councils, the non-ratifying members cease to be members the organization, unless they approve the amendments within a specific period of time.122 (v) Amendment by decision §1178. In some organizations, the general congresses can amend the constitution without subsequent ratification by all or some members being required. Such “amendment by decision” is considerably easier than amendment via a ratification procedure, even if the decision has to be taken unanimously.

120. Z. Caha, Decisions of the Universal Postal Union, in S.M. Schwebel (ed.), The Effectiveness of International Decisions, Papers of a Conference of the American Society of International Law and the Proceedings of the Conference 290-303 (1971). 121. Different: E. Schwelb, The amending procedure of constitutions of international organizations, 31 BYIL (1954), at 90. 122. See the International Sugar Agreement (1992), Art. 44.2; International Tropical Timber Agreement (1994), Art. 42.5; Grains Trade Convention (1995), Art. 32.2; International Cocoa Agreement (2001), Art. 64.2; International Coffee Agreement (2001), Art. 53.2.

743

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§1179

Where the amendment is clearly necessary, unanimity can usually be found in the course of the session (see also above, §892-896). Examples of constitutions which can be amended by unanimous decision of the general congress are the constitutions of the International Energy Agency123 and the West Africa Rice Development Association.124 This is also the case, for amendment of only some provisions of the constitution, in some financial agencies125 and in the European Free Trade Association.126 The constitution of the Southern African Development Community can be amended by a decision of three-quarters of the members of the general congress.127

§1179. Several organizations allow their general congresses to amend the constitution by a two-thirds majority vote when the amendments do not impose new obligations on the members (see below, §1193).128 In some organizations, further conditions must be satisfied before decisions amending the constitution can be adopted. Thus, in the Council of Europe, the approval of the Parliamentary Assembly is required in addition to the qualified majority of the Committee of Ministers.129 In the European Coal and Steel Community (that seized to exist in 2002), certain specific amendments could be proposed jointly by the European Commission and the Council, acting by a twelve fifteenths majority (the so-called small revision).130 The Court had to decide whether the conditions governing this amendment procedure were fulfilled. If so, the amendments entered into force if they were approved by the European Parliament, acting by a majority of three quarters of the votes cast and two-thirds of its total membership; ratification by the member states was not required (as opposed to the “normal” amendment procedure of Article 96).131 The general congress (Board of Governors) of the International Finance Corporation may amend all constitutional provisions by decision, which must usually be adopted by three-fifths of the members exercising four-fifths of the voting power; in some cases unanimity is required.132

123. IEA, Art. 73. 124. West African Rice Development Association, established 4 September 1970, see 10 ILM 665 (1971). 125. IMF, Art. VII (a); Inter American Development Bank, Art. 12 (a); Asian Development Bank, Art. 59(1); Caribbean Development Bank, Art. 58(1). 126. EFTA Arts. 3(5); 4(5); 5(7); 13(3). 127. SADC, Art. 36.1. 128. FAO, Art. 20 (for the application of the Article, see Zacklin, op. cit. note 52, at 150-152); WMO, Art. 28(c) (in conjunction with para. (b) it becomes clear that “approval” in para. (c) includes a positive vote in the General Conference). For examples under the WMO constitution see Trb. 1975 No. 129. See also the Agreement establishing the World Trade Organization, Art. X. 129. CoE, Art. 41(d). 130. See Kapteyn and VerLoren van Themaat, op. cit. note 13, at 95-96. 131. ECSC, Art. 95, paras. 3, 4. 132. IFC, Art. 7. See thereon Gold, op. cit. note 67, at 55-57.

§1180

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The annexes to the Convention establishing the ICAO can be amended by decision of the board of ICAO. Since those annexes do not contain constitutional rules, these will be discussed with conventions (see below, §1264).

§1180. Several international institutions which have been created by resolution of the General Assembly of the UN are formally organs of the UN, and lack their own constitution. In practice, however, they operate as autonomous organizations whose basic rules may be amended by a resolution of the General Assembly of the UN (see below, §1695). §1181. The advantage of this amendment procedure is that it is very expeditious which has encouraged some international organizations to utilize it, despite the absence of an appropriate constitutional provision. In 1964, the UPU general congress decided that several provisions of the newly drafted acts would enter into force immediately.133 Thus, the board was enlarged forthwith (an operation which took a long time in the UN and the ILO). At its eighth and ninth sessions (1951), the Committee of Ministers of the Council of Europe adopted a number of resolutions with a view to their ultimate inclusion in a revised constitution. These resolutions contain only minor amendments and were applied immediately.134 Originally, every American state could adhere to the OAS by ratifying the OAS Charter. When, in 1964, a majority of the OAS members wanted the organization to take a decision on the admittance of further members, they avoided the difficult and time-consuming procedure of constitutional amendment by adopting a resolution concerning the method by which the Secretary-General of the OAS should receive ratifications from prospective members. One of the new requirements was for the Secretary-General to request the approval of the OAS Council by a two-thirds majority. Thus, the organization achieved its aim without amending the constitution. Nevertheless, the legality of the resolution may be doubted.135 When the OAS constitution was amended in 1967, the resolution was incorporated in the OAS Charter.136

§1182. An amendment effected by decision – even where the constitution is silent – may be considered valid, if no other procedure is constitutionally required, the delegates to the general congress possess the necessary full powers, and the decision is taken unanimously. According to the law of treaties, delegates to a conference do not necessarily sign texts subject to ratification, but can bind their states immediately.137 There is no reason why this rule should not be applicable to the amendment of constitutions. Where

133. 15th UPU Congress, Res. C2, providing for the immediate application of Art. 20 of the new constitution; Res. C22 and the final protocol to the General Rules providing for the immediate enlargement of the Council (Trb. 1965, No. 170); UNJY 1964, at 184-185. 134. The resolutions are annexed to the constitution in the texts published by the CoE. 135. G. Kutzner, Die Organisation der Amerikanischen Staaten (OAS) 161-167 (1970). 136. OAS, Art. 7. 137. Vienna Convention on the Law of Treaties (1969), Art. 12.

745

Legal order

§1183

members are unaware of the proposed amendments before the opening of the session, it may be doubted whether the full powers of the delegations would be sufficient. The immediate entry into force of amendments which – even if valid – have not been studied in the capitals of the member states would be an unwise policy. If the rule that authorized delegations may adopt amendments without the requirement of ratification, is to be properly applied, absent members should also be consulted. Their opinion was not however sought in the case of the UPU. §1183. The advantage of this amendment procedure lies in its speed. It is particularly attractive for procedural amendments, such as modifications to the schedule for meetings, the enlargement of existing organs or the creation of new ones. On the other hand, such may be the pressure exerted on the delegations that they may be less critical of amendments submitted for their approval than their national governments or parliaments would wish them to be. This disadvantage can be overcome by requiring that all proposals for constitutional amendment be introduced several months before the opening of the meeting at which they are to be discussed (see above, §747). Where the amendment is adopted by majority vote, and where absent members are not consulted, a further disadvantage of this procedure is the possibility that states may be bound against their will. However, this drawback is no greater than in the case of amendments approved by majorities. §1184. A decision of the organization is also required for variation. Variation resembles amendment in a number of respects, but is different since the constitution remains unchanged (see above, §1162). §1185. Amendment by interpretation is a special form of amendment by decision. In practice, when constitutional provisions are applied, they must also be interpreted by the organ in question. Where such decisions on interpretation merely clarify the existing provisions (interpretation sub lege), they cannot be regarded as amendments. But where the original meaning of the constitution is altered (interpretation contra legem), they do amount to a form of amendment (see above, §1155).138 §1186. Some international organizations supplement their constitutions by decision, which in practice may come very close to amendments. The Latin American Free Trade Association (LAFTA, the predecessor of the Latin Ameri-

138. See Zacklin, op. cit. note 52, at 173-174; Amerasinghe, op. cit note 15, at 417-418; Sands and Klein, op. cit. note 15, at 445-451.

§1187

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can Integration Association) adopted many decisions which supplemented its constitution.139 (vi) Amendments without general application §1187. In some international organizations, the constitution may be amended by a majority of the members, but the amendments bind only those members which accept them, with the other members remaining bound by the original text. In the ICAO, all amendments enter into force as soon as they have been ratified by two-thirds of the members, unless the general congress requires a larger number. The effect of these amendments will however be limited to the members which have ratified them.140 The same rule applies in the OAS,141 and to those amendments of the constitutions of the FAO142 and of the WMO143 which impose new obligations on the members (see below, §1193). In the case of the ICC Statute, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by nationals of a state party which has not accepted the amendment or when committed on its territory.144 The IMO follows the same principle, in a different form. IMO amendments enter into force twelve months after their acceptance by two-thirds of the members. The amendments bind all members, with the exception of those which expressly declare their disapproval.145 After the entry into force of an amendment, these states have to withdraw from the organization. The effect of this procedure can be the same as in the cases of ICAO, FAO and WMO, but the requirement of an express statement will reduce the number of dissenters (see below, §1288-1294, negative ratification procedure).

§1188. The rule that amendments bind only those members which expressly accept them derives from the traditional rule for amendment of multilateral treaties. This rule is however unsuitable for constitutions since it would lead to members being subject to different provisions which, particularly in respect of institutional articles, would be unacceptable. The ICAO constitution makes provision for this eventuality, providing that in its resolution recommending adoption of the amendment, the general congress may provide that member states which do not concur in the adoption of the amendment, will cease to be members of the organization.146 Leaving the choice to the general congress may offer a solution for an organization like the ICAO, the constitution of

139. F. Orrego Vicuña, Contemporary international law in the economic integration of Latin America, in: Legal Aspects of Economic Integration, Summary of the Colloquium held in 1971 by the Hague Academy of International Law 101-186 (1972), at 127. 140. ICAO, Art. 94a. 141. OAS, Arts. 140, 142. 142. FAO, Art. 20, para. 2. 143. WMO, Art. 28(b). 144. ICC, Art. 121.5. 145. IMO, Art. 66. 146. ICAO, Art. 94(b).

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§1188

which contains many non-constitutional articles. As a constitutional rule however, the precedent of a number of commodity councils (which provides that all members are bound by the amendment unless they withdraw from the organization) may offer a preferable solution (see above, §1177). FAO and WMO have never required subsequent ratification of amendments, since other methods of constitutional amendment were available (see above, §1179). The general congress of the ICAO adopted amendments which needed ratification in 1947, 1954, 1961, 1962, 1971, 1974, 1977, 1980, 1984, 1989 and 1998. As with all amendments which need ratification (see above, §1030), these amendments could enter into force only after long delays. Formally, they could bind only those members which had ratified. The 1947 amendment (Article 93 bis on expulsion) came into force on 20 March 1961 but has never been applied. Nor has one of the 1954 amendments (that came into force 15 May 1958), which enables the general congress to move the seat of the organization from Montreal (Article 45). The other 1954 amendments entered into force on 12 December 1956. They modified the schedule of Assembly sessions, from once a year to once every three years, and consequently permitted the Assembly to adopt more than one annual budget at a time.147 The 1961 amendment (that came into force on 17 July 1962) enlarged the ICAO Council (the board) from 21 to 27 members.148 At the 14th session of the general congress of ICAO, it was decided that states which had not yet ratified the amendment could both stand and vote for election to the augmented Council.149 One of the 1971 amendments that entered into force on 16 January 1973 increased the Council’s membership to 30,150 while the remaining 1971 amendment enlarged the Air Navigation Commission from 12 to 15151 and entered into force on 19 December 1974.152 The texts of both amendments provided that they enter into force on the date on which the eightieth instrument of ratification is deposited with the organization, and that they would have legal effect only with respect to those states which had ratified. Having regard to the subject matter concerned, the latter provision seems senseless. Although none of the amendments which entered into force were ratified by all members of the organization, they have nevertheless been applied since their entry into force. The general congress of ICAO failed to use its power to provide that members which do not adopt amendments lose their membership. Yemin therefore deduces that the institutional necessity for the uniform application of structural rules is so strong that a general practice develops which makes structural amendments generally binding on their entry into force, even for non-ratifying members.153

147. ICAO, Arts. 48(a), 49(e) and 61; 320 UNTS, at 210, 218. 148. ICAO, Art. 50(a). 149. G. FitzGerald, The International Civil Aviation Organization – A Case Study in the Implementation of Decisions of a Functional International Organization, in Schwebel, op. cit. note 120, at 201. 150. ICAO Res. A 17 A-1 of 11 March 1971; New York Protocol of 12 March 1971, ICAO Doc. 8970. 151. Vienna Protocol of 7 July 1971, ICAO Doc. 8971. 152. Trb. 1975, No. 38. 153. Yemin, op. cit. note 46, at 47.

§1189

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The 1962 amendment entered into force on 11 September 1975. Since that date, the support of one-fifth of the total membership is required to convene an extraordinary session of the general congress, replacing the requirement for the support of ten members. In theory, 10 members, not parties to the 1962 amendment, could still convene an extra session of the general congress. The ICAO amendment of 6 October 1974, enlarging the ICAO Council to 33, entered into force on 15 February 1980 for the members which had ratified, but in practice for all members. In September 1977 an amendment was adopted in order to make the Russian text of the ICAO constitution an authentic one. This amendment entered into force on 17 August 1999. Further amendments were adopted on 6 October 1980 (concerning lease, charter and interchange of aircraft) and on 10 May 1984 (concerning the non-use of weapons against civil aircraft); these amendments entered into force on 20 June 1997 and 1 October 1998 respectively. More amendments were adopted in 1989 (increase of the Air Navigation Commission to 19 members) and 1990 (increase of the Council to 36 members); these amendments have not yet entered into force.154

3.

Amendment procedure155

a.

Competent organ

§1189. As a general rule of treaty law, all parties to a multilateral treaty have the right to take part in the negotiations for amending that treaty.156 It could therefore be argued that with respect to constitutions established by multilateral treaties, any amendments made by non-plenary organs are illegal. In practice, however, the power of amendment is always attributed to the general congress. b.

Right of initiative

§1190. Not all constitutions indicate who may submit proposals for their amendment, but where provision is made, this power is generally granted to the members of the organization. Even when no provision is made, members of international organizations may still propose amendments; a competence which can be derived from general principles of international law,157 or from the general power of members to submit proposals to the organization. The further question does however arise as to whether the organs of the organization may submit proposals for constitutional amendment. Some constitutions do expressly grant such a power to the board.158

154. International Organization and Integration, op. cit. note 116, at I.B.1.6; ICAO Doc. 9770 – Suppl. (July 2001), at 14-15. 155. For a more detailed description of the amendment procedure in the specialized agencies, see Phillips, op. cit. note 56, at 662-676. 156. Vienna Convention on the Law of Treaties (1969), Art. 40. 157. Yemin, op. cit. note 46, at 33. 158. FAO, Art. 20(3); World Bank, Art. VIII(a); IDA, Art. 9(a); IMF, Art. XVII(a); IFC, Art. 7(c).

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The Assembly (general congress) of the ICAO has accepted that any body of the organization, including its Council (board) and the Secretariat, may propose amendments.159 In the EBRD, proposals for amendments may be made by the member states, a Governor or the Board of Directors.160 In the ILO and the UNESCO, initiatives for constitutional amendments have actually been taken by organs of these organizations.161 Only in the WMO was the power of the board to initiate proposals for amending the constitution expressly denied.162 For all other organizations, Yemin derives the competence of boards to propose amendments from three sources: (1) delegation of power from the organ competent to adopt amendments, (2) powers implied in the provisions governing the responsibilities of the boards, (3) accumulation of practice.163

c.

Time limits

§1191. Many international organizations require that proposals for amendment to the constitution be distributed among the members long before they are considered by the general congress of the organization.164 The members are thus protected against hasty amendments made in the heat of debate on particular perhaps emotive issues and allowed adequate time for reflection and consultation with other members and all interested parties at home. d. Provisional application §1192. Where a high number of ratifications is required, this usually entails a not inconsiderable delay between the adoption of the amendments and its subsequent entry into force. International organizations may sometimes be unable or unwilling to await the official entry into force of an amendment, choosing instead to apply it provisionally from a specified date. This is the rule for all amendments of the UPU (see above, §1173). By nominating 27 extra members to the sessional committees of the UN Economic and Social Council as from 1 January 1972, the Council provisionally applied most of the 1971 amendment to the UN Charter to double ECOSOC’s membership.165 Another example is the decision of the Inmarsat general congress of 15 April 1999 to apply provisionally amendments to the Inmarsat Convention and Operating Agreement.166

159. 160. 161. 162. 163. 164.

ICAO Assembly, 4th Session (1950), Res. A4-3. EBRD, Art. 56.1. Yemin, op. cit. note 46, at 33-34. WMO, Third Congress, Cg III/doc. 11. Yemin, op. cit. note 46, at 34. See e.g. AU, Art. 32 and SADC, Art. 36; for the specialized agencies, see Phillips, op. cit. note 56, at 665-666. 165. YUN 1972, at 860. See E. Schwelb, The 1971 amendment to Article 61 of the United Nations Charter and the arrangements accompanying it, 21 ICLQ (1972), at 521-529. 166. See D. Sagar, Provisional Application in an International Organization, 27 JSL 99-116 (1999).

§1193

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In the case of Inmarsat, the purpose of the amendments was to restructure and substantially privatize the organization. It was essential for the amendments to be “implemented promptly, so as to enable external finance to be raised for a new range of services and a fourth generation of satellites procured to ensure Inmarsat’s future financial viability”.167 The amendments “enabled the assets and business of Inmarsat to be transferred to private law companies incorporated under English law, while retaining [Inmarsat] to oversee certain public service obligations of the [companies]”.168 Legal questions involved were, inter alia, the question whether the general congress had the power, in the absence of an explicit constitutional provision to that effect, to decide that the amendments would be applied provisionally, the question whether the decision would require consensus and questions concerning the position of dissenting member states. It was concluded that the general congress had such a power. The decision was taken by consensus and the issue of the position of dissenting member states did not arise.169

e.

Amendments creating new obligations

§1193. It has already been noted that some organizations employ a separate procedure for amendments imposing new obligations on members (see above, §1179, §1187).170 The question which then arises is how such amendments are to be identified, given that all amendments involve imposing new obligations on members to a greater or lesser extent (for example by their financial consequences).171 The Council of Europe avoids all such distinctions by enumerating the articles which may be amended by the simpler procedure.172 To date, the FAO general congress has never considered that constitutional amendments involve imposing new obligations on members.173 These amendments related to, inter alia, the following subjects: members would lose their right to vote if they were two years in arrears in the payment of their financial contributions,174 the introduction of an associate membership175 and the enlargement of the FAO Council.176

167. 168. 169. 170. 171.

172. 173. 174. 175. 176.

Id, at 101. Id., at 99. Id., at 102, 115-116. UNESCO, Art. 13; FAO, Art. 20; WMO, Art. 28; World Trade Organization, Art. X.4. See on this question Zacklin, op. cit. note 52, at 148-155. According to Roessler, “what was meant was that amendments which do not change the policy obligations of members towards each other, such as amendments relating to the institutional structure or the procedures of the WTO, could be made applicable to all” (F. Roessler, The Agreement establishing the World Trade Organization, in J.H.J. Bourgeois, F. Berrod and E. Gippini Fournier (eds.), The Uruguay Round Results – A European Lawyers’ Perspective 67-85 (1994), at 75). CoE, Art. 41(d). See also Gold, op. cit. note 67, at 60. Information obtained from the FAO Secretariat. Second Session FAO Conference. FAO Res. 30/55. E.g. FAO Res. 42/53.

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There has been considerable discussion in the WMO as to which amendments involve new obligations and as to which body should take the final decision in case of dispute. In a legal opinion to the WMO, the UN Secretariat considered that the general congress must take the decision. In the absence of specific criteria, the members, in their individual capacities, should choose the criteria and advance them in the proceedings of the organization. The general congress should, if required, take a separate decision on the validity of those criteria.177

f.

Entry into force of amendments

§1194. Constitutions of international organizations generally do not mention explicit time limits for the ratification or acceptance of a proposed amendment. Yee has examined whether there are other ways through which such time limits may be introduced.178 He concluded that there is no support for the argument for an implied time limit, that it is difficult to argue that the organ proposing the amendment has an implied power to set a time limit, and that there is no support for a power for such organ to withdraw a proposed amendment, Furthermore, Yee draws the conclusion that the doctrines of rebus sic stantibus or desuetude do not normally apply to the situation where there merely is a passage of a long period of time since the adoption of a proposed amendment. Finally, according to Yee, there is no prefixed ‘reasonable time’ for the ratification of a proposed amendment. It appears therefore from this analysis that modalities to promote an early entry into force of proposed amendments have to be laid down explicitly in the constitution. Apart from the periods for entry into force provided for in the constitution, amendments for the enlargement of organs normally only become effective at a later date. The amendment can only be applied at the first session of the organ which must elect the new members of the enlarged organ after the entry into force of the amendment. It is accepted that the organ is entitled to meet in its old composition (which is no longer in conformity with the constitution) until such elections have taken place.179 4.

Revision

§1195. Constitutions are sometimes replaced. In such a situation, it may be submitted that the organization has been dissolved and a new one established, as happened, for example, when the Organization for European Economic

177. Legal Opinion of the Secretariat of the UN on the Procedures for amending the Convention of the World Meteorological Organization, (then Article 27 of the Convention), UNJY 1967, at 338-371. On this question see also C.H. Alexandrowicz, The Law-Making Functions of the Specialized Agencies of the United Nations (1973), at 8-9. 178. S. Yee, The Time Limit for the Ratification of Proposed Amendments to the Constitutions of International Organizations, 4 Max Planck UNYB (2000), at 185-213. 179. Note of the UN Office of Legal Affairs of 28 Sept. 1973, UNJY 1973, at 149-151.

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Cooperation was replaced by the Organization for Economic Cooperation and Development (see below, §1626-1633). Some form of revision of an international organization can, in effect, be obtained by any group of members. They can establish a new organization in revised form among themselves, and withdraw from the original one (see below, §1632-1636). In some cases, however, the element of continuity is such that even replacement of the entire constitution does not dissolve the organization. Until 1964, the UPU used to revise its constitution after each session of its general congress;180 the ITU did the same until 1992. In 1992 – following one unsuccessful attempt, the 1989 Nice Convention, which never entered into force181 – a constitution was adopted, complemented by a convention. This constitution has been applied provisionally since 1 March 1993 and entered into force 1 July 1994 (a pre-determined date in the Constitution, Article 58.1). However, during subsequent meetings the general congress (Kyoto 1994, Minneapolis 1998, Marrakesh 2002) fell back into the old habit when it adopted amendments to both the constitution and the convention. This is partly explained by the fact that there is too much overlap and too little distinction between these two instruments that, e.g., both contain provisions on the composition and powers of the main organs. For many years, the ITU did not have a constitution like most international organizations. Instead, its entire constituent document was revised regularly (Buenos Aires 1952, Geneva 1959, Montreux 1965, Malaga-Torremolinos 1973, and Nairobi 1982). These conventions provided that on a specific date they would enter into force between member states which had ratified. In practice, these conventions were applied between all members from this date. From a legal point of view, the curious situation existed that members were parties on the basis of different constituent instruments, e.g. some were bound by the Nairobi Convention, some by the Malaga-Torremolinos Convention, and others even by the Montreux Convention. In practice this seemed to have worked satisfactorily. Nevertheless, the need was felt to change the situation., although practice has learned how difficult it really is to bring about changes in this respect.

III. Decisions of the organization A.

Internal rules

§1196. The constitution can only regulate the functioning of an international organization in general terms, with the result that more detailed provisions must be made by the organization itself. The power of international organiza-

180. Zacklin, op. cit. note 52, at 40-42. 181. Different from ITU practice, the Nice Convention provided that it would enter into force not on a predetermined date, but following the 55th ratification (Art. 47.1 (no. 215)).

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tions to make rules for their own legal order is generally recognized,182 and flows from the existence of the organization. Every organization requires internal rules, and these rules can be derived from no other legal order. Unlike private international organizations, public international organizations are not subject to any national law. Thus, they must create their own internal law. The resulting law is an exclusive part of a separate legal order, which is dependent on the organization’s own constitution, but independent of any other legal order.183 The conclusion of Balladore Pallieri, that there exists no separate internal law of an international organization, is a result of his narrow definition of internal law as an independent system of law. In his submission, the internal law of international organizations is either not law, or not independent of international law.184

§1197. In practice, however, the legal basis of internal rules is not of any great importance. As long as they are not disputed, even illegal decisions are as effective as any other. Conforti mentions a number of UN decisions taken contrary to specific Charter provisions, but executed despite this as they were not challenged (the division of Security Council seats, package deals on membership, the readmittance of Indonesia and Syria as members).185 §1198. Only a few constitutions expressly provide for the power to adopt internal rules other than rules of procedure.186 The provisions which have been made seem rather to have been inspired by a desire to identify the organs empowered to exercise this competence than by the necessity that the power as such be established. Those constitutions that mention internal rules do not utilize uniform terminology. Benelux speaks of “directives”,187 a notion which has acquired a different meaning in the European Union (see below, §1326), while the OECD terms its internal decisions “resolutions”.188

182. K. Skubiszewski, A new Source of the Law of Nations; Resolutions of International Organizations, in: Recueil d’études de droit international en hommage à Paul Guggenheim (1968), at 510; J. Castañeda, Legal Effects of United Nations Resolutions 22 (1969); for further literature, see Yemin, op. cit. note 46, at 15, note 38. See in general about the internal legal order of international organizations P. Cahier, op. cit. note 7. More specifically about the internal legal order of the UN, L. Focsaneanu, Le Droit Interne de l’Organisation des Nations Unies, 3 AFDI 315-349 (1957). 183. F. Seyersted, United Nations Forces 114 (1966); id., Objective International Personality of Intergovernmental Organizations, 34 NorTIR 78-79 (1964); id., Jurisdiction over Organs and Officials of States, the Holy See, and Intergovernmental Organizations, 14 ICLQ 59 (1965). 184. G. Balladore Pallieri, Le droit interne des organisations internationales, 127 RdC (1969 II), at 1-38. 185. B. Conforti, Le rôle de l’accord dans le système des Nations Unies, 142 RdC (1974 II), at 250-253. 186. CoE, Art. 16; Benelux, Art. 19(d). 187. Benelux, Art. 19. 188. OECD, Rules of Procedure, Rule 18.

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§1199. The number of internal rules is considerable. Indeed, in the UN, almost four-fifths of the resolutions adopted up to 1970 may be classified as internal.189 §1200. Internal rules are basically limited to regulating the functioning of the organization. According to the Administrative Tribunal of the ILO, there is a principle that no organization is bound to adhere to the purposes and policies which it has adopted at any particular time.190 Consequently an international organization is entitled to amend its internal rules without third parties being permitted to assert vested rights. Civil servants hired for the performance of a particular task have no claim against the organization if that task is abandoned before completion. Nevertheless, the effect of internal rules may extend beyond the organization itself. International organizations may grant rights to others by their internal rules. For that reason, the borderline between internal and external rules is unclear, a borderline which is blurred further by the fact that the same states are simultaneously legislating members and governed subjects of the organizations to which they belong. Since most organizations have no power to make binding external rules, the external effects of binding internal rules deserve particular attention. 1.

Rules concerning the functioning of the organization

§1201. At least eight different fields can be identified in which international organizations may regulate their own functioning.191 (1) The power to make its own rules of procedure is inherent in every organization.192 (2) Within limits (see above, §224-230), organs have the power to create subsidiary organs and to establish their tasks. In 1981, the UN General Assembly requested one of its subsidiary organs, the Committee on Contributions, to submit “a thorough study on alternative methods to assess the real capacity of member states to pay that takes fully into account [...]”.193 It also decided that, pending fulfilment by the Committee on Contributions of these directives, “the following criteria will be observed on the subsequent review of the scale of

189. J. Castañeda, Valeur juridique des résolutions des Nations Unies, 129 RdC (1970 I), at 227. 190. UNJY 1976, at 143. 191. See also K. Skubiszewski, Enactment of Law by International Organizations, 41 BYIL (1965-66), at 226-232; Castañeda, op. cit. note 189, at 228; and J. Kolasa, La notion de droit interne des organisations internationales, 3 PYIL 95-110 (1970), who also gives a survey of the opinions of some other authors. 192. On the legal force of rules of procedure, see P.C. Jessup, International Parliamentary Law, 51 AJIL 396-402 (1957); J. Kolasa, Rules of Procedure of the United Nations General Assembly; A Legal Analysis (1967); B. Conforti, The Legal Effect of Non-compliance with Rules of Procedure in the UN General Assembly and Security Council, 63 AJIL 479-489 (1969). 193. GA Res. 36/231 A, para. 3.

755

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assessments: (a) the statistical base period should be ten years; (b) [...]; (c) efforts should be made [...]; (d) [...]”.194 In 1982, the question was raised within the Committee on Contributions whether the criteria mentioned in the resolution were binding. The UN Legal Counsel was invited to give his advice on the matter. In his opinion, “the Committee, as a subsidiary organ of the General Assembly [...], is bound to carry out its tasks in accordance with any directives addressed to it by the Assembly”. Although the wording of one or two subparagraphs of paragraph 4 of the resolution might appear less imperative and therefore might allow some flexibility in its interpretation, the debate on the draft resolution in the Fifth Committee as well as the drafting of the introductory sentence of paragraph 4 clearly showed the binding character of the criteria listed. After further deliberation, the Committee concluded that the terms of paragraph 4 were binding.195

(3) The choice as to whether states or individuals must be chosen as members of organs of the organization. (4) International organizations have important powers in respect of their membership. They may admit, and often suspend or expel, members. (5) Organizations approve budgets and financial regulations.196 (6) The existence of organs, buildings and staff which fall outside any national jurisdiction requires a “proper law” for the organization, providing rules of private and administrative law for many relations inside the organization.197 (7) Some organizations can change the field of their responsibility. They may reduce the obligations imposed upon their members and thus decrease the field of their own supervision and the scope of any potential sanctions. One example is the World Trade Organization which may waive an obligation imposed on a member.198 After such a waiver has been granted, the waived rule(s) cease(s) to apply to that member.

(8) Some constitutions even permit organizations to exercise powers outside the immediate scope of intergovernmental organs. In such situations, internal rules will be required to regulate such powers. The Constitution of the ICAO empowers it to provide, man, maintain and administer airports.199 Whenever the organization acts under this provision, a great number of internal decisions on the administration of such airports are required. These internal decisions resemble national laws on the same matter. When the UN decided to send peace-keeping troops to, inter alia, the Middle East, Cyprus, Congo, and the Lebanon and Cambodia, it was also obliged to adopt broad

194. Id., para. 4. 195. See the 1982 Report of the Committee on Contributions presented to the General Assembly, UN Doc. A/37/11, at 3 (the legal opinion by the UN Legal Council is reproduced in Annex I to this document). 196. Cf. UNJY 1982, at 182-183. 197. C. Wilfred Jenks, The Proper Law of International Organizations (1962). 198. WTO, Art. IX; GATT, Art. XXV.5. 199. ICAO, Art. 71.

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rules governing these forces that were basically no different from national laws on armed forces. The UN also has the power to administer Trust Territories200 pursuant to which it undertook to administer Namibia (former South West Africa).201 In that case, the General Assembly expressly charged a council to promulgate such laws, decrees and administrative regulations as were necessary for the administration of the Territory.202 By accepting responsibility for Namibia, the UN had extended its legal order over that territory. The rules it made concerning the administration of the territory were UN rules, binding all UN organs. However, as long as the organization had no actual power in Namibia, the rules could not be executed.

§1202. Virtually no provisions have been adopted concerning the form which internal rules have to take. Any decision by a competent organ creates binding internal rules, provided that the intention to do so is sufficiently clear; no requirements as to motivation or as to the procedure to be followed are generally laid down. Agreements between different organs of the same organization should also be considered as internal rules. Some constitutions expressly provide for such agreements; for example, that of the European Community requires the Council and the Commission to settle by common accord their methods of cooperation.203 In other cases, internal agreements have been concluded in the absence of any constitutional requirement. For example, the Council agreed with the European Parliament to consult the latter on all important political decisions. Similarly the Council and the Commission concluded an agreement on foreign missions to the Communities.204 In recent years interinstitutional agreements concluded within the European Union, between the European Parliament, the Commission and/or the Council, have become important instruments for cooperation between these institutions.205 Examples are the Interinstitutional Declaration on Democracy, Transparency and Subsidiarity,206 the Interinstitutional Agreement on Procedures for Implementing the Principle of Subsidiarity,207 the Interinstitutional Agreement on Budgetary Discipline and Improvement of the Budgetary Procedure,208 and the Interinstitutional Agreement concerning Investigations by the European Anti-Fraud Office.209

200. UN Charter, Art. 81. 201. GA Res. 2145 (XXI). 202. GA Res. 2248 (S-V). See especially Namibia Decree No. I and on this decree H.G. Schermers, The Namibia Decree in National Courts, 26 ICLQ 81-96 (1977). 203. EC Art. 218, Art. 15 of the Merger Treaty of 1965. 204. P. Pescatore, L’ordre juridique des Communautés européennes (1971), at 113. 205. See M. Gauweiler, Die rechtliche Qualifikation interorganschaftlicher Absprachen im Europarecht (1988); J. Monar, Interinstitutional agreements: the phenomenon and its new dynamics after Maastricht, 31 CMLRev. 693-719 (1994). 206. OJ 1993, C 329/133. 207. OJ 1993, C 329/135. 208. OJ 1993, C 351/1. 209. OJ 1999, L 136/15.

757

Legal order

§1203

§1203. Duly adopted internal rules will bind all lower organs,210 and may indeed bind the organization itself.211 The internal programmes in which the Council of the European Union binds itself to accomplish a certain project within a given period of time212 should be considered as binding internal law.213 The effect of such provisions may in the absence of sanctions be weak, and the Council can, at any moment, extend the prescribed period by amending its previous decisions. However, unless and until the time-limit is altered, it will be binding.

§1204. Do internal rules also bind the supreme organ which has made them? This is possible. The International Court of Justice rejected the argument that the General Assembly is inherently incompetent to create an organ endowed with the power to adopt decisions which bind the General Assembly.214 It considered that a tribunal created by the General Assembly could take decisions by which the General Assembly would be bound. Do internal rules bind the member states? Members play a dual role in international organizations. On the one hand, they are elements of the organization; on the other, they are its counterparts (see above, §66). If they act merely in the former capacity, they will be bound by internal rules to the same extent as all other elements of the organization. Even when an international organization is not empowered to take decisions binding on its members in their capacity as counterparts, it will have a right to subject its members to internal rules when they operate as structural elements of the organization. Thus, member states will be bound by the decisions assessing financial contributions. This obligation is usually based on a constitutional provision by which the members undertake to pay their share of the budget. Sometimes this share is fixed, in the constitution or by mutual agreement with the member concerned (see above, §984), but usually it is established in a decision of the general congress of the organization. §1205. Rules of procedure are important internal rules of international organizations. Do they bind the members? Rules of procedure are usually adopted by majority vote, but this does not mean, however, that they may be set aside by the same majority. If that were the case, rules would have no effect other than to guide chairmen in proposing procedural solutions to problems which

210. E.g. UNJY 1982, at 182-183. 211. See A. Basak, Decisions of the United Nations Organs in the Judgments and Opinions of the International Court of Justice 209 (1969). ECOWAS (Art. 5), provides expressly that decisions of the general congress shall be binding on all institutions of the Community. 212. On these programmes, see H.H. Maas, De Algemene Programma’s en de uitvoering daarvan, in 4 Europese Monografieën 28 (1965); W. van Gerven, The Right of Establishing and Free Supply of Services within the Common Market, 3 CMLRev. (1965-66), at 344 ff. 213. See A. Parry and S. Hardy, EEC Law 241 (1973). 214. ICJ Rep. 1954, at 61 (Advisory Opinion of 13 July 1954, on the effect of awards of compensation made by the United Nations Administrative Tribunal).

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arise. Organs would then be completely free to handle each situation in an ad hoc manner. The constitutional requirement that there must be rules of procedure215 implies that these rules must be followed, as long as they have not expressly been amended. This requirement lends rules of procedure a special status.216 Many organs, including the UN General Assembly, support the prohibition of implicit amendment of the rules by requiring that special procedural rules, such as preparation by a special commission, be complied with before these rules can be amended.217 For the protection of minorities and individual members, careful observance of the rules of procedure is essential. If they could easily be overruled, it would create uncertainty and a reluctance to have matters discussed. Reliance upon general principles of law, such as objectivity and bona fides, which also apply to international organizations, provides insufficient guarantee in this respect.218 A good example of the principle that rules of procedure may not be changed at random can be found in the rules of the IFAD. In that organization, subsidiary organs may waive rules pertaining to them only by unanimity. The general congress and the board may suspend their rules of procedure, but, unless there is unanimity, the proposal for suspension must be notified 24 hours in advance.219 An example of a court considering an organ bound by the legitimate expectation created by its prior decision can be found in Case 81/72, Commission v. Council, decided by the Court of Justice of the European Communities in 1973.220

2.

Internal rules with external effect

a.

Possibility of external effect

§1206. Internal rules may have important external effects. The rule assessing a member for a particular percentage of the expenditure of the organization, for example, may be an internal rule affecting the member only as component of the organization; but its consequences will be felt in the budgeting for other operations involving that member. Apart from the assessment of contributions, international organizations adopt several other internal rules with external effects. An internal rule providing that the benefits of the organization will only be granted in a certain way, or under particular conditions, not only influences the organization itself, but also affects those who enjoy the benefits. Many technical organizations actually bind their members by internal rules prescribing

215. See e.g. Charter of the UN, Arts. 21 (General Assembly), 30 (Security Council), 72 (ECOSOC), 90 (Trusteeship Council). 216. B. Conforti, op. cit. note 185, at 216. Also F. Morgenstern, Legality in International Organizations, 48 BYIL (1976-77), at 251-253. 217. GA Rule 163. 218. Conforti does so, op. cit. note 185, at 218. 219. IFAD Governing Council, Rule 45; Executive Board, Rule 28. 220. Case 81/72, First Remunerations Adjustment Case, ECR 1973, at 586.

759

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a particular nomenclature. Although legally free to adopt other nomenclatures, the members may be under strong pressure to comply with the rules of the organization, in particular where the organization publishes a large amount of valuable data. In 1953, the General Assembly of the UN established a list of factors which it considered should be taken into account in deciding whether the people of a particular territory have attained full self-government.221 This decision was an internal rule defining the Assembly’s future policy. Nevertheless, the decision directly affected those members which reported under Article 73(e) of the UN Charter and wished to terminate their reporting because they considered that the territory concerned was sufficiently autonomous.

§1207. As long as an international organization only performs administrative functions, it can be regarded as entirely dependent on its members. The organization may only propose measures, it cannot enact and execute them. If, on the other hand, an international organization is able to act independently, it can exert pressure on its members by withholding actions or by threatening to do so. Members will follow the rules adopted by international organizations as conditions for rendering economic assistance, even if these are not incorporated in a special agreement (as in the case of the UN Development Programme). The alternative – not receiving the assistance – is so damaging to these states that they are in practice compelled to abide by such rules. Whenever an international organization can provide services, it has a real power to oblige states to comply with its rules. b.

Operational activities

§1208. The most important internal rules with external effect are those which an organization adopts for its own operational activities (see also above, §938940). The borderline between administrative and operational activities is however not clearly delimited. An illustration may be found in the operation of the secretariat. Staff members serving a meeting of the organization obviously perform an administrative function. Such staff members may be assisted by trainees from member states, who work temporarily for the organization, partly to fulfil a task and partly to learn. Indeed, many international organizations receive and finance trainees from their member states and some even send staff members to the capitals of member states to raise awareness of the work performed by the organization or the field in which it operates. Others employ a special staff to render assistance to members. Such “educational” functions must be classified as operational. The budget of an international organization is intended to cover the administrative costs of the functioning of the organization itself. All expenditure

221. GA Res. 742 (VIII).

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for performing activities not directly related to the functioning of the organization is operational. Here too, delimitations are difficult.222 Purely administrative activities, such as the creation of a special unit on apartheid within the UN Secretariat223 usually have some operational effect, which is, indeed, often intended. The unit produces reports and studies which should influence both public opinion and the behaviour of governments. The UN has made many internal rules charging newly created or existing organs with operational activities. The organization has no power to compel one or more of its members to supervise truces or to render economic assistance. Thus, from its inception, it has undertaken such activities by itself and charged its members for the costs. In 1949, the UN Truce Supervision Organization in Palestine and the UN Conciliation Commission for Palestine were established and the expenses which they entailed – almost $55.5 million – were charged to the regular UN budget. The same applied to the costs of the UN Military Observer Group in India and Pakistan, the UN Representative for India and the UN Commission for the Unification and Rehabilitation of Korea (in total, approximately $4.5 million), which were charged to the 1950 budget.224 Formerly, through the Expanded Programme of Technical Assistance and the Special Fund, and now, in the UN Development Programme, provision has been made in the annual budget of the UN for funds for technical assistance. In the budget for the financial year 1962, for example, the sum of $6.4 million was included for the technical programmes of economic development, social activities, human rights activities, public administration and narcotic drugs control.225 In following years, similar amounts were budgeted for these activities.226

§1209. The actual effect of internal rules often depends on the organizations themselves. Particularly within the UN family, many development projects are embodied in internal rules and addressed to organs of the organizations. Some of these projects are faithfully executed, but others cannot be implemented, not because organizations are unwilling to perform their tasks, but because they are unable to do so. Too many plans and too frequent changes may make it impossible to complete a project undertaken by an international organization. For the programmes made by international organizations to have their full effect, accurate planning and careful evaluation are of vital importance.227

222. See P. Tavernier, L’année des Nations Unies, questions juridiques, 18 AFDI (1972), at 517-518. 223. GA Res. 2144 (XXI). See also YUN 1973, at 524-527; on the creation of the UN Programme for the Decade for Action to Combat Racism and Racial Discrimination. 224. J.G. Stoessinger, Financing the United Nations System 106 (1964). 225. ICJ Advisory Opinion of 20 July 1962, Certain Expenses, ICJ Rep. 1962, at 160. 226. See, e.g., for the years 1978 and 1979 UN Doc. A/32/6, Vol. II, at 150, 152. 227. On evaluation, see UN Doc. A/34/38, Chapter III.

761

c.

Legal order

§1210

Competence to engage in operational activities

§1210. In the above-mentioned cases, international organizations which have no power to take externally binding decisions perform important functions through binding internal rules. Are they competent to do so without express constitutional authorization, and if so, what are the limits of such competence? The direct external effect of binding internal rules has never been challenged, since such rules are only made with the agreement of the affected states. Economic assistance is not given to states unless they wish to receive it, and truces are not supervised within the territories of states unless they have agreed to such supervision. But operational activities cost money. On the basis of constitutional provisions, other member states are also obliged to pay their shares to the budgets of international organizations (see above, §966-1021), and, therefore, also to fund their operational activities, even if they voted against their initiation. As a rule, no ceiling is set upon the level of expenditure. In many international organizations, the level of the budget is determined by majority vote (usually twothirds), which enables the majority to undertake costly projects partly at the expense of the minority. The question as to what extent this is permitted has not been settled. Conforti, on the one hand, is of the opinion that recommendations of international organizations cannot impose financial obligations on the members.228 However, this view may be too restrictive. The creation of an international organization demonstrates a wish to achieve a particular objective, and membership creates an obligation to cooperate in achieving that aim. When a budget can be adopted by qualified majority, a member should not have a right to veto each individual activity. This conclusion finds support in the case law of the International Court of Justice which held in the 1971 Namibia Case: “It would not be correct to assume that, because the General Assembly is in principle vested with recommendatory powers, it is debarred from adopting, in specific cases within the framework of its competence, resolutions which make determinations or have operative design”.229

Seyersted, on the other hand, contends that an international organization is inherently competent to fulfil those functions which are necessary to accomplish its aims, unless such functions are expressly excluded.230 In his view, the creation of an international organization for a specific purpose provides a sufficient basis for a presumption that the organization is competent to expand its activities to allow the realization of its objectives. If the founding

228. Conforti, op. cit. note 185, at 270. 229. ICJ Rep. 1971, at 50. 230. Seyersted, op. cit. note 183, at 143-158; id. in 34 NorTIR (1964).

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states want to limit the means by which the organization’s purposes can be achieved, they should expressly state this in the constitution. This theory seems logical and sound, but cannot be applied without qualification. One of the purposes of the UN is to promote higher standards of living, economic and social progress and development, and solutions for international economic problems.231 One way of achieving this purpose would be to transfer a large amount of wealth from rich to poor states. However, the organization cannot oblige the rich states to do so. Would it then be possible to transfer wealth from the UN budget to poor states? This would be an internal activity of the organization with respect to which it would be inherently competent. The desired effect would be substantially achieved, since the nine largest contributors to the UN general budget pay more than three-quarters of all contributions. This example emphasizes the necessity for some limitation on the power to engage in operational activities, and illustrates the similarity between internal rules and those with external binding effect.

§1211. The UN uses part of its budget to assist the development of poor states. The inherent competence of the organization to use its own budget to achieve its objectives seems to have been established. Nevertheless, the UN has taken two precautions. First, its budgets have not been adopted in the face of strong objection from the largest contributors and, second, the sums transferred to developing states have been kept within narrow limits. When larger sums have been required, special funds were created, financed by voluntary contributions. §1212. The UN has been less cautious in the peace-keeping field. Problems did arise when the first United Nations Emergency Force (UNEF I) and the United Nations Operation in the Congo (ONUC) were created.232 The question arose whether the members were obliged to pay their share towards these new activities. The answer to this question, of course, largely depends on the competence of the General Assembly to engage lawfully in this kind of activity. One of the objectives of the UN is to take effective collective measures for the prevention and removal of threats to the peace.233 To this end, the UN Truce Supervision Organization in the Middle East was created. This organization was financed from the regular UN budget, which had not caused any problems.234 Could the organization, and in particular the General Assembly, take one step further and mobilize armed forces? The members of the UN conferred primary responsibility for the maintenance of international peace

231. UN Charter, Art. 55. 232. The total assessments for UNEF I were just over $213 million (see above, §951), those for ONUC for 1960-1964 $450 million. The real costs of the operations were considerably higher, since many states contributed by sending troops and materials without (fully) charging their expenses to the UN. 233. UN Charter, Art. 1. 234. Only in May 1963 the Eastern European States stopped contributing to the UNTSO and UNCURK, see R. Higgins, UN Peace Keeping 1946-1967, Vol. I, Middle East, at 133.

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and security on the Security Council.235 However, primary responsibility is not exclusive, as is made clear by the provisions of the Charter, conferring responsibility for the maintenance of international peace and security also on the General Assembly.236 Pursuant to this, the latter can recommend that the members take measures for the peaceful adjustment of any situation.237 Nevertheless, this fails to answer the question whether the General Assembly was competent to take measures for the protection of peace and security? Could the Assembly instruct the Secretary-General to organize a peace-keeping force? It has not been argued that the creation of such a force would be beyond the competence of the UN as a whole,238 but doubts have been expressed as to whether the General Assembly alone has such competence.239 §1213. The International Court of Justice gave an advisory opinion on the financial consequences of the UN decision on peace-keeping.240 In its opinion, the Court accepted that “...the functions and powers conferred by the Charter on the General Assembly are not confined to discussion, consideration, the initiation of studies and the making of recommendations; they are not merely hortatory. Article 18 deals with “decisions” of the General Assembly “on important questions”. These “decisions” do indeed include certain recommendations, but others have dispositive force and effect. Among these latter decisions, Article 18 includes suspension of rights and privileges of membership, expulsion of members, and budgetary questions”.241

The examples mentioned by the Court could be classified as internal rules with important external effects. With regard to the expenditure authorized by the General Assembly, the Court agreed “...that such expenditures must be tested by their relationship to the purposes of the United Nations in the sense that if an expenditure were made for a purpose which is not one of the purposes of the United Nations, it could not be considered an “expense of the Organization”. [...] when the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization”.242

235. UN Charter, Art. 24. 236. See the Advisory Opinion of the International Court of Justice of 20 July 1962 (Certain expenses of the United Nations), ICJ Rep. 1962, at 163. 237. UN Charter, Art. 14. 238. D.W. Bowett, United Nations Forces 94 (1964). 239. G. Rosner, The United Nations Emergency Force 42-46 (1963). P. Poirier, La Force Internationale d’Urgence 138-169 (1962). 240. ICJ Advisory Opinion of 20 July 1962, Certain expenses of the United Nations, ICJ Rep. 1962, at 151 ff. 241. Id., at 163. 242. Id., at 167-168.

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In deciding whether the UN could incur operational expenditure, the Court compared paragraphs 1 and 3 of Article 17 of the UN Charter. It concluded that the distinction between “administrative budgets” and “operational budgets” had not been absent from the minds of the drafters of the Charter, and that consequently the use of only the word “budget” in paragraph 1, indicated that both administrative and operational items were covered.243 The Court also drew attention to the fact that from the outset, the UN budget included items which would not fall within any of the definitions of “administrative budget”.244 Accordingly, the Court accepted the expenses as expenses of the organization, concluding that all expenses of the organization, and not just certain types of expenses, were covered by Article 17.2. Several states, which had denied the competence of the General Assembly to charge these expenses to the normal budget, continued however to refuse to pay their share. This led to the question as to whether the sanction envisaged by Article 19 of the Charter should be applied against them (see below, §1459). §1214. The conflict concerning the financing of the first UNEF made the UN more cautious when, in 1973, a second UNEF was formed. Then, special budgetary provisions were adopted (see above, §991), but nevertheless it was not possible completely to avoid controversies. China did not agree with the solution found.245 §1215. The advisory opinion of the International Court of Justice may encourage the acceptance of the principle that operational activities are permitted, but it does not solve the problem of limiting such activities. Particularly in organizations where externally binding rules can only be taken with the express approval of all members, or all members involved, it seems somewhat anomalous that internal rules with external effect may be adopted not only by a decision of the international organization, but even by mere majority decision, contrary to the wishes of those members most affected (the large contributors to the budget). Usually, the definition of the objectives of the organization forms the only constitutional limit on the scope of operational activities. No operational activities are generally possible beyond these objectives. Inside them, the limits must be derived from general rules of equity and fairness. A majority should not exploit the minority. An abuse of the powers of the majority may lead to withdrawal of members of the minority from the organization.

243. Id., at 159. 244. Id., at 160. 245. See P. Manin, L’ONU et la guerre du Moyen Orient, 19 AFDI 538-593 (1973); YUN 1973, at 217-223; UN Doc. S/PV 1752, at 6.

765

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External rules

§1216. One task of international organizations is to make rules extending beyond the mere functioning of the organization itself. Rules made only for external purposes, such as agreements with other international organizations or with a state, will normally be part of a legal order, other than that of the organization. Most external rules, however, also affect the internal functioning of the organization. They represent the policy of the organization and influence its later decisions; lower organs must conform to these rules. In many cases, external rules, even where externally non-binding, have binding effects within the international organization (see below, §1241, §1261). Four groups of external rules will be distinguished: recommendations, declarations, conventions and binding rules. The first two of these instruments are frequently indistinguishable and indeed both often take the form of resolutions or recommendations, the latter sometimes being termed “declarations”. Similarly, in terms of substance, these two instruments are often virtually identical. Recommendations propose changes to the law, whereas declarations are statements that particular legal rules exist. In practice, resolutions may contain features of both. The UN declaration on the granting of independence to colonial countries and peoples246 was intended to be a proposal for reform of the countries and the living conditions of the peoples concerned, and to establish the illegality of colonialism. The many later references to this declaration have underlined the latter purpose. All conventions are decisions requiring subsequent ratification, binding only those states which have thus ratified. As binding decisions they have the legal force specified in the constitution in relation to the addressees.

1.

Recommendations

a.

The notion “recommendation”

§1217. The term “recommendation” is most frequently used to describe nonbinding suggestions of international organs, but other common terms are “opinion” or “advice”. Before 1914, the term “voeu” was more common.247 Many organizations use “resolution” in the same context as “recommendation”, for non-binding invitations to their members. “Recommendation” is used to denote a binding rule of law only in one constitution. According to the constitution of the European Coal and Steel Community (which seized to exist in 2002), “recommendations shall be binding as to the aims to be pursued but shall leave the choice of the appropriate methods for achieving these aims to those

246. GA Res. 1514 (XV). 247. For examples of voeux, see Tammes, op. cit. note 15, at 292-293.

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to whom the recommendations are addressed”.248 However, subsequently the term “recommendation” was deemed inappropriate for this type of decision. Consequently, when the same states established the EEC and Euratom, they changed the terminology, adopting “directive” for the same type of decision.

§1218. We will reserve the term “recommendation” for suggestions which have no binding force outside the organization.249 Recommendations are indeed usually defined in such a ‘negative’ way, emphasizing their non legally-binding nature. An exceptional, ‘positive’ definition is suggested by Virally: recommendations are “les résolutions d’un organe international adressées à un ou plusieurs destinataires qui lui sont extérieurs et impliquant une invitation à adopter un comportement déterminé, action ou abstention”.250 The advantage of this ‘positive’ definition is that it demonstrates how and why a decision, although it is not legally-binding, may be relevant in practice. All international organizations are empowered to issue recommendations. The frequency with which they use this power depends mainly on the extent of their authority to issue further binding decisions. The recommendation is little used in organizations (like the EC) which have such authority, and frequently used in organizations (like the UN and the specialized agencies) which do not. Recommendations are usually addressed to the members. They may, however, be directed to another organ of the organization or to another international organization. Thus, for example, the ECOSOC frequently addresses recommendations to the specialized agencies,251 and the General Assembly may do the same.252 §1219. The notion of the “legally binding effect” of a resolution is not always clear. Is a rule legally binding when it has been approved by the vast majority of states? If this question is answered in the affirmative, then many resolutions of the General Assembly of the UN should be regarded as legally binding rules. Lawyers, however, usually require that one of two additional conditions be satisfied before a rule will be deemed legally binding: either the states must officially accept a rule as legally binding, or there must be an accepted legally binding rule (such as the constitution of an international organization) which expressly provides that particular rules will be legally binding. In this more narrow view, recommendations do not bind the members legally. Nevertheless,

248. ECSC, Art. 14. 249. See also Castañeda, op. cit. note 189, at 217. 250. M. Virally, La valeur juridique des recommandations des organisations internationales, 2 AFDI (1956), at 66-96; reproduced in M. Virally, Le droit international en devenir – essais écrits au fil des ans 169-194 (1990), at 171. 251. UN Charter, Art. 62. See also Jung-Gun-Kim, La validité des résolutions de l’Assemblée générale des Nations Unies, 75 RGDIP 92-104 (1971). 252. See, e.g., GA Resolutions 2105 (XX) para. 11 and 2107 (XX), para. 9.

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wider concepts of “legally binding” which may grant stronger legal force to recommendations should be borne in mind.253 b.

Factors which strengthen recommendations

§1220. As was mentioned above, recommendations do not legally bind the members. However, this does not mean that they have no effect on them. The existence of a legal obligation provides merely one of many reasons for observing a rule and indeed, in international law, where sanctions often prove to be illusory, the legal obligation may not even be the prime motivation behind norm compliance. A number of factors can be seen to plead in favour of giving effect to recommendations.254 There are several examples of decisions recognizing such effect. The conference establishing the IAEA, wishing to limit the powers of the general congress, denied it the right to address recommendations to individual member states.255 In 1951, the Committee of Ministers of the Council of Europe decided that each of its recommendations

253. For a review of this problem see G. Arangio-Ruiz, The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations, 137 RdC (1972 III), in particular at 434-442. For a survey of the historical development see Lino di Qual, Les effets des résolutions des Nations Unies 110-112 (1967). For a possible development towards binding force of resolutions of the UN General Assembly see R.A. Falk, On the quasi-legislative competence of the General Assembly, 60 AJIL 782-791 (1966): for the opposite view and for further literature see N.G. Onuf, Professor Falk on the quasilegislative competence of the General Assembly, 64 AJIL 349-355 (1970) and 65 AJIL 774-782 (1971). See also H. Golsong and F. Ermacora, Das Problem der Rechtsetzung durch internationale Organisationen, insbesondere in Rahmen der UN, Berichte der deutschen Gesellschaft für Völkerrecht, Heft 10 (1971), at 1-95, 60-63 and 86-88 for further literature. A survey of different opinions is also given by T.O. Elias, Africa and the Development of International Law 71-77 (1972). On the force of resolutions, see also J.A. Frowein, Der Beitrag der internationalen Organisationen zur Entwicklung des Völkerrechts, 36 ZaöRV 147-167 (1976); C. Schreuer, Recommendations and the Traditional Sources of International Law, 20 GYIL 103-118 (1977); K. Skubiszewski, The elaboration of general multilateral conventions and of non-contractual instruments having a normative function or objective, Resolutions of the General Assembly of the United Nations (Preliminary Exposé and Provisional Report), in Annuaire de l’Institut de Droit International, Vol. 61-I (1985), at 29-249; S.M. Schwebel, The Legal Effect of Resolutions and Codes of Conduct of the United Nations, Forum Internationale No. 7 (1986); F. Morgenstern, Legal Problems of International Organizations, Chapter III (1986); P. de Visscher, Valeur et autorité des actes des organisations internationales, in R.-J. Dupuy (ed.), A Handbook on International Organizations 307-332 (1988); J.A. Frowein, The Internal and External Effects of Resolutions by International Organizations, 49 ZaöRV 778790 (1989); O. Schachter, International Law in Theory and Practice, Chapter VI (1991); B. Sloan, United Nations General Assembly Resolutions in Our Changing World (1991); G.M. Danilenko, Law-Making in the International Community 203-210 (1993); I. Detter, The Effect of Resolutions of International Organizations, in Makarczyk (ed.), op. cit. note 6, at 381-392; L.B. Sohn, Enhancing the Role of the General Assembly of the United Nations in Crystallizing International Law, in Makarczyk (ed.), id., at 549-561. 254. See for a somewhat different list of such factors and references to further literature Sloan, op. cit. note 253, at 105-118. See also Skubiszewski, op. cit. note 253, at 170-175. 255. Tammes, op. cit. note 15, at 347.

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requiring unanimity256 could, by a separate and prior vote, be addressed only to those members257 which would vote in favour of it. Clearly, the recommendation would then apply only to those members. Neither of these decisions would make sense if recommendations would have no effect at all. Another example is the recommendation of the World Health Assembly pursuant to which the International Code of Marketing of Breast-milk Substitutes was adopted.258 According to Article 11.1 of this Code, “Governments should take action to give effect to the principles and aim of this Code, as appropriate to their social and legislative framework, including the adoption of national legislation, regulations or other suitable measures”. In practice, most governments have given effect to at least portions of the Code through legally enforceable measures.259 A final example concerns EC recommendations. The EC Court has taken the view that, although these recommendations are not intended to produce binding effects, they cannot be regarded as having no legal effects at all. The national courts of the member states “are bound to take recommendations into consideration in order to decide disputes submitted to them, in particular when they cast light on the interpretation of national measures adopted in order to implement them or where they are designed to supplement binding Community provisions”.260

(i) Constitutional provisions §1221. One of the factors which strengthen recommendations is the constitutional provision underlying the powers of the organ which has adopted the decision (see above, §208, §217-223). States will usually not execute a recommendation which they consider to have been taken ultra vires. For example, the UN General Assembly’s external decisions cannot bind the member states because the UN Charter has not attributed such legislative competence to the Assembly; and such a competence cannot have a source other than the Charter itself (e.g. a treaty or a custom).261 §1222. In some cases, the constitutions of international organizations impose obligations on the members to act on recommendations. The FAO and

256. CoE, Art. 20(a). 257. Resolution adopted by the Committee of Ministers at its Ninth Session, August 1951, Annexed to the Statute of the CoE as published by the organization. 258. Res. WHA 34.22 (1981). 259. See the eight report on steps taken by WHO member states to give effect to the Code, WHO Doc. EB93/17 (1993), at 35. See on this Code K. Sikkink, Codes of Conduct for Transnational Corporations: The Case of the WHO/UNICEF Code, in 40 International Organization 815-140 (1986); Y. Beigbeder, The World Health Organization 75-83 (1998). Partly on the basis of this Code, agreement was reached between Nestlé and its non-governmental critics, whereby the former pledged to fully implement the Code; in return, the critics, represented by the International Nestlé Boycott Committee, recommended a suspension of the seven-years international consumer boycott of Nestlé products. 260. Case C-322/88, Grimaldi, ECR 1989, at 4421. 261. Skubiszewski, op. cit. note 253, at 33-37, and at 310-311. When the UN Charter was drafted at the UNCIO Conference in San Francisco, the Philippines proposed to attribute legislative powers to the Assembly, but this proposal was rejected unanimously.

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UNESCO require their members to report to the organization on the effect given to recommendations issued by these organizations.262 Similarly, the ILO and UNESCO oblige their members to submit recommendations to the authorities competent to implement them.263 These obligations can be seen to stimulate the application of the recommendations. (ii) Structure of the organization §1223. Recommendations will influence subsequent decision-making in the organ concerned. Those in favour of pursuing the policy laid down in a recommendation will be in a stronger debating position than those wishing to digress from it. Recommendations may be binding in the internal legal order of the organization, particularly where the recommendation is the means by which the superior organ takes a standpoint on a particular legal issue (see below, §1261). Can other international organizations be bound by recommendations of an organization with which they have a special relationship? In their agreements with the UN, the specialized agencies agreed to consider recommendations of the UN. Only in relation to Security Council decisions – which can be binding – they undertook to do more than to “consider” the decision in question. Could a resolution of the General Assembly nevertheless bind a specialized agency? The question arose in disputes between the UN on the one hand, and the World Bank, IMF, and the ICAO on the other (see below, §1714). (iii) The method of enactment264 §1224. Provided that the requisite majority for a particular decision has been obtained, the number of members in favour of a resolution and the way in which each member has voted may be legally irrelevant. However, every vote is politically relevant, since states which have supported a particular recommendation will be more inclined to give effect to it. When the President of the twentieth session of the General Assembly invited nineteen members to become additional members of the Special Committee on the Policies of Apartheid, he received eighteen replies. Four of the fifteen members who gave negative replies relied on the refusal of their state to support the resolution to enlarge the Committee. In this respect it is interesting to note that they had merely abstained.265 Another example of the political relevance of the method of enactment of a recommendation is the UN General Assembly resolution adopted 3 November 1994, urging the Security Council to lift the arms embargo on Bosnia-Herzegovina and asking

262. 263. 264. 265.

FAO, Art. 9.1; UNESCO, Art. 8. ILO, Art. 19.6; UNESCO, Art. 4.4. See also Skubiszewski, op. cit. note 253, at 194-225, and at 323-326. UN Doc. A/6226/Add.2, replies of Belgium, France, Netherlands, UK.

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member states to help this country to exercise its inherent right of individual and collective self-defence. The recommendation was adopted by a vote of 97 to 0, with 61 abstentions. Until the last minute, backers of the resolution were trying to increase the number of votes in favour. It had been the strategy of the United States that a strong vote in the Assembly would demonstrate there is momentum for the adoption of a US draft text for a Security Council resolution, to exempt Bosnia-Herzegovina from the arms embargo. However, the vote in the Assembly demonstrated that only five member states which were also members of the Security Council at the time voted in favour of the resolution.266 (Nine votes in favour are required to adopt resolutions in the Security Council, and no permanent member should use its veto.)

§1225. A positive vote estops a member from later claiming that the organization lacked the competence to adopt the recommendation in question, but it does not oblige the member to execute the recommendation. Members vote in their capacity as elements of the organization, as contributors to the development of legal rules, not as contracting parties. Accordingly, their vote expresses their desire to help establish a rule which is equally applicable to all members. Unless a member expressly declares otherwise, its vote cannot be interpreted as representing an undertaking by the state to adhere to the rule thus established. A negative vote, on the other hand, does not allow a state subsequently to ignore a recommendation completely.267 In practice however, a state which wishes to ignore a recommendation will announce its intention to do so by submitting a “declaration of vote”. This practice has now become widespread and formal, a development which seems unlikely to have taken place had states considered themselves freed of any obligation to implement a particular recommendation by casting a mere negative vote.268 By making an official declaration that it does not wish to be affected by a recommendation, a state places itself outside the scope of the recommendation. It thus considers the recommendation as a res inter alios acta, as an act between other parties, which is of no concern to it.269 §1226. Particularly in universal organizations, and especially in the UN, the participation of almost every state gives recommendations which are made unanimously great weight, since they reflect the generally held view on a given matter. Thus, they may be considered as generally accepted rules, which it would be politically embarrassing to neglect.

266. See International Herald Tribune, 5-6 November 1994, at 2. 267. The effect of majority resolutions for non-concurring states is discussed, inter alia, in Schachter, op. cit. note 253, at 90-94. 268. Conforti, op. cit. note 185, at 240. 269. Id., at 253-256.

771

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§1227

In the Certain Expenses Case, the International Court of Justice attached some weight to the fact that the resolution on the United Nations Emergency Force had been adopted without a single dissenting vote.270

§1227. The stronger persuasive force enjoyed by its resolutions has led the General Assembly of the UN to endorse resolutions or declarations made by other institutions, thereby lending the political weight of the UN to the intrinsic value of certain important international texts.271 §1228. The persuasive force of recommendations may also be increased by the support of particular members. In the UN for example, the support of both the US and Russia will give force to a recommendation, irrespective of the other votes. A state will be more willing to accept a resolution when the governments supporting it are established in the same manner as its own government than when the resolution has been carried by the votes of governments of a different character. “A democratic government like that of Australia is not likely to accept the decisions of delegates representing unrepresentative governments”.272 §1229. Finally, the individuals who enact the recommendation are important. In some organizations, such as the WMO or the UPU, member states are represented by the national directors of the services concerned. Those individuals are empowered to apply the recommendations in practice, and they will usually abide by agreements made with their colleagues, irrespective of whether or not such agreements are legally binding. Technical recommendations, drafted by experts in the field concerned, will derive strong persuasive force from the skill of the drafters. In the WHO recommendations enjoy such a level of support that they are often utilized instead of regulations (conventions which are directly binding upon the members unless they expressly contract out (see below, §1290)). The speed and flexibility of recommendations are preferred to the cumbersome formality of legally binding regulations. There seems to be little difference in the actual application of recommendations and regulations.273 §1230. The Benelux Committee of Ministers often uses recommendations to establish uniform laws in the three member states. The uniform law is actually

270. ICJ Rep. 1962, at 170-171. 271. See e.g. GA Res. 2456 (XXIII) A., para 1, endorsing the Declaration of September 1968 of the Conference of Non-Nuclear-Weapon-States (the endorsement was not unanimous: 7 states voted against, 5 abstained). 272. Quoted from Sir Kenneth Bailey, special adviser to the Department of External Affairs of Australia, in Schwebel, op. cit. note 120, at 500. 273. See F. Gutteridge, Notes on decisions of the World Health Organization, in Schwebel, op. cit. note 120, at 281-284.

§1231

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drafted within Benelux by the officers responsible in the relevant national ministerial departments. The Committee of Ministers only makes a short recommendation, such as: The governments of the three Benelux states are invited to adjust their national laws concerning the colouring of foodstuffs to the annexed regulation within twelve months of the signature of this recommendation.274

The annexed regulation will contain detailed draft proposals for the national laws. Application of the recommendation can be expected, since it will have been drafted with the cooperation of all the officials and ministers responsible for national implementation. Their influence on national parliaments will usually be sufficient to ensure implementation of the recommendation if this is genuinely desired. Some other international organizations follow similar procedures.275 (iv) Formal acceptance §1231. Members may accept a resolution officially, in which case their act of acceptance creates a legal obligation. It would even be possible for members to declare themselves legally bound by all resolutions which they have supported. However, to date none has done so.276 Acceptance of individual resolutions of the General Assembly of the UN is not unusual. Thus, for example, resolutions on peace-keeping forces have been formally accepted by the states concerned.277

In some international organizations, it is intended that recommendations become binding law after official acceptance by the members, a good example being formed by the food standards of the Codex Alimentarius Commission (CAC), a joint body of FAO and WHO. These food standards aim to protect consumers’ health and ensure fair practices in the food trade. When, after elaboration by a special committee, the CAC accepts a standard for a particular food stuff, whether it concerns hygiene, food additives, pesticide residues, contaminants, labelling, genetically modified food or any other matter, this standard will be laid down in a recommendation,278 which subsequently becomes binding on those members which formally accept it. When a sufficient

274. Bulletin-Benelux-Publikatieblad 1963-2, at 7. In the same issue four similar recommendations can be found. See also Bulletin-Benelux-Publikatieblad 1966-8. 275. CoE, see 12 ILM 100 (1973). 276. On the question of the binding consequences of favourable votes, see Castañeda, op. cit. note 189, at 303-306. 277. See R.L. Bindschedler in Golsong and Ermacora, op. cit. note 253, at 205, and in 108 RdC (1963 I), at 305-423. 278. Alexandrowicz, op. cit. note 177, at 78; CAC, Procedural Manual (7th ed. 1989), at 38-51; website: www.codexalimentarius.net.

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number of acceptances have been received, the standard is incorporated into the Codex Alimentarius.279 The standards may be accepted in three different ways: full acceptance, target acceptance or acceptance with specified deviations. Under target acceptance, states are bound to apply the food standards concerned after a specified number of years. In the meantime, they may not hinder the distribution of products which conform with the standards. Acceptance with specified deviations is possible when recognized by the CAC, and means that the country concerned accepts the standard with the exception of such deviations as are specified in detail in its declaration of acceptance.280

§1232. A recommendation which is subsequently formally accepted is substantially the same as a convention (see below, §1263). Three differences can however be identified. (1) Acceptance of a recommendation, being a national act, is not regulated by international law and therefore no form requirements need be satisfied, whereas conventions must be accepted according to the rules of international law.281 The Code of Principles concerning Milk and Milk Products, for example, was adopted as a recommendation of a Committee of Experts of the FAO. The members were invited to inform the organization whether they would apply the code. Various kinds of communications were deemed to represent acceptances.282

(2) Conventions enter into force only when a number of states have accepted them. However, a single state may bind itself to adhere to a recommendation. (3) Once in force, conventions are binding under international law, that is in a larger legal order than that of the member concerned. The member cannot unilaterally withdraw from a convention. Unilateral acceptance of a recommendation may be limited to acceptance within the legal order of the state concerned. That state may subsequently change its legal order again, and terminate its application of the recommendation. All provisions of the Codex Alimentarius permit unilateral withdrawal and, therefore, are denied the binding force of conventions.283

279. Alexandrowicz, op. cit. note 177, at 81. 280. CAC, Procedural Manual (7th ed. 1989), at 23-30. On the joint FAO/WHO Food Standards Programme, see J.P. Dobbert, Decisions of International Organizations-Effectiveness in Member States. Some Aspects of the Law and Practice of FAO, in Schwebel, op. cit. note 120, at 238-256. See also M.E. Bredahl and K.W. Forsythe, Harmonizing Phyto-sanitary and Sanitary Regulations, 12(2) The World Economy (1989), at 189 et ff. 281. Vienna Convention on the Law of Treaties (1969), Art. 11. 282. Dobbert, op. cit. note 280, at 227-238. 283. Alexandrowicz, op. cit. note 177, at 80.

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(v) The need for a rule §1233. The application of rules only partly depends on their formal binding force and the possibility of applying sanctions in cases of violation. The most powerful incentive for applying a rule may be that the states participating in an international organization recognize the necessity for common regulation in a particular field. When technicians in the ITU agree to use certain standard equipment or to amend radio regulations, they do so because they require a uniform system in order to be able to communicate. The fact that their agreement will be contained in a non-binding recommendation is of little significance, since they will apply it anyway because there is no acceptable alternative. The same is true for most decisions concerning such matters as uniform measures, nomenclature or regulation forms. These legal rules may be considered to be self-enforcing284 or as strengthened by natural sanctions.285 Their legal force may be bolstered where custom dictates compliance.286 §1234. For this general position to hold true, it is essential that the rule should be genuinely necessary. In several cases, rules thought to be indispensable have been granted binding force, but once considered obsolete, they were not applied, despite their mandatory character. The UN Charter requires the establishment of a Military Staff Committee with a number of important functions.287 When there proved to be no possibility of exercising these functions, the Military Staff Committee was still-born.288 In 1954, the Western European Union established a detailed system, including judicial control, to monitor West-German rearmament.289 When the members of the organization subsequently decided not to limit West-German rearmament to a substantial extent the system was largely deprived of its significance. The judicial control was never applied.

§1235. The need for a rule is judged subjectively. Thus, it is not an objective necessity that matters, but what governments consider necessary or important. The opinion of the participating governments determines their actual support and therefore the effect of the recommendation.290

284. D.M. Leive, International Telecommunications and International Law: The Regulation of the Radiospectrum 24 (1970). 285. J.E.S. Fawcett, The International Monetary Fund and International Law, 40 BYIL 34 (1964). See also Schwebel, op. cit. note 120, at 534. 286. See Alexandrowicz, op. cit. note 177, at 98. 287. UN Charter, Art. 47. 288. On its activities see UN Repertory of Practice 1955, Vol. II, at 417; id. 1958, at 349. 289. Paris Protocols of October 1954, Trb. 1954, No. 179. 290. See Conforti, op. cit. note 185, at 222.

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Legal order

§1236

§1236. Regulation of the matter concerned may be so complicated that states prefer to use the standards of an international organization rather than make regulations of their own. The IAEA for example, makes use of highly-skilled experts in developing its standards for the protection of health and safety. Such is the quality of these regulations that members are usually very willing to receive them and to incorporate them in their domestic legislation.291 Decisions of international organizations may sometimes assist national authorities in persevering with justifiable but unpopular policies. By emphasizing the need for particular measures, the organization may deter domestic opposition. For many members however, the implementation of uniform rules within their internal legal order, however urgent, is a slow process. When technical regulations are amended frequently, many members are unable to keep pace with the new rules and continue to apply the old texts.292 (vi) The application by others §1237. Certain formally non-binding decisions can be enforced against a member in practice when other members apply them. In 1952, for example, the UPU decided that letters would only benefit from UPU regulations on international mail if they were larger than a certain minimum size. The possibility that other members would not handle smaller letters compelled in practice all members to introduce the UPU minimum sizes in their own regulations.293 (vii) The moral or legitimizing effect §1238. The legitimizing effect of resolutions adopted by international organizations is of increasing importance.294 Present-day statesmen are keenly aware of the need for their foreign policies to be approved of by as many other states as possible. Legitimization of national acts by the General Assembly of the UN, or by the general congress of a regional organization, is frequently sought, and is even preferred to legitimization by a judicial organ.295

291. W. Boulanger, Director Legal Division IAEA, Decisions and other Measures taken by the International Atomic Energy Agency, in Schwebel, op. cit. note 120, at 285-289 and 438. 292. FitzGerald, op. cit. note 149, at 172-176. 293. The Netherlands was one of the states which used to permit smaller letters and changed their internal rules in order to comply with UPU requirements. 294. I.L. Claude, Collective legitimization as a Political Function of the United Nations, 20 International Organization 367-379 (1966). The expression “legitimacy” has a legal as well as a moral aspect (id., at 368-369). See also T.L. Brewer, Collective Legitimization in International Organizations, Concept and Practice, 2 Denver JILP 73-88 (1972). 295. Claude, op. cit. note 294, at 370-371. Also Claude, The Changing United Nations 73-94 (1967).

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It is not surprising that this is often seen as one function of resolutions of the UN General Assembly in particular. “As the central global forum for the international community, with the competence to discuss all questions of international concern, with institutional continuity and a constitutional framework of agreed purposes and principles, the Assembly has become a major instrument of states for articulating their national interests, and seeking general support from them.”296

Legitimization may be of great political importance. The Indian conquest of Goa in 1961 would have met much more opposition in India itself, as well as abroad, had the UN not previously outlawed the Portuguese colonial occupation. In 1950, when the United States might still have decided to assist South Korea, the recommendation of the Security Council inviting its members to do so facilitated the US action in at least two respects: (1) the US government was able to secure public support more easily when the action which it proposed to take had been sanctioned by the UN and (2) Japan might not have permitted its bases to be used if the US had taken the initiative alone; even if such permission had been given, it would undoubtedly have been subject to more stringent conditions. The OAS legitimization of the US action in the Dominican Republic in 19651966 strengthened the position of the US government against opposition both within and outside the US.297 §1239. Fitzmaurice considers that a recommendation cannot legitimize a breach of a treaty. Thus, if the General Assembly of the UN were to call upon the member states to sever trade relations with a certain country, states linked to that country by a commercial treaty would not be permitted to forsake their treaty obligations, since a request made by the General Assembly is not legally binding.298 By contrast, Conforti considers that the application of a legitimate recommendation cannot be contrary to international law.299 In his view, recommendations may change general international law and thus have legal effects in an indirect way. Whatever the legal position, in practice a recommendation will legitimize a breach of treaties to a very large extent. It helps the members to act as they please. They would certainly not be obliged to breach the treaty, but, if they did so, the UN recommendation would probably justify their action in the opinion of a large majority of states.

296. Schachter, op. cit. note 253, at 85. 297. J. Slater, The Limits of Legitimization in International Organizations, 23 International Organization 48-72 (1969), at 63 for the limits of the legitimization due to the US domination of the OAS. 298. Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice 1951-4, 34 BYIL 5 (1958). 299. Conforti, op. cit. note 185, at 262-265.

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Legitimization may also serve private law interests. Private loans can be more easily obtained for projects approved by the World Bank or by the EC Commission, than for projects which do not enjoy such support.300 (viii) Restatement §1240. Similar to the legitimization principle is the restatement of prior resolutions. In the former case, a factual situation or an action is legitimized, in the latter case an existing recommendation is reinforced. The General Assembly of the UN has adopted many resolutions recommending that members execute prior resolutions.301 It thus mobilizes public opinion and legal opinion in support of the view that such former resolutions have created obligations. Besides pure restatements, other methods are available to an international organization to reinforce its recommendations, such as further study and development, and control of the application of recommendations. For example, the UN established a 15 member Ad Hoc Committee on the use of the Indian Ocean to study the implications of the UN declaration of the Indian Ocean as a zone of peace.302 c.

Internal effects of recommendations

§1241. Recommendations addressed to other organs have no binding effect. Whenever a superior organ wishes to bind an lower body, it must do so by means of instructions or Decisions. Recommendations addressed to members may contain declaratory or legislative elements. Whenever a recommendation of a superior organ, addressed to the members, provides that rules should be applied, there is a strong case for submitting that all lower organs of the same organization must also apply such rules. The standards and regulations on health and safety adopted by the IAEA, for example, are recommendations vis-à-vis the members. Under the Agency’s Statute, however, they are binding with regard to its own operations.303 §1242. In a note of 28 March 1973, the UN office of Legal Affairs stated the following with respect to the effect of UN resolutions concerning South Africa on lower UN organs:

300. J. Gold, Certain Aspects of the Law and Practice of the International Monetary Fund, in Schwebel, op. cit. note 120, at 81; E. Stein in Schwebel, op. cit. note 120, at 418-420. 301. Tammes, op. cit. note 15, at 335. For further examples, see di Qual, op. cit. note 253, at 220-221 and in particular S.A. Bleicher, The Legal Significance of Re-citation of General Assembly Resolutions, 63 AJIL 444-478 (1969), who also lists citations of many resolutions. Most frequently recited were the declarations on colonialism (95 times) and on human rights (75 times). For a further restatement see GA Res. 2878 (XXVI) and GA Res. 34/83. 302. See GA Resolutions 3080 (XXVIII) and 3259A (XXIX); YUN 1974, at 27, 30. 303. Boulanger, op. cit. note 291, at 285-286.

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“It may be noted at the outset that the policies and restraints contained in the resolutions referred to below constitute directives with which those who act under the authority of the General Assembly, or of other principal organs of the United Nations, are bound to comply. For whether or not such resolutions are considered legally binding by states, United Nations organs are bound to apply such resolutions to their own actions, irrespective of the positions which may be taken by individual governments in the conduct of their own affairs”.304

§1243. While there is a strong case for considering lower organs bound by recommendations addressed to members by a superior organ, the situation is less clear if such a recommendation is made by another lower organ. Is the Economic Commission for Africa (a commission of the ECOSOC) bound by recommendations made by the Commission on Human Rights (another ECOSOC Commission)? In such cases organs are generally at least obliged to take each other’s position into account and to avoid working in opposite directions, in view of their role as organs of one organization. This problem arose within the Council of Europe in relation to organs created under two conventions: the Commission and the Court of Human Rights, and the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).305 In 1990, the CPT visited the United Kingdom and criticized the conditions of detention. With regard to three prisons, the CPT concluded that “the overall environment in which the prisoners had to lead their life amounted, ... to inhuman and degrading treatment”.306 In 1992, the Commission received a complaint by an individual who claimed that the treatment he had suffered in three specific prisons amounted to a violation of Article 3 of the European Convention on Human Rights (”No one shall be subjected to torture or to inhuman or degrading treatment”). The complainant argued that his treatment corresponded to the general findings by the CPT. Would the Commission have to adopt these general CPT findings in this specific case? The problem was foreseen. When the CPT was created, it was agreed that it “will not itself formulate interpretations of the provisions of the European Convention on Human Rights”.307 Nevertheless, this provision is inadequate for the solution of the problem, because both the CPT and the Commission or the Court may still have to reach conclusions about detention conditions and about the existence of inhuman and degrading treatment. If these conclusions were to diverge, the authority and coherence of the legal order of the Council of Europe would be affected and the member state in question left in confusion. In this case, the Commission did not proceed to a substantive analysis of the case, because it took the view that the complainant had failed to introduce his complaint within six months of the date on which the final decision was taken, as required by Article 26 of the European Convention. The issue arose again in further cases in which

304. UNJY 1973, at 145. 305. See R. Lawson, A Prisoner’s Dilemma, in 19 (2) NJCM-Bulletin 140-145 (1994). 306. See for the report of this visit, Doc. CPT/Inf (91) 15, quoted in Lawson, op. cit. note 305, at 140. 307. Art. 17.2 CPT and Explanatory Memorandum, §91 (Doc. CPT/Inf (91) 9), quoted by Lawson, op. cit. note 305, at 141, note 3.

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prisoners lodged applications with the Court of Human Rights claiming that they were subjected to torture or to inhuman or degrading treatment and referring to findings by the CPT based on visits of the relevant prisons. In a case against Greece the Court did not itself visit the prison in question but relied on conclusions of the CPT; it stated that “the applicant’s allegations are corroborated by the conclusions of the CPT report”.308 In two cases against the Netherlands the Court extensively quoted from a CPT report. In this report, the CPT inter alia criticized the strict regime applied in this (extra security) prison (and recommended to the government that it be revised). The Court relied on the description of the detention conditions by the CPT, taking into account that neither party argued that this desciption was factually incorrect. It observed that the question whether or not the applicants were subjected to inhuman or degrading treatment within the meaning of Article 3 of the European Convention depends on an assessment of the extent to which they were personally affected. In these cases the Court found that the measures taken amounted to inhuman or degrading treatment in violation of Article 3 of the European Convention.309 Therefore a division of labour is developing according to which it is for the CPT to deal with the general situation in prisons and issue recommendations to governments, and for the Court to consider the specific situation or treatment of individual prisoners. This division of labour does not seem to be very strict. For example, in the cases against the Netherlands, the Court also made some general observations where it stated that it “does not diverge from the view expressed by the CPT that the situation in the EBI [- the extra security prison -] is problematic and gives cause for concern. This must be even more so if detainees are subjected to the EBI regime for protracted periods of time”.310 So far however, the conclusion is justified that, although the Commission and the CPT are independent treaty organs, both have respected the competence of the other as organs of one organization pursuing greater unity amongst its members. This is a fundamental internal organizational requirement which has been emphasized in the context of other international organizations.311

2.

Declarations

a.

The notion “declaration”

§1244. By recommendations, international organizations invite their members to change the existing situation. However, in some cases international organizations do not want to change, but merely to clarify a particular state of affairs.

308. Application no. 40907/98, judgment of 6 March 2001, para. 46. 309. Applications no. 50901/99 and 52750/99, judgments of 4 February 2003, in particular paras. 53 and 65, respectively. 310. Id., paras.57 and 69, respectively. 311. Cf. the principle of institutional balance developed by the EC Court. See also the individual opinion by Judge Lachs of the International Court of Justice in the Lockerbie Case, in which he stressed that “it is important for the purposes and the principles of the United Nations that the two main organs with specific powers of binding decision act in harmony – though not, of course, in concert – and that each should perform its functions with respect to a situation or dispute, different aspects of which appear on the agenda of each, without prejudicing the exercise of the other’s powers”. See above, §220-222.

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In such a situation, they may wish to support an interpretation which is disputed or not entirely clear, or to establish rules in a vacuum. In those cases, declarations may be issued. Basically a rule of law consists of two elements: 1. A legal fact (If this factual situation exists...) 2. A legal rule (...then this rule is to be applied).312 International organizations may issue declarations concerning both these elements. §1245. A declaration that a particular factual situation exists may subsequently lead to the application of a particular legal rule to that situation. Consequently, declarations can be of great importance for the application of the law. Castañeda refers to such factual declarations as determinations.313 The following examples may illustrate the kind of declarations which are included in this concept: (1) the determination that a situation is a threat to peace, which may lead to the application of measures under Chapter VII of the UN Charter. (2) the determination of whether a territory is a non-self-governing territory under Chapter XI of the UN Charter,314 which is conclusive for the obligation to report to the UN. (3) the determination of whether a matter is essentially within the jurisdiction of a state,315 which influences the competence of the UN. (4) the determination of whether a question is an important question under the voting procedures of Article 18 of the UN Charter, which influences the majority required. (5) the determination that South Africa had failed to fulfil its obligations in respect of the administration of the Mandated Territory of South West Africa and that the Mandate was therefore terminated.316 (6) the determination that a certain delegation lawfully represents a member in cases where two delegations claim to do so. (7) the General Assembly of the UN can be considered competent to determine whether the circumstances leading to the conclusion of a treaty have fundamentally changed (clausula rebus sic stantibus).317

§1246. A declaration that a particular rule is legally binding resembles taking a binding decision, the main difference being that declarations are not intended to change the law.

312. 313. 314. 315. 316. 317.

Castañeda, op. cit. note 189, at 288, and id., op. cit. note 182, at 117-138. Castañeda, op. cit. note 189, at 287-295, 224. GA Res. 742 (VIII). UN Charter, Art. 2.7. GA Res. 2145 (XXI). See Vienna Convention on the Law of Treaties (1969), Art. 62; B. Sloan, The binding force of a “Recommendation” of the General Assembly of the United Nations, 25 BYIL 29 (1948).

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Many declarations bear the title “declaration”. Some resolutions of the General Assembly of the UN, although of a declaratory nature, are not however expressly named declarations; an example is the resolution affirming the principles of international law, recognized by the Charter of the Nuremberg Tribunal, on offences against the peace and security of mankind.318 On the other hand, some UN resolutions bear the name “declaration” despite the fact that they merely invite the members to take some form of action.319 Beside making a clear distinction between legal and factual declarations (determinations), Castañeda’s definition of a declaration also embraces those resolutions made by conferences which are unacceptable as conventions but which are nevertheless adopted in a weaker form. Although such resolutions are sometimes described as “declarations” (e.g. the declaration on compulsory arbitration of the Hague Conference of 1907), we prefer to classify them as recommendations, since their purpose is to change the law and not merely to codify an (allegedly) existing legal situation.320 Consequently we also reject Castañeda’s conclusion – largely based on such resolutions – that declarations are of minor legal force.321

§1247. In no constitution of an international organization are declarations referred to as a separate class of decision, nor does any constitution expressly empower an organization to issue declarations. Nevertheless, this does not necessarily prevent organs from doing so, since the lists of the decisions which organs are empowered to adopt are generally not exhaustive. An example is the omission of internal rules, which any organization may adopt even if the power to do so is not mentioned in its constitution. b.

Legal effect

§1248. The effect of a declaration is influenced by the same factors as the effect of a recommendation (see above, §1220-1240). Is there any ground for according declarations a greater degree of legal effect than is accorded to recommendations? Similarly, is there any ground for attributing a greater degree of legal effect than is accorded to decisions which the organization is explicitly empowered to adopt? The Office of Legal Affairs of the UN Secretariat considered that: “in view of the greater solemnity and significance of a declaration, it may be considered to import, on behalf of the organ adopting it, a strong expectation that members of the international community will abide by it. Consequently, in so far as the expectation is gradually justified by state practice, a declaration may by custom become recognized

318. GA Res. 95(I), YUN 1946-47, at 254. See also K. Skubiszewski, Resolutions of International Organizations and Municipal Law, 2 PYIL (1968-69), at 91. 319. See e.g. the “declaration” on the Preparation of Society for Life in Peace, GA Res. 33/73. 320. On this decision-making at the Hague Conference, see also Tammes, op. cit. note 15, at 288-291. 321. Castañeda, op. cit. note 189, at 313-315.

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as laying down rules binding upon states. In conclusion, it may be said that in United Nations practice, a declaration is a solemn instrument resorted to only in very rare cases relating to matters of major and lasting importance where maximum compliance is expected”.322

This statement is based on the correct assumption that a declaration, of itself, can have no more legal force than a recommendation. An organization cannot take decisions with external binding force in the absence of express constitutional authorization. A proposal to empower the UN to adopt binding declarations of legal principles was made in San Francisco but was not approved.323 The General Assembly can do no more than recommend. Nevertheless, this does not prevent declarations from containing binding law; it merely means that the binding character will have to be derived from another source.324 §1249. Declarations may contain a codification of customary law. The binding nature of customary law remains unaffected by its embodiment in a codifying declaration. Customary law is often vague, but while it might be clarified by a declaration, it may not be amended by it. In practice however, there is little difference between clarification and amendment.325 Where a declaration is approved by a large majority of states this can often be taken to signify the acceptance of these states of the customary law in its codified form. The support which used to be required for a rule to be accepted as customary international law was often considerably less than the support which can be expressed in a unanimous or almost unanimous resolution of a worldwide organization.326 §1250. More specifically, the International Court of Justice has taken the view that the attitude of states towards certain resolutions of the UN General Assembly may indicate the existence of an opinio juris: “This opinio juris [– as to the binding character of the obligation to refrain in international relations from the threat or use of force -] may, though with all due caution, be deduced from, inter alia, the attitude of (...) states towards certain General Assembly resolutions, and particularly resolution 2625 (XXV) entitled “Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations”. The effect of consent to the text of such resolutions cannot be understood as merely that of a “reiteration or elucidation”

322. UN Doc. E/CN.4/L610 of 2 April 1962. See also UNJY 1981, at 149. 323. Yuen-li Liang, The General Assembly and the Progressive Development and Codification of International Law, 42 AJIL 66 (1948). 324. O.Y. Asamoah, The Legal Significance of the Declarations of the General Assembly of the United Nations (1966). See also Golsong, op. cit. note 253, at 18-30; J. Gold, Recent international decisions to prevent restrictions on trade and payments, 9 JWTL 73-74 (1975). 325. See also Schachter, op. cit. note 253, at 87. 326. Arangio-Ruiz, op. cit. note 253, at 453.

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of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves.”327 (emphasis added)

The most specific observation by the Court in this context can be found in the 1996 Nuclear Weapons Advisory Opinion: The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule.328

The Court does not give its opinion on the issue of bindingness of General Assembly resolutions (“even if they are not binding [...]”), but mainly seeks possible legal effect in an opinio iuris which may be expressed in these instruments. In this way, the Court seeks possible normative value not in recognizing such resolutions as new sources of international law, but within one of the existing sources, namely customary international law. Thus, binding obligations do not originate from the resolution itself, but from one of the recognized sources of international law. A disadvantage of this approach is that it disregards the source of the decision that was not taken simultaniously by a number of states acting in their own capacity and expressing their own individual wills, but by an international organ having a volonté distincte.329

327. Nicaragua Case (Military and Paramilitary Activities, Judgment), ICJ Rep. 1986, at 99-100. 328. Legality of the threat or use of nuclear weapons, Advisory Opinion, ICJ Reports 1996, at 254255 (para. 70). In the case of the specific General Assembly resolutions at stake – those concerning the use of nuclear weapons – the Court came to the conclusion that several of these resolutions had been adopted “with substantial numbers of negative votes and abstentions; thus, although those resolutions are a clear sign of deep concern regarding the problem of nuclear weapons, they still fall short of establishing the existence of an opinio juris on the illegality of the use of such weapons” (ibid., at 255, para. 71). For a general analysis of the (early) case law of the ICJ dealing with resolutions of international organizations H. Thierry, Les résolutions des organes internationaux dans la jurisprudence de la Cour internationale de Justice, 167 RdC (1980-II), at 385-450. 329. C. Schreuer, Recommendations and the Traditional Sources of International Law, 20 GYIL 103118 (1977), in particular at 109. Cf. also M. Virally, L’Organisation Mondiale (1972), at 208-210, and at 26: “comme toute institution, [l’órganisation internationale] est aussi un appareil d’organes, c’est-à-dire un centre actif, capable d’initiative et de décision, en mesure, par conséquent, de s’adapter au milieu dans lequel il fonctionne, en même temps que de contrôler et de règler ses propres problèmes internes, de façon à assurer sa survie et son développement. Ce caractère organique de l’institution fait qu’elle échappe toujours, dans une certaine mesure, au contrôle de ses fondateurs ou, tout au moins, à leurs prévisions, pour suivre une évolution autonome.”

§1251

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§1251. The continued application of a rule codified in a declaration can reinforce the codified version of the law. After the adoption of a declaration, customary law may develop further. In 1970, Edvard Hambro, President of the 25th session of the General Assembly of the UN, commenting on the Universal Declaration of Human Rights, observed that “The Declaration today carries greater weight than it did in 1948. During the intervening two decades, it has entered into national constitutions and has inspired legislation in a number of countries. It has been quoted in judicial decisions. It has been reaffirmed in Assembly resolutions. It has, of course, been frequently violated – what law or rule has not? But violations have themselves been repeatedly denounced by the Assembly and in other reputable quarters”.330

§1252. Declarations made by international organizations are however even more powerful as means of arresting the development of customary law. A developing custom whose legality is denied by means of a declaration cannot become a rule of customary law.331 §1253. A second source which may make provisions of declarations legally binding are general principles of law. These general principles are binding and could be codified in a declaration in much the same way as customary law. The Nuremberg Tribunal attributed some legal force to declarations on aggression in its decisions on war criminals.332 The principles of international law embodied in the Charter of the Nuremberg Tribunal were later codified in a General Assembly resolution.333 The UN Declaration on the Elimination of all Forms of Racial Discrimination334 is another example of codification of general principles of law by means of a declaration. To a large extent, all law-making resolutions of universal organizations adopted by a large majority of states represent general principles of law recognized by civilized nations, the adoption itself constituting recognition of the principle concerned. Consequently, some writers consider there to be a presumption that widely accepted law-making declarations are legally binding.335 §1254. A third source which may make provisions of declarations legally binding may be the power of the organ concerned to further specify existing

330. E. Hambro, Address before the United Nations Association of New York, 10 November 1970, UN Press Release GA/4306, at 2-3. 331. Arangio-Ruiz, op. cit. note 253, at 471. 332. Castañeda, op. cit. note 189, at 324. 333. GA Res. 95 (I). 334. GA Res. 1904 (XVIII). 335. K. Zemanek, The United Nations and the Law of Outer Space, YbWA 208-209 (1965); Golsong, op. cit. note 253, at 33-39.

785

Legal order

§1255

obligations. Almost all constitutions and binding decisions contain legal notions which require elucidation. Thus concepts such as “good faith”, “peace loving” and “equitable geographical distribution” require further explanation, either by practice or by express declaration. Such declarations are usually accepted as binding interpretations of existing rules.336 It should be stressed that these declarations do not create law, they merely clarify it. The elucidation may be made generally (for instance establishing regions for the purpose of equitable geographical distribution) or for a specific case (a resolution urging a state to withdraw troops may be regarded as a statement emphasizing that the sending of troops was an act contrary to the UN Charter). The UN General Assembly further specified a multilateral treaty when it declared that the use against plants, animals or men of some chemical and biological agents which did not exist in 1925 was contrary to international law as embodied in the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare of 17 June 1925.337

§1255. Does the General Assembly have the power to interpret the UN Charter? When the Charter was drafted, Committee 2 of Commission IV of the San Francisco Conference declared that an interpretation of the Charter made by any organ of the organization would be without binding force if it were not generally acceptable.338 This could be argued to support the view that an interpretation would have legal force if generally acceptable. The General Assembly would accordingly be competent to interpret the Charter, but only by unanimous decision. Even where such a decision is not taken unanimously, however, it can have great influence on the future policy of the organization. The UN Charter obliges the members to take joint and separate action, in cooperation with the organization, for the promotion of respect for human rights.339 It does not however enumerate these human rights. Such an enumeration was given subsequently by he General Assembly in the Universal Declaration of Human Rights.340 It could be submitted that this declaration gives a further description of obligations existing under the Charter.341 By its resolution specifying the factors which should be taken into account in deciding whether or not a territory is one whose people have not yet attained a full measure of self-government, the General Assembly substantially influenced the dis-

336. See O. Schachter, The relation of law, politics and action in the United Nations, 109 RdC (1963 II), at 185-200. 337. GA Res. 2603A (XXIV); see also GA Res. 2674 (XXV), para. 5. 338. 13 UNCIO, at 710. 339. UN Charter, Art. 56. 340. GA Res. 217 (III) of 10 December 1948. 341. See the statements of the delegations of France (A/C.3/SR 92), Czechoslovakia (A/C.6/SR 767) and Poland (A/C.6/SR 811).

§1256

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cretion of the members to decide whether they are under an obligation to transmit information on non-autonomous territories.342 The General Assembly resolution on the definition of aggression343 may be seen as a further interpretation of the Charter obligation on the members to refrain from the threat or use of force.344

§1256. A fourth source which may make provisions of declarations legally binding may be the absence of contrary legal provisions. Binding legal provisions are needed to overrule existing laws, but to fill a vacuum a weaker instrument may be sufficient. With every technological leap made by mankind a need for rules has followed, and the latter have always been made by those assuming the power to do so. There was no valid law for outer space when the UN General Assembly made a declaration of legal principles governing the activities of states in the exploration and use of outer space.345 The vast majority of states accepted this declaration. Since no other legal provisions are available to courts, they may accept this declaration as providing a binding legal regime recognized by all states, either by voting in favour of the declaration (which was unanimously adopted), or by failing to protest against it (in the case of non-members of the UN). Asamoah considers that the Declaration on the Granting of Independence to Colonial Countries and Peoples also fills a vacuum in the law, despite the existence of prior legal rules.346 Socio-political developments after the Second World War can be said to have created this vacuum, since they had rendered the existing rules out of date. More recently, a rule vacuum was felt in the area of cloning. In February 1997 a cloned sheep named Dolly was born in Scotland. It was generally felt that agreement on certain principles and rules in this area was required. And so it happened that within less than one year different international organizations formulated such principles and rules. The legal relevance of these instruments – albeit difficult to define precisely – is generally accepted. These principles and rules seem to lay down a certain ‘minimum standard’ in this area: reproductive cloning of human beings is forbidden. UNESCO adopted on 11 November 1997 the Universal Declaration on the Human Genome and Human Rights. Article 11 of this Declaration stipulates, inter alia, that “practices which are contrary to human dignity, such as reproductive cloning of human beings, shall not be permitted”. In the same year the WHO adopted a resolution also

342. GA Res. 742 (VIII),1541 (XV) and, inter alia, 748 (VIII), 849 (IX) and 1542 (XV). 343. GA Res. 3314 (XXIX); YUN 1974, at 846-848. 344. UN Charter, Art. 2.4. For further examples of declarations considered as interpretations of existing obligations, see Conforti, op. cit. note 185, at 285-288; R. Rosenstock, The Declaration of Principles of International Law concerning Friendly Relations: A Survey, 65 AJIL 713-735 (1971). 345. GA Res. 1962 (XVIII), YUN 1963, at 523; di Qual, op. cit. note 253, at 267-271. 346. Asamoah, op. cit. note 324, at 164.

787

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§1257

condemning human cloning for reproductive purposes as contrary to human dignity.347 Only at the regional level, within the framework of the Council of Europe, has it proved possible to adopt within a very short time span a binding legal instrument in this area.348 In 2001, it was proposed in the UN General Assembly to prepare a UN Convention in this field.

§1257. In all cases, it will be important to obtain unanimity or virtual unanimity when a declaration is accepted.349 Only then can it be regarded as general customary law, as generally accepted principles of law, as an authoritative interpretation of the constitution, or as a generally accepted new law in a vacuum. The UN is the main international organization issuing declarations, most of which have enjoyed wide support. The Declaration of Legal Principles governing the Activities of States in the Exploration and Use of Outer Space,350 the Declaration on Territorial Asylum,351 the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the UN,352 the Declaration on the Occasion of the Twenty-fifth Anniversary of the UN (reaffirmation of the Charter);353 the Declaration on the Establishment of a New International Economic Order354 and most declarations on human rights355 are among those declarations adopted unanimously (or by acclamation) by the UN General Assembly. The 2001 Universal Declaration on Cultural Diversity was adopted by acclamation by the UNESCO General Conference. Other declarations were accepted without opposition, but a number of states (indicated in brackets) abstained. These include the Universal Declaration of Human Rights356 (8); Declaration on the Granting of Independence to Colonial Countries and

347. Res. WHA50.37. 348. The Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, on the Prohibition of Cloning Human Beings. This Protocol was adopted 12 January 1998. 349. See O. Schachter, New Custom: Power, opinio iuris and Contrary Practice, in Makarczyk (ed.), op. cit. note 6, at 531-540, in particular at 532. 350. GA Res. 1962 (XVIII); YUN 1963, at 523. 351. GA Res. 2312 (XXII). 352. GA Res. 2625 (XXV); Rosenstock, op. cit. note 344, at 713-735; Arangio-Ruiz, op. cit. note 253, at 519-628; J.A. Frowein, Freundschaft und Zusammenarbeit unter den Staaten, 28 Eur. Arch. 70-76 (1973). 353. GA Res. 2627 (XXV). 354. GA Res. 3201 (S-VI). 355. Inter alia, the UN Declaration on the Elimination of all Forms of Racial Discrimination (GA Res. 1904 (XVIII); the Declaration on the Rights of the Child (GA Res. 1386 (XIV); the Declaration on the Elimination of Discrimination against Women (GA Res. 2263 (XXII)); the Declaration on the Rights of Disabled Persons (GA Res. 3447 (XXX)); the Declaration on the Protection of all Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (GA Res. 3452 (XXX)); the Declaration on the Protection of All Persons from Enforced Disappearances (GA Res. 47/133); the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (GA Res. 47/135). 356. GA Res. 217 (III); YUN 1948/49, at 534-535.

§1258

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Peoples357 (9); Declaration on the Inadmissibility of Intervention in Domestic Affairs of States and the Protection of their Independence and Sovereignty358 (1); Declaration on Social Progress and Development359 (2); Declaration of Principles Governing the Sea-Bed and the Ocean Floor360 (14); Declaration of the Indian Ocean as a Zone of Peace361 (55); Declaration on the Rights of Mentally Retarded Persons362 (9); Declaration on the Protection of Women and Children in Emergency and Armed Conflict363 (14); Declaration on the Use of Scientific and Technological Progress in the Interests of Peace and for the Benefit of Mankind364 (20). One important UN declaration which met opposition was the Declaration on Permanent Sovereignty over Natural Resources.365 France and South-Africa voted against this declaration, and twelve states (including the Eastern European group) abstained.366

§1258. Declarations will usually have greater influence than recommendations, even if neither is legally binding. The greater solemnity attached to declarations indicates a stronger desire of the organization to see the principles enunciated observed.367 This desire also emerges from the fact that a number of declarations provide for a procedure to review their implementation.368 In such cases, non-observance will lead to almost the same political reproaches as nonobservance of binding decisions. Additionally, declarations usually influence the further development of the law, both customary and codified. Thus, the Universal Declaration of Human Rights has had a great impact on many national constitutions, such as those of Haiti and Egypt.369 It has sometimes been invoked before national courts,370 and in later declarations of the UN reference has been made to the Universal Declaration as if it were legally

357. GA Res. 1514 (XV); YUN 1960, at 49. 358. GA Res. 2131 (XX), YUN 1965, at 93. On the binding force of this resolution, see Golsong, op. cit. note 253, at 6-11. 359. GA Res. 2542 (XXIV). 360. GA Res. 2749 (XXV). 361. GA Res. 2832 (XXVI). See M. Sornarajah, Indian Ocean as a Peace Zone, Possible Legal Framework, 12 IJIL (1972), at 543-563 and 621-625. Cf. the resolutions creating zones free of nuclear arms which were not made in the form of declarations, e.g., GA Resolutions 33/64 and 33/65. 362. GA Res. 2856 (XXVI). 363. GA Res. 3318 (XXIX). 364. GA Res. 3384 (XXX). 365. GA Res. 1803 (XVII); YUN 1962, at 502. 366. Publication No. 75 of the Netherlands Ministry of Foreign Affairs, at 141. 367. E.g. Res. 1377 of the UN Security Council of 12 November 2001, by which it adopted the ‘declaration on the global effort to combat terrorism’. The importance of this declaration was further underlined by the fact that members of the Security Council were represented by their foreign ministers. 368. See e.g. Res. 47/59, Res. 47/60, and Res. 47/76. 369. Skubiszewski mentions twenty more examples, op. cit. note 318, at 100. 370. E.g., Court in Milan, Yearbook of Human Rights of the Council of Europe, Vol. 7, at 536. See also Skubiszewski, op. cit. note 318, at 101-105. See for references to other judgments by national courts, Sloan, op. cit. note 253, at 540, note 560.

789

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binding.371 The Declaration on the Granting of Independence to Colonial Countries and Peoples has been referred to in more than one hundred subsequent resolutions.372 To supervise the implementation of this Declaration, the General Assembly of the UN created a special committee (the Special Committee of 24, see below, §1409). §1259. Long before the creation of the UN, the International Conferences of American States issued declarations, often called “resolutions”. These declarations were supposed to carry more weight than recommendations and on numerous occasions the Conferences called for reports on their enforcement.373 Opinions on the binding nature of declarations of the OAS differ.374 Some support for their binding force can be found in the Act of Chapultepec (1945), in which the American states reaffirmed several principles with the opening lines: “The American states have been incorporating in their international law, since 1890, by means of conventions, resolutions and declarations, the following principles...”.375 If they were to create binding law for the members, OAS declarations would be stronger than UN declarations. Nevertheless, having regard to their contents, they do not seem to create new rules of law, but appear rather to reaffirm principles accepted by the states concerned. The official reaffirmation by the organization clarifies and strengthens the principles, in much the same way as in the UN. The subsequent action taken on the basis of OAS declarations also suggests that they do not create new binding rules of law. Statements by delegations often contain references to the necessity of referring resolutions and declarations to the competent authorities of the state for approval. In re Banco Aleman Transatlantico, the Supreme Court of Chile held, September 1959, that the resolutions of the Rio de Janeiro and Washington Conferences (1942) did not posses the juridical character of “preceptos legales”, a norm or law having binding force domestically. In its judgment, it considered that the resolutions did not create reciprocal rights and duties among the signatory parties but were merely of an advisory nature.376

371. Th.C. van Boven, Rechten van de Mens op Nieuwe Paden, Public Lecture, Amsterdam (1968), at 7-9. Such reference was made, e.g., in the Declaration on the Elimination of all Forms of Racial Discrimination and in GA Res. 1904 (XVIII). See also E. Schwelb, An instance of enforcing the Universal Declaration of Human Rights, action by the Security Council, 22 ICLQ 161-163 (1973). 372. See S.A. Bleicher, The Legal Significance of Re-citation of General Assembly Resolutions, 63 AJIL 444-478 (1969), at 456, and many subsequent GA resolutions. 373. E.g. in 1923. See C.G. Fenwick, The Organization of American States 158 (1963). 374. A. van Wijnen Thomas and A.J. Thomas Jr., The Organization of American States 67-73 (1963). 375. Res. VIII, quoted by Fenwick, op. cit. note 373, at 157. 376. 56 Revista de Derecho, Jurisprudencia y Ciencias Sociales I, at 320.

§1260

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§1260. A number of declarations have been proclaimed by the Organization of African Unity. For example, the Declaration on the Denuclearization of Africa,377 the Declaration on Subversion (1965); the Declaration on KenyaSomalia Relations (1967),378 and the Declaration reaffirming the principle of respect of sovereignty and territorial integrity of member states (1967).379 These declarations seem to have been intended to have stronger force than other resolutions. §1261. The internal legal force of declarations seems indisputable. When the supreme organ of an organization declares that a particular rule should be applied, that declaration will bind all lower organs, even if it has no external binding effect. This is a consequence of the hierarchy of organs. The UN declaration against racial discrimination, for instance, will forbid, not only politically, but also legally, the Secretary-General of the UN to allow racial discrimination among the staff. The UN Administrative Tribunal (UNAT) stated in the Robinson case: “The right of association is recognized by Articles 20 and 23(4) of the Universal Declaration of Human Rights, adopted by the third General Assembly. The Tribunal notes that the Secretary-General has taken steps to make known to the staff his clear views that the staff should be organized in an association with rights of representation to the Administration. The Tribunal is satisfied that the principle of the right of association to which the United Nations are solemnly pledged is admitted on all sides to be a principle which must prevail also inside the organization’s own Secretariat”.380 The General Assembly has expressly requested the Secretariat to ensure the application of the Declaration on the Elimination of Discrimination against Women.381

3.

Conventions

a.

The notion “convention”

(i) Denomination §1262. The traditional method of creating binding rules of international law is by treaty. Originally, treaties could only be drafted by representatives of governments specifically appointed for that purpose. However, since the establishment of the ILO in 1919, it has gradually become accepted that the drafting of international treaties can also take place within international or-

377. 378. 379. 380.

AHG/Res. II(1). AHG/ST 1. AHG/St 2. Robinson v. Secretary-General of the UN, Case No. 23, Judgment No. 15 of UNAT, Judgments of the UN Administrative Tribunal, Numbers 1-70, at 47. 381. GA Res. 2715 (XXV).

791

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ganizations.382 For treaties drafted by international organizations, the term conventions will be used. Terminology is far from consistent in the law of treaties. The International Law Commission mentioned sixteen different names for treaties;383 “convention” being but one of them. “Convention” is used especially for multilateral treaties of a law-making character. Most international organizations use the term “convention” for the treaties which they draft,384 but in some cases, however, they may wish to use another term.385 The ILO originally made “draft conventions”.386 In 1946 the word “draft” was deleted from the ILO constitution since it had frequently led to misunderstanding and had tended to obscure the binding character of the obligation resulting from the ratification of ILO conventions.387 (ii) Special forms of conventions §1263. The OECD, the International Energy Agency, the League of Arab States, and some fisheries commissions make conventions in a form different to that of treaties.388 These organizations can take decisions binding only on those members expressly accepting them. Although the procedure leading to their adoption is different, the net result of this procedure often closely resembles a convention: the organization drafts rules to which the members may adhere. Depending on the content of these provisions, they may be conventions or

382. On the convention-making of the ILO see J.F. McMahon, The Legislative Techniques of the International Labour Organisation, 41 BYIL 1-101 (1965/66); F. Wolf, L’application des Conventions internationales du Travail par voie de conventions collectives, 20 AFDI 103-114 (1974); E. Osieke, Constitutional Law and Practice in the International Labour Organisation, Chapter V (1985); V.-Y. Ghebali, The International Labour Organisation, Chapter V (1989); N. Valticos, Les conventions de l’organisation internationale du travail à la croisée des anniversaires, 100 RGDIP 5-43 (1996); F. Maupain, The ILO’s Standard-Setting Action: International Legislation or Treaty Law?, in V. Gowlland-Debbas (ed.), Multilateral Treaty-making 129-135 (2000). On convention-making by the specialized agencies in general see H. Saba, L’activité quasi-législative des institutions spécialisées des Nations Unies, 111 RdC (1964 I), at 617-659. On convention-making by the Council of Europe, see P. Modionos, Du droit conventionnel général au droit conventionnel européen, 4 CDE 3-37 (1968); F.W. Hondius, La préparation et la gestion des traités conclus dans le cadre du Conseil de l’Europe (Université de Clermont, Fascicule 16, Année 1979); J. Polakiewicz, Treaty Making in the Council of Europe (1999). 383. UN Doc. A/5209, at 5. 384. See also the United Nations Treaty Handbook (2001), at 54. 385. The Council of Europe often uses the term “agreement”. The same was done by the GATT and the World Trade Organization; the GATT also used the term “code”. 386. Treaty of Versailles, Art. 405. 387. Report of the Conference Delegation on Constitutional Questions on the Work of its First Session, 21 January-15 February 1946, para. 52; also, 29th Session ILO, Doc. 29 II(1), para. 52. 388. OECD, Art. 6.3, Rules 19, 20; IEA, Art. 61(2); League of Arab States, Art. 7. For the fisheries commissions see J.E. Carroz and A.G. Roche, Proposed International Commission for the Conservation of Atlantic Tunes, 61 AJIL 688-690 (1967). What they call “potentially binding recommendations” does not actually differ from what we termed “conventions”.

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unilaterally accepted recommendations. When they contain international obligations, they will belong to the former group, which means that the state cannot unilaterally withdraw (see above, §1232); when they propose changes in domestic legislation, they will normally be recommendations which can be accepted, and the acceptance of which may be withdrawn. §1264. The ICAO adopts “International Standards” and “Recommended Practices” as “Annexes” to its constitution. The Recommended Practices are recommendations, the International Standards bind only those states which do not give immediate notification to the ICAO of the differences between their own practice and that established by the international standard (see for this “contracting out” procedure below, §1288-1294). To some extent therefore, international standards resemble conventions. In one respect, some ICAO Standards have a wider scope than conventions: they are binding for the airspace above the high seas.389 In several states, the ICAO standards and recommended practices have obtained the force of law, either through a general act (such as the Sudanese Air Act of 1960 which provides that the ICAO annexes, with their future amendments, shall apply in the Sudan), or through regulations on specific provisions of annexes.390 In some cases, national courts have applied Annexes to the ICAO constitution.391

§1265. The WHO can adopt “regulations” in some specified fields.392 These are rules of law which bind the members except when they notify their rejection of the rule or reservations to it.393 In view of this discretion accorded to the member states, these “regulations” more closely resemble conventions with a negative ratification procedure (see below, §1288-1294), than binding acts of the organization. Under this provision, the WHO has adopted the International Nomenclature Regulations of 1948, the International Health Regulations of 1951 and the International Classification of Diseases. Each of these acts has been subsequently amended.

389. ICAO, Art. 12; see J. Carroz, International Legislation on Air Navigation over the High Seas, 26 JALC 158-172 (1959). On the International Standards and Recommended Practices of ICAO in general, see Buergenthal, op. cit. note 43, at 57-122; Alexandrowicz, op. cit. note 177, at 40-47; B.D.K. Henaku, The Law on Global Air Navigation by Satellite (1998), in particular Chapter 2. 390. Buergenthal, op. cit. note 43, at 105-106. 391. Id., at 107. 392. WHO, Art. 21. See M. Vierheilig, Die rechtliche Einordnung der von der Weltgesundheitsorganisation beschlossenen regulations (1984), Chapter Two; Beigbeder, op. cit. note 259, at 72-74. 393. WHO, Art. 22.

793

Legal order

§1266

(iii) Characteristics §1266. The main reason why international organizations make use of conventions is their traditional legal force. Conventions are treaties and therefore profit from the traditional rules of international law on the binding force of treaties. They also share the disadvantages of treaties: their entry into force is a slow and uncertain process and they are difficult to amend.394 It is this latter feature which makes conventions practically unsuited to technical rules which must be adaptable to changing developments.395 Several international organizations have initiated studies to try to facilitate and accelerate the procedure of law-making by conventions.396 An example is convention-making in the IMO. In 1960, the International Convention for the Safety of Life at Sea was adopted. The intention was to keep the Convention up to date by periodic amendments but in practice the amendments procedure incorporated proved to be very slow. As a result, a completely new convention was adopted in 1974 which included not only the amendments agreed upon to that date but also a new amendment procedure designed to ensure more rapid changes. Whereas the 1960 Convention (as some other IMO conventions) provided that amendments would come into force after (usually) two-thirds of the convention parties had accepted them, the 1974 version (and the more recent IMO conventions) contain the negative acceptance procedure (contracting out, see below, §1288-1294).397

§1267. The question may well be posed if conventions can at all be considered as decisions of international organizations: conventions are by definition bilateral or multilateral, whereas decisions of international organizations are often seen as unilateral acts. If they require individual ratification by each member and if the number of parties is often only a minority of all members of the organization, what makes these legal instruments different from ‘ordinary’ treaties? The difference is generally to be found in the special relationship conventions have with the organization involved. Conventions are drafted within the framework of the organization and formulate rules to pursue its aims. Usually, they only become ready for ratification after a separate decision to that effect has been adopted by the organization. Even before their ratification, conventions constitute a final formulation of the rules envisaged by the or-

394. Often non-ratification of conventions is due to administrative factors rather than to unwillingness. See UNITAR, Toward wider acceptance of UN Treaties, discussed by K. Narayana Rao, 11 IJIL 267-274 (1971); H.G. Schermers, International Organizations and the Law of Treaties, 42 GYIL (1999), at 56-65. 395. Dobbert, op. cit. note 280, at 439-440. 396. O. Schachter, M. Nawas and J. Fried, Toward Wider Acceptance of UN Treaties, a UNITAR study (1971). 397. Focus on IMO (A Summary of IMO Conventions, January 1994; obtained from the IMO Secretariat). For more examples of simplified acceptance of modifications to technical provisions, see Morgenstern, op. cit. note 253, at 112.

§1268

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ganization and they will therefore play some role in its legal order. In adopting them, the organization may also incur certain obligations such as covering the cost of bodies created by the conventions.398 Moreover, the organization is often involved in the supervision of their implementation. Several conventions of the Council of Europe, for example, created new organs within the scope of the Council399 or attributed new tasks to existing organs.400 Other organizations have followed suit.401 Conventions are therefore not the “sole property of ratifying states”, particularly when they give the organization a legal interest in the performance of obligations.402 They are Janus-faced: in some respects conventions are treaties, but in other respects the organic nature of the framework within which they are created and perform their functions adds features to these legal instruments that justify their qualification as decisions of international organizations. §1268. In one respect however, the effect of conventions on the legal order of the organizations which created them is slight: conventions are rarely ratified by all members and the convention is accordingly binding for only some members. Sometimes conventions may even be intended to bind only certain members (the partial agreements of the Council of Europe).403 While this may be a valuable tool for the subject matter concerned,404 it does little to foster the coherence of the organization’s legal order. A legislative process in which each act is based on former legislation cannot be introduced when acts of the organization do not bind all the members. Of course, this does not preclude the existence of a relationship between different conventions of the same organization: they may use the same forms, the same final clauses, they may even refer to each other.405 However, they cannot form a coherent whole.

398. H. Golsong, The Council of Europe, in Schwebel, op. cit. note 120, at 342. 399. Id., at 343-344. A more recent example is the 1992 European Charter for Regional or Minority Languages (Trb. 1993, No. 1). A Committee of Experts is created, whose members are appointed by the Committee of Ministers of the Council of Europe. Its task is to examine the periodic reports submitted by the parties to the Convention. 400. European Convention on Human Rights, Arts. 21, 39 (Parliamentary Assembly); 21, 30, 31, 32, 61 (Committee of Ministers); 15, 24, 25, 30, 35, 40, 46, 63, 65, 66 (Secretary-General). 401. The UN Convention against Racial Discrimination charges the General Assembly and the Secretariat of the UN with important tasks, see Th.C. van Boven, Het verdrag ter uitbanning van alle vormen van rassendiscriminatie, 20 Int. Spect. 666-669 (1966 I). See also below, §1431. 402. F. Morgenstern, Legal Problems of International Organizations (1986), at 116-118. Cf. also J. Wood, International Labour Organisation Conventions – Labour Code or Treaties? 40 ICLQ (1991), at 649-657. 403. Golsong in Schwebel, op. cit. note 120, at 343; Polakiewicz, op. cit. note 382, at 12-13. 404. F. Eyriey, Activités des Comités de L’Accord partial, 13 European Yearbook 125-135 (1965), extensive summary in English at 140-144. 405. F. Wolf, L’interdépendence des conventions internationales du travail, 121 RdC 113-220 (1967 II), in particular at 121-148.

795

Legal order

§1268

By August 2003, the Council of Europe had made 194 conventions and protocols. Some 20 of these had been ratified by almost all members.406 In 2001, more than two thirds of these conventions and protocols have been ratified by less than half of the member states.407 This has made it impossible for the organization to create a consistent body of law. A new rule cannot be based on a former one if they do not concern the same states. There is no “Council of Europe law” in the way that there is a “law of the European Communities”. The Council of Europe can do no more than create separate legal orders for individual conventions, such as the European Convention on Human Rights, notwithstanding the Council’s aim “to achieve a greater unity between its members”.408 Nevertheless, these conventions are linked with the Council in several ways, such as the approval of the conventions by the Committee of Ministers and the supervision of the implementation of the convention by Council of Europe organs.409 The situation in the ILO is more or less similar. In November 2001, when this organization had 173 members, the following data were reported. Of the 178 international labour conventions in force – of which some are by virtue of their subject matter of interest to only a limited number of states – 14 had over 100 ratifications (these include most of the key human rights instruments), 17 had been ratified by more than half the membership, while 11 had not yet entered into force.410 This organization does try to increase the number of ratifications by exerting several forms of pressure on the members (see below, §1284, §1402-1404, §1425-1426), but has not succeeded in obtaining anything near general ratification of its conventions.411 The ILO conventions, therefore, are also incapable of forming one coherent legal order. Large sections of new conventions often have to be copied from former ones, each promoting a coherent legal order of its own. To some extent, the same situation exists in the IMO. As of 1 October 2001, more than twenty conventions had been adopted,412 only three of which had been ratified by almost all member states. However, some conventions affect only a few states; in these cases, there is no need for all IMO members to adhere to make these conventions effective. For example, the 1971 Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material, and the 1971 Special Trade Passenger Ships Agreement (dealing with the carriage of large numbers of unberthed passengers in special trades such as the pilgrim trade, of particular interest for countries in the restricted sea area around the Indian Ocean).413 The problem of a coherent legal order also arose in GATT, partly because it was originally not intended that GATT become an international organization. In practice, a large number of conventions were concluded within the GATT framework (“side

406. See www.coe.fr. 407. Chart Showing Ratifications of Council of Europe Conventions and Agreements, CoE Strasbourg; see 49 European Yearbook 2001, at C of E 125-127. 408. Statute CoE, Art. 1(a). 409. Cf. 49 European Yearbook 2001, at C of E 113-114; Polakiewicz, op. cit. note 382, at 9-10. 410. Data taken from the ILO website and information provided by the International Labour Office. See further Morgenstern, op. cit. note 253, at 105. Cf. also J. Wood, International Labour Organisation Conventions – Labour Code or Treaties?, 40 ICLQ 649-657 (1991). 411. See Summary of reports on ratified conventions and ILO Chart of ratifications. 412. Excluding conventions which are still in force or applicable but which are no longer fully operational because they have been superseded by later instruments. Information obtained from the IMO Secretariat and from the IMO website: www.imo.org. 413. Information obtained from the IMO Secretariat.

§1269

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agreements”, codes, and other names have been used). Usually only a limited number of members participated in these conventions, which sometimes contain outright violations of GATT rules. Some degree of coherence was ensured because these conventions had to be applied on a most-favoured-nation basis, in accordance with Article I of the General Agreement. In practice, the danger of a fragmentation of the GATT legal order was one of the reasons prompting the proposal for the establishment of a “proper” international organization, which came into being with the entry into force of the 1994 Agreement Establishing the World Trade Organization.414 Another example is WIPO. WIPO is an ‘umbrella organization’ housing a number of legally separate Unions for such fields as the protection of industrial property (the Paris Convention) and the international registration of trade marks (the Madrid Agreement). Each Union has its own membership and institutional structure. WIPO was created in 1967 to ensure, inter alia, administrative cooperation between these Unions. In the course of the 1990s, the need was felt to change the structure of the organization and make it more coherent. Most controversial is the proposal to create a ‘Unitary Assembly’ as the general congress for all WIPO treaties.415 A final example is the EU. For many years the issue has been discussed whether and under what conditions a limited number of member states should be allowed to move faster on the path of European integration and conclude agreements inter se to that end. In particular in view of the expected future enlargements of the EU a more frequent recourse to such agreements inter se was anticipated and a legal framework was provided for what was known as ’flexibilty‘ or ‘enhanced cooperation’. In the 1997 Amsterdam Treaty such a framework was created. However, it was subsequently felt that these rules were too strict. The 2001 Nice Treaty amended these rules. According to this more liberal framework it is required that at least eight member states participate in a case of enhanced cooperation; moreover, as opposed to the Amsterdam Treaty, member states no longer have the right of veto over a proposed case of enhanced cooperation.416 Only Benelux conventions constitute one consolidated body of legal rules. They only enter into force when ratified by all members of the organization. In this organization, there is little difference between the effect of a convention and that of a binding decision.

§1269. Conventions are important legal acts, perhaps the most important types of modern international legislation.417 However, they are only loosely attached

414. See on the problem of coherence of the GATT legal order J.H. Jackson, The Birth of the GATT-MTN System: A Constitutional Appraisal, 12 Law and Policy in International Business 21-58 (1980); W. Benedek, Die Rechtsordnung des GATT aus völkerrechtlicher Sicht (1990), at 94-115 and 435-450. More in particular about the relationship between the textile conventions (“arrangements”) and the GATT, N. Blokker, International Regulation of World Trade in Textiles (1989), Chapter 5. 415. See WIPO Doc. A/32/INF/2 (1998). On the history of WIPO see A. Bogsch, Brief History of the First 25 Years of the World Interllectual Property Organization (1992). 416. Art. 11 EC; Art. 27 EU; Art. 40 EU; Arts 43-45 EU. See I.F. Dekker and R.A. Wessel, The European Union and the Concept of Flexibility: Proliferation of Legal Systems within International Organizations, in Blokker and Schermers, op. cit. note 64, at 381-414. 417. H.H. Han, International legislation by the United Nations, Legal Provisions, Practice and Prospects (1971).

797

Legal order

§1270

to the legal orders of international organizations. Delegations, and even permanent representatives, need special full powers issued by their governments before they may sign conventions.418 Is the role played by the convention as an act of an international organization sufficiently important to justify distinguishing their legal effects from those of ordinary treaties? To date, such a distinction has not been expressly accepted in international law. The Vienna Convention on the Law of Treaties “applies...to any treaty adopted within an international organization without prejudice to any relevant rules of the organization”.419 An earlier draft of the International Law Commission (ILC) referred to “any established rules of the organization”. In its commentary on this provision, the ILC stated: “The term “established rules” of the organization is intended... to embrace not only the provisions of the constituent instruments of the organization but also the customary rules developed in its practice”.420 There is no indication that the later change from “established rules” to “relevant rules” would influence this statement. The Vienna Convention does not prohibit international organizations from developing rules of customary law by which legal force is attributed to conventions, even before ratification thereof. Indeed, in certain organizations conventions are given such force (see below, §1295-1296).

§1270. The constitution of the Latin American Integration Association (LAIA) explicitly provides for the conclusion of “agreements of partial scope”, in which some of the member states participate.421 The rights and obligations under these agreements apply exclusively between their parties. Nevertheless, important links are maintained with the organization. For example, they must be open to adherence by the other LAIA members, following negotiation. Additionally, they must contain provisions which tend to stimulate convergence so that their benefits extend to all the member countries.422 b.

Competence to make conventions

§1271. The oldest international organization expressly empowered to make conventions is the ILO. Originally, the power of the ILO to make conventions was subject to criticism. The governments of France and Belgium, in particular, considered it unacceptable for an organization to perform this governmental function, especially since the ILO congress was partly composed of non-governmental delegates. Although the ILO constitution empowered the general congress of ILO to propose conventions,423 these governments

418. See Yearbook ILC (1967 II), at 168-169. 419. Vienna Convention on the Law of Treaties (1969), Art. 5. 420. Yearbook ILC (1963 II), at 213. See also Yearbook ILC (1965 I), at 31, 308 and Yearbook ILC (1965 II), at 160. 421. Arts. 7-14. 422. Art. 9 (a) and (b). 423. ILO, Art. 19.

§1272

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were unwilling to present the first ILO conventions to their parliaments. Instead they first copied them in an interstate protocol which was duly signed by government representatives and presented to the national parliaments, a cumbersome procedure which was finally renounced in 1924.424

§1272. On the whole, the convention-making role of the ILO was quite successful. After the Second World War, the constitutions of a number of other organizations contained analogous powers.425 Some organizations (ILO, Council of Europe) use this power rather frequently, others generally use other legal instruments and rarely adopt conventions. Only in 2003 1996 the WHO for the first time adopted a convention, the Framework Convention on Tobacco Control.426 The United Nations Conference on International Organization (UNCIO) in San Francisco – which resulted in the establishment of the UN – discussed whether the General Assembly of the UN should have a specific power to draft conventions and to present them to the members for adherence. The proposal to write this power into the Charter was not adopted, partly because it was considered that there was no need for such a provision since the powers of the General Assembly were sufficiently broad to include this possibility.427 In practice, the General Assembly has indeed adopted a number of conventions428 which were subsequently adhered to by members of the UN, and even by some non-members. §1273. One organ which has no power to propose conventions to the member states is the Council of the European Union, the powers of which are limited by the powers of the European Parliament and the Commission. The whole

424. F.O. Wilcox, The ratification of international conventions 169-171 (1935). On the policy of France see also M. Courtin, La pratique française en matière de ratification et l’article 19 de la Constitution de l’0.I.T., 16 AFDI 596-604 (1970). 425. FAO, Art. 14; WHO, Art. 19; UNESCO, Art. 4.4; IMO, Art. 2(b); CoE, Art. 15; Benelux, Art. 19. 426. Adopted on 21 May 2003. Preparations for this convention were initiated in 1996, when the WHO general congress requested the Director-General to begin developing this convention. See Beigbeder, op. cit. note 259, at 71-72; D.J. Malcolm, Tobacco, Global Public Health, and Non-governmental Organizations: an Eminent Pandemic or Just Another Legal Product?, 28 Denver JILP 1-50 (1999). The negotiations on this convention have been complex and involved the private sector and ngo’s. Public hearings took place in October 2000. See further the www.who.int. 427. 8 UNCIO, at 206-210. 428. E.g., the Convention on Privileges and Immunities of the UN (GA Res. 22 A (I)), the Convention on Genocide (GA Res. 260 A (III)), the Covenants on Human Rights (GA Res. 2200 (XXI)), the Convention on Special Missions (GA Res. 2530 (XXIV)), the Treaty on the prohibition of the emplacement of nuclear and other weapons on the sea-bed (GA Res. 2660 (XXV)), the Convention on the prohibition of Military or any other hostile use of Environmental Modification Techniques (GA Res. 31/72), the Convention on the Rights of the Child (GA Res. 44/25) and the International Convention for the Suppression of the Financing of Terrorism (GA Res. 54/109).

799

Legal order

§1274

system of the EC constitution demonstrates that the drafting of conventions does not fall within the powers of the Council.429 Nevertheless, the members have found a practical solution to the Council’s lack of competence in this respect. Where they want to adopt a convention, the delegations of the member states meet in a different capacity. Thus, when negotiating as government representatives, rather than as Council members, the delegates must be considered competent to draft conventions. Several conventions have been drafted (usually without even a reservation as to ratification) by the “representatives of the member states meeting in the framework of the Council”. Formally these are not Council decisions but the result is substantially the same.430 The ICAO may adopt conventions by a similar process. The rules of the ICAO provide that draft conventions shall be considered, with a view to their approval, by a conference which may be convened in conjunction with a session of the Assembly.431 §1274. Would general congresses be competent to draft conventions in the absence of any constitutional provision to that effect? There seem to be no strong arguments against the existence of such a competence. Like the member states in the European Union, members could always empower their delegations to draft a convention outside the framework of the general congress. Viewed from this perspective, the acceptance of a general principle that all general congresses have the right to draft conventions and to recommend their acceptance by members, would only be a small step, unless the constitution were to prohibit such recommendations or were to require cooperation with other organs in the drafting thereof. The rule that conventions need to be ratified before they can bind any particular state can be seen to provide sufficient protection for each member’s interests. Legally, a convention can be regarded as a specific type of recommendation (the recommendation to bind the state to the convention). Thus, by analogy, a general congress, empowered to make recommendations, would also be competent to draft conventions. The constitution of the ILO empowers the general congress to adopt conventions which merely require ratification by the members. The resolution of the general congress replaces the signatures of the individual states.432 In the absence of such a constitutional power to adopt conventions, signature

429. See e.g. EC, Arts. 249, 308. In Art. 293 the power to make interstate agreements is expressly attributed to the member states, not to the Council. 430. See H.G. Schermers and D. Waelbroeck, Judicial Protection in the European Union 329-330 (6th ed. 2001). It is not always clear to distinguish between decisions of the Council and decisions taken by representatives of the member states meeting in the framework of the Council, see Joined Cases C-181/91 and C-248/91, European Parliament v. Council and Commission, ECR 1993, at I-3685. 431. Procedure for approval of draft conventions (ICAO Assembly Res. A7-6), para. 4, (ICAO Doc. 7669-LC/139/2, 3). 432. F. Maupain, op. cit. note 382, at 130.

§1275

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and ratification by states may both be required. The conventions of the UN are usually signed and also ratified by each state separately. §1275. In some international organizations, decisions can only be adopted unanimously. Consequently, one state can prevent the adoption of a convention, even if such adoption need not affect it, because of its right to refrain from becoming a party to the convention.433 Such an exercise of the right of veto may be politically objectionable but it is legally valid. All members have some interest, positive or negative, in the rules adopted by an international organization to which they belong. The unreasonable exercise of the veto can always be sanctioned by, for example, expelling the member in question from the organization (see above, §141). Additionally, it remains possible for members to conclude treaties outside the scope of the organization. c.

Legal force before ratification

§1276. Depending on their content, the legal force of unratified conventions may be compared either with that of recommendations or with that of declarations.434 Conventions may recommend certain rules to members, without pressing for their ratification. An organization, noting that some of its members are struggling with a particular problem, may draft a convention to cope with this problem, leaving it for the members to decide whether or not to participate. In this case, the convention will have no legal force before its ratification, even within the legal order of the organization. On the other hand, conventions often contain rules which, in the opinion of the organization, should be binding on all members, because they codify either existing rules of law, or widely-supported legal principles. In this situation, the members are under a certain moral obligation to ratify the conventions. Where the organization has the power, it will generally move to adopt binding decisions, the latter type of convention only really being resorted to where no stronger option is available. §1277. Conventions, even when unratified, are particularly influential when the drafting organization enjoys considerable authority in the field in question. The international labour conventions, for example, may be seen as constituting an international labour code.435 The Office of Legal Affairs of the UN Secretariat attributed some force to an unratified UN convention when it considered:

433. This problem occurred in the CMEA as one state, which could be considered as a member (Albania, see above, §141), obstructed all activities. See R. Szawlowski, The System of International Organizations of the Communist Countries 65 (1965). 434. On the legal force of unratified conventions, see O. Schachter, The Twilight Existence of Non-binding International Agreements, 71 AJIL 296-304 (1971). 435. See Golsong, op. cit. note 253, at 40-43; Maupain, op. cit. note 432. Cf. also Wood, op. cit. note 410.

801

Legal order

§1278

“The Convention on the Law of Treaties, ...is not yet in force, but the debates of the Conference and the overwhelming majorities by which most of its provisions were adopted are sufficient evidence that many such provisions are regarded as restating the customary international law of treaties.”436

§1278. The International Court of Justice considered the declaratory aspect of the genocide convention in advisory opinion of 28 May 1951, where it observed: “The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as a “crime under international law” ...contrary to moral law and to the spirit and aims of the United Nations (Resolution 96 (I) of the General Assembly, December 11th, 1946). The first consequence arising from this conception is that the principles underlying the Convention are principles which are recognized by civilized nations as binding on states, even without any conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the cooperation required “in order to liberate mankind from such an odious scourge” (Preamble to the Convention). The Genocide Convention was therefore intended by the General Assembly and by the contracting parties to be definitely universal in scope. It was in fact approved on December 9th, 1948, by a resolution which was unanimously adopted by fifty-six states”.437

§1279. International organizations will often exert pressure on their members to ratify (see below, §1282-1287). For the same reasons as apply to declarations, conventions, which according to the organization should be generally applied, will form part of the internal legal order of the organization, even prior to their ratification. Codification of existing law can be found, inter alia, in the UN conventions on Genocide,438 Diplomatic Relations,439 Consular Relations,440 and the Law of Treaties.441 These conventions reflect existing rules of law which the organization could have codified in a declaration but, instead, chose to employ the form of a convention, to establish firmly the binding character of the rules. Codification of widely supported legal principles formed the basis for the 1958 UN Convention on the Continental Shelf442 and for many UPU conventions.443 In these cases, no customary law existed, or only in a rudimentary form, but there was a generally perceived need for specific legal rules, which

436. UNJY 1970, at 184. 437. ICJ Rep. 1951, at 23. See also ICJ Rep. 1971, at 47 (Vienna Convention on the Law of Treaties). 438. 78 UNTS, at 277. 439. 500 UNTS, at 95. 440. 596 UNTS, at 261. 441. 8 ILM 679-735 (1969). 442. 499 UNTS, at 311. 443. 364 UNTS, at 5211-5212; 365 UNTS, at 5213-5214; 366 UNTS, at 5215-5220.

§1280

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was met by a text adopted with the approval of the vast majority of the delegations, representing virtually every state. §1280. In practice, these codifying conventions take legal effect prior to their ratification. Many states applied the 1958 UN Convention on the Continental Shelf before it entered into force, and the UPU Conventions are usually applied within two years of their establishment, even where they have not been ratified (see below, §1295). As with declarations in these cases, conventions may derive their force from the general support which they receive in the international organization. In the North Sea Continental Shelf Case, Denmark and the Netherlands submitted that prior to the UN Conference on the Law of the Sea, continental shelf law was only in its formative stages and state practice lacked uniformity. Nevertheless, the process of the defining and consolidating the emerging customary law took place through the work of the International Law Commission, the reactions of governments to that work and the proceedings of the Geneva Conference, and it was this emerging customary law which was “crystallized” with the adoption of the Continental Shelf Convention by the Conference. In reply to this submission the Court stated: “Whatever validity this contention may have in respect of, at least, certain parts of the Convention the Court cannot accept it as regards the delimitation provision (Article 6)” since that provision was proposed by the International Law Commission “with considerable hesitation, somewhat on an experimental basis, at most de lege ferenda and not at all de lege lata or as an emerging rule of customary international law.”444 Although the Court rejected the Danish and Dutch submissions in the specific case, it seemed to accept that the convention created law (even before ratification) in respect of “at least certain parts” of its contents.

d.

Ratification

(i) The requirement of ratification §1281. Conventions only take full legal effect after ratification, and then only for those states which have ratified (see also above, §892-896). Each convention must state the number of ratifications required before it can enter into force; this number will mainly depend on the contents of the convention. Some conventions can operate effectively between only two states (for instance conventions on the settlement of disputes), while others require a larger number of participants (for instance, conventions on the law of the sea). Newly independent states may become parties to conventions by a declaration of succession. In that case, deposit of an instrument of ratification or accession is not required.445

444. ICJ Rep. 1969, at 38. 445. See UNJY 1969, at 222.

803

Legal order

§1282

Ratification gives conventions force. Ratified treaties represent almost the only undisputed source of international law. It is beyond doubt that a state is legally bound to rules which it has expressly ratified. However, for two reasons, the ratification requirement is the convention’s greatest weakness. First, ratification is usually a long process.446 For example, IMO Conventions enter into force within an average of five years after adoption.447 Conventions are thus generally unsuitable instruments in which to embody urgent international legislation.448 Secondly, ratification effectively prevents the development of a uniform body of law. It is rare for all members to ratify a given instrument and, consequently, it becomes difficult to establish a body of law in which one convention complements another (see above, §1268). (ii) Pressure to ratify §1282. It will be in the organization’s interest to ensure whenever required prompt ratification by members. In principle, international organizations have a legitimate interest in the broad acceptance of conventions concluded under their aegis.449 They accordingly stimulate ratification in a number of different ways.450 Resolutions of the general congress or of other organs may urge the members to ratify.451 The dissemination of data on ratification by other states may have some stimulating effect, as can periodical reporting on the state of ratifications. A further means to promote ratification is the organization of a ‘treaty event’: a solemn occasion (often with extensive media coverage) where members sign a convention or deposit their instruments of ratification, acceptance, approval or accession. In 2000 the UN Secretary-General invited all Heads of State and Government attending the Millennium Summit (6-8 September 2000) to sign and ratify treaties deposited with him. On that occasion 84 countries, of which 59 where represented at the level of Head of State or Government, undertook 274 treaty actions (signature, ratification etc.) in relation to more than 40 treaties.452 On 16 November 2001, the UN organized a treaty event during the General Assembly’s general debate, in order to promote multilateral treaties on terrorism; the event provided a focus and additional visibility for states

446. Schachter, Nawas and Fried, op. cit. note 365, at 80-92. 447. Information taken from www.imo.org. 448. Schermers, op. cit. note 394.Of course, there are exceptions. See Morgenstern, op. cit. note 253, at 106. 449. Id., at 13-15. 450. Id., at 15-18; 41-79. See also Alexandrowicz, op. cit. note 177, at 24-33. 451. E.g. Res. 1373 of the UN Security Council, which “[c]alls upon all states to […] (d) Become parties as soon as possible to the relevant international conventions and protocols relating to terrorism, including the International Convention for the Suppression of the Financing of Terrorism of 9 December 1999” (para. 3). 452. See the UN Treaty Handbook (2001), at 1.

§1283

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signing, ratifying or acceding to treaties against terrorism.453 On 11 April 2002 a treaty event took place where 10 states deposited simultaneously their instruments of ratification, acceptance, approval or accession with respect to the Rome Statute of the International Criminal Court.

§1283. According to the original text of the FAO constitution, the members had to report periodically on the action taken on the basis of conventions submitted by the general congress.454 However, this provision has since been considerably weakened as application was found to be impossible.455 The members of UNESCO are under a similar obligation.456 The general congress of UNESCO further amplified this obligation in the Rules of Procedure concerning recommendations to member states and international conventions covered by the terms of Article 4.4 of the Constitution.457 According to these rules, the members have to report on action undertaken by them in relation to a convention.458 The members’ reports are then discussed by the general congress,459 which may impose additional pressure to provoke ratification. Similar rules apply to the members of the Council of Europe.460 Apart from the obligation to report, UNESCO members are also obliged to submit conventions to their competent authorities within one year of the close of the session at which they are adopted.461 Still more onerous are the obligations of the members of the WHO. Here, they are not only bound to submit conventions to their national authorities (within 18 months) and to report on the result, but they are also obliged to provide an explanation for their failure to ratify.462 The consequent international publicity will undoubtedly create further pressure to ratify. §1284. The most far-reaching obligations are imposed on ILO members. Ratification of conventions is considered essential for the organization.463 Not only do members have to submit conventions to their competent authorities and to report on the result (within 18 months), but, as long as they have not ratified, they must also report periodically on the position of their laws and

453. The UN reported that 79 states participated in the event, depositing a large number of signatures or ratifications; 66 states were represented by their Heads of State, Heads of Government or by their Foreign Ministers. 454. FAO, Art. 11.1 (original version). 455. FAO, Art. 11. 456. UNESCO, Art. 8. 457. These Rules of Procedure were adopted by the General Conference at its 5th session (5C/Resolutions, at 133-134 and 137-139), and amended at its 7th and 17th sessions (7C/Resolutions, at 109; 17C/Resolutions, at 114), and its 25th session (25C/Resolutions, at 194). These Rules are reproduced in UNESCO, Basic Texts (2000), at 111-116. 458. Id., Art. 16. 459. Id., Art. 17. 460. Res. 61 (1) of the Committee of Ministers of the Council of Europe. 461. UNESCO, Art. 4.4. See UNJY 1965, at 137-140 and 237-241. 462. WHO, Art. 20. 463. According to Valticos, op. cit. note 382, at 16, “c’est la clef du système”.

805

Legal order

§1285

practices with regard to the matters dealt with in the convention.464 These reports are examined by the ILO Committee of Experts on the Application of Conventions and Recommendations which reports in turn to the general congress of the organization, which again discusses the reports. §1285. The constitutions of ILO, WHO and UNESCO oblige the members to submit conventions to their competent authorities. Who are these authorities? Is it the authority empowered to ratify treaties, or the authority empowered to make the contents of the conventions binding law for the citizens? These two authorities are often identical, but not always. On the basis of many discussions, it can be concluded that the ILO constitution refers to the lawmaking authority.465 By contrast, the WHO constitution clearly refers to the treaty-making authority.466 The legal committee of the general congress of UNESCO concluded that, for that organization, the law-making authorities were meant.467 §1286. The effectiveness of the requirement to submit conventions to the competent authorities appears to differ. In the ILO, only roughly one-third of the members comply with this obligation, although two-thirds of the members usually do so within five years. The degree of compliance within UNESCO seems even less impressive (an indicative figure of 10 per cent has been given).468 §1287. The ILO also tries to bind states to its conventions in another way. Beginning with Pakistan in 1947, a practice has been established under which, on being admitted to membership, every newly independent state makes a declaration recognizing that it continues to be bound by the obligations entered into in respect of its territory by its predecessors. This practice, which diverges from the rules codified in the Vienna Convention on Succession of States in

464. ILO, Art. 19, para. 5(e). 465. J. Zarras, Le contrôle de l’application des conventions internationales du travail 15-16 (1937); Report of the Conference Delegation on Constitutional Questions on the Work of its first session, 21 January- 15 February 1946, ILO Montreal, at 42 and 43; Report of the Committee of Experts on the Application of Conventions and Recommendations 1953, para. 46 b. This report was accepted by a commission established by the 36th session of the general congress of the ILO and subsequently by the congress itself. See also H. Saba in 111 RdC (1964 I), at 629-636. 466. WHO, Art. 20. 467. UNJY 1962, Provisional ed., fasc. 1, Doc. ST/LEG/8, at 177; see also H. Saba in 111 RdC (1964 I), at 651; UNJY 1965, at 138-139, and on the question which authority is competent in federal states: Taylor, Federal States and Labour Treaties 112-113 (1935). 468. Morgenstern, op. cit. note 253, at 107.

§1288

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Respect of Treaties469 was initiated by the ILO Secretariat and has produced some good results.470 (iii) Negative acceptance (contracting out, tacit acceptance) §1288. The requirement of ratification offers particular disadvantages for conventions which are acceptable to some members only if the other members also accept them. Many conventions concerning social affairs provide good examples. States often accept the principles of these conventions, but are afraid of the economic consequences. Acceptance of social obligations may entail higher costs which would make the state less competitive. Many states therefore only ratify social conventions if their competitors accept the same limitations. This leads to what Wilcox described as a policy of “watchful waiting”.471 Every state waits for its competitors; none ratifies. For this type of convention, it may be necessary to require a large number of ratifications before it can enter into force. Only then will the members dare to ratify. It may also be necessary to require the ratification of some specific key states. Such a requirement will at least delay the instrument’s entry into force. This may be unnecessary, however, since not all states have the same competitors. Venezuela or Colombia may wait until the other ratifies, while their ratification is unimportant for the Netherlands or Belgium. These, in their turn, may await each other’s ratification, which is of no interest to Venezuela or Colombia. In this case, it seems unnecessary to require ratification by all four before the convention can enter into force.

§1289. The OECD only partly solves this problem by allowing members to apply the rules provisionally as long as other members have not ratified them.472 Members will not easily accept social obligations provisionally when they are not sure that final acceptance will also be possible. This is because for domestic political reasons, it is usually extremely difficult to withdraw social benefits once they have been granted. §1290. Another method of solving this problem is the establishment of a negative ratification procedure. States then become parties to the convention, not by their action but by their inaction. The constitution of the organization, or the convention concerned, should provide that all members will be bound,

469. For the text of this convention, see 17 ILM 1488-1517 (1978). 470. ILC Report on its 24th Session (UN Doc. A/8710/Rev. l, GAOR 27th session, Suppl. No. 10. at 14. 471. Wilcox, op. cit. note 424, at 115. 472. OECD, Art. 6.3.

807

Legal order

§1291

unless they notify before a certain date that they do not intend to participate. Instead of “contracting in”, they have to “contract out”.473 The term “contract out” suggests that there is a legal obligation from which the state withdraws. However, this is usually not the situation. In most cases, the states can withdraw before the legal rule enters into force. Only in some organizations can states contract out after the rule has entered into force.474 Other organizations discourage contracting out by requiring previous consultation or a statement of reasons.475 §1291. The negative procedure has the disadvantage that states could be bound against their will through the neglect of one of their organs. For example, documentation may be forwarded too late, responsible officials may be on holiday. This may be especially prevalent in fields for which many different authorities are responsible at the same governmental level, or at different levels, as is often the case in federal states. However, the disadvantage may be counterbalanced by the time-saving factor. With the negative procedure, the organization can decide the date on which the convention is to enter into force and all preparations can be made for that date. The risk that a majority of the members may “contract out” is usually small. In that event however, the convention may not enter into force (depending on the text of the provision concerned). §1292. Several constitutions expressly provide for a negative ratification procedure with respect to certain decisions of the organization. The constitution of the WHO expressly provides the negative procedure for WHO regulations.476 The ICAO constitution does the same for international civil aviation standards which may be “annexed” to the constitution.477 The WMO can adopt technical regulations and send them to its members at least nine months before the date of implementation. Within that period, the members can notify that they find it “impracticable” to give effect to any requirement of such a regulation.478 Although

473. Skubiszewski, op. cit. note 182, at 511 and id., op. cit. note 191, at 210-225; I. Detter, LawMaking by international organizations 228-258 (1965). On the history and the application of this method, see also A. Wasilkowski, Aspects juridiques de l’intégration économique socialiste, (Colloquium of the Hague Academy of International Law, 1972), at 313-314. On the Council of Europe practice, see Polakiewicz, op. cit. note 382, at 163-169. 474. See Alexandrowicz, op. cit. note 177, at 51-69. 475. WHO and WMO, see Alexandrowicz, op. cit. note 177, at 55, 68. 476. WHO, Art. 22. On these regulations see C.H. Vignes, Le règlement sanitaire international, 11 AFDI 649-667 (1965); A. von Rom, Der bei ausbleiben staatlicher Ablehnung verbindliche Mehrheitsbeschluss der Weltgesundheitsorganisation (1968); Alexandrowicz, op. cit. note 177, at 47-56; Vierheilig, op. cit. note 392, in particular at 60-80; Beigbeder, op. cit. note 259, at 72-74. 477. ICAO, Arts. 54(l), 90, 37, 38; ICAO Bulletin Vol. 20 (1965) No. 7, at 14. On the adoption and amendment of (binding) annexes to the ICAO Convention, see Yemin, op. cit. note 46, at 128-131; Buergenthal, op. cit. note 43, at 57-80. 478. WMO, Art. 9; General Regulations 126-127. See Alexandrowicz, op. cit. note 177, at 56-61.

§1293

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the constitution does not specifically say so, members are considered bound if they fail to give such notice. States wishing to accede to the 1980 Convention Concerning International Carriage by Rail (COTIF) have to address their application to the Swiss government, together with a note on the situation of their rail transport undertakings from the standpoint of international traffic. Such applications shall be deemed to be accepted after six months, unless five member states lodge objections.479 The constitution of UNIDO provides that members which have not acceded to the Convention on Privileges and Immunities of the Specialized Agencies, but which are parties to the Convention on the Privileges and Immunities of the UN, shall apply the provisions of the latter convention to UNIDO, unless they notify otherwise, in which case the latter convention ceases to apply after thirty days.480 The activities of the European Space Agency include mandatory activities, in which all member states participate, and optional activities, in which all member states participate apart from those that formally declare themselves not interested in participating therein. Once the ESA Council has accepted the carrying out of an optional programme within the framework of the Agency, any member state that does not intend to take part in the programme must, within three months, formally declare that it is not interested in participating therein.481

§1293. However, express constitutional provision is unnecessary.482 As a general rule of the law of treaties, the consent of a state to be bound by a treaty can be expressed by the signature of its representative.483 Subsequent ratification is not needed if the delegates possess full powers, duly delegated by the competent national authorities. §1294. When the period for contracting out has passed, the members which have failed to respond are legally bound by the provisions in question. This does not necessarily mean that they apply the decisions. With respect to the ICAO, Buergenthal wrote in 1969 that almost half of the members did not indicate whether or not they applied the international standards and recommended practices adopted by the organization.484 It would be unrealistic to assert that their silence denoted compliance. ICAO therefore no longer makes this assumption, and more recent studies would seem to bear this conclusion out. On many occasions, member states have not implemented international standards, but have nevertheless failed to notify the ICAO as

479. 480. 481. 482.

Art. 23. UNIDO, Art. 21 (2). ESA, Art. 5.1 and Annex III to the constitution. For example, the IMO Constitution does not refer to this procedure, but the majority of IMO’s technical conventions and also some other instruments contain a provision for negative acceptance of amendments to these conventions (see www.imo.org/Conventions). Likewise, it is sometimes used in Council of Europe conventions and protocols; for example the 1979 Convention on the Conservation of European Wildlife and Natural Habitat, Art. 17.3. 483. Vienna Convention on the Law of Treaties (1969), Arts. 11-12. 484. Buergenthal, op. cit. note 43, at 99-100.

809

Legal order

§1295

required under Article 38 of the constitution.485 The Secretariat therefore continues to campaign for express notification of application. A negative ratification procedure may be inadvisable for important questions, in which case an intermediate form may offer a solution. The convention itself is signed and ratified according to the normal procedure but the restrictions which may cause “watchful waiting” are amended according to the negative procedure. One example of such a structure can be found in the International Convention for the Regulation of Whaling of 2 December 1946.486 The restrictions on whaling are incorporated in an annex which forms part of the Convention. This annex can be amended by the International Whaling Commission. Amendments are sent to the governments and enter into force after ninety days, if no government objects. If a government does object, the amendment will not become effective for any of the governments for an additional ninety days. This allows the governments which did not originally object to review the situation created by the non-participation of one or more other governments. (iv) Provisional application487 §1295. Provision is sometimes made for conventions to be provisionally applicable from a given date, which prevents a convention’s entry into force being unduly delayed. In order that their entry into force will not be delayed, conventions sometimes provide for provisional application as from a specific date. The effect of such a provision is very similar to that of the negative acceptance procedure. Unless the convention provides otherwise or the negotiating states have agreed otherwise (neither of which is generally the case), the provisional application will be terminated for each state which notifies the other participating states of its intention not to become a party.488 When the International Law Commission drafted this rule of the law of treaties, it commented that the rule “recognizes a practice which occurs with some frequency today”.489 The organization which makes most frequent use of this procedure, to ensure a speedy general application of its rules (“Acts”) is the UPU. As a general rule, UPU conventions enter into force on a predetermined date, usually 12-20 months after their adoption.490 Since ratifications are required,

485. ICAO Doc. A26-WP/33 (1986). 486. 161 UNTS, at 74; Trb. 1956, No. 15. Some fishery conventions contain similar provisions, see J.E. Carroz and A.G. Roche, The Proposed International Commission for the Conservation of Atlantic Tunas, 61 AJIL 673-702 (1967), at 686-690; A.W. Koers, Visserij organisaties, in P. VerLoren van Themaat, Studies over internationaal economisch recht (1977), Vol. I, 5, at 17, mentions six of them. 487. D. Vignes, Une notion ambiguë: La mise en application provisoire des Traités, 18 AFDI 181-199 (1972). 488. Vienna Convention on the Law of Treaties (1969), Art. 25. 489. Yearbook of the ILC (1962 II), at 182 (Art. 24). 490. UPU, Vol. 1 of the Annotated Code, at 47 (1991).

§1296

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810

this entry into force should be regarded as provisional, and states which do not ratify should be considered as being permitted to “contract out”. The suggestion that the Acts should expressly mention that their application before ratification is only provisional was defeated in the congress session at Cairo in 1934. Often only a small number of members have ratified UPU Acts at the date of their entry into force. On more than one occasion, up to ten countries have failed to ratify at all. By 1 January 1966, when the new constitution and the new conventions of the UPU came into force, only thirteen members had ratified them.491 Notwithstanding the lack of ratifications, UPU Acts are generally fully applied by the members.492

§1296. Article 17 of the Convention on the Elaboration of a European Pharmacopoeia, drafted by the Council of Europe, also suggests this procedure. The Article provides: “Pending the entry into force of the present convention in accordance with the provisions of Article 11, the signatory states agree, in order to avoid any delay in the implementation of the present Convention, to apply it provisionally from the date of signature, in conformity with their respective constitutional systems”.493 This provisional application, however, starts from the signature of the members. Signature of Council of Europe conventions does not immediately follow their drafting. Each state can decide which national procedures it will follow prior to signature in exactly the same way as it follows national procedures prior to ratification. The only difference is that signatures leading only to provisional application may not need previous parliamentary approval in all those member states which require such approval for ratification. The Convention was provisionally applied as of 1 March 1966,494 by which date only Switzerland had ratified.495

e.

Legal effect after ratification

§1297. A ratified convention constitutes binding law for the states which have ratified it. As a rule, it is not binding on states which have failed to ratify. There are some exceptions. For example, in some shipping conventions (on safety of ships, manning, labour conditions and pollution prevention) a so-called no-morefavourable-treatment-clause has been introduced. This clause provides that states parties are under the obligation to ensure that the relevant convention is applied in the same manner to foreign ships flying the flag of a state which is not a party as to ships sailing under the flag of a state party. Ships flying the flag of a non-state party and calling

491. 492. 493. 494. 495.

Yemin, op. cit. note 46, at 98-99. Id., at 101. European Treaty Series, No. 50. Ici l’Europe, April 1966. Chart showing Signatures and Ratifications of Council of Europe, Conventions and Agreements, CoE, July 1971, at 27.

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on a port of a state party will have to comply with the standards of these conventions. In this way, the clause indirectly affects non-parties.496

What is the legal force of a convention with respect to the organization which has drafted it? Many conventions, such as the UN Covenants on human rights, perform a law-making function. Approval by the supreme organ of the organization will bind the organization to these provisions. If the member states subsequently fail to ratify, this may be regarded as proof that the contents are not widely accepted as law. Consequently, the convention will gradually lose force, even within the legal order of the organization itself, and it may eventually be considered as a law-making attempt which failed and become obsolete. If, on the other hand, sufficient ratifications are received for its entry into force, the convention will achieve legal recognition which will also confirm its legal status within the organization. f.

Possible parties to conventions

(i) Members §1298. As a rule, conventions are addressed to the member states of the organization. All members are eligible to become parties to the convention even if they have not participated in the initial negotiations for drafting the text. Non-members may be expressly excluded. This could create problems when a dependent territory to which a convention applies becomes independent. The International Air Services Transit Agreement, for example, is open only to members of the ICAO. Several newly independent states have claimed to continue to be parties to this convention during the period after their independence and before their admission to ICAO. These assertions have not been challenged by the depositary (the US) or by any other party.497 In principle, continuity prevails. If a newly independent state were subsequently not to become a member of ICAO, then its being a party to the convention would have to be annulled with effect from the date of its becoming independent. §1299. Other problems may arise when a federal state is a member of an international organization, whilst the convention drafted by the organization concerns a subject on which the federated states or provinces are individually competent.498

496. See ESCAP, Guidelines for Maritime Legislation, Vol. I (3rd. ed. 1991), at 5. 497. UN Legislative Series, Materials on Succession of States, UN Doc. ST/LEG/SER.B/14, at 224-226; ILC Report 26th Session (UN Doc. A/9610/Rev. 1), at 20, 21, 7 and 8. 498. See thereon G.V. La Forest, The Labour Conventions Case Revisited, 12 CYIL 137-152 (1974); Polakiewicz, op. cit. note 382, at 49-55.

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(ii) Non-members §1300. Conventions are sometimes open to non-members of the organization, even in the case of UN conventions. On the other hand, the Council of Europe originally limited its conventions to its members to stimulate the growth of a separate body of European law, limited to Council members. It was felt that it would help to prevent non-members from claiming any right of participation or the application of a most favoured nation clause. However, the organization proved too weak to persuade its members to ratify all conventions. Indeed, there are so many failures to ratify that the conventions in no way form a consistent body of Council of Europe law (see above, §1268). In several cases, the Council has dropped the limitation; the Committee of Ministers of the CoE may invite non-members to participate in a number of conventions. The requirement that the Committee of Ministers must be unanimous in doing so499 is a last remnant of the idea that these conventions form part of a closed legal order. In this way, Spain became a party to the Cultural Convention and to the Convention on the Equivalence of Diplomas leading to Admission to Universities long before it became a member of the Council of Europe; Australia and South Africa are parties to the conventions on patent law. The Model Final Clauses, approved by the Ministers’ Deputies of the Council at their 113th meeting, contain an article on the admission of non-members to conventions.500 The Parliamentary Assembly subsequently recommended to the Committee of Ministers that all conventions of the organization be opened to non-members.501

By this change of policy, the Council of Europe has abandoned the idea of using conventions as a means of creating a separate body of European law. Each convention is now to be seen as an individual unit of law, unrelated to the other conventions. §1301. Opening conventions to non-members may however lead to problems in several fields. (1) Problems concerning the recognition of states (see also below, §1845-1850). To avoid the secretariat having to decide whether or not a particular applicant is a state,502 the possibility of adherence by non-members is always limited. Either the general congress of the organization invites non-members (as in the case of the Council of Europe) or specific limitations are made to exclude states which are not generally recognized as such (e.g. Katanga, Biafra, and, prior to 1980, Rhodesia). The most frequent limitation is to restrict adherence

499. See, e.g., European Convention on State Immunity, Arts. 36-41. 500. CoE Doc. SG (62) 4. 501. Parliamentary Assembly, Recommendation 510 (1968), 16 European Yearbook (1968), at 363, 365. 502. A decision which cannot be taken by the secretariat, see UNJY 1964, at 237-238.

813

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to members of the UN or of any specialized agency, which opens membership to all generally recognized states. Since the UPU and the WMO also have nonautonomous members, the formula is not entirely watertight. Hong-Kong, the Netherlands Antilles and several other territories are members of at least one specialized agency (usually WMO). If these territories were to apply to adhere to a convention, the authority concerned would still have to decide whether or not they were to be regarded as states. In practice however, this causes no problems since those specialized agencies with non-sovereign members list them separately from their member states. The formula used in the UN has been developed gradually. The Genocide Convention of 9 December 1948 was open for signature to the members of the UN and to states invited by the General Assembly.503 The Revised General Act of 28 April 1949 is also open to accession by non-members which are parties to the Statute of the International Court of Justice.504 The UN Conventions on the Law of the Sea of 29 April 1958 were open to the members of the UN, the states invited by the General Assembly and to those states which are members of any of the specialized agencies.505 The Vienna Conventions on Diplomatic and on Consular Relations of 18 April 1961 and 24 April 1963 respectively are open to members of the UN, to states invited by the General Assembly and to both the parties to the Statute of the Court and all states members of any of the specialized agencies.506 The formula used in these conventions (Vienna formula) is the same as that adopted by the General Assembly in its instructions to the Secretary-General on the question of which states should be invited to adhere to the Genocide Convention.507 The further extension, in the Vienna Convention on the Law of Treaties of 23 May 1969, to the members of the IAEA is of little consequence, since all those members were already covered by the former criteria.508 The outcome of the application of the formula is that only those countries which are acceptable as states to the majority of the members of the UN are recognized as such. Until 1963, states recognized by only a minority of the UN members could not participate in any UN convention. In 1963, in the Nuclear Test Ban Treaty, a new formula was evolved by virtue of the system whereby three depositories are used (UK, USA, USSR).509 The same formula has been employed in the Treaty on Principles governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, of 19 December 1966,510 in the Agreement on the Return of Astronauts, the Rescue of Astronauts and the Return of Objects, launched into Outer Space, of 19 December 1967511 and in the Treaty on Prohibiting Emplacement of Nuclear

503. 504. 505. 506. 507. 508. 509. 510. 511.

Genocide Convention (78 UNTS, at 277), Art. 11. Revised General Act (GA Res. 268 (III) A (71 UNTS, at 101) Art. 43). E.g. Convention on the High Seas (450 UNTS, at 11), Art. 31. Vienna Convention on Diplomatic Relations (500 UNTS, at 95), Art. 48; Vienna Convention on Consular Relations (596 UNTS, at 261), Art. 74. GA Res. 368 (IV) of 3 Dec. 1949. Vienna Convention on the Law of Treaties, Art. 81. The same formula is used in the UN Convention on Psychotropic Substances of 21 February 1971 (10 ILM (1971), at 261-288). 480 UNTS, at 43. GA Res. 2222 (XXI) of 19 December 1966. GA Res. 2260 (XXII), YUN 1967, at 34-35.

§1302

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Weapons on Seabed and Ocean Floor, of 7 December 1970.512 Ratification of these conventions is possible for all states in any of the three capitals. Whenever a state is recognized as such by at least one of the three states, it can deposit its ratification in the capital of that state.513 The organization does not need to express an opinion on whether a ratification is made on behalf of a state and consequently does not have to recognize the signatory as a state. An attempt to incorporate this formula in the Vienna Convention on the Law of Treaties failed.514 By the time that the UN had admitted the two German states, and subsequently Vietnam, and when, in 1973 and 1974, the two Korean states had been admitted to several specialized agencies, the Nuclear Test Ban formula was no longer needed, and even the Vienna formula became outdated. Many recent conventions are open to “all states”, which means: “all entities recognized as states by the organization concerned” (see below, §1845-1850). An example is the 1986 Convention on Early Notification of a Nuclear Accident (concluded within the IAEA framework following the Chernobyl accident), which provides in Article 12.1: “This Convention shall be open for signature by all states and Namibia, represented by the United Nations Council for Namibia”.515

§1302. (2) Conventions enter into force after deposit of a specified number of ratifications. Can ratifications by non-members be included among that number? In discussing the Genocide Convention, several members of the UN considered it undesirable that the UN could become dependent upon nonmember states for the entry into force of a treaty drawn up under its auspices. The General Assembly, however, did not share this objection.516 The Council of Europe has provided in most conventions that non-members can only accede after the convention’s entry into force.517 §1303. (3) The opening of conventions to non-members of the organization may pose certain questions as to the position of those non-members. Several conventions attribute tasks to the organization from which they emanate.

512. GA Res. 2660 (XXV). 513. Publication No. 83 of the Netherlands Ministry of Foreign Affairs, at 54. 514. Proposed amendment A/Conf.39/C.1 /L.394, by Ghana and India For the discussions, see UN Conference on the Law of Treaties, Official Records (UN Doc. A/Conf.39/11/Add. 1; Sales Number E.70.V.6), at 311 ff. 515. Trb. 1986, No. 125. 516. GA Res. 368 (IV). See R. Higgins, The Development of International Law through the Political Organs of the United Nations 271 (1963). 517. E.g. European Convention relating to the Formalities required for Patent Applications (1953), Art. 9; European Convention on the International Classification of Patents for Invention (1954), Art. 5; European Charter for Regional or Minority Languages (1992), Art. 20.1. Exceptions are the 1979 Bern Convention and the 1995 Framework Convention for the Protection of Minorities; see Polakiewicz, op. cit. note 382, at 33-36. Cf. also Arts. 19-20 of the 1979 Convention on the Conservation of European Wildlife and Natural Habitats. Art. 19.1 of this Convention provides that the Convention is open for signature by, inter alia, non-member states of the Council of Europe which have participated in its elaboration. Other non-member states may accede to the Convention only after its entry into force. The Convention entered into force following the ratification by five states, including at least four member states of the Council of Europe.

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Should parties, non-members of the organization, be able to participate in the performance of these tasks?518 Usually no provision is made for such participation, but in some cases the non-member parties can take initiatives for the amendment of the convention. They may participate in the amendment proceedings when these take place outside the organization;519 they are however usually prohibited from doing so when the amendment is made within the organization.520 §1304. Some universal organizations invite non-members to participate in the drafting of their conventions,521 which seems justified when the convention is meant to create universal rules of law. (iii) Other international organizations §1305. Some conventions, such as the UN Convention on the Registration of Objects Launched into Outer Space,522 and several conventions of the Council of Europe (which are open to the EC)523 are open to international organizations which perform activities in the field concerned (see below, §1748-1768). g.

Final clauses

§1306. Apart from their substantive contents, conventions require final clauses to settle procedural matters, such as the date of entry into force, the procedure for amendment, etc. The ILO developed a standard practice for final clauses, which is applied to all its conventions.524 Other organizations have adopted the same procedure.525 The Council of Europe codified its practice in a model

518. Zarras, op. cit. note 465, at 32-42. 519. For amendment of the 1958 UN conventions on the Law of the Sea, all parties were entitled to submit proposals (see final articles, e.g. Convention on the Territorial Sea and the Contiguous Zone, Art. 30). The procedure for amendment, which had to be followed subsequently was to be decided by the General Assembly of the UN. 520. All parties to the International Plant Protection Convention, drafted (and when necessary amended) by FAO, may propose amendments. Only FAO members can participate in the amendment proceedings in the general congress of FAO (Art. 13), Trb. 1952, No. 100. 521. See Note of the Office of Legal Affairs of the UN of 12 Feb. 1974, UNJY 1974, at 175-181. 522. Convention on the Registration of Objects launched into Outer Space, Art. 7, YUN 1974, at 63-65. 523. E.g. the 1979 Convention on the Conservation of European Wildlife and Natural Habitats, Art. 19.1. See Polakiewicz, op. cit. note 382, at 57-76. 524. Written statement of the International Labour Organisation, in: Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Pleadings, Oral Arguments, Documents, International Court of Justice (1951), at 223. 525. See e.g. FAO Conf. Res. No. 46/57; Conf. Rep. Ninth Session (1957), Appendix B; FAO Basic Texts, Vol. II, Section O.

§1307

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which is consulted for each new convention.526 The UN issued a “Handbook of Final Clauses”.527 The Vienna Convention on the Law of Treaties also contains detailed rules. Where an organization makes only infrequent use of conventions, the development of a separate system of final clauses is unnecessary and either the UN Handbook or the Vienna Convention could be used. Previous conventions, and the UN Handbook of Final Clauses, furnish an international organization with the necessary provisions on the signature and date of the convention, on ratification,528 entry into force, registration with the UN,529 admission of nonmembers, application to non-self-governing territories,530 reservations,531 authentic language,532 amendment,533 withdrawal534 and termination.535

§1307. Withdrawal from conventions will create problems in the case of lawmaking conventions which are meant to be generally applicable.536 International organizations try to limit such withdrawals to the minimum, but as

526. Doc. SG(62)4, Model Final Clauses approved by the Minister’s Deputies at their 113th meeting (September 1962). Revised in 1980 (see Hondius, op. cit. note 382, at 302-306; Polakiewicz, op. cit. note 382, at 36). 527. Doc. ST/LEG/6 of August 1957. Since 1967 the UN publishes in a loose leaf edition the texts of final clauses to multilateral treaties in respect of which the Secretary General performs depositary functions, see UN Doc. ST/LEG/SER.D/1. Annex. 528. See Schachter, Nawas and Fried, op. cit. note 396, at 119-131. 529. UN Charter, Art. 102. 530. UN Doc. E/1721; Yuen-li Liang, Colonial Clauses and Federal Clauses in UN Multilateral Instruments, 45 AJIL 108 (1951). See also H.F. van Panhuys, The Netherlands Constitution and International Law, 47 AJIL 537 (1953) and 58 AJIL 88 (1964). 531. UN Doc. E/CN.4/677; Reservations to the Convention on Genocide, Advisory Opinion, ICJ Rep. 1951, at 15; UN Doc. A/1858 (Report ILC) Chapter II; “Report on the juridical effect of reservations to multilateral treaties” of the Department of International Law of the Pan American Union (1955); H. Lauterpacht, Some possible solutions of the problems of reservations to treaties, The Grotius Society, Transactions for the year 1953, Vol. 39, at 97-118, which refers to further literature; Yearbook of the ILC (1956 II), at 115 (Report Fitzmaurice), Yearbook ILC (1962 II), at 60 (Report Waldock); K. Holloway, Les réserves dans les Traités Internationaux (1958); A. Cassese, A new reservations clause, in Recueil d’études de droit international en hommage à Paul Guggenheim (1968), at 266 ff.; Schachter, Nawas and Fried, op. cit. note 396, at 147-156. For a survey of UN practice, see UNJY 1975, at 204, 206, 207. 532. See Yuen-li Liang, Notes on legal questions concerning the United Nations, 47 AJIL 265 (1953). 533. ”Report on the institution of a procedure for amendment of conventions”, ILO (1924); F.G. Wilson, Labor in the League System 243-271 (1934); C. Wilfred Jenks, Les instruments internationaux à caractère collectif, in 69 RdC (1939 II), at 530-542; Vienna Convention on the Law of Treaties, Arts. 39-40. 534. Zarras, op. cit. note 465, at 29-31, for the ILO; Buergenthal, op. cit. note 43, at 78-80, for the ICAO; D.P. O’Connell, International Law, Vol. I (1970), at 266-268; Vienna Convention on the Law of Treaties, Arts. 54, 56, 65. 535. Zarras, op. cit. note 465, at 48-50; O’Connell, op. cit. note 534, at 265-277; Vienna Convention of the Law of Treaties. Arts. 54-68. 536. See D. Bardonnet, La dénonciation par le gouvernement sénégalais de la Convention sur la mer territoriale et la zone contiguë et de la convention sur la pêche et la conservation des resources biologiques de la haute mer en date du 29 avril 1958 à Geneve, 18 AFDI 140-160 (1972).

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long as states remain free to choose whether or nor to become parties to conventions, withdrawals cannot legally be prevented. §1308. Apart from the problem of admission of non-members (see above, §13001304), the issue of reservations may easily provoke political controversy. As a rule, reservations to conventions are not permitted,537 and they are particularly objectionable in law-making treaties.538 Where a member’s situation requires separate consideration, provision should be made in the conventions themselves.539 In some cases, members are permitted to accept conventions subject to certain provisions. The main reason for refusing reservations to ILO conventions stems from the role which the organization plays in their adoption. Conventions are not the exclusive property of the participating states but are governed by special rules of internal ILO law, and particularly by the provision that they must be adopted by organs of tripartite composition.540

§1309. In the WHO, reservations to conventions require the approval of the general congress,541 whereas in the ICAO reservations are generally permitted,542 although members making reservations with regard to safety standards may be excluded from participation in international air navigation. In the WMO reservations to conventions are generally possible.543 By contrast, in the UPU reservations must be made at the conference adopting the “Act” concerned, so that they can be included in the final protocol.544 §1310. When the question of reservations to multilateral conventions arose in the UN, the Secretary-General referred it to the General Assembly, which requested an advisory opinion of the Court of Justice on the legal aspects.545 Until 1952, the Secretary-General of the UN followed a rigid system inherited

537. See K. Skubiszewski, op. cit. note 182, at 258, and for the ILO, Written statement of the International Labour Organisation in Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Pleadings, Oral Arguments, Documents, ICJ 1951, at 216-282, in particular paras. 18 ff and para. 23. See also Morgenstern, op. cit. note 253, at 109-110. 538. See also J. Sztucki, Some questions arising from Reservations to the Vienna Convention on the Law of Treaties, 20 GYIL 277-305 (1977). 539. ILO, Art. 19.3. See also N. Valticos, The International Labour Organisation, in Schwebel, op. cit. note 120, at 138. 540. Id., at 137; see also Maupain, op. cit. note 382, at 131. 541. Yemin, op. cit. note 46, at 196, 197, 199. 542. In the negative procedure of acceptance (contracting out, see above, §1292-1294), states may disapprove an “Annex” in whole or in part. See Buergenthal, op. cit. note 43, at 66-69. Disapproval in part essentially constitutes acceptance with reservation. 543. Skubiszewski, op. cit. note 182, at 259. 544. UPU, Art. 22.6. See UPU, Vol. I of the Annotated Code (1991), at 36, 39. See also UNJY 1971, at 230-236; UNJY 1974, at 83. 545. Reservations to the Convention on Genocide, Advisory Opinion, ICJ Rep. 1951, at 15.

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from the League of Nations. An instrument of ratification accompanied by a reservation was accepted only when all existing parties to the convention had consented in writing. After 1952, a more flexible system was followed in which reservations were presumed to have been accepted in the absence of objections.546 In the Vienna Convention on the Law of Treaties, a time limit of twelve months is allowed for raising objections against reservations made by other parties.547 Reservations may be withdrawn at all times.548 h.

Amendment

§1311. One of the final clauses (see above) should always be a clause on amendment. Many conventions contain an amendment provision, but others do not. How can conventions which do not contain a specific amendment clause be changed? According to traditional international law, amendment of a treaty is only permissible with the approval of all the parties.549 In modern international law however, this rule is no longer accepted.550 In a commentary on the draft of a “Single convention” on narcotic drugs, in 1951, the Office of Legal Affairs of the UN Secretariat wrote: “Over the years, ideas have changed concerning the conditions which have to be fulfilled before international treaties can be amended. Whereas, in the past, the opinion used to be that multilateral conventions could not be amended except with the unanimous consent of all the original Contracting Parties, the point has now been reached where the possibility of amending multilateral agreements with the concurrence of a more or less large number of the original Parties is admitted. Thus, in the case of the Protocols approved by the United Nations General Assembly transferring to the United Nations functions previously exercised either by the League of Nations or by a particular government, states which had not taken part in the conference of plenipotentiaries that drew up the original Convention participated in the revision of the Convention. The Protocol of 11 December 1946 is an example of this procedure and it may therefore be concluded that in this respect the evolution has been sufficient to allow a conference of plenipotentiaries to amend a convention when not all the original Parties to it are represented at the conference. Apart from the possibility of taking steps to revise a convention there is the question of the binding power of the amendments vis-à-vis the original Parties. A similar development to that described above has

546. See aide mémoire of the UN Office of Legal Affairs of 1 July 1976, UNJY 1976, at 209-214, which describes in greater detail the practice of the Secretary-General of the UN. See also Memorandum of 5 April 1976, UNJY 1976, at 220-221 (1976). 547. Vienna Convention on the Law of Treaties, Art. 20, and D.W. Bowett, Reservations to nonrestricted multilateral treaties, 48 BYIL 67-92 (1976-77). 548. For formal aspects on the formulation and withdrawal of reservations, see UNJY 1974, at 190-191. 549. The rule is clearly expounded in the separate opinions of Van Eysinga and Schücking to the Oscar Chinn case (1934), Permanent Court of International Justice, Series A-B, No. 63, at 131 ff. 550. For the development, see Scelle in: Annuaire de L’Institut de Droit International 1948 and Zacklin, op. cit. note 52, at 12-25.

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occurred regarding the force of the amendments, a development parallel to that of the possibility of revision. In the past, authority to revise was conditional upon the unanimous consent of the original Parties and then the entry into force of the amendments depended upon unanimous concurrence on the part of the old Parties. This rule has changed in the course of time and the modern view is that, even if the possibility of amendments coming into force as a result of a decision by a certain majority of the original Contracting Parties was not contemplated in the initial Convention – and that was the case of the present international instruments on narcotic drugs – that fact did not prevent these amendments from coming into force. But in this instance, one firm principle has emerged, which is, that states which remain Parties to earlier instruments are bound by the texts of these instruments, without ipso facto being, bound by the amendments”.551

§1312. According to the Vienna Convention on the Law of Treaties, multilateral treaties can be amended by the same majority which had the power to establish the text. The amendment can become effective between the parties which accept it, the original text continuing to bind those states which have not accepted the amendment.552 There seems to be no doubt that international organizations can amend their conventions, even in the absence of a specific provision to that effect, and even when not all parties agree. Nor is there any doubt that the amendments can only bind the members which ratify them. Only the continuing force of the original text can be questioned. Members which do not accept the amendments will remain bound to this text, but can they require application of this text by the members which accepted the amendment? In practice, this is often impossible. Conventions obliging the parties to use a particular nomenclature or to apply certain rules of law can often be enforced in only one form, and in such cases, the amended text will be applied by the organization and by the other members even in relation to states which have not accepted the amendment. §1313. Different methods may be used for amending conventions. Amendment is possible by conclusion of a new convention, a supplementary convention or an amending protocol.553 In most cases, one of the two latter procedures will be advisable: the conclusion of a new convention may create confusion if only some states adhere to it. As those states will normally simultaneously withdraw from the original convention, the basis for the legal obligations between the parties to the old and those to the new convention will be removed. However, when a supplementary convention or an amending protocol

551. UN Doc. E/CN.7/AC.3/4 Rev. I (Sales no 1952 XI 7), at 41, much of which is quoted by Hoyt, op. cit. note 33, at 36. 552. Vienna Convention on the Law of Treaties, Arts. 39-40. 553. In its memorandum of 10 March 1972 the UN Office of Legal Affairs mentions ten amending protocols concluded under the auspices of the UN. See UNJY 1972, at 180-186. Within the CoE, it is practice to amend conventions through the adoption of amending protocols; see Polakiewicz, op. cit. note 382, at 161-162.

§1314

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is concluded, the original convention will remain in force between all the parties. §1314. The UPU usually amends its conventions (the “General Regulations”, the “Universal Postal Convention and its Detailed Regulations”, and the “Agreements of the Union and their Detailed Regulations”) by a total revision. The members accepting amendments to a convention ratify a new, amended version of it, and withdraw from the original version. As from a certain date, the organization will use only the new convention, even vis-à-vis those members which have refused to accept it. Since the subject matter of those conventions (international transport of mail) forces the members to use the same rules as the organization, the old text will in fact become obsolete from the date when the organization switches over to the new version. The most important conventions are even officially abrogated when the new texts enter into force.554 The constitution gives binding effect to the new text.555 Ratification or non-ratification then becomes totally irrelevant. In practice, the conventions are amended by binding decisions of the general congress. This practice has developed within UPU in the light of the numerous amendments made to conventions during congresses (which usually take place every five years). For practical purposes, it was decided to renew the UPU “Acts” as a whole at each congress, a tradition which was confirmed by the 1964 Vienna Congress (when a general revision of the UPU took place), for all UPU “Acts” with the exception of the Constitution. This UPU practice is explained as follows in the UPU “Annotated Code”: “From a practical point of view it is important that all the amendments made by a Congress should go into force simultaneously and independently of approval by national legislation. This requirement of a practical nature conforms, moreover, to the spirit of Article 1.1, according to which the countries which have adopted the constitution form a single territory for the reciprocal exchange of letter-post items. Moreover, since the aim of the revision is the improvement of the postal services (Constitution, Article 1.2), it is most important that the new provisions, once established, should be implemented promptly. These ... considerations notwithstanding, the contracting parties must be allowed sufficient time to take the essential practical and legislative measures and to carry out the procedure of approving the Acts which alone binds the parties legally.”556

This UPU practice illustrates the importance of the organizations themselves in the application of conventions. Where conventions form part of the legal order of an organization, their application will clearly depend on the strength of that legal order. Thus, the formal legal position of each member state is irrelevant, the only material factor being the version used by the organization.

554. UPU, Art. 31.2. 555. UPU, Art. 22, paras. 2 and 3. 556. UPU, Vol. I of the Annotated Code (1991), at 47.

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§1315

§1315. As legislative instruments of international organizations, conventions have two serious handicaps: both their entry into force and their amendment are too cumbersome and too slow. It has already been observed (above, §12881294) that a negative acceptance procedure may help to accelerate the entry into force of conventions. The same procedure may also be applied to amendments. The adaptation of conventions to altered circumstances can be facilitated by incorporating amendment provisions into conventions. Even when fundamental changes may not be acceptable without the approval of all or most of the participating states, technical adaptations can often be made by the majority decision of a conference or organ of the organization. This can be expressly provided for conventions, either by a provision that particular articles may be amended thus or by referring all technical details to an annex to the convention which may be amended.557 §1316. Non-members admitted as parties to a convention may take part in the amendment negotiations unless the convention or the constitution of the organization concerned provides otherwise.558 A justification for such a limitation can be seen to exist in a situation where the organization wishes to retain the power to amend its conventions through its own organs without admitting to those organs states which were unwilling to accept all the rights and obligations of membership. However, it will usually be appropriate to allow all parties to a convention to participate in the amendment proceedings. Should members which are not parties to a convention also be allowed to participate in the amendment procedure? As a rule, this question should be answered in the affirmative. Conventions are acts of the organization, to which all members should be persuaded to adhere. Participation in the amendment procedure may facilitate subsequent adherence by the other members. A right to participate could even be derived from the rule that treaties can be amended by the same procedure as that according to which they were made.559 §1317. Corrections of errors in the original text of a convention may formally constitute amendments to that text. Substantively, they restore the text to that intended by the drafters and differ, therefore, from amendments. Typing or printing errors and mistakes of spelling, punctuation, numbering and so on, should be corrected at the initiative of the depositary.560

557. See A.O. Adede, Amendment Procedures for Conventions with Technical Annexes: The IMCO Experience, 17 VJIL (1976-77), at 201-215 (with IMCO’s models for texts). 558. Vienna Convention on the Law of Treaties, Art. 40. 559. Id., Art. 39. 560. For the procedure followed by the Secretariat of the UN, see UNJY 1976, at 214-216.

§1318

4.

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Binding rules

§1318. Castañeda defines binding decisions as decisions which either change the law or oblige states to do so; in other words, decisions are binding if they change the pre-existing legal situation.561 When the League of Nations was established, it was not clear what the legal effect of its resolutions would be. Switzerland upheld the view, which it considered to be beyond dispute, “that the Assembly of the League of Nations cannot be compared to a mere international conference, and the decisions duly adopted by it constitute juridical acts, which in themselves impose international obligations.” As early as the Assembly of 1920, the first delegate of Switzerland laid great stress upon the serious danger which would be incurred by the League if the idea ever prevailed that questions settled by the Assembly, by virtue of the general powers to take decisions conferred upon it by Article 3 of the Covenant, might be reconsidered individually by the states forming part of the League.562 It was generally admitted that the League could take binding decisions, at least in certain particular fields. According to Hackworth, describing the legal situation before the Second World War, “resolutions of international conferences depending upon their character, may be regarded as types of international agreements between states, voting in favour of them”.563 He then quotes the US Secretary of State, Hughes, President of the Washington Conference on the Limitation of Armaments, who declared that resolutions which are not put in the form of a treaty, “are deemed to be binding upon the Powers according to their tenor when adopted by the Conference”.564 The unanimity required for the adoption of decisions greatly facilitated acceptance of their binding force. In his book on ratification of international conventions, Wilcox wrote that “resolutions of international conferences – such as the League Assembly – may possess binding force, and might therefore serve as a substitute for the ratification process”.565 The positive vote of the member concerned is then regarded as official agreement by the member state, which replaces ratification. In its advisory opinion on the railway traffic between Lithuania and Poland, the Permanent Court of International Justice considered Lithuania and Poland bound by the resolution of 10 December 1927 of the Council of the League, apparently on the

561. Castañeda, op. cit. note 189, at 225. 562. Quoted from a letter of 9 May 1922 of the Swiss government to the League of Nations, LoN Official Journal, 1922, at 717. 563. G.H. Hackworth, Digest of International Law, Vol. V (1943), at 33. 564. Conference on the Limitations of Armaments, Washington (1922), Sixth Session, 4 February 1922, at 286. 565. Wilcox, op. cit. note 424, at 285.

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ground that representatives of both states participated in the adoption of the resolution and that their positive votes bound their states.566

§1319. The power of the League to take binding decisions was rarely used.567 Most resolutions were clearly formulated as expressions of desire or as recommendations. Almost all binding resolutions were internal decisions. Opinion on whether the organization could take binding decisions was divided after the Second World War. On the one hand, it was generally admitted that international organizations could take binding internal decisions, even by majority vote. On the other hand, external binding effect was generally denied. The developments in the League were not in favour of binding external decisions. Majority voting prevented further development of the thesis that a resolution could be regarded as an agreement between the members. The UN offers only a few examples of decision-making which can be considered as the conclusion of (simplified) interstate agreements.568 The clearest example is Resolution 24(I) of 12 February 1946, in which the General Assembly declared that the UN would accept the custody of treaties made under the League of Nations and that its Secretariat would perform several functions formerly entrusted to the League. In effect, this resolution amended several treaties concluded under the League.

§1320. As a general rule of modern international institutional law, it has been accepted that international organizations cannot take binding external decisions unless their constitutions expressly so provide. Few constitutions allow international organizations to take binding external decisions. In their mutual relations, and often in relation to their subjects, members are obliged to comply with these decisions. Although the absence of sanctions may diminish the actual effect of such binding decisions, it does not deprive them of their legal force. In practice however, it may mean that the effect of binding international decisions is less than that of similar decisions under national law. The gap between binding and non-binding decisions may also be narrowed from the other side, as some non-binding decisions have considerable practical influence (see above, §1220-1261).569 Where there is no appropriate constitutional provision, international organizations may sometimes take binding decisions on another legal basis. Thus, for example, the peace treaties after the First World War invested the Council of the League of Nations with certain legislative powers, to be exercised by majority

566. 567. 568. 569.

PCIJ Series A/B-No. 42, 15 October 1931, at 116. Wilcox, op. cit. note 424, at 270-285. Castañeda, op. cit. note 189, at 309. See also Conforti, op. cit. note 185, at 257-288.

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vote, with regard to modification of the provisions relating to minorities.570 The Treaty of Lausanne specifically charged the Council of the League with delimiting the border between Turkey and Iraq.571 The Peace Treaty with Italy charged the General Assembly of the UN with taking a decision on the future of the Italian colonies if the powers concerned could not reach agreement.572 A final example are the trusteeship agreements, which oblige the administering states to apply recommendations of the UN and of the specialized agencies in the Trust Territories.573

§1321. In 1945, the Philippine delegation proposed to endow the General Assembly of the UN with the authority to enact rules of international law which were to become effective and binding upon the members after approval by the Security Council. The proposal was however defeated by 26 votes to 1.574 a.

Denomination

§1322. In the English language, the notion of a decision has no uniform meaning. In administrative law on the one hand, it refers specifically to an act binding upon its addressee; in political science, it is commonly used in the wide sense of any act of an organ.575 In the UN, the expression “decision” is often used for binding internal acts.576 In this study a broad definition is used (see above, §706). A binding decision will therefore be any legal formulation which has legally binding force. To indicate the decision as used in administrative law, the word will be capitalized. Thus, “Decisions” indicate acts which are binding on the government or the individual to which they are addressed. b.

Types of binding decision

(i) Decisions addressed to governments §1323. Certain international organizations can take decisions which are binding on the governments of the members. Sometimes they may do so in practically

570. St. Germain, Art. 69; Trianon Art., 60; Neuilly, Art. 57 (see Tammes, op. cit. note 15, at 283). 571. Treaty of Lausanne, Art. 3, para. 2. See Castañeda, op. cit. note 189, at 297. 572. Treaty of Peace with Italy, Paris, 10 February 1947, Annex XI, 49 UNTS, at 214-215. See also GA Res. 289 (IV). 573. Castañeda, op. cit. note 189, at 299-300. See e.g. Trusteeship Agreement for the Territory of Tanganyika, Art. 7, 8 UNTS, at 96. 574. Falk, op. cit. note 253, at 783. 575. In German as well as in Dutch a special word exists for an individually binding decision (”Entscheidung” and “beschikking” respectively). 576. See, e.g. “Resolutions and Decisions” of the General Assembly. See also F.Y. Chai, Consultation and Consensus in the Security Council (A UNITAR Study, 1971), at 13.

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their entire field of activity,577 while in other cases they may only do so on specific issues. Article 25 of the UN Charter provides that “the members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. There is disagreement about the precise scope of this provision. While it is generally agreed that enforcement measures taken under Chapter VII are usually binding, there is however disagreement on the question whether other decisions (for example, those taken on the basis of Chapter VI) can also be binding.578 The International Court of Justice took the following view: “It has been contended that Article 25 of the Charter applies only to enforcement measures adopted under Chapter VII of the Charter. It is not possible to find in the Charter any support for this view. Article 25 is not confined to decisions in regard to enforcement action but applies to “the decisions of the Security Council” adopted in accordance with the Charter. Moreover, that Article is placed, not in Chapter VII, but immediately after Article 24 in that part of the Charter which deals with the functions and powers of the Security Council. [...] In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council”.579

Originally, most Security Council decisions were adopted in the form of ‘resolutions’. However, since the 1980s the Council increasingly uses the

577. EC, Art. 249; Euratom, Art. 161; League of Arab States, Art. 7; Benelux, Art. 19 (a); EFTA, Art. 32, para. 4; Cartagena Agreement, Art. 21 (decisions of the Commission of the Andean Community); Eurocontrol, Arts. 6-7; IEA, Art. 52; the Commodity Councils, see e.g. the 2001 International Coffee Agreement, Art. 15.3. Also the associations formed by the EC, see e.g. EC-Turkey, Art. 22(1). On the binding decisions of the EC, see R.H. Lauwaars, Lawfulness and Legal Force of Community Decisions (1973); Skubiszewski, op. cit. note 318, at 83, 87. On the decisions of the IEA see G. Fischer, L’Agence Internationale de l’Energie, 20 AFDI 740-752 (1974). On decisions of the Andean Community, Mercosur, SADC and Comesa, see Blokker, op. cit. note 15, at 36-42. 578. An affirmative answer is given by R. Higgins, The Advisory Opinion on Namibia: Which UN Resolutions are binding under Article 25 of the Charter? 21 ICLQ 270-286 (1972); a negative answer is given by J.A. Frowein, United Nations, in 5 EPIL (1983), at 277 et ff. 579. Namibia Case, ICJ Rep. 1971, at 52-53. See also S. Azadon Tiewul, Binding Decisions of the Security Council within the meaning of Article 25 of the United Nations Charter, 15 IJIL 195-215 (1975); R.A. Brand, Security Council Resolutions: when do they give rise to enforceable legal rights?, 9 CILJ 298-316 (1975-76); M. Krökel, Die Bindungswirkung von Resolutionen des Sicherheitsrates der Vereinten Nationen gegenüber Mitgliedstaaten (1977); R. Sonnenfeld, Resolutions of the United Nations Security Council (1988); E. Suy in J.-P. Cot and A. Pellet (eds.), La Charte des Nations Unies (2nd ed. 1991), at 471-478; J. Delbrück in B. Simma (ed.), The Charter of the United Nations (1994), at 407-418; M.C. Wood, The Interpretation of Security Council Resolutions, 2 Max Planck UNYB 1998, at 73-95.

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instrument of ‘presidential statements’.580 As observed by Wood, their name is somewhat misleading, since they are not statements of the president of the Council himself, but statements of the Security Council, read out by the president.581 These statements closely resemble resolutions as far as their content, force, and effect is concerned, but are generally considered to be less compelling, politically as well as legally.582 Unlike resolutions, they require consensus.583 Resolutions “are generally used for formal action” (e.g. the extension of the mandate of a peacekeeping operation); presidential statements “tend to be more ephemeral, and may be used when the Council wishes to comment somewhat less formally on a particular development”.584 Like the UN, the OAS may also issue binding decisions in the field of maintenance of international peace and security,585 the WEU in the field of arms control,586 and NATO to implement the 1949 North Atlantic Treaty.587 However, limited use of these powers has been made.588 The Organization for European Economic Cooperation, which preceded the OECD, could also address unanimous Decisions to its members.589 A similar power has been attributed to the OECD, but with the following qualification: “No decision shall be binding on any member, until it has complied with the requirements of its own constitutional procedures”.590 This addition changes the character of the decisions, with the result that they now resemble conventions more than binding decisions (see above, §1263). For all practical purposes, the following “Acts” of the UPU should be regarded as Decisions: the General Regulations, the Universal Postal Convention, the Letter Post Regulations and the Parcel Post Regulations.591 Formally,

580. E.g. in 2000, the Council adopted 50 resolutions and 41 presidential statements. 581. M.C. Wood, Security Council working methods and procedure: recent developments, 45 ICLQ 150-161 (1996), at 154. 582. P. Tavernier, Les déclarations du Président du Conseil de sécurité, 39 AFDI 86-104 (1993). See also UN Doc. S/26015. 583. Wood, op. cit. note 581, at 154. 584. Id. 585. OAS, in case the meeting of Consultation of Ministers of Foreign Affairs (OAS, Art. 60) acts as Organ of Consultation under the Treaty of Rio de Janeiro of 2 September 1947 (21 UNTS, at 93), Treaty of Rio de Janeiro, Arts. 17, 20. See Kutzner, op. cit. note 135, at 228-235. 586. Protocol III on the Control of Armaments, Art. 3. 587. North Atlantic Treaty, Art. 9; see The North Atlantic Treaty Organization, Facts and Figures 321 (11th ed. 1989). 588. For example, the resolutions adopted by the UN Security Council following the invasion of Kuwait by Iraq (Res. 660 et ff.), and the Decision by the NATO Council taken on 9 February 1994 following severe attacks on Sarajevo, in which it, inter alia, decided that within ten days, “heavy weapons of any of the parties found within the Sarajevo exclusion zone, unless controlled by UNPROFOR, will, along with their direct and essential military support facilities, be subject to NATO air strikes which will be conducted in close coordination with the UN Secretary General ...” (Press Release (94)15). 589. OEEC, Arts. 13-14. 590. OECD, Art. 6. 591. UPU, Art. 22. See UPU, Constitution General Regulations (2000), at A-18 – A-20.

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§1324

they are adopted as conventions, which may be subject to ratification, but in practice, many members empower their delegates to sign without requiring ratification. Additionally, the regulations enter into force for all members on a predetermined date, notwithstanding pending ratifications. Consequently, ratification is a meaningless formality. The situation is however somewhat different for the Agreements of the UPU and their Regulations, which regulate the services other than those of the letter post and postal parcels between those members which are parties to them; they are binding on those countries only.592 §1324. In exceptional cases, decisions of an international organization are binding for non-members. For example, the constitution of the Organization of Arab Petroleum Exporting Countries (OAPEC) stipulates that decisions of the Organization of Petroleum Exporting Countries (OPEC) are binding on all members even if they are not members of OPEC.593 §1325. According to the relevant constitutions, Decisions are usually binding on all members equally. In practice however, this does not necessarily exclude a Decision being addressed to any particular member. In any event, it is almost always possible for the content of a Decision to be of a nature to restrict its application to one or more particular members, even when it is formally binding on all members. §1326. Apart from regulations (see below, §1332-1334) two types of binding decisions can be issued by the European Communities.594 Directives are binding on every member state to which they are addressed, as to the result to be achieved, while leaving to the national authorities the competence to decide on the form and means of implementation.595 Normally the effects of a directive should extend to individuals through the medium of the implementing

592. UPU, Art. 22.4; UPU, Constitution General Regulations (2000),, at X, A-19 – A-20. The following Agreements have been concluded: the 1880 Postal Parcels Agreement, the 1878 Money Orders Agreement, the 1920 Giro Agreement and the 1947 Cash-on-Delivery Agreement. The 1999 Beijing Congress adopted the Postal Payment Services Agreement, which merged the three last mentioned agreements (id., at XI). 593. OAPEC, Art 3. See Z. Mikdashi, The Community of Oil Exporting Countries 105 (1972). 594. See in general about EC decisions G. Schmidt, Art. 189, in Von der Groeben et al. (eds.), Kommentar zum EU-/EG-Vertrag, Vol. 4 (5th ed. 1997), at 4/1016-4/1063; J.-V. Louis, D. Waelbroeck, M. Waelbroeck, G. Vandersanden, in Mégret Vol. 10 (2nd ed. 1993), at 475-522. 595. In the ECSC directives were called “recommendations” and could be addressed to individual companies as well as to governments (Art. 14). The EC Court has ruled that “... the rules evolved by the Court to determine the effects of a directive which has not been transposed into national law apply in equal measure to recommendations adopted under the ECSC Treaty, which are measures of the same kind (...)” (Case C 221/88, Busseni, ECR 1990, at 525).

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measures.596 However, if a directive is not implemented correctly and within the time-limit prescribed, individuals may invoke its provisions before national courts, if these provisions confer rights on individuals which are unconditional and sufficiently precise. Individuals may do so only against the state in question, and not against other individuals, because a directive cannot of itself impose obligations on an individual.597 The 1997 Amsterdam Treaty introduced ‘framework decisions’ as a new legal instrument for the so-called Third Pillar of the EU. Framework decisions are similar to EC directives, but there is one difference. As is explicitly indicated, they “shall not entail direct effect”.598 Decisions are binding in every respect on the addressee(s) named in it. The distinction between the latter two instruments would be clear if directives were addressed to states and decisions to individual persons, but this is not however the practice. Decisions are often addressed to governments, and they usually leave the national authorities some discretion as to the form and means of their execution. Directives sometimes contain such detailed provisions that the governments have very little choice as to the form and means by which they will implement them. For practical purposes therefore, the distinction seems unnecessary. §1327. What is the legal effect of Decisions addressed to governments? Although the constitutions may only provide that these are binding upon the members, it hardly seems questionable that they will also bind the organization. The power and intention to make rules binding on the individual members imply that the measure in question has legal effects vis-à-vis the collective members and the organs established by them. Does the effect of Decisions addressed to governments extend beyond the internal legal order of the organization? Or are they internal rules addressed to the governments in their capacity as elements of the organization? If they are merely internal rules, they do not differ substantially from other internal rules, such as the obligation to pay contributions. Their binding force will extend no further than the legal order of the organization itself and the governments will be obliged to enact national legislation if any legal effect on their citizens is envisaged. Usually, the text of the constitutional provision concerned suggests that Decisions are only intended to have this limited effect. The limitation offers the advantage that conflicts with national legal rules are avoided, since each rule operates within one legal order only. Conflicts can

596. See e.g. Case 8/81, Becker, ECR 1982, at 70. 597. Case 152/84, Marshall, ECR 1986, at 723; confirmed in Case C-91/92, Dori, ECR 1994, at I-3325. See D. Curtin, The Province of Government: Delimiting the Direct Effect of Directives in the Common Law Context, 15 ELRev. 195-223 (1990); D. Curtin, The Effectiveness of Judicial Protection of Individual Rights, 27 CMLRev. 703-739 (1990); S. Prechal, Remedies after Marshall, 27 CMLRev. 451-473 (1990); H.G. Schermers, No Direct Effect for Directives, 3 European Public Law 527-540 (1997). 598. EU, Art. 34.2(b).

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only arise for the governments themselves, in respect of rules which operate both in their national legal order and in that of the organization, and in the case of conflict, they will be obliged to act to resolve this. Since they are more master of their own legal order than of that of the organization, they will usually resolve conflicts by amending their domestic law. The limitation of the binding force of Decisions to governments only, on the other hand, drastically restricts their legal effect. The exclusion of Decisions from the national legal orders also precludes the most effective means of implementation (see below, §1522-1548). §1328. The Decision addressed to a government is one of the most effective decisions an international organization can take. It does not infringe national sovereignty as much as general regulations (see below, §1332-1334) and it provides a rule which is immediately binding, unlike conventions, which first require national ratification. Organizations which have no power to issue Decisions often attempt to achieve the same result in conventions which become binding after a certain period of time (see above, §1288-1294), or which the members are under a pressing obligation to ratify.599 The result can also be effected by two other methods. First, in the form of a recommendation made within the organization by national representatives who have the power to implement the recommendation within their national legal order accompanied by a mutual understanding that each representative will indeed put the rule into effect. By virtue of this procedure, many recommendations of technical organizations differ little from Decisions (see above, §1233). The second method, which is usually followed by the UPU, is to draft a convention which will be (provisionally) applied as from a specific date (see above, §1295). The latter method is more effective, since, unlike the former, it creates a legal obligation. On the other hand, the first method can be more easily applied, as the signature of conventions with immediate legal force may create national constitutional problems for some members.

§1329. In some cases, governments find it difficult, for domestic constitutional reasons, to accept the direct effect of Decisions.600 They may be unable adequately to consult their parliaments before the organization establishes the Decision and they may be constitutionally prohibited from accepting binding rules without such prior consultation. To resolve this particular problem, the OECD sometimes takes Decisions obliging their members to adopt particular conventions.601 The convention is formally passed

599. See also Yemin, op. cit. note 46, at 176. 600. As is illustrated by the explicit denial of such effect in the case of framework decisions adopted within the Third Pillar of the EU; see supra §1326. 601. A. Elkin, formerly Legal Adviser OEEC, in Schwebel, op. cit. note 120, at 369.

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through parliament but legally the parliaments are not free to reject the instrument in question since the Decision to adopt the convention binds their state.

(ii) Decisions addressed to individuals §1330. Few international organizations can address Decisions directly to citizens of their members without the national government acting as intermediary. The most notable exceptions to this are the organs of the European Communities, in particular the Commission, which are empowered to address individual Decisions to enterprises operating within the common market (for instance on coal and steel and on competition).602 The instructions of Eurocontrol to aircraft commanders form another example of Decisions addressed to individuals.603 Certain fishery organizations come very close to taking decisions binding on fishermen. The Mixed Commission for fishing in the Black Sea, for instance, may amend its constitution in such a way that the sort of fish covered by the Convention is extended or that the permitted levels of catches are decreased.

§1331. The power to address Decisions to individuals is irrelevant in most international organizations, since they are concerned only with governments and have no competence to issue Decisions to individuals over whom they exert no governing power. When they do however require to bind individuals, they generally persuade their members through conventions, recommendations or directives to issue a Decision to the individual. Although its contents may be influenced by this indirect method, and delay will certainly occur, the desired result will usually be obtained. Certain organizations have a limited interest in a defined group of individuals over which they may possess power to address Decisions. The Council of the ICAO for example, has the power to decide whether a particular international airline is operating in conformity with the Convention on International Civil Aviation.604 A negative Decision will seriously affect the landing rights of the airline in question.

602. See A.G. Toth, Legal Protection of Individuals in the European Communities, Vol. I (1978), at 65-68. 603. Eurocontrol, Art. 16. 604. ICAO, Art. 86.

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§1332

(iii) General regulations §1332. The European Communities can issue regulations which (1) have general application (as opposed to Decisions), (2) are binding in their entirety (as opposed to directives) and (3) directly applicable in all member states.605 A similar power seems to have been granted to the Management Committee of the Central African Economic and Customs Union, whose decisions are “legally enforceable in the member states”.606 The ICAO establishes (by two-thirds majority of the ICAO Council) rules which bind all aircraft flying over the high seas. The members have committed themselves to ensure prosecutions of all persons violating those rules.607 ICAO standards for personnel licensing may also be binding on individuals.608 Amendments to ICAO standards and recommended practices may sometimes have the effect of generally binding regulations (see above, §1264).

§1333. These regulations are interesting international legal instruments. The precise nature of EC regulations has been clarified in the case-law of the EC Court. As far as the first characteristic is concerned, the Court has observed that “general application” means that a regulation is “applicable to objectively determined situations and involves legal consequences for categories of persons viewed in a general and abstract manner”.609 With regard to the second characteristic (binding in its entirety), the Court has ruled that member states are not permitted not to apply certain elements of a regulation, for example because they are considered to violate national interests or because a reservation was made when the regulation in question was adopted by the Council.610 Often, regulations require member states to take implementing measures. In the field of agricultural policy in particular, national authorities often act as “administrative extensions” of the Community.611 The third characteristic of regulations (direct applicability) is in fact composed of two ele-

605. EC, Art. 249; Euratom, Art. 161. The wording in the ECSC Treaty was different, the effect was the same, ECSC, Art. 14. On the regulations of the EC, see J.-V. Louis, Les Règlements de la Communauté Économique Européenne (1969); Lauwaars, op. cit. note 577; Toth, op. cit. note 602, at 55-61. 606. Conventions Establishing a Central African Economic and Customs Union, December 1964, Art. 18. For the text see M.D. Wionczek, Economic Cooperation in Latin America, Africa and Asia, A Handbook of Documents (1969), at 241, or Peaslee I, at 226. The text has been amended on 8 Dec. 1974. 607. ICAO, Art. 12. See Buergenthal, op. cit. note 43, at 80-85. 608. ICAO, Arts. 39-40. See FitzGerald, op. cit. note 149, at 167. 609. Case 6/68, Zuckerfabrik Watenstedt, ECR 1968, at 415. 610. Case 39/72, Commission v. Italy, ECR 1973, at 171-172; Case 128/78, Commission v. United Kingdom, ECR 1979, at 428-429; Case 93/71, Leonesio, ECR 1972, at 295-296. 611. Kapteyn and VerLoren van Themaat, op. cit. note 13, at 247. See R.H. Lauwaars, Implementation of Regulations by National Measures, LIEI 41-52 (1983). Sometimes regulations require member states to apply sanctions in case of violations; see H.G. Sevenster, Criminal Law and EC Law, 29 CMLRev. 29-70 (1992).

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ments. On the one hand, the Court has ruled that the principle of the precedence of Community law over national law requires, inter alia, that regulations “not only by their entry into force render automatically inapplicable any conflicting provision of current national law, but (...) also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with Community provisions”.612 On the other hand, “by reason of their nature and their function in the system of the sources of Community law, regulations have direct effect and are as such, capable of creating individual rights which national courts must protect”.613 Thus, the organization can directly bind the citizens of the members. The regulations are binding in the national legal orders of the members and could therefore be regarded as “supranational laws”. The Court of Justice of the European Communities spoke of quasi-legislative acts.614 National courts are obliged to apply these regulations regardless of the attitude of their own governments. The great strength of regulations clearly lies in this directly binding effect. Regulations have priority even over subsequent national legislation. The organization does not depend on further cooperation from the governments, but can use the national legal machineries directly for the implementation of its regulations (see below, §1522-1548).615 §1334. Decision-making by regulation represents the only way of making general legal rules, immediately and uniformly applicable in all member states. The purpose of general regulations, to have “general application,” implies that, apart from the members and their subjects, the organization itself will also be bound. Consequently, general regulations constitute internal as well as external rules.

IV. Other elements of the legal order A.

International law

§1335. According to the Vienna Convention on the Law of Treaties, treaties are void if they violate peremptory norms of international law.616 This indicates that there are certain rules of international law which must take precedence over other (international) rules. Apart from those peremptory norms

612. Case 106/77, Simmenthal, ECR 1978, at 643. 613. Case 43/71, Politi, ECR 1971, at 1048. 614. Court of Justice of the European Communities, Case 8/55, Belgische Steenkool-Federatie v. High Authority, ECR 1954-1956, at 258; Case 18/57, Nold v. High Authority, ECR 1959, at 50. 615. On the implementation of EC regulations by the member states, see Lauwaars, op. cit. note 611; J. Bonnes, Uitvoering van EG-verordeningen in Nederland (1994). 616. Vienna Convention on the Law of Treaties, Arts. 53, 64. See R. Kolb, The Formal Source of Ius Cogens in Public International Law, 53 ZÖR 69-105 (1998).

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of international law which form part of the legal order of all international organizations, further rules of international law are also applicable within international organizations (see below, §1572-1581). As the latter have been established under international law, these rules of international law apply directly as part of the legal order of the organization in question, obviating the need for transformation. B.

General principles of law617

§1336. Some general principles of law have been incorporated in international law and may even have obtained the status of peremptory norms of general international law.618 Apart from such peremptory general principles, there are many general rules of law applicable as additional sources of law. The constitution and decisions of an international organization form a very rudimentary legal system. Only basic provisions can be found in the constitution; only important secondary rules will be made in decisions. More detailed rules – and sometimes quite important ones – often must be found elsewhere. Consciously or unconsciously, such more detailed rules will be derived from general principles common to the legal systems of the members.619 New organs, like the European Parliamentary Assemblies, took many rules from national parliaments, familiar to the persons involved. General principles of law form an additional source of rules of the legal order of international organizations.620 They will be applied only when constitutional rules or express decisions are not available. §1337. The International Court of Justice has applied general principles of national laws from its inception.621 Important theories, such as the theory of implied powers,622 have been derived from general principles of law.623 In regional organizations, there may be general principles which form part of the legal order of the organization without necessarily being part of the

617. V. Paul, General Principles of Law in International Law, 10 IJIL 324-350 (1970); B. Vitanyi, La signification de la “généralité” des principes de droit, 80 RGDIP 536-545 (1976). 618. Vienna Convention on the Law of Treaties, Arts. 53, 64. 619. Sometimes even of non-members, see E.-W. Fuss, Die allgemeinen Rechtsgrundsätze über die ausservertragliche Haftung der Europäischen Gemeinschaften, zur Methode ihrer Auffindung, in M. Abelein and O. Kimmenich (eds.), Studien zum Staats- und Völkerrecht, Festschrift für Hermann Raschhofer (1977), at 46-52. 620. See further Amerasinghe, op. cit. note 15, in particular at 15-20; Sands and Klein, op. cit. note 15, in particular at 456-461. 621. See e.g. PCIJ Advisory Opinion No. 13 (Competence of the ILO) of 23 July 1926 in which the Court stated: “It is not an unusual thing, in countries in which legislative power is limited by a fundamental charter, for the Courts, in deciding whether certain legislation is constitutional, or intra vires, to resort to practice...” (PCIJ, Series B, No. 13, at 20). 622. Reparation for Injuries Case, ICJ Rep. 1949, at 182. 623. See S. Rosenne, The Law and Practice of the International Court, Vol. II (1965), at 608-611, 622-623.

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general principles of the laws of other states. In several cases, the Court of Justice of the European Communities has relied on general principles common to the laws of the members to fill gaps in the internal legal order of the organization.624 A clear example is to be found in the Algera Case, concerning the position of a civil servant: “The possibility of withdrawing such measures is a problem of administrative law, which is familiar in the case-law and learned writing of all the countries of the Community, but for the solution of which the Treaty does not contain any rules. Unless the Court is to deny justice it is therefore obliged to solve the problem by reference to the rules acknowledged by the legislation, the learned writing and the case-law of the member countries”.625

Additionally, general principles of law are often applied by administrative tribunals.626 §1338. General principles of law are not static, but develop together with changing convictions in society. These changes are reflected in national laws and in decisions of national courts, as well as in decisions of the international organizations themselves. Such decisions, therefore, have an indirect influence on the content of this part of the law binding international organizations.627 The principle of equality between the sexes is one which has undergone considerable alterations over the years. Some thirty years ago, it was quite common for married men to receive particular allowances which were not paid to married women. However, case-law, both of national and of international courts has rejected this practice.628 Another principle which has become generally binding is the principle of freedom of association, in particular for trade union purposes.629

C.

Customary law

§1339. Equally with the other subjects of international law, international organizations are bound by customary law. Custom develops relatively quickly in international organizations, as organizations can express themselves in their

624. See Schermers and Waelbroeck, op. cit. note 430, at 28-133. 625. Algera Case, 7/56, 3-7/57, ECR 1957-1958, at 55. 626. For examples of general principles, applied by the Administrative Tribunal of the ILO, see 17 AFDI 443-444 (1971). See also C.F. Amerasinghe, The Law of the International Civil Service, Vol. I (1988), at 151-158. 627. On the role of national laws, see G. Ress, Die Bedeutung der Rechtsvergleichung für das Recht internationaler Organisation, 36 ZaöRV 227-277 (1976); on the role of international organizations, see Alexandrowicz, op. cit. note 177, at 89. 628. See, e.g., UNAT, Case 162, UNJY 1972, at 133; ILOAT, Case 264, UNJY 1975, at 151-152; EC Court, Case 20/71, Sabbatini, ECR 1972, at 351; Cases 87-89/90, Verholen, ECR 1991, at I-3757. 629. C. Wilfred Jenks, The International Protection of Trade Union Freedom (1957), at 60, 62.

835

Legal order

§1340

resolutions and may thus underline customary rules.630 However, even without express confirmation, customary rules develop, in particular in the procedural field. When certain problems have been treated in a particular way for many years, a justified expectation will be created that they will be treated similarly in the future. A rule of customary law in an international organization is, for example, the rule that abstentions do not affect the concurring votes of the permanent members of the Security Council (see above, §821).

V.

Concluding observations

§1340. It is a truism that international law lacks the coherence of national law. This is partly explained by the fact that law-making in the national legal order is centralized, whereas international law-making is decentralized. Thus the international community lacks the legislature which provides national legal orders with their coherence. The more horizontal nature of international law contrasts with the more vertical character of the national legal order. This situation is changing, partly through the functioning of international organizations which to some extent compensates for the lack of coherence of international law. This was touched upon above (§9-11, §1141-1144); it will now be examined somewhat more closely. §1341. In 1966, an important study of law-making by international organizations concluded that international law-making “has been ‘institutionalized’ in permanent, international organs. Such organs represent indeed the first tentative and decentralized forerunners of an International Legislature”.631 While the development of a true International Legislature remains for the future, it is equally clear that international organizations have brought some structure to international law-making and, consequently, have given international law a more vertical character. The concept of the legal order of an international organization offers the key to understanding this development. Inherent in the concept of the legal order is a certain hierarchy between legal rules. This hierarchy is as common to international organizations as it is exceptional in international law in general.632 At the apex of the pyramid of rules of an international organization is its constitution, upon which the validity of further rules depends. Generally, decisions by lower organs may be overruled by higher organs (see above, §1145). Although such a hierarchy is also characteristic of national constitutions, there is a fundamental difference between constitutions of states and those

630. Alexandrowicz, op. cit. note 177, at 98-102. 631. I. Detter, Law Making by International Organizations 329 (1966). 632. Such exceptions are Art. 103 of the UN Charter and the concept of ius cogens.

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of international organizations. The notion of state sovereignty explains why the former provides the foundation for all state activities, and why the latter’s scope is not so complete. As Mosler has observed, the legal order of international organizations is “limited to the exercise of the functions entrusted to the organization by its constituent treaty”.633 Constitutions of international organizations are partial and functional, because they are limited to the area of operation of the organization and to those states which participate in it. Consequently, while states have one constitution, on the international plane there are many more. As a result, the problem of coordination (see below, §1702 ff.) is more pronounced in the international sphere than within national legal orders. §1342. As has already been touched upon above (§1147-1149), constituent instruments of international organizations are Janus-faced. These two identities are the treaty face and the constitution face. On the one hand, they are treaties between sovereign states and like any treaty, they are concluded to regulate cooperation between the states which express their consent to be bound. Like any treaty, they usually contain a number of mutual rights and obligations for the parties. On the other hand, they are different from ordinary treaties, and to some extent escape the general rules of treaty law. The difference is the living body of law which is created. Apart from rights and obligations for the parties, a constitution attributes powers to organs. In exercising their powers, these organs provide constitutions with a dynamism that other treaties lack. The treaty face of the constituent instrument of an international organization is dominated by state sovereignty. It is for states to decide whether to conclude, ratify, and possibly terminate and withdraw from treaties, irrespective of whether a “living body” has been established. In this sense, member states remain the ultimate guardians of ‘their’ organization. Member states which are opposed to certain activities of an organization usually rely on specific provisions in the treaty which are considered to protect their sovereignty.634 They often use “static” interpretations of the treaty as it stood when it was concluded, referring to the preparatory work, and refrain from taking a more dynamic approach. These member states primarily use the constituent instrument of an international organization as a shield against what they consider activism or even ultra vires activities. Thus, because of the principle of state sovereignty, the development of a “living constitution” (see above, §1156) is more difficult for international organizations than for states.

633. Mosler, op. cit. note 5, at 191. See also M. Virally, L’O.N.U. devant le droit, 99 JDI (1972), at 526: “Il [le droit interne] forme ainsi un ordre hiérarchisé, s’appliquant aux rapports particuliers qui structurent la vie interne de l’organisation (ou du système d’organisations) et qui sont marqués par une finalité fonctionnelle.” 634. E.g. UN Charter, Art. 2.7.

837

Legal order

§1343

The constitution face, on the other hand, is dominated by the notion of function. Objectives give an international organization a sense of direction, a reference point, for carrying out its activities and responding to the challenges of reality. To perform its functions adequately, an organization must keep pace with reality, which explains why procedures for constitutional amendment (including techniques such as the provisional application of amendments) are less strict and used more frequently than similar procedures of ordinary multilateral treaties. Member states favouring a more extensive role for the organization often refer to its broader objectives, to more general or implied powers of organs, and usually rely on teleological interpretations (see also below, §1349). They primarily use the constituent instrument as a sword in carrying out the organization’s tasks. §1343. The constituent instrument is the basis of the legal order of international organizations. If it is its skeleton, the decisions taken by an organization are its flesh and blood. They are the instruments by which its internal functioning is ensured and by which it achieves its goals in response to developments in reality. This chapter surveys the main types of decisions which can be taken by international organizations. A distinction has been drawn between internal and external decisions, although in practice such a distinction is not very sharp; internal decisions have external effects, and external decisions have internal effects. International organizations are highly similar as far as the power to take internal decisions is concerned, and in respect of the binding character and substance of these decisions. International organizations are highly dissimilar as far as the power to take external decisions is concerned, as well as their binding character and substance. As far as the different types of decisions are concerned, recommendations and conventions are the archetypes of decisions of international organizations, the traditional instruments through which organizations express their own will. On the one hand they are imperfect legal instruments either because they are not legally binding or because they require a separate consent to be bound by member states. On the other hand, the overview above has also demonstrated that the popular image of international organizations as talkshops producing at most decisions that member states do not consider to be of their concern is misleading. First of all there is a third type of decision: binding unilateral decisions of international organizations such as certain resolutions of the UN Security Council, the ICAO or the IMO, and different types of decisions of the EC and the EU. These binding unilateral decisions combine the strengths of recommendations and conventions and largely seem to avoid their defects as legal instruments. From a legal point of view these are more serious intrusions on the principle of state sovereignty than recommendations and conventions. Secondly, although not legally binding, recommendations may have numerous legal consequences and may be very effective in practice. Conventions, al-

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though requiring a separate consent, in some cases are simply applied by member states that are not parties because they have no practical choice (e.g. UPU Conventions). In particular, in the more technical organizations the formal distinction between binding and non-binding external rules is sometimes close to being ignored. In the condition of interdependence, there is often no alternative for states but to cooperate, and for the organization to perform its functions. The overview above has demonstrated that EC decisions in particular embody a Fortentwicklung, a further development of the concept of decisions of international organizations. This was first of all the will of the member states when they created the Communities and defined regulations, directives and Decisions as legal instruments of a largely different nature than those of other organizations, necessary in view of the envisaged integration objectives. But it has also been the EC Court – of course, a creation of the member states as well – that has elaborated the distinct nature of these EC decisions. At the same time, notwithstanding this innovative character of EC decisions, they never can perform their functions without active involvement of the member states. In particular at the level of implementation of EC decisions, member states continue to play an important if not decisive role. Other organizations may benefit from this Fortentwicklung. To a certain extent the EU experience provides a laboratory from which they may learn.635 But there will only be such benefit if the EC decisions experience is seen in the context of European integration. Simply copying institutions, procedures and decisions and including them in another suprastructure that is superimposed on a completely different infrastructure does not work. The infrastructure of an international organization must always be receptive to the introduction of such integration instruments in order to prevent them from becoming a corpus alienum.636

635. Cf. W. Friedmann, The Changing Structure of International Law (1964), at 113-114. 636. This conclusion is largely taken from Blokker, op. cit. note 15, at 43-44.

Chapter 9

Interpretation and settlement of disputes

“It is no exaggeration to say that the whole history of the United Nations has been a series of disputes about the correct interpretation of the Charter.”1

§1344. Whoever applies a rule must first also interpret it, which of course requires ascertaining its meaning. He will execute it in the manner in which he thinks it ought to be understood. This is why the member states and the organs of an international organization, to which most of the rules apply, have an extensive power to interpret their rights, their obligations and their competence under the law of the organization. As long as their interpretations remain unchallenged, the members will continue to interpret their obligations in the manner in which they think they ought to be interpreted and the organs will continue to exercise the competences to which they think they are entitled. Sometimes the original interpretation by the applicant is challenged. This challenge creates a dispute between two parties. Questions of interpretation are actually disputes, or prospective disputes, on the interpretation of the rule by the applicant. For that reason, it is difficult to separate questions of interpretation from disputes. Conversely, most disputes can be traced back to questions of interpretation. A dispute is, to recall the classic definition of the Permanent Court of International Justice, “a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons”.2 We shall consider both interpretation and the settlement of disputes together in the present chapter.

1. 2.

P. Malanczuk, Akehurst’s Modern Introduction to International Law 364 (7th rev. ed. 1997). PCIJ Rep. 1924, Series A, No. 2, at 11. The ICJ has applied this definition in its case law, e.g. in the 1988 Advisory Opinion of the International Court of Justice (Applicability of the Obligation to Arbitrate under Section 21 of the UN Headquarters Agreement), which concerned the question whether a dispute existed between the US and the UN. In this Advisory Opinion the Court referred to its judgment of 21 December 1962 in the South West Africa cases, indicating that “it is not sufficient for one party to a contentious case to assert that a dispute exists with the other party. […] It must be shown that the claim of one party is positively opposed by the other” (ICJ Rep. 1998, at 27). See also the separate opinion by Judge Schwebel, who concluded that there was essential agreement (and, thus, no dispute) between the UN and the US on the interpretation of the Headquarters Agreement, and that the dispute between the parties was mainly about the application of the Agreement (ICJ Rep. 1988, at 43 ff.).

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§1345. However closely these two questions may be related, there are differences. Questions of interpretation may be posed before any dispute exists.3 Several interpretations of the Articles of Agreement of the IMF and the World Bank were requested before any dispute arose on the relevant question.4 Disputes, on the other hand, are not always the result of differences in interpretation. Sometimes the parties are agreed on the legal issues involved but dispute the actual facts to which the rules must be applied. Some disputes, such as that over Kashmir between India and Pakistan, are unsuited to any legal settlement.5 Furthermore, disputes on legal issues do not always concern the legal order of the relevant organization and are not always material to the interpretation of that order. As part of their tasks, some international organizations also assist in settling disputes between their members on issues outside their field of operation. The International Court of Justice, for example, can be used for the settlement of any legal dispute outside the scope of the UN. However, our examination here shall be limited to the interpretation of rules of the legal order of international organizations and to the settlement of disputes concerning that interpretation. I.

Means of interpretation

§1346. In general, there are three different canons of interpretation: (a) the text as the authentic expression of the intention of the law-maker; (b) the intention of the law-maker as a subjective element independent of the text; and (c) the declared or apparent objects and purposes of the legal rule concerned.6 §1347. Priority is usually given to the text.7 The International Court of Justice has said:

3. 4.

5. 6.

7.

On interpretation in international law in general, see S. Sur, L’interpretation en droit international public (1974). E.P. Hexner, Interpretation by public international organizations of their basic instruments, 53 AJIL (1959), at 356, 357, 366. On the ten official interpretations adopted by the IMF until 1965, see J. Gold, The Techniques of Response, in J.K. Horsefield (ed.), The International Monetary Fund 1945-1965 (1969), at 567-581. See A. Beirlaen, La distinction entre les différends juridiques et les différents politiques dans la pratique des organisations internationales, 11 RBDI 405-441 (1975). See Third Report on the Law of Treaties, by Sir Humphrey Waldock, Yearbook ILC 53 (1964); Art. 31 of the Vienna Convention of the Law of Treaties; C.J. Mann, The Function of Judicial Decision in European Economic Integration 334-383 (1972); M.K. Yasseen, L’interpretation des traités d’apres la Convention de Vienne sur le droit des traités, 151 RdC 3-14 (1976 III); S. Torres Bernárdez, Interpretation of Treaties by the International Court of Justice following the adoption of the 1969 Vienna Convention on the Law of Treaties, in G. Hafner et. al. (eds.), Liber Amicorum Professor Ignaz Seidl-Hohenveldern in honour of his 80th birthday 721-748 (1998). Waldock, op. cit. note 6, at 54. See also E. Lauterpacht, The Development of the Law of International Organization by the Decisions of International Tribunals, 152 RdC 379-478 (1976 IV), at 417-419; B. Simma (ed.), The Charter of the United Nations (2nd ed. 2002), at 19-25.

841

Interpretation and settlement of disputes

§1347

“The Court considers it necessary to say that the first duty of a tribunal which is called upon to interpret and to apply the provisions of a treaty, is to endeavour to give effect to them in their natural and ordinary meaning in the context in which they occur. If the relevant words in their natural and ordinary meaning make sense in their context, that is an end of the matter”.8

Owing to their living character (see above, §1145-1156), the primacy of the wording of the text, although recognized, may be of lesser importance in international organizations. The practice of the organization may have altered the application of a text without affecting the actual wording. In many cases the ICJ has referred to such practice in interpreting provisions of constitutions of international organizations, both in cases where it confirmed and where it contradicted a textual interpretation.9 Other international courts and legal offices of international organizations10 have also made such references.11 Furthermore, the acceptance of the notion of practice of the organization is also evident from the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations.12 Article 2(1)(j) of this Convention defines rules of the organization as meaning, “in particular, the constituent instruments, decisions and resolutions adopted in accordance with them, and established practice of the organization”. Finally the ICJ’s 1996 Advisory Opinion requested by the WHO is of particular relevance here. The Court first distinguishes between constituent instruments of international organizations and ‘ordinary’ treaties. The former are not only multilateral treaties, but also treaties of a particular type; their object is to create new subjects of law endowed with a certain autonomy, to which the parties entrust the task of realizing 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 organization created, the objectives which have been assigned to it by its founders, 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.13

8.

9. 10. 11.

12. 13.

ICJ Rep. 1950, at 8 (Second Admission Case). See also ICJ Rep. 1961, at 32 (Temple of Preah Vihear), and for a statement that the Court cannot base itself on a purely grammatical interpretation, ICJ Rep. 1952, at 104 (Anglo-Iranian Oil Company). Lauterpacht, op. cit. note 7; C.F. Amerasinghe, Interpretation of texts in open international organizations, BYIL 1994, at 175-209, in particular at 198-204. See e.g. UNJY 1995, at 419-420. See for examples and further discussion N. Blokker, Beyond ‘Dili’: On the Powers and Practice of International Organizations, in G. Kreijen (ed.), State, Sovereignty, and International Governance 299-322 (2002). UN Doc. A/CONF.129/15. This convention has not yet entered into force. Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996, at 66 (quotation at 75); emphasis added.

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Having made this observation, the Court selects as a particularly relevant canon of interpretation the rule laid down in Article 31(3)(b) of the 1969 Vienna Convention: “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”. This is remarkable, as the Court has usually been reluctant to conclude that a specific method of interpretation should be followed because of the ‘constitutional’ character of the treaty in question.14 In the subsequent sections of this advisory opinion, the Court pays ample attention to practice of the WHO without, however, explicitly mentioning that such practice is considered to be ‘subsequent practice’ as a means of interpretation. Two comments are called for. First, the ICJ has more than before attempted to formulate a legal basis for referring to the practice of the organization. However, second, it is a disadvantage of the approach taken by the Court that ‘subsequent practice’ as a canon of interpretation laid down in the 1969 Vienna Convention refers to the practice of the states party to a particular treaty, and not to the practice of the organization (“the application of the treaty which establishes the agreement of the parties regarding its interpretation”). In this sense, Article 31(3)(b) of the Vienna Convention seems to be incorrect as a foundation on which ‘practice of the organization’ may rest. However, textual interpretation is of lesser importance not only because of the importance of practice of the organization. It may be hampered further by the fact that many international organizations use several authentic languages,15 both in their constitutions and in their decisions. As a rule, the texts in different languages are as close as possible to each other, but even that is not so in every case. Some discrepancies between the four original authentic texts of the treaty establishing the European Economic Community have been attributed to the reflection of each delegation’s opinion in the text of its own language.16 According to the Court of Justice of the European Communities, interpretation may not be based on one’s own language alone. All languages must be taken into account (see above, §374).17 When constitutions are authentic in several languages, they will usually have been drafted with a view to multilingual texts.18 In the case of the Treaty establishing the

14. Lauterpacht, op. cit. note 7, at 414-416. 15. See e.g. UN Charter, Art. 111; Yuen-li-Liang, Notes on Legal Questions concerning the United Nations, 47 AJIL 264-267 (1953); J.M. Mössner, Die Auslegung mehrsprachiger Staatsverträger, 15 Archiv des Völkerrechts 273-302 (1971-72). See in general M. Tabory, Multilingualism in International Law and Institutions (1980). 16. H.H. Maas, De Nederlandse tekst van het EEG-Verdrag, 41 NJB 301-303 (1966); M. Akehurst, Preparing the authentic text of the EEC Treaty, in B.A. Wortley (ed.), An Introduction to the Law of the European Economic Community 20-31 (1972). 17. See H.G. Schermers and D.F. Waelbroeck, Judicial Protection in the European Union 12-13 (6th ed., 2001). See also S.A. Dickschat, Problèmes d’interprétation des traités européens résultant de leur plurilinguisme, 4 RBDI 40-60 (1968). 18. The constitution of UNIDO, for example, was adopted in six languages.

843

Interpretation and settlement of disputes

§1348

ICAO, the text was originally written in one language (English), but three more languages (French, Spanish and Russian) were later added by means of additional protocols.19 In the ICAO the English text is authentic for all members, while the French, Spanish and Russian texts are equally authentic for the members which have ratified the Protocols or become members of the organization after the entry into force of the Protocols. As conflicts based on linguistic interpretations are rare, there is little chance that a court will ever be called upon to rationalize any confusion thus created.

§1348. The intention of the law-maker is classified in the Vienna Convention on the Law of Treaties (1969) as a “supplementary means of interpretation”.20 The International Court of Justice has referred to preparatory documents in several cases,21 but has expressly declared that there is no need to have recourse to preparatory work if the text is sufficiently clear in itself.22 The intention of the parties is not a very satisfactory basis for interpreting constitutions.23 Usually, there have been too many states involved for one clear intention to be identified. The common intention can be derived only from the opinions of those who made statements at the founding conference; many members of the organization may not even have been present. Some international organizations prevent the use of the travaux préparatoires for interpreting their constitution by keeping confidential all documents concerning their establishment,24 while others allow access to travaux préparatoires for this purpose.25 The legislator’s intention may have more relevance when interpreting decisions of international organizations, particularly when the texts have been discussed in various organs which have exchanged comments among themselves. For example, the commentary which the International Law Commission added to its drafts may be relevant for several UN conventions. Certain decisions of the European Communities have received comment when debated in the European Parliament.

19. For French and Spanish, see the Protocol of 24 Sept. 1968, UNJY 1968, at 164-166; for Russian, see the Protocol of 30 Sept. 1977, ICAO Doc. 9208. See also G.F. FitzGerald, The development of the Authentic Trilingual Text of the Convention on International Civil Aviation, 64 AJIL 364-371 (1970); R.H. Mankiewicz, Organisation de l’Aviation Civile Internationale, 14 AFDI 484-490 (1968). 20. Art. 32; B.N. Mehrish, Travaux Préparatoires as an Element in the Interpretation of Treaties, 11 IJIL 39-88 (1971). 21. See e.g. ICJ Rep. 1952, at 45 (Ambatielos) and ICJ Rep. 1952, at 209 (US nationals in Morocco). 22. PCIJ Rep. 1927, Series A, No. 9, at 16 (Lotus), see also PCIJ Rep. 1927, Series B, No. 14, at 31 (European Commission of the Danube); PCIJ Rep. 1932, Series A/B, No. 47, at 249 (Memel) and ICJ Rep. 1947-48, at 63 (First Admission Case). 23. A.J.P. Tammes, Hoofdstukken van Internationale Organisatie 109 (1951). 24. E.g. the European Communities. Some of the preparatory documents for the European Convention on Human Rights have also been kept secret. 25. The IMF has made abundant use of travaux préparatoires. See J. Gold, Interpretation by the International Monetary Fund of its Articles of Agreement II, 16 ICLQ 295-298 (1967).

§1349

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Wood warns that “caution is required” when applying the rules on interpretation of the Vienna Convention in the case of interpretation of resolutions of the UN Security Council: “[…] given their essentially political nature and the way they are drafted, the circumstances of the adoption of the resolution and such preparatory work as exists may often be of greater significance than in the case of treaties. The Vienna Convention distinction between the general rule and supplementary means has even less significance than in the case of treaties. In general, less importance should attach to the minutiae of language. And there is considerable scope for authentic interpretation by the Council itself”.26

§1349. Interpretation by recourse to object and purpose (teleological or functional interpretation) is the most dynamic form of interpretation since it can take account of the living character of an international organization.27 It may be particularly suitable for organizations in a rapidly changing world. Interpretation according to object and purpose however is liable to lead to revision. In particular, there may be a tendency to modify the interpretation of an organization’s acts when its purpose has altered. It seems essential with this method of interpretation that the organ to which interpretation is attributed should enjoy the confidence of all members. It should be an independent, international organ. The risks involved in interpretation based on the purpose of the text may be sufficiently illustrated by a decision of the Court of Douai which held (in 1924) “Since the Treaty of Versailles has been concluded in favour of the Allied Powers, an interpretation to the detriment of their established interests would be inadmissible”.28 Both the International Court of Justice29 and the Court of Justice of the European Communities30 have, on several occasions, taken account of the purposes of the rules they have been required to interpret. The International Court of Justice indicated the limits when it stated: “The principle of interpretation expressed in the maxim: Ut res magis valeat quam pereat, often referred to as the rule of effectiveness, cannot justify the Court in attributing to

26. M.C. Wood, The Interpretation of Security Council Resolutions, 2 Max Planck UNYB 1998, at 73-95 (quotations at 95). 27. Cf. K. Skubiszewski, Remarks on the Interpretation of the United Nations Charter, in R. Bernhardt et al. (eds.), Völkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte, Festschrift für Hermann Mosler 891-902 (1983), in particular at 891-894. See also P. Pescatore, Les objectifs de la Communauté européenne comme principes d’interprétation dans la jurisprudence de la Cour de Justice, in Miscellanea W.J. Ganshof van der Meersch II (1972), at 325-363; Lauterpacht, op. cit. note 7, at 420-465; Simma, op. cit. note 7, at 30-31; J.-V. Louis, The Community Legal Order 50 (2nd rev. ed. 1990); P. Sands and P. Klein, Bowett’s Law of International Institutions (5th ed. 2001), at 450-451. 28. Decision of 24 Dec. 1924, reproduced in A.-C. Kiss, Répertoire de la pratique française en matière de droit international public, Vol. I, No. 931 (1962); C.H. Schreuer, The Interpretation of Treaties by Domestic Courts, 45 BYIL 279 (1971). 29. See e.g. ICJ Rep. 1958, at 68-69 (Guardianship of infants); ICJ Rep. 1960, at 170-171 (IMCO); ICJ Rep. 1964 (Barcelona Traction). See further about interpretation by the World Court E. McWhinney, Judicial Settlement of International Disputes (1991), in particular at 23-27. 30. See Schermers and Waelbroeck, op. cit. note 17, at 20-27.

845

Interpretation and settlement of disputes

§1350

the provisions for the settlement of disputes in the Peace Treaties a meaning which, as stated above, would be contrary to their letter and spirit”.31 According to Judge Alvarez, interpretation based on the purpose of a rule is particularly useful for law-making conventions which have acquired a life of their own, such as the UN Convention on Genocide. These conventions “are almost real international laws. [...] these conventions, signed by a great majority of states ought to be binding upon the others, even though they have not expressly accepted them: such conventions establish a kind of binding custom, or rather principles which must be observed by all states by reason of their interdependence and of the existence of an international organization”.32 According to Judge Weeramantry, in the interpretation of constitutions of international organizations, “particularly one which sets before itself certain sociological or humanitarian goals, the task of interpretation should be guided by the object and purpose […]. A literal interpretation, using strict methods of anchoring interpretation to the letter rather than the spirit […], would be inappropriate”.33 The object and purpose of a treaty is often indicated not only in the articles of a treaty, but also in its preamble. The same is true for the preambular paragraphs of resolutions of international organizations.34

§1350. It could be submitted that the interpretative function of the EC Court is fundamentally different from the interpretative function of the International Court of Justice, because the European Communities (as integration organizations) are fundamentally different from the UN (an organization for cooperation, see above, §27). However, it has been convincingly demonstrated that, with respect to interpretation of the constituent instruments of these organizations, these Courts are highly similar in carrying out this function.35 Both the EC Court and the World Court base their interpretative work on one fundamental principle: to give that meaning to constitutional provisions which is most favourable for widening the powers of the organization, or, in other words, “la poursuite de l’effectivité des finalités institutionnelles”.36 At the same time, both Courts have also used this principle to establish limits to the scope of interpretation (auto-limitation judiciaire, or self-restraint; judicial caution).37 As far as the means of interpretation are concerned, Simon concludes that neither the International Court of Justice nor the EC Court emphasize one or another of the recognized schools of interpretation. On the contrary, his study reveals that both courts display considerable eclecticism. In order to achieve

31. ICJ Rep. 1950, at 229 (Peace Treaties). See also ICJ Rep. 1966, at 48 (Ethiopia and Liberia v. South-Africa). 32. ICJ Rep. 1951, at 52-53 (Reservations to the Convention on Genocide, dissenting opinion). 33. ICJ Rep. 1996, at 148 (WHO Nuclear Weapons, dissenting opinion). 34. For a comparison between preambles of treaties and resolutions see E. Suy, Le préambule, in E. Yakpo and T. Boumedra (eds.), Liber Amicorum Judge Mohammed Bedjaoui 253-270 (1999). 35. D. Simon, L’interprétation judiciaire des traités d’organisations internationales (1981). 36. Id., at 317. The same conclusion is drawn by Sands and Klein, op. cit. note 27, at 450-451. 37. Id., at 309-315.

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the desired result, they do not hesitate to mingle different canons of interpretation.38 In addition, it has been demonstrated that there seems to be no fundamental difference between the means employed for the interpretation of constitutions and those for the interpretation of ‘ordinary’ treaties.39

II.

Authorities charged with interpretation

A.

Interpretation by the members

1.

National executives

§1351. Most rules of international organizations which are not directed to their own organs will be addressed to the member states. The members will be the first to interpret them. So long as they are not overly divergent, their interpretations will be final. Possible conflicts in interpretation by the member states will be brought within the realm of the organization, either by means of special provisions for interpretation or, alternatively, when one of the interested states initiates further decision-making on the issue concerned in order to clarify the provision involved. Apart from interpretations in the first instance through application, the governments of some members also interpret rules of the legal orders of international organizations at the request of other national authorities. In several states courts obtain the opinion of the executive (the Minister of Foreign Affairs) as to the interpretation of international legal provisions before they take a decision. This reference to the executive is usually based on the following considerations. Being responsible for their signature and execution, the Minister of Foreign Affairs is deemed to be more competent than a judge to interpret treaties. Unlike the judiciary, he is also competent to negotiate with the other treaty partners regarding the most appropriate interpretation, and he can follow the interpretation which best meets the international obligations of the state. When judges interpret treaties, they could trench upon the diplomatic prerogative of the government and create international liability for the state. When all national authorities follow the interpretation decreed by the Minister of Foreign Affairs, uniform interpretation within the state is best guaranteed. On the other hand, and especially as regards litigation against the state, the Minister of Foreign Affairs may not be objective. In most states where the judiciary takes the advice of the Minister of Foreign Affairs, such as the US,

38. Id., at 456. 39. Id., at 470 ff.; also Lauterpacht, op. cit. note 7, at 414-416; T. Sato, Constituent Instruments of International Organizations and their Interpretative Framework, 14 Hitotsubashi Journal of Law and Politics 1-22 (1986).

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the opinion of the Minister is not binding. The final decision rests with the courts. Only in France (since the Veuve Murat, Comtesse de Lipona Case of 23 July 1823) were the courts obliged to refer questions of interpretation of treaties to the Minister of Foreign Affairs, and the Minister’s interpretation was binding.40 Often courts evaded this obligation by ruling that the treaty was sufficiently clear so as to obviate any need for interpretation (the theory of “acte clair”).41 In the case of GISTI of 29 June 1990 the French Conseil d’Etat abandoned this obligation, principally on the ground that it infringed the requirement of fair process incorporated in Article 6 of the European Convention on Human Rights, which stipulates that disputes must be settled by a tribunal (and not by a Minister) and that the tribunal must be independent (and not bound by a governmental rule).42 The same position was taken by the European Court of Human Rights, which held that Article 6.1 of the European Convention on Human Rights had been breached as the Conseil d’Etat had not acted as an independent court when it considered itself bound by the interpretation given by the Minister of Foreign Affairs.43 National executives interpreting rules of the legal order of an international organization will be influenced by the decision-making process by which the rules were formed and in which they themselves took part. This may promote uniform interpretation among different states. On the other hand, they may also be influenced by national interests, which may encourage them to favour an interpretation not shared by the other members. 2.

National courts44

§1352. We shall see in the next chapter (below, §1522-1548) that rules of an international organization may sometimes be enforced in national courts. Where this is the case, national courts will also be obliged to interpret these rules. When they are applied directly, they interpret the rules themselves; when they apply a national implementing law, they interpret that law, which generally provides the same rules.

40. See e.g. the judgment of the Conseil d’Etat in the Beaumartin Case of 27 January 1989, partly reproduced and translated in English in the Report of the European Commission of Human Rights in the Beaumartin Case, 29 June 1993, para. 25, or the judgment of the European Court of Human Rights in the same case, 24 Nov. 1994, Series A, No. 296B, paras. 15-20. 41. See e.g. Ass. 8 April 1987, Ministre de l’intérieur et de la décentralisation c/Peltier, at 128, concl. Massot. 42. Groupe d’information et de soutien des travailleurs immigrés (GISTI), 29 June 1990, at 171-183, especially the conclusion of the commissaire du gouvernement, M. Abraham, at 175-181. See also J.-F. Lachaume, Jurisprudence française relative du droit international (Année 1990), 37 AFDI (1991), at 897-899. 43. Beaumartin Case, judgment of 24 Nov. 1994, Series A, No. 296 B, paras. 38-39. 44. For the interpretation of treaties by national courts and for the methods these courts use, see Schreuer, op. cit. note 28, at 255-301; J.G. Merrills, Interpretation of the Bretton Woods Agreement, 26 ICLQ 218-223 (1977).

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In interpreting the law of an international organization national courts will be influenced by their national environment and by appropriate precedents in their national legal order. This may lead to even greater differences than those which usually arise when different courts interpret the same rule of law. As an example, we consider the constitution of the IMF, which provides that: “exchange contracts which involve the currency of any member and which are contrary to the exchange control regulations of that member, maintained or imposed consistently with this Agreement, shall be unenforceable in the territories of any member”.45 National courts applying this article were required to interpret “exchange contract which involves the currency of a member”. Does this include only the exchange of one currency for another or does it include also the exchange of goods for money? The courts of Hamburg (Landesgericht)46 and Luxembourg (Tribunal d’Arrondissement)47 and, by implication, the German Supreme Court (Bundesgerichtshof)48 favoured the latter view. Courts in Hamburg (Oberlandesgericht, in a different case)49 New York (Court of Appeal)50 and England (High Court)51 seem to have been more restrictive. The scope of the unenforceable contract has also been subjected to different interpretations. Is it only the contract involving the currency of a member which is “unenforceable” or do further legal transactions, if following directly from the original contract, also fall within this category? The Hong Kong Supreme Court in White v. Roberts,52 the Schleswig-Holstein Court of Appeals (Oberlandesgericht) in Lessinger v. Miran,53 and the Supreme Court in the UK (House of Lords)54 adopted a rather broad construction consistent with the purpose of Article 8, Section 2(b) of the constitution of the organization which is to protect the currencies of the members and to discourage illegal transactions. The New York Court of Appeals was more restrictive. In Southwestern Shipping Corporation v. National City Bank of New York, it said that an agent instructed to pay in performance of such a contract could not invoke the unenforceability which his principals had waived.55 (The US Supreme Court rejected a writ of certiorari by which the applicants had requested a review). Similar problems have arisen in national courts interpreting the constitution of the EC. Article 81.2 of that constitution provides that agreements restricting competition and affecting trade between member states are null and void. However, Article 81.3 provides that exemption may be granted. Article 83 requires the Council to issue the

45. 46. 47. 48. 49. 50. 51.

52. 53. 54. 55.

IMF, Art. VIII, Section 2 (b). J. Gold, The Fund Agreement in the Courts 82-86 (1962). Id., at 94-96; See also Cour d’Appel Paris, Gold, id., at 146. Judgment of 9 April 1962, VII ZR 162/60; AWD 146 (1962); Gold in IMF Staff Papers (1964), at 467. Gold in IMF Staff Papers 457-465 (1964). Banco do Brasil case, id., at 468-473; also in 16 ICLQ (1967), at 294. Wilson, Smithett & Cope v. Terruzzi, 2 WLR 1009, (1975) 2 A11 ER 649. See also J. Kerr in 47 BYIL (1974-75), at 350-352 and in 48 BYIL (1976-77), at 336-339; F.A. Mann, The Legal Aspects of Money 439-448 (3rd ed. 1971). 33 Hong Kong Law Reports (1949), at 231-282; Gold, op. cit. note 46, at 87-90. Gold, id., at 90-94. Lord Justice Diplock (1966), 3 WLR 1293; Gold in IMF Staff Papers 383 (1967). 190 N.Y.S. (2nd) 352 (1959); Gold, op. cit. note 46, at 102-108.

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Interpretation and settlement of disputes

§1353

necessary regulations or directives in order to give effect to Article 81. Prior to the adoption of such regulations, Dutch courts considered Article 81 not yet operative, so that all restrictive trade agreements remained effective. By comparison, German courts generally decided that Article 81.2 required no implementation and had to be applied immediately.56

§1353. National courts willing to apply decisions of international organizations may be confronted with questions concerning the legality of those decisions. It may be alleged that the organization was incompetent to adopt a decision or that not all necessary procedural requirements were observed. Are national courts competent to determine such questions, or should they follow a theory analogous to the “act of state” doctrine? Are acts of public international organizations comparable to acts of foreign states? One important difference is that foreign states usually have their own judiciary. Although often biased, this judiciary provides a possibility of judicial control, which is absent entirely in many international organizations. Another difference is that an organization of which the court’s own state is a member is less “foreign” than a foreign state. Apart from these two points, all the arguments for the act of state doctrine will be equally valid for acts of international organizations. In the absence of compelling reasons, national courts ought not to declare such acts void. The validity of decisions of international organizations has been discussed in national courts. For example, the US Federal Communications Commission was required to determine whether the World Bank and the IMF were entitled to the reduced telegraph rates applicable to governments, or whether they should be charged the full commercial rate. The constitutions of these organizations provide that the official communications of both organizations shall be accorded the same treatment as official communications of states.57 The telegraph companies submitted that this provision should apply only to such matters as priorities and freedom from censorship and not to rates. The Executive Directors of these organizations decided that the provision should be interpreted as including rates as well. The Federal Communications Commission had to decide whether this decision was binding.58 In deciding that it was, it also observed: “assuming, for purposes of argument, that if the interpretations of the term ‘same treatment’ by the Executive Directors of the BANK and the FUND were so unreasonable, arbitrary or capricious as to constitute in fact an amendment of the Articles of Agreement rather than interpretations thereof we should not have to give effect to them, we think it clear that the interpretations made in this case cannot be so categorized”.59 The Federal Communications Commission at least considered the proposition that it should not apply illegal decisions of an international organization.

56. L.J. Brinkhorst and H.G. Schermers, Judicial Remedies in the European Communities 249 (2nd ed. 1977). 57. IMF, Art. IX, Section 7; World Bank, Art. VII, Section 7. 58. Gold, op. cit. note 46, at 20, 26, 55; Hexner, op. cit. note 4, at 354-356. 59. Quoted by Gold in 3 ICLQ 267-268 (1954).

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A German administrative court (the Verwaltungsgericht Frankfurt) went much further in its decision of 12 December 1966.60 The court had to apply EEC Regulation 102/64 (on cereals). In its judgment the court held: “In its preamble Regulation No. 102/64 advances as the first legal basis that it is founded on the Treaty establishing the EEC ... An institution of the EEC may only use its legislative powers pursuant to Article 189 EEC when the EEC Treaty expressly provides so ... But the Articles ... of the EEC Treaty giving the Commission its own power of decision ... do not contain any authority to regulate the export security in all member states. This power of decision is rather entrusted to the Council only ... Regulation No. 102/64 is as far as the export is concerned also substantively illegal, for it violates the principles of proportionality that intervention in the legal sphere by an administrative act must be in reasonable proportion to the result aimed at and that the authorities, when there are several appropriate possibilities, must make that provision which least prejudices the parties affected ...”. Although the Verwaltungsgericht was apparently willing to apply EEC regulations in general, it refused to apply the particular regulation on the ground that it considered it to be illegal. The validity of this reasoning may be questioned. Article 189 of the EC Treaty (now Article 249) clearly provides that EC Regulations are binding and directly applicable in each member state. The EC Treaty provides mechanisms for establishing whether a regulation is validly made.61 This excludes any right of national courts to refuse to apply them. The Verwaltungsgericht should have sought a preliminary ruling before considering any decision illegal (see below, §1374). Other courts have not followed the Verwaltungsgericht, and in its later cases it has changed its attitude.62 More recently, the EC Court has qualified its earlier case law on this point. After the Court had indicated in 1987 that “the rule that national courts may not themselves declare Community acts invalid may have to be qualified in certain circumstances in the case of proceedings relating to an application for interim measures ...”,63 a landmark case was decided in 1991.64 In this judgment, the Court ruled that national courts may suspend the enforcement of a national administrative measure adopted in implementation of a Community measure if certain conditions are fulfilled. Inter alia, the national court must have serious doubts as to the validity of the Community measure in question and, should the question of the validity of the contested measure not already have been brought before the Court of Justice, it must itself refer the question to the Court. Whereas previously there was absolute priority of Community law which the national courts had to respect unconditionally, a new era has dawned in which there is greater scope for the protection of individual rights. As a result, the role of national courts in the application of Community law has become even more important than before.65

60. AWD 67-71 (1967); 5 CML Rev. 75 (1967-68); Brinkhorst and Schermers, op. cit. note 56 (first edition, 1969), at 205-206. 61. EC, Arts 230, 234. 62. Schermers and Waelbroeck, op. cit. note 17, at 493 ff. 63. Case 314/85, Foto-Frost, ECR 1987, at 4232. 64. Joined Cases C-143/88, Zuckerfabrik Süderdithmarschen, and C-92/89, Zuckerfabrik Soest, ECR 1991, at 415. See Schermers and Waelbroeck, op. cit. note 17, at 208-210. 65. H.G. Schermers, Annotation of Joined Cases C-143/88 and C-92/89, 29 CMLRev. 133-139 (1992).

851

Interpretation and settlement of disputes

§1354

A final example of a case in which a national court reviews the validity of a decision of an international organization is the judgment pronounced by the President of the Hague District Court in the interlocutory injunction proceedings Milosevic v. the Netherlands.66 In 2001, Slobodan Milosevic (the former President of the Federal Republic of Yugoslavia) was arrested, detained and transported to the UN detention unit in the Hague. Milosevic claimed before the International Criminal Tribunal for the Former Yugoslavia (ICTY) that he did not accept the competence of that Tribunal. Defence lawyers for Milosevic summoned the Netherlands (the host state of the ICTY) to release him. When this was rejected they instituted interlocutory injunction proceedings under Dutch civil law against the Netherlands, in which they argued, inter alia, that the ICTY “has no basis in law” since “the Security Council is not competent to establish an international tribunal”. In his judgment, the President of the Hague District Court examined this challenge to the Tribunal’s legal validity. He referred to the 2 October 1995 decision on this issue by the Appeals Chamber of the ICTY itself in which it was concluded that it was within the scope of the Security Council’s powers under Article 41 of the Charter to establish the ICTY. The President concludes that “it has by no means been established that the decision of 2 October 1995 is incorrect or that the grounds on which it was reached were unsound. Given the lengthy and detailed arguments furnished in support of the decision of 2 October 1995, the plaintiff’s contentions in this regard do not place the matter in a new light”.67 This is a marginal judicial review, but it is a judicial review, of the 2 October 1995 decision of the ICTY (which in turn is a judicial review of the decision of the Security Council decision to establish the ICTY).

§1354. National courts applying legal rules of international organizations require guidance as to the best interpretation of those rules. It was observed above that such guidance is sometimes given by the Ministry of Foreign Affairs. This interpretation may be closer to the intention of the treaty making states, but it offers no guarantee of uniform interpretation by all members. The IMF promotes a more uniform application of its law in national courts by a policy of information. Principally in order to inform national courts of the existence of IMF law, and of its proper interpretation,68 the legal adviser to the IMF published a number of articles on the application of the law of the IMF in national courts.69 Judging from the large number of references by national courts to these articles, this method seems to be effective. The Parliamentary Assembly of the Council of Europe has recommended a similar method for obtaining uniform interpretation of Council of Europe conventions. If this method were to be adopted, each member would report periodically to the Council of Europe on the interpretations given by national courts and other authorities. A special committee would investigate the reports

66. Case number KG 01/975; judgment of 31 August 2001. Reproduced in 48 NILR 2001, at 357-361. 67. Id., at 360. 68. Statement of Joseph Gold, (then) General Council and Director of the Legal Department in a guest lecture at Michigan University Law School, 10 March 1969. 69. J. Gold, op. cit. note 46, articles on the same subject matter in IMF Staff Papers Volumes 11 and 14.

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and draw conclusions therefrom. Wide distribution of that special committee’s reports would help to further uniform interpretation.70 To date, the system has not come into operation. The EC Treaty allows the courts of member states to obtain information from the Court of Justice of the European Communities whenever necessary (see below, §1374-1376). B.

Interpretation by organs of the organization

1.

Policy-making organs

§1355. Many international organizations expressly charge their policy-making organs with interpretation and settlement of disputes on questions concerning rules of their legal order.71 Others do so without the express authorization of their constitutions.72 For example, a number of interpretations have been given by the plenary organ (the ‘Assembly’) of the International Oil Pollution Compensation Fund.73 Article 1.2 of the Convention establishing this Fund refers to “pollution damage”. Following the Antonio Gramsci incident the Soviet Union presented a claim for damage to resources and for costs and expenses in restoring the polluted water to a clean condition, based on an abstract quantification according to a theoretical model. Member states disagreed on whether the notion of “pollution damage” under the Convention allowed such a method of assessing the damage. A working group was established and the Assembly subsequently interpreted the meaning of this term. Similarly, the Assembly officially interpreted Article 10.1 of the same Convention. Pursuant to this Article, “contributions to the Fund shall be made in respect of each contracting state by any person who ... has received [oil] in total quantities exceeding 150,000 tons ...”. Who is a ‘receiver’ of oil? Dutch owners of tanks in which oil was stored for third parties took the view that they could not be qualified as ‘receivers’ of oil and thus would not be obliged to pay the contribution. They initiated proceedings against the Dutch Ministry of Economic Affairs and the International Oil Pollution Compensation Fund, but the Dutch court rejected their claims. In this procedure, the Ministry of Economic Affairs referred to the interpretation of ‘receiving oil’ by the Assembly of the Fund.74

70. See Recommendation 454 (1966) of the Parliamentary Assembly of the CoE; H. Wiebringhaus, L’Interprétation uniforme des conventions du Conseil de l’Europe, 12 AFDI 455-469 (1966). 71. E.g. World Trade Organization, Art. IX.2. See in general Amerasinghe, op. cit. note 9, at 176-182. 72. This may lead to disputes with the members involved. See D. Ciobanu, Preliminary Objections related to the Jurisdiction of the United Nations Political Organs (1975), in particular at 61-201. 73. Created by the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, amended in 1992. See www.iopfund.org. 74. See Doc. FUND/A/ES.1/13 of the Fund; College van Beroep voor het Bedrijfsleven, Case 92/1967/062/999, PAKTANK Nederland v. Minister van Economische Zaken en The International Oil Pollution Compensation Fund, 25 Febr. 1994; information obtained from the Dutch Ministry

853

Interpretation and settlement of disputes

§1356

There are several reasons why policy-making organs may be more suitable than courts to give interpretations and to settle disputes:75 (a) Policy-making organs can compromise. They can seek a solution acceptable to all parties. By contrast, in a court the open clash of two governments and the resulting victory of one party over another can be harmful to the governments involved in the dispute. (b) Policy-making organs can solve problems by further legislation. They need limit themselves neither to the wording of a text nor to the intention of the parties; they do not have to look back; they can look forward and create a new situation, abandoning the old conflict. Policy-making organs can more easily override specific articles and give priority to the purposes of the organization. (c) Courts are formalistic. They often require an immense amount of time, forbid the states concerned to participate fully in their deliberations, use strict rules on burden of proof and give insufficient consideration to political arguments. Policy-making organs can produce better results by mutual consultation. The parties to the dispute are present and participate fully in formulating a solution. (d) Many international organizations are unwilling to remit decisions to outside bodies, either because these bodies are not composed of experts in the matter covered by the organization or because they cannot apply a weighted voting formula. §1356. It was probably owing principally to this the latter reason that the financial agencies76 and the commodity councils77 charged their executive organs with all questions of interpretation. Another reason may have been the difficulty in agreeing on a sufficiently representative external tribunal.78 The organizations which use a weighted voting system, in particular the IMF and the World Bank, have adopted official interpretations of several provisions of their constitutions.79 Observers have been satisfied with this

of Justice. 75. J.S. Lambrinidis, The Emergence of Quasi judicial Quasi-Administrative Organs and Methods for Settlement of International Disputes, 16 RHDI 78-87 (1963); J.S. Lambrinidis, The Structure, Function and Law of a Free Trade Area, 202-205 (1965); E. Giraud, La révision de la Charte des Nations Unies, 90 RdC (1956 Il), at 396; A. Szokoloczy-Syllaba, EFTA: The Settlement of Disputes, 20 ICLQ 519-534 (1971); E. Osieke, The Exercise of the Judicial Function with respect to the International Labour Organisation, 47 BYIL 315-340 (1974-75). 76. E.g. IMF, Art. XXIX; World Bank, Art. IX; IFC, Art. 8; IDA, Art. 10; Inter-American Development Bank, Art. 13, Section l; Asian Development Bank, Art. 60; Caribbean Development Bank, Art. 59 (1). 77. E.g. International Cocoa Agreement (2001), Art. 50; International Coffee Agreement (2001), Art. 42. 78. J. Gold, Membership and Non-membership in the International Monetary Fund 388 (1974). 79. R. Zacklin, The Amendment of the Constitutive Instruments of the United Nations and the Specialized Agencies 177-178 (1968); F.A. Mann, The “Interpretation” of the Constitution of International Financial Organizations, 43 BYIL 1-19 (1968-69); Hexner, op. cit. note 4; J. Gold,

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procedure, but not particularly because weighted voting can be used in interpreting texts. In legal discussions, where the individual opinion of the participating experts may be more important than the interests they represent, weighted voting is not entirely suitable. The IMF therefore introduced a Committee on Interpretation which takes its decisions by a non-weighted majority. However, in practice interpretations of IMF rules are almost always given by the Executive Board and the Board of Governors; the latter has the power to overrule the Committee on Interpretation by an 85 per cent majority of the total voting power.80 §1357. According to Elias, the founders of the OAU originally considered referring disputes on the interpretation or application of the constitution of that organization to the International Court of Justice.81 However it was finally decided to charge the general congress of the organization with all questions concerning interpretation.82 The principal reason for this seems to have been a desire to dispose of disputes within the framework of the organization itself. Preference for a policy-making rather than a legal organ may have been a secondary factor. The founders of the African Union, established in 2000 to replace the OAU, decided to charge the Court of Justice of the African Union with matters of interpretation arising from the application or implementation of the constitution of the Union. Only during the period before the actual establishment of the Court the general congress disposes of this power.83 §1358. Several international organizations leave the interpretation of their rules in the first instance to their general congress84 (or to their board).85 There may be a possibility of appeal to an arbitral tribunal,86 to the International

80.

81. 82. 83. 84. 85.

86.

Interpretation by the FUND, IMF Pamphlet Series, No. 11; R. Vernon, Organizing for World Trade, 505 Int. Conc., at 203-209; J. Gold, Voting and Decisions in the International Monetary Fund 150-151, 184-185, 204-207 (1972); T. Treves, Les Décisions d’Interpretation des Statuts du Fonds Monetaire International, 79 RGDIP 5-24 (1975); I.F.I. Shihata, Interpretation and Amendment of the IBRD Articles of Agreement, in I.F.I. Shihata, The World Bank in a Changing World, Vol. III (2000), ar 3-18. Gold, op. cit. note 78, at 388-390; Shihata, op. cit. note 79. The IMF travaux préparatoires show that France and other European states proposed to charge an independent tribunal with matters of interpretation. The arbitrators of this tribunal would not decide by weighted voting. This would however limit US influence within the IMF. As a compromise, the Committee on Interpretation was created (information obtained from the IMF). T.O. Elias, The Charter of the Organization of African Unity, 59 AJIL 267 (1965). OAU, Art. 27. Constitutive Act of the African Union, Art. 26. See www.africa-union.org. E.g. FAO, Art. 17; WHO, Art. 75; IMO, Art. 69; WMO, Art. 29; Benelux, Art. 44. E.g. ICAO, Art. 84. For the rules adopted by ICAO, see ICAO Doc. 7782-C/7188-C.828, Proceedings of the Council, 11th (1950), at 36-38; Common Fund for Commodities, Art. 52. WMO and Benelux.

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Court of Justice,87 or to either.88 Thus, they benefit from the advantages offered by settlement in the policy-making organ without excluding a final settlement by a judicial organ. The question then arises whether an appeal can be brought only against final decisions, or also against interim decisions, taken by the political organ. In a case between India and Pakistan brought under the ICAO constitution, the International Court of Justice held that, in principle, only final decisions of the political organ may be disputed before the legal organ. A decision as to the competence of the political organ ought however to be qualified as a final decision.89 §1359. As an independent authority, the legal department of the secretariat is often consulted on questions of interpretation. Usually this department will provide interpretations only when expressly requested to do so.90 In many cases, the General Assembly of the UN “takes note of” a report prepared by the UN Secretariat. But what does this mean? In a legal opinion given in 2001 the Legal Counsel of the UN wrote that the meaning of this phrase “is determined by the ordinary meaning of the expression in the context that the expression is used, in the light of the circumstances in which it was drafted and ultimately of course, the intention of the body adopting the resolution”.91 More specifically, the Legal Counsel opined that, “[w]here a report by the Secretary-General or subsidiary organ does not propose or recommend any course of action which requires a decision by the General Assembly, taking note of such report merely takes cognizance that is has been presented and does not express either approval or disapproval”. However, the Fifth (Administrative and Budgetary) Committee of the General Assembly also specifically requested on that occasion whether the expression “taking note of” a report may in a specific context mean that the General Assembly had agreed to the content of the report. According to the Legal Counsel, where the report in question “proposes or recommends a specific course of action, within existing resources, which requires a decision by the General Assembly, a decision or resolution taking note of such report in the absence of further comment by the organ concerned constitutes authorization of the course of action contained therein”.92

In the IMF the legal adviser published, in his personal capacity, a number of articles clarifying provisions of the IMF constitution.93 Such commentaries (although unofficial) are of great assistance to the national authorities which are required to apply the provisions.

87. E.g. FAO, WHO and IMO. 88. ICAO. 89. ICJ Rep. 1972, at 56. On this case see G.F. FitzGerald, The Judgment of the International Court of Justice in the Appeal Relating to the Jurisdiction of the ICAO Council, 12 CYIL 153-185 (1974). 90. Many of the interpretations given by legal offices of the UN and the specialized agencies are published in the UNJY. 91. UN Doc. A/C.5/55/42, Annex II. 92. Id. 93. See the articles of J. Gold, most of them published by the IMF.

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In the ILO, interpretations by the Secretariat may acquire an authentic character, and so promote the terms of the conventions being given the same meaning and application by members. At the request of members, the ILO Secretariat furnishes information relevant to the interpretation of ILO conventions.94 In doing so, it makes clear that it has “no special authority under the provisions of the Constitution of the ILO to interpret the provisions of an international labour convention, authority to give an internationally binding interpretation being reserved to the International Court of Justice”. Nevertheless, the view has been expressed by the ILO Secretariat (the International Labour Office) that “when an opinion given by the Office has been submitted to the Governing Body and published in the Official Bulletin and has met with no adverse comment, the Conference must, in the event of its subsequently including in another Convention a provision identical with or equivalent to the provision which has been interpreted by the Office, be presumed, in the absence of any evidence to the contrary, to have intended that provision to be understood in the manner in which the Office has interpreted it”.95 §1360. Even when not charged with interpretation, all organs applying rules of the organization do, in fact, interpret them.96 The United Nations Conference on International Organization (UNCIO), which established the UN in 1945, accepted such interpretations as inevitable and inherent in the functioning of any organ and, accordingly, decided that it was unnecessary to include in the Charter a provision either authorizing or approving them. If two organs adopted differing interpretations, an advisory opinion of the International Court of Justice or a report of an ad hoc committee of jurists could be requested. The UNCIO concluded furthermore: “It is to be understood, of course, that if an interpretation made by any organ of the organization or by a committee of jurists is not generally acceptable, it will be without binding force. In such circumstances ... it may be necessary to embody the interpretation in an amendment to the Charter”.97

§1361. Occasionally, policy-making organs resolve conflicts between different decisions of the same organization by establishing priority for a particular decision.

94. See e.g. UNJY 1987, at 225-233. See also UNJY 1991, at 340-346, in particular at 341 (para. 1). 95. 33 ILO Official Bulletin 305 (1950); 23 ILO Official Bulletin (1938), at 30-33, quoted by L.B. Sohn, Procedures Developed by International Organizations for Checking Compliance, in S.M. Schwebel (ed.), The Effectiveness of International Decisions. Papers of a conference of The American Society of International Law, and the Proceedings of the conference 53 (1971); E. Osieke, Constitutional Law and Practice in the International Labour Organisation 206-210 (1985). 96. See e.g. for the UN Secretariat J. Soubeyrol, Aspects de la fonction interprétative du Secrétaire Général de l’ONU lors de l’affaire du Congo, 70 RGDIP 565-631 (1966). 97. 13 UNCIO, at 709-710.

857

Interpretation and settlement of disputes

§1362

In 1971, the general congress of the ICAO (the Assembly) decided no longer to invite South Africa to the meetings of many organs of the organization, and to withhold from it many of its documents. It anticipated that the resolution concerned might conflict with other resolutions on participation in organs, or on distribution of documents, and therefore provided that: “in case of conflict between the present Resolution and any other Assembly resolution the present Resolution shall prevail”.98

§1362. The extent to which policy-making organs may try to settle disputes concerning the interpretation of rules of the organization may be challenged in cases where another means of dispute settlement has been expressly provided. In cases involving disputes between members or variations in interpretations of texts, international organs have taken it upon themselves to discuss the matter, even where judicial settlement may have been provided. One outcome of such discussions may be a recommendation to pursue the alternative means of settlement. If there is a doctrine that two parties having agreed to a particular method of dispute settlement are not free to use other ways (the principle electa una via non datur recursus ad alteram99), then this does not fully apply to political discussions in organs of international organizations. Arrangements between the UN and its member states concerning the status, privileges and immunities of the UN within these states generally refer to arbitration as the method of dispute resolution, or to judicial settlement (“binding” advisory opinions by the International Court of Justice). Such disputes occur regularly. They are almost always solved through negotiations. Sometimes the UN Legal Counsel is requested to deliver an opinion on the matter concerned. The interpretation given in such opinions is usually accepted.100

2.

Judicial organs101

§1363. Policy-making organs may be useful in providing a dynamic interpretation of the legal order of an international organization when questions concerning the task and the activities of the organization are involved. But they are generally unsuitable in a conflict between the organization and one of its members. Whenever the interpretation concerns the question whether a member has correctly fulfilled its obligations to the organization, the policy-making organs may not be sufficiently impartial. Only judicial organs can properly interpret the obligations of the members. They will also provide better protection to states which find themselves in the minority and which may be outvoted in policy-making organs. When performing this task, judicial organs would be well advised to accept Lambrinidis’ suggestion102 and adjust their

98. ICAO Assembly Res. A 18-4. 99. Ciobanu, op. cit. note 72, at 92-101. 100. See S. Muller, International Organizations and Their Host States – Aspects of Their Legal Relationship (1995), in particular Chapter 9. 101. See in particular Simon, op. cit. note 35. 102. Lambrinidis, op. cit. note 75, at 85.

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traditional methods to meet the objections which persuaded so many organizations to accept settlements by policy-making organs. Many international organizations have judicial organs of their own (see above, §605-641). Others use the International Court of Justice103 or refer cases to arbitration.104 a.

Judgments

§1364. Interpretation by a judicial organ seems to be particularly appropriate when the laws of an international organization are directly applicable in the national legal orders of its members. National courts must then apply – and therefore also interpret – those laws. For the purpose of harmonizing interpretations by national courts, an international judicial organ seems to be more suitable than a policy-making body. What ought the function of this international legal organ to be? A Special Court of Appeal might be considered: a court established within the organization to provide a uniform interpretation of its laws and empowered to overrule decisions of the national courts which concern those laws. But while such a court would enhance the creation of uniform case law, its existence as a supreme legal organ would be difficult for the member states to accept. The only court of appeal with this jurisdiction at present is the Central Commission for Navigation of the Rhine (see above, §631), and even this Commission does not consider appeals from national supreme courts. Its power to overrule decisions is limited to judgments emanating from the lower national courts charged especially with Rhine shipping cases. §1365. Other organs which come close to a supreme judiciary, capable of overruling national court decisions, are the organs created under the European and American Conventions on Human Rights (see above, §625-629). These organs can be approached only when all domestic remedies have been exhausted.105 This means that a supreme court decision is often submitted to them for consideration. The organs can establish that the judgment of a national supreme court has been decided in violation of the Convention. The national judgment cannot however be overruled. If it has been found to be in violation of the Convention it is for the national authorities to take all necessary measures. Since a reversal of a supreme court decision will usually

103. ILO, Art. 37; UNESCO, Art. 14; CERN, Art. 11. In appeals also: FAO, Art. 17; WHO, Art. 75; IMO, Art. 70. See O. Audéoud, La Cour internationale de Justice et le réglement des différends au sein des organisations internationales, 81 RGDIP 951-953 (1977). On the competence of the ICJ to interpret constitutions, see K.J. Keith, The Extent of the Advisory Jurisdiction of the International Court of Justice 87-89 (1971). 104. E.g. UPU, Art. 32; ITU Constitution, Art. 56; Bank for International Settlements, Statutes, Art. 54. In appeals also: ICAO, Arts. 84-85; Benelux, Art. 44. 105. European Convention on Human Rights, Art. 35.1; American Convention on Human Rights, Art. 46 (1).

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be impossible, these measures will often take the form of payment of financial compensation. Here we meet a basic characteristic of almost all international legal organs: “they” form a judiciary of their own, separate from the national judiciaries with which they have no organizational links. Decisions of international judicial organs cannot overrule national court judgments; execution of their decisions must be channelled through the national governments. The Rhine navigation courts constitute a rare exception. b.

Advisory opinions

§1366. Most organizations of the UN family may request the International Court of Justice to give advisory opinions on legal questions.106 For two reasons, such opinions are of particular importance for the interpretation of the law of international organizations. First, international organizations cannot be parties before the Court, so that they are unable to initiate proceedings other than those leading to an advisory opinion. Secondly, the Court has at times been restrictive in allowing member states to submit cases concerning the law of international organizations, so that questions concerning this law cannot be raised by any other means. When two former members of the League of Nations alleged that another member had wrongly applied the law of the League and asked for a decision of the Court, the Court replied that they had no right to do so. “...Each member of the League could share in its collective, institutional exercise by the League, through their participation in the work of its organs and to the extent that these organs themselves were empowered to act under the mandates system. By their right to activate these organs (of which they made full use), they could procure consideration of mandates questions as of other matters within the sphere of action of the League. But no right was reserved to them, individually as states, and independently of their participation in the institutional activities of the League, as component parts of it, to claim in their own name – still less as agents authorized to represent the League – the right to invigilate the sacred trust – to set themselves up as separate custodians of the various mandates. This was the role of the League organs”.107 Thus it would seem now almost impossible to raise questions of international institutional law before the Court in contentious cases. International organizations depend on advisory opinions.

§1367. As a rule, advisory opinions may not be sought on disputes between states. This would be contrary to the firmly entrenched principle that no state

106. Keith, op. cit. note 103; see also D. Pratap, The Advisory Jurisdiction of the International Court (1972); M. Pomerance, The Advisory Function of the International Court in the League and UN Eras (1973); M. Reisman, Accelerating Advisory Opinions: Critique and Proposal, 68 AJIL 648-671 (1974); T. Sugihara, The Advisory Function of the International Court of Justice, 18 JAIL 23-50 (1974). 107. ICJ Rep. 1966, at 29 (South West Africa Case).

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can be compelled, without its consent, to submit its disputes to the Court.108 But this rule has been applied less restrictively in subsequent case law of the International Court. In 1971 South Africa claimed that a request for an advisory opinion brought by the Security Council related to a dispute between South Africa and other states. The International Court held that “South Africa, as a member of the United Nations, is bound by Article 96 of the Charter, which empowers the Security Council to request advisory opinions on any legal question”.109 In 1975 the International Court rendered an advisory opinion on the status of the Western Sahara, which concerned a dispute between Spain and Morocco.110 §1368. When the International Court renders an advisory opinion in a case which in fact concerns a dispute between states the question arises whether those states should be entitled to nominate a judge ad hoc to the Court (see above, §676-678). In some cases, the Court has permitted the parties to do so; in others it has refused, depending on whether or not the Court accepts the state concerned as a party to the dispute.111 In principle, international organizations may always ask for advisory opinions on questions disputed by states when they need guidance as to the course of action they ought to take.112 On issues which in fact concerned disputes between international organizations and states (which cannot be the subject of contentious cases), the Court has given several advisory opinions, inter alia in the case concerning Certain Expenses of the UN,113 in the first case concerning South West Africa,114 and in the Mazilu and Cumaraswamy cases.115 §1369. What is the force of advisory opinions?116 The Court itself has stated that, as they are only of an advisory character, they have no binding force.117 This makes their execution still more difficult than had they binding force. In practice, the Court does not make such a clear distinction between judgments and advisory opinions. In many judgments it refers to advisory opinions as precedents in the same way as it refers to prior judgments. Judgments and

108. 109. 110. 111.

112. 113. 114. 115. 116.

117.

PCIJ Rep. 1923, Series B, No. 5 (Advisory Opinion, Eastern Carelia). ICJ Rep. 1971, at 23. ICJ Rep. 1975, at 12. See E.F. de Aréchaga, Judges ad hoc in Advisory Proceedings, 31 ZaöRV 697-711 (1971); M. Pomerance, The Admission of Judges ad hoc in advisory proceedings: some reflections in the light of the Namibia Case, 69 AJIL 446-464 (1973). ICJ Rep. 1950, at 71 (Peace Treaties). ICJ Rep. 1962, at 151. ICJ Rep. 1950, at 128-129. ICJ Rep. 1989, at 175 (Mazilu) and ICJ Rep. 1999, at 62 (Cumaraswamy). S. Rosenne, The Law and Practice of the International Court, 1920-1996 (3rd ed. 1997), at 1754-1759; C. De Visscher, Aspects récents du droit procédural de la Cour Internationale de Justice 195-203 (1966); R. Ago, “Binding” Advisory Opinions of the International Court of Justice, 85 AJIL 439-451 (1991). ICJ Rep. 1950, at 71 (Peace Treaties).

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Interpretation and settlement of disputes

§1370

advisory opinions constitute one legal corpus.118 The difference in effect, if any, is small. An advisory opinion may expressly be declared binding on the parties, and several international provisions contain such a declaration.119 It can be doubted whether such express binding force may be given to an advisory opinion. The International Court of Justice has decided that it affects neither the way in which the Court functions nor the reasoning by which it forms its opinion and the content of the opinion itself.120

§1370. Even where binding force is not expressly provided beforehand, the effect will differ little from that of judgments. Usually the question would not be asked if the organization had no intention of accepting the answer.121 The fact that the answer comes from the highest judicial organ will give it a persuasive force which can hardly be considered less than that of a judgment. It may be true that not all advisory opinions of the Court have been followed;122 but the result would be no different if they had been judgments. On the other hand, in practice the binding force of judgments of the International Court of Justice is weaker than that of judgments of most national courts. The single sanction envisaged in the UN Charter can operate only when the five major powers are agreed.123 In many respects, in practice the force of a judgment of the Court is no greater than that of an advisory opinion. Judgments also derive their authority from the persuasive reasoning of the supreme judicial organ. §1371. A power to give advisory opinions has been granted to the European Court of Human Rights and to the Inter-American Court of Human Rights. The Committee of Ministers of the Council of Europe may request advisory opinions from the European Court “on legal questions concerning the interpretation of the Convention and the Protocols thereto”. Such opinions may not however deal with any question relating to the content or scope of the rights or freedoms defined therein.124 As a result, questions are permitted only on the functioning of the different organs under the Convention and on the procedure according to which the Convention functions. The Inter-Ameri-

118. De Visscher, op. cit. note 116, at 195. 119. ILO, Arts. 31-34; ICAO, Art. 86; Agreements on Privileges and Immunities of the UN (Section 30) and of the Specialized Agencies (Art. 9); ILOAT, Art. 12.2. 120. ICJ Rep. 1956, at 84 (Judgments of the Administrative Tribunal of the ILO, upon complaints made against the UNESCO, advisory opinion). 121. Sometimes advisory opinions have been requested as a means of postponing a decision (e.g. on UN membership). 122. For the effectiveness of advisory opinions, see L. Gross, The International Court of Justice and the United Nations, 120 RdC (1967 I), at 405-421. 123. UN Charter, Art. 94. See also UNJY 1986, at 283-285. 124. Protocol No. 2 to the European Convention of Human Rights, Art. 1, 6 Yearbook of the European Convention on Human Rights 2 (1963). The Protocol entered into force on 21 Sept. 1970.

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can Court of Human Rights is competent to render advisory opinions at the request of OAS member states or organs.125 §1372. The Court of Justice of the European Communities, though generally not empowered to give advisory opinions, may give opinions on questions of whether a proposed agreement with a third state or with an international organization is compatible with the provisions of the EC Treaty.126 §1373. The Benelux Committee of Ministers may request advisory opinions from the College of Arbitrators on legal questions relating to the provisions of the Benelux Union Treaty.127 No such request has ever been made. c.

Preliminary rulings

§1374. When a national court applies the law of an international organization it will generally be prepared to accept the interpretation of that law given by the organization itself. So long as the correct interpretation is available to the national courts there will be little need for international appeals from national decisions. The most important interpretations of the laws of international organizations given by an international judicial organ are the preliminary rulings of the Court of Justice of the European Communities, the Benelux Court of Justice and of the Andean Court of Justice (see above, §618-622, §624). The EC constitution provides that: “The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the Community; (c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide”.128

All national courts applying Community law are empowered to request preliminary rulings. Courts of final instance are even obliged to do so when-

125. Art. 64 of the American Convention on Human Rights. See on this competence T. Buergenthal, The advisory jurisdiction of the Inter-American Court of Human Rights, in T. Buergenthal (ed.), Contemporary Issues in International Law: Essays in Honor of Louis B. Sohn 127-147 (1984). 126. EC, Art. 300.6. See Schermers and Waelbroeck, op. cit. note 17, at 653-657. In addition, under the ECSC Treaty, the Court was empowered to give opinions on questions of whether specific amendments to the Coal and Steel Treaty were permitted. 127. Benelux, Art. 52. 128. EC, Art. 234, para. 1 (before the entry into force of the Amsterdam Treaty (1 May 1999): Art. 177, para.1). Euratom, Art. 150, para. 1 is almost identical.

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Interpretation and settlement of disputes

§1375

ever a question of Community law is raised before them and they consider a solution of that question necessary for delivering a judgment.129 §1375. The EC Court considers the preliminary ruling to be a basis for cooperation between national courts and the Community Court. There is no hierarchical relationship between the national courts and the Court of Justice; instead, each performs its own function.130 Strictly speaking, the jurisdiction of the EC Court is to interpret Community law, while it is for the national courts to apply the Community rule(s) in question. In practice, interpretation and application are interrelated.131 The EC Court does not require many formalities to be observed in the lodging of requests for preliminary rulings. Traditionally the Court only exceptionally refused to respond to a request; in recent years such refusals were made more frequently.132 In Foglia v. Novello, a case before the Pretore in Bra, two Italians sought to establish the illegality of a French levy on liqueur wine. The Pretore submitted a series of questions to the EC Court, which ruled in 1980 that no “genuine dispute” existed and so did not answer the questions. The Pretore then decided to submit a number of questions concerning the interpretation of Article 177 EEC (now Article 234 EC) and the scope and meaning of the earlier judgment. The EC Court stressed that “Article 177 is based on cooperation which entails a division of duties between the national courts and the Court of Justice in the interest of the proper application and uniform interpretation of Community law throughout all the member states”. Although it is for the national courts to assess, having regard to the facts of the case, the need to obtain a preliminary ruling, they must explain this need if the reasons are not clearly apparent from the file. The task of the EC Court is not to give rulings on general or hypothetical questions, and, accordingly, to reply to questions of interpretation which are submitted to it within the framework of procedural devices arranged by the parties. Furthermore, the EC Court ruled that it must take special care, in a case where the legislation of another state is called into question, to ensure that the Article 177 procedure is not employed for purposes which were not intended by the Treaty.133

129. EC, Art. 234, paras. 2 and 3; Euratom, Art. 150, paras. 2 and 3; Schermers and Waelbroeck, op. cit. note 17, at 267-272; B.H. ter Kuile, To Refer or not to Refer: About the Last Paragraph of Article 177 of the EC Treaty, in: D. Curtin and T. Heukels (eds.), Institutional Dynamics of European Integration, Essays in Honour of Henry G. Schermers, Vol. II (1994), at 381389. 130. See K. Lenaerts, Form and Substance of the Preliminary Rulings Procedure, in Curtin and Heukels, op. cit. note 129, at 355-380. 131. Cf. A.M. Donner, Uitlegging en toepassing, in Miscellanea W.J. Ganshof van der Meersch II 103-126 (1972), at 123-124. 132. Schermers and Waelbroeck, op. cit. note 17, at 241-251. 133. Case 244/80, Foglia v. Novello, ECR 1981, at 3045. See also Schermers and Waelbroeck, op. cit. note 17, at 247-249. Another case in which the Court refused to give a preliminary ruling is Joined Cases C-320/90, C-321/90 and C-322/90, Telemarsicabruzzo v. Circostel, ECR 1993, at I-393.

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§1376. Preliminary rulings are used not only to obtain interpretations of Community law; they may also serve as a means of securing from the Court a ruling on the validity of acts of the Community institutions and of the European Central Bank.134 This is of particular interest since, in the case of general regulations, an action seeking their annulment on the ground of illegality can be raised only by Community institutions and member states. Individuals have no such right of appeal (see above, §914). As the cases in which national courts request preliminary rulings are initiated by private parties, the procedure gives private persons some opportunity of provoking a judgment of the Court on questions of legality.

§1377. The EC provision has been considered to be successful. It has given rise to a large number of important decisions of the Court on the interpretation of Community law.135 In some treaties concluded within the scope of the EC, the possibility of obtaining preliminary rulings from the Court of Justice has been extended to fields such as the recognition of legal persons and execution of civil judgments.136 The 1997 Amsterdam Treaty and the 2001 Nice Treaty have further extended the scope of application of the preliminary rulings procedure.137 The success of the preliminary ruling procedure in the European Communities inspired Benelux to adopt a similar provision for uniform interpretation of Benelux law.138 Similar procedures are also found in the AustrianGerman Property Treaty of 15 June 1957,139 in the Cartagena Agreement on the Andean Court of Justice (see above, §624), and in the Treaty establishing a Common Market for Eastern and Southern Africa (see above, §641). The Andean Court was inaugurated in 1984, and has delivered a number of preliminary rulings in which it has referred to the case law of the EC Court.140

134. Art. 234(b). See Schermers and Waelbroeck, op. cit. note 17, at 492-502. 135. J.L. Mashaw, Ensuring the Observance of Law in the Interpretation and Application of the EEC Treaty: The role and functioning of the “Renvoi d’Interprétation” under Article 177, 7 CMLRev. (1970), at 258-285 and 423-453; G. Bebr, Article 177 of the EEC Treaty in the Practice of National Courts, 26 ICLQ 241-282 (1977); H.G. Schermers, C.W.A. Timmermans, A.E. Kellermann, J.St. Watson (eds.), Article 177 EEC: Experiences and Problems (1987); J. Korte (ed.), Primus Inter Pares: The European Court and National Courts, The Follow-up by National Courts of Preliminary Rulings ex Art. 177 of the Treaty of Rome: A Report on the Situation in the Netherlands (1991). 136. Schermers and Waelbroeck, op. cit. note 17, at 225. 137. TEU, Art. 35, paras. 1-3; EC, Art. 225.3. See further K. Lenaerts and P. van Nuffel, Constitutional Law of the European Union (1999), at 333; S. Weatherill and P. Beaumont, EU Law (1999), at 387-388. 138. Treaty relating to the Creation and the Statute of a Benelux Court of Justice, Bulletin Benelux Publikatieblad 1965, No. 2/3. See also above, §622. 139. Austrian-German Property Treaty, Art. 110. On this treaty, and its application, see I. SeidlHohenveldern, The Austrian-German Arbitral (1972), in particular at 46-48, 215. 140. J. Polakiewicz, Andean Common Market, Court of Justice, EPIL Vol. 1 (1992), at 163.

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Interpretation and settlement of disputes

§1378

§1378. The Treaty on a European Economic Area (EEA)141 has a rather complex system to ensure as much as possible the uniform interpretation of EEA law, including the possibility of preliminary rulings from the EC Court. Three mechanisms have been set up for this purpose. First, Article 6 EEA provides inter alia that provisions of the EEA Treaty, in so far as they are identical in substance to corresponding rules of EC law, must be interpreted in conformity with the relevant rulings of the EC Court given prior to the date of signature of the EEA Treaty. There is no such obligation for rulings given after that date. Secondly, Articles 105 and 106 EEA provide for rules for the exchange of information between the EC Court of Justice, the Court of First Instance, the EFTA Court and the Courts of last instance of the EFTA states. Thirdly, EFTA states may allow a court or tribunal to ask the EC Court for an interpretation of an EEA rule. Such a request is possible only where the EEA rule in question is identical in substance to the corresponding EC rule.142

III. Competence to request interpretation A.

Organs of the organization

§1379. Most principal organs of the UN may request advisory opinions on legal questions from the International Court of Justice (which is itself a principal UN organ).143 This power is conferred upon the General Assembly and the Security Council in Article 96.1 of the Charter. Article 96.2 provides that the General Assembly may accord the same power to other organs of the UN and specialized agencies. It has done so to the ECOSOC and to the Trusteeship Council.144 In addition all specialized agencies (with the exception of the UPU) and the IAEA are empowered to request advisory opinions from the International Court of Justice,145 so enabling them to obtain interpretations

141. Concluded between the EEC, ECSC, their member states and EFTA member states; entered into force 1 January 1994. The text of this Treaty is reproduced in 63(14) CMLRep. 921 (1992), and in OJ 1994, L 1. 142. EEA Treaty, Art. 107, Protocol 34. See C. Reymond, Institutions, Decision-making procedure and Settlement of Disputes in the European Economic Area, 30 CMLRev. 449-480 (1993). 143. UN Charter, Art. 7. 144. No such authorization has been given to the Secretariat, although proposals to do so have often been made (e.g. in the Secretary General’s Agenda for Peace (1992), UN Doc. A/47/277, para. 38). See also §463. 145. See the Court’s website (www.icj-cij.org), the annual report of the Court to the UN General Assembly, or the ICJ Yearbook (published annually). A special arrangement exists for the OPCW, see Art. VII of the Agreement concerning the Relationship between the UN and the OPCW, annexed to GA Res. 55/283. See also UNJY 1992, at 465-466. Since 2002, negotiations take place to transform the World Tourism Organization into a specialized agency. According to Art. 10.2 of the draft relationship agreement between the UN and this organization (see UN Doc. E/2003/60, Annex), the General Assembly authorizes the World Tourism Organization to request advisory opinions of the ICJ.

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from the Court. These organs and organizations have exercised this power a number of times.146 Organs of other international organizations have no recourse to the International Court, and they often have no right of access to any other judicial organ where the right to ask for interpretations is limited to members.147 Some constitutions do not stipulate those organs competent to ask for an interpretation; they state simply that questions of interpretation shall be submitted to a particular organ.148 Under such a provision the executive board of the IMF once provided an interpretation which had not been requested by any member. It raised the question itself, at the suggestion of the Secretariat.149 There may be cases when no member considers itself sufficiently interested to commence proceedings to obtain an interpretation. It may then be useful to allow the organs of the organization to do so. In the European Communities the principal organs have no right to request an interpretation. However, raising cases before the Court seeking the annulment of a decision (see above, §914) or a declaration of a state’s violation of the Treaties (see below, §1442) may provoke interpretations. B.

Members of the organization

§1380. States cannot request an advisory opinion from the International Court of Justice. In the UN and the specialized agencies individual members are therefore at a disadvantage in obtaining an interpretation from the Court when compared with the main organs of the organization. Almost all states however have a right to refer questions of international law, and questions concerning the interpretation of treaties, to the International Court of Justice in the event of a dispute with another state. The Court may only consider the case if both

146. For example, on the interpretation of Art. 4 of the UN Charter (ICJ Rep. 1948, at 57); on the competence of the ILO Administrative Tribunal (ICJ Rep. 1956, at 77); on Art. 28 of the IMCO constitution (ICJ Rep. 1960, at 150); on Art. 17 of the UN Charter (ICJ Rep. 1962, at 151); on the interpretation of Resolution 276 of the Security Council (ICJ Rep. 1971, at 12); on the interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (ICJ Rep. 1980, at 73); on the applicability of the obligation to arbitrate under Section 21 of the UN headquarters agreement (ICJ Rep. 1988, at 12); on the applicability of Art. VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (ICJ Rep. 1989, at 177); on the legality of the use by a state of nuclear weapons in armed conflict (requested by the WHO; ICJ Rep. 1996, at 66); on the legality of the threat or use of nuclear weapons (requested by the UN General Assembly; ICJ Rep. 1996, at 226). 147. E.g. UPU, Art. 32; Benelux, Art. 44. 148. E.g. ILO, Art. 37; UNESCO, Art. 14; IMO, Art. 70; CERN, Art. 11; IMF, Art. XXIX; World Bank, Art.IX; IFC, Art. 8; IDA, Art. 10. The constitutions of WHO (Art. 75), CERN (Art. 11) and WMO (Art. 29) contain the same provision with the addition “unless the parties (to the dispute) agree otherwise” which suggests that the parties to the dispute should ask for an interpretation. 149. Interpretation of 24 August 1955 concerning Art. V, Section 3. See Hexner, op. cit. note 4, at 363.

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states involved have accepted its jurisdiction, either in general, by a declaration under Article 36, para. 2 of the Statute of the Court, or ad hoc for the specific case. States may bring disputes on the interpretation of constitutions to the International Court unilaterally when the constitution concerned declares the Court competent to settle disputes at the request of one of the parties.150 All organs specifically created in international organizations for rendering interpretations can be approached by the parties to a dispute. Some constitutions limit the right to the parties;151 others recognize the right of all members to request an interpretation, or a revision of the interpretation obtained by a third party.152 §1381. When the constitution fails to stipulate who can request interpretations (see above, §1379), it seems appropriate to adopt as wide an interpretation as possible and to allow all members to do so, even when not involved in a dispute. A state should be entitled to a definition of its obligations even before it begins to fulfil them. Timely interpretations may prevent disputes. Provision for members to have any question of interpretation clarified would also support a presumption that all members were satisfied with the position adopted by the organization where no request for a formal interpretation were made.153 §1382. In the European Union the members cannot normally request an interpretation of the legal rules of the organization. They may elicit interpretations however when disputing the legality of community decisions (see above, §914). Only in later protocols have the members of the European Communities created the possibility of national authorities designated by the member states requesting an interpretation by the Court of Justice. This is permitted for questions concerning the interpretation of the Convention on Jurisdiction and the Enforcement of Civil and Commercial Judgements154 and the Convention on the Law Applicable to Contractual Obligations,155 but only where a decision of a national supreme court conflicts with the interpretation given either by the court of another member state or by the Court of Justice. The interpretation of the Court of Justice will not, however, affect the case concerned. Under the same treaty, national Advocates-General (“Procurators-General of the Supreme Courts”) may request interpretations.156

150. 151. 152. 153. 154.

Statute of the ICJ, Art. 36.1. E.g. UPU, Art. 32; ITU Constitution, Art. 56. ICAO, Art. 84; IMF, Art. XXIX(b); World Bank, Art. IX(b); IFC, Art. 8(b); IDA, Art. 10(b). Hexner, op. cit. note 4, at 347. The so-called Brussels Convention, concluded within the framework of the European Economic Community on 27 September 1968; see the 1971 Protocol to this Convention, published in EC Bull. Suppl. 4/71. 155. The so-called Rome Convention (19 June 1980); see the first and second protocol to this Convention, published in OJ 1989, L 48. 156. Protocol of 3 June 1971, Art. 4; Protocol of 19 December 1988, Art. 3.

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§1383. Policy-making organs charged with interpretation or settlement of disputes are approached in the same way in this context as when discharging their normal task of decision-making (see above, §710-724). In practice, the initiative for interpretation or settlement of disputes by policy-making organs is taken by the governments of the member states. In the EFTA for example, formal complaints have been raised against members alleged to be distorting free trade.157 Although the complaints probably originated with exporters, they were lodged by governments.

The requirement by which interested individuals must channel their complaints through their national governments limits interpretation and the settlement of disputes to those cases which a government considers sufficiently important. But although this may promote the smooth and harmonious functioning of the organization, it prejudices the protection of individuals and reduces the likelihood of all problems of interpretation or violation being quickly resolved. C.

Private persons

§1384. Having interpreted Article 8, Section 2(b) of the constitution, the executive board of the IMF stated: “The FUND will be pleased to lend its assistance in connection with any problem which may arise in relation to the foregoing interpretation or any other aspect of Article 8, Section 2(b). In addition, the FUND is prepared to advise whether particular exchange control regulations are maintained or imposed consistently with the FUND agreement”.158

Several parties to disputes before national courts have asked for further information on the application of this article. The IMF has followed its consistent practice of giving factual information (for example on the question of whether it had taken a decision on particular national measures) to any interested person. Official interpretations however are provided only at the request of a member state.159 As in the case of the EFTA (see above, §1383), such questions must be submitted via governments. No international organization interprets its law at the request of private parties. In the European Communities private parties can sometimes request the Court of Justice to annul decisions addressed to them (see above, §914). In such cases the Court may also interpret rules of Community law in order to establish whether the decision was validly adopted. Furthermore, private

157. Szokoloczy-Syllaba, op. cit. note 75, at 520. 158. The interpretation has been published in the IMF’s Annual Report 1949, Appendix XIV, at 82-83, and by Gold in 3 ICLQ 262 (1954). 159. J. Gold in a guest lecture at Michigan University Law School, 10 March 1969.

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Interpretation and settlement of disputes

§1385

parties can raise the question in their national courts, which may request preliminary rulings. D.

National courts

§1385. National courts sometimes apply the legal rules of international organizations (see below, §1522-1548). In doing so they may require the assistance of the organization in order to interpret its legal rules. Referring to the statement of the executive board of the IMF quoted in the previous paragraph, the Court of Appeal (Oberlandesgericht) in Karlsruhe asked for a further interpretation of Article 8 in 1965. In order to reach a decision in a case, it had to be established whether Brazilian exchange control regulations would permit recognition of a judgment ordering the defendant to pay in US dollars or German marks. The Court of Appeal approached the IMF through the German Executive Director. The IMF provided the necessary information.160

§1386. An intricate system of cooperation between national courts and the international organ competent to issue interpretations has been created in the European Communities (see above, §1374-1376). National courts may request preliminary rulings on the interpretation of Community law and on the validity of Community acts. They are the only authorities competent to do so and they exercise this competence quite frequently. Preliminary rulings have been provided not only on the interpretation of Community law but also on its validity (see above, §914) and, indirectly, on its application (see below, §1536). By 31 December 2002, 4,834 references for a preliminary ruling had been brought before the EC Court.161

IV. Concluding observations §1387. One of the issues discussed in the previous chapter was the lack of coherence of international law, which is explained partly by the fact that international law-making is decentralized, as opposed to law-making in national legal orders. But it is not only law-making that is decentralized. The same is true for the interpretation of rules of international law, competence for which is accorded primarily to the same sovereign states which drafted and must apply the rules in question. This is the right of auto-interpretation, the right of each state to interpret international law, which has been the subject

160. J. Gold in IMF Staff Papers 389 (1967). 161. These and more statistics are given on the Court’s website (www.curia.eu.int).

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of surprisingly little attention in literature.162 There is a real danger that divergent interpretations detract from the coordinating or unifying purpose of rules of international law. For example, in October 1994 the UN Security Council condemned “recent military deployments by Iraq in the direction of the border with Kuwait” and demanded that Iraq immediately completed the withdrawal of these troops, “underlining that it will consider Iraq fully responsible for the serious consequences of any failure to fulfil the demands in the present resolution”.163 While the US argued that this resolution provided the authority to use military means for its enforcement, Russia and France took the view that no such mandate was given and that a new resolution was required to authorize military action.164

§1388. Such danger of divergent interpretations depends partly upon the content of the rule in question. If a UN member is bound to pay 0.001 per cent of the UN budget, there is little room for interpretation. When Directive 93/119/EC of the EC Council (on the protection of animals at the time of slaughter or killing) provides that, in case of exposure to carbon dioxide, the concentration of carbon dioxide for stunning pigs must be at least 70% by volume, and that the condition and state of health of the animals must be inspected at least every morning and evening, there is little room for interpretation.165 But often rules of international law leave considerable scope for interpretation and so for different interpretations. On 9 February 1994 the North Atlantic Council decided, inter alia, that, within ten days, the Bosnian Serb forces located in an area within 20 kilometres of the centre of Sarajevo were required to withdraw, or regroup and place under UNPROFOR control, their “heavy weapons (including tanks, artillery pieces, mortars, multiple rocket launchers, missiles and anti-aircraft weapons)”.166 Despite the detail, differences of opinion concerning the definition of “heavy weapons” remained possible and in fact existed. Many more examples can be given. Articles 81 and 82 EC apply to undertakings. Should “undertaking” be interpreted so

162. A noteworthy exception is L. Gross, States as Organs of International Law and the Problem of Auto-interpretation, in G.A. Lipsky (ed.), Law and Politics in the World Community: Essays on Hans Kelsen’s Pure Theory and Related Problems in International Law 1-32 (1953); reprinted in L. Gross, Essays on International Law and Organization, Vol. 1 (1984), at 367-397. See also G. Abi-Saab, “Interprétation” et “Auto-Interprétation” – Quelques réflexions sur leur rôle dans la formation et la résolution du différend international, in U. Beyerlin et al. (eds), Recht zwischen Umbruch und Bewahrung – Festschrift Bernhardt (1995), at 9-19. 163. SC Res. 949 (emphasis added). 164. See International Herald Tribune, 17 and 18 October 1994; The Independent, 17 October 1994. 165. This Directive is published in OJ 1993, L 340/21. 166. NATO Press Release (94)15.

871

Interpretation and settlement of disputes

§1389

as to cover social security bodies or an international organization such as Eurocontrol?167 §1389. Nevertheless, the functioning of international organizations has to some extent compensated for the existing lack of coherence in this field as much as in other areas of international institutional law. The legal order of an international organization provides for a context within which it is easier to give a meaning to a rule, as compared to other rules of international law, which exist in relative isolation. Moreover, organizations may create procedures for obtaining authoritative interpretations in order to promote uniform application of rules of the organization.168 Numerous examples have been given in this Chapter. The secretariats of many organizations (e.g. ILO, IMF) play an important role in this respect, as do judicial organs. With regard to the methods of interpretation used by judicial organs, there is considerable eclecticism. Depending on the desired result, these organs sometimes employ methods which are more static and inherently tend to respect state sovereignty (textual interpretation, use of the travaux préparatoires), while in other cases the teleological or functional method is used. By its very nature, the latter method is more dynamic, potentially at odds with state sovereignty, and capable of promoting the development of the legal order of the organization, as has preeminently been demonstrated by the EC Court.169 The procedure for preliminary rulings, in particular that of Article 234 EC, is an excellent example of an attempt both to respect state sovereignty (strictly speaking, the application of EC law remains a matter for the courts of the member states) and to ensure the uniform interpretation of EC law (the competence of the EC Court). In a large body of case law, the EC Court has elaborated its relationship with the national courts under this procedure. It has been an important instrument enabling the Court to prevent the unity of the Community legal order from disintegrating by diverging interpretations, and so also to guarantee legal equality among the member states and their citizens.

167. See Joined Cases C-159/91 and C-160/91, Poucet v. AGF and Camulrac and Pistre v. Cancava, ECR I-664 (1993); Case C-364/92, SAT Fluggesellschaft and Eurocontrol, ECR 1994, at I-43. The EC Court ruled that neither of these were undertakings under Arts. 81-82 EC. 168. Cf. also M. Brus, Third Party Dispute Settlement in an Interdependent World (1995), in particular Chapter 7. 169. Pescatore, op. cit. note 27.

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Chapter 10

Supervision and sanctions

§1390. It is generally recognized that one of the main tasks of international organizations is to supervise compliance with their rules.1 A number of studies have been carried out in this field, as well as studies in neighbouring areas such as compliance with rules of international law.2 It is difficult to explain the current popularity of these fields of study. At least it can be observed that the end of the Cold War has created a new climate with broadened perspectives for international cooperation and for international law. This situation enhances the perspectives for more effective supervision of the rules of international law. §1391. In this chapter the notions of internal and external supervision will first be defined (Part I), and then the supervision of compliance with the law of international organizations will be analyzed (Part II). If supervision suggests that certain rules have been violated, and the member concerned denies such a violation, it might be necessary officially to recognize the existence of such a violation (Part III). Subsequently, if the organization does not waive the relevant obligation (Part IV), the question arises as to which sanctions are at the disposal of international organizations (Part V). Part VI offers some concluding observations.

1.

2.

According to Seidl-Hohenveldern, this is even the raison d’être of any international organization; see his Failure of Controls in the Sixth International Tin Agreement, in N. Blokker and S. Muller (eds.), Towards More Effective Supervision by International Organizations, Essays in Honour of Henry G. Schermers, Vol. I (1994), at 255. See in particular J. Charpentier, Le Contrôle par les Organisations Internationales de l’Execution des Obligations des Etats, 182 RdC 143-245 (1983); P. van Dijk (Ed.), Supervisory Mechanisms in International Economic Organizations (1984); T.M.R. Chowdhury, Legal Framework of International Supervision (1986); W.E. Butler (Ed.), Control over Compliance with International Law (1991); N. Blokker and S. Muller (eds.), op. cit. note 1. Cf. also O. Schachter, United Nations Law, 88 AJIL 1-23 (1994), in particular at 9-16; A. & A.H. Chayes, The New Sovereignty – Compliance with international regulatory agreements (1995); P.C. Szasz, Administrative and Expert Monitoring of International Treaties (1999). See more specifically with regard to non-compliance within regional integration organizations P. Van den Bossche, In Search of Remedies for Non-Compliance: The Experience of the European Community, 3 Maastricht Journal of European and Comparative Law 371-398 (1996). For the area of arms control, see G. den Dekker, The Law of Arms Control – International Supervision and Enforcement (2001).

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I.

Definitions

A.

Internal supervision

874

§1392. Internal supervision is supervision of the organization. It may be defined as overseeing compliance by an international organization with its own acts. Such acts are to be supervised either by the organization itself, or by its member states. It is one of the tasks of the principal organs of an international organization to ensure that all organs perform their obligations properly. Normally all subsidiary organs report to the board or to the general congress which offers the latter the opportunity to discuss the ways in which obligations are performed. As the principal organs have real power over subsidiary organs (they may dissolve them or cut their budgetary means) the proper performance of obligations by subsidiary organs of international organizations is usually sufficiently guaranteed. §1393. In rare cases, individuals have powers to ensure the proper execution of acts of international organizations taken with respect to them. Most international civil servants may bring an action before an administrative tribunal (see above, §542-545). In those international organizations whose organs are obliged to take action in respect of individuals, the individuals concerned may challenge a failure to act before an international court (see above, §723). In 1993, the World Bank has created an Inspection Panel, charged to review complaints from any group of private persons alleging that they are suffering or expect to suffer material adverse effects from the failure of the Bank to follow its operational policies and procedures in its ongoing operations (see above, §671). §1394. A proper performance of the tasks of an international organ may also be stimulated by the periodic evaluation of their activities.3 A good evaluation will also result in the amendment of acts which prove ineffective and in the better performance of acts which have been inadequately executed. B.

External supervision

§1395. Far more important than performance of acts by the organs of the organization, is performance by the members to which the acts are addressed. External supervision is supervision of these members. International organizations have no police to enforce their law. Given that most of their legal rules are formulated as recommendations which do not bind their members legally, how do the organizations try to ensure their implementation? Sometimes they do not try at all. Some UN resolutions perish immediately after adoption, the

3.

See W.R. Leonard, B.A. Lenny and O. Nwali, UN Development Aid, Criteria and Methods of Evaluation (UNITAR, 1971).

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Supervision and sanctions

§1396

process by which they were adopted being more important than their substance.4 In other cases, the main purpose of resolutions may have been to increase the standing of the sponsors among domestic, allied or other groups. Compliance by the organization or by the state to which the resolution was addressed need not be the only or even the principal objective.5 Normally, however, it is intended that the legal rules of international organizations be applied. The application of, or compliance with, rules should be distinguished from their effect. Rules may be ineffective, even when fully applied.6 In that case, the content of the rule is unsuited to the desired purpose. In practice, however, compliance will depend on efficacy. Members will not readily apply rules which are expected to be ineffective; nor will organizations actively supervise them.

§1396. There are many ways of pressing members to apply rules.7 When using the term “supervision” all methods which help to realize the application of legal rules made by international organizations are included. Members will be encouraged to comply with the rules, not only by the threat of sanctions being imposed for non-compliance but also through the possibility that there will be some form of supervision or official recognition of violations. The absence of any supervision mechanism may lead to the alteration of the law. Tolerance for one case may not have this effect, but repeated tolerance may become a settled practice and subsequently a customary law.8 §1397. Supervision is not only (not even primarily) a legal matter. Rather, political factors play a decisive role, especially relations between members and the common desire for further cooperation.9 As Han observed, “lawabiding sentiment – decent respect for the opinion of the public, national and international, and particularly the disinclination of states to incur the disapprobation of states organized in a world-wide organization – has proven to be a fairly dependable means of deterring nations from violating laws”.10 These factors will also make enforcement measures unnecessary and therefore they were mentioned when discussing the force of each type of decision in Chapter Eight.

4. 5.

J. Kaufmann, United Nations Decision Making 127 (1980). O. Schachter in S.M. Schwebel (ed.) The Effectiveness of International Decisions, Papers of a conference of The American Society of International Law and the Proceedings of the conference (1971), at 487. 6. R. Higgins in Schwebel, op. cit. note 5 (inter alia, at 387). 7. See N. Valticos, Un système de controle international: la mise en oeuvre des conventions internationales du travail, 123 RdC (1968 I), at 315-324. W.M. Reisman, The enforcement of International Judgements, 63 AJIL 1-27 (1969); Higgins, op. cit. note 6, at 32-50. 8. See J. Gold, The “Dispensing” and “Suspending” Powers of International Organisations, 19 Ned TIR (1972), at 183-184. 9. See S. Sur, L’interprétation en droit international public 17-61 (1974). 10. H.H. Han, International Legislation by the United Nations 131 (1971).

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Supervision is not only of concern to the organizations themselves; members are often individually interested in the application of the rules by other members. The citizens of a state may also be affected by the proper application of the international rules by their own government and by other citizens and governments. All these interested parties may play a role in the enforcement of the rules of the legal order of international organizations. §1398. Measures of enforcement have a negative character. Pressure to comply is exerted by the threat of harm being done to the defaulting members. This seems detrimental to international cooperation in general, particularly when states are unable rather than unwilling to comply, which is the case for many technical regulations issued by organizations such as ICAO, which cannot be applied in states which lack the necessary equipment.11 A desire to limit the negative effect of sanctions may partly explain the growing reliance on informal means of persuasion rather than upon formal measures against states.12 Many organizations have increasingly preferred drafting recommendations which imply help from the organization in their realization, above drafting rules containing at least some moral sanctions.13 For organizations which address themselves to a limited number of private individuals, supervision may be easier than for organizations composed of states. A private international organization, such as the International Air Transport Association (IATA), can impose a system of supervision on its subjects more easily than a public international organization which has to control the behaviour of sovereign states.14

II.

Supervision of the implementation of rules

§1399. The extent to which the execution of rules is supervised is of great importance for their effective application. Violations which receive wide attention are more difficult to commit than violations which remain practically unknown. The importance of supervision for the implementation of the law largely depends on the publicity given to its results. Gold distinguishes two different sanctions: “judgment of the peers” and “publicity”. In the first case, violations

11. T. Buergenthal, Law-Making in the International Civil Aviation Organization 112 (1969). On the implementation of ICAO regulatory material, see also G. F. FitzGerald, The International Civil Aviation Organization – A Case in the Implementation of Decisions of a Functional International Organization, in Schwebel, op. cit. note 5, in particular at 172-181. 12. See the conclusion of Stevenson in Schwebel, op. cit. note 5, at 363. 13. Id., at 431-440. 14. See e.g. R.S. Tauber, Enforcement of IATA Agreements, 10 HILJ 1-33 (1969).

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Supervision and sanctions

§1400

are not published but are reported to only governments,15 which as a sanction, is clearly milder than publicity. The great amount of attention paid by the UN to questions of decolonization, even though there were no formally binding rules, has in the long run proved effective.16 Supervision in itself is an incentive for compliance. It is also a precondition for the official recognition of a violation of the rules. This recognition is essential before any procedure for sanctions can be initiated.

A.

Supervision by other members acting on their own account

§1400. The constitutions of international organizations are usually based on treaties between states. Each “contracting” party undertakes obligations vis-àvis the other “contracting” parties. Basically, obligations to the organization are at the same time duties owed to the other members. This gives each member the right to supervise observance of the rules by all the other members. In practice, a member will supervise more diligently when its own interests are involved. It may simply not wish to make the effort of exercising control and risk spoiling its relations with another state if it has no direct interests at stake. ILO conventions and the European Convention on Human Rights contain rights for the citizens of the participant states but no direct rights for the states themselves. In both cases, a procedure is provided through which states can act when other states violate their obligations, although in neither case is the procedure extensively used. States do not readily bring an action on behalf of the citizens of another state. In most cases, where a state has initiated a procedure against another state, under ILO conventions or the European Convention on Human Rights, interests other than humanitarian considerations for the citizens have been involved. In the ILO, Ghana’s complaint against Portugal17 was part of a campaign of political pressure against Portuguese colonialism. Portugal’s complaint against Liberia18 was a reaction to this complaint against Portugal. Under the European Convention on Human Rights, the two cases brought by Greece against the United Kingdom19 were initiated in the interests of Greek people in Cyprus; the case of Austria against Italy20 for the benefit of the people of a former Austrian province (South Tirol); Ireland’s case against the United Kingdom on behalf of the Irish

15. J. Gold, The “Sanctions” of the International Monetary Fund, 66 AJIL 739-743 (1972), also published in Legal and Institutional Aspects of the International Monetary System: Selected Essays 150-156 (1979). 16. See e.g. YUN 1973, at 662-663. 17. 45 Official Bulletin of the ILO, No. 2, Supplement II, April 1962, para. 720 ff. 18. 46 Official Bulletin of the ILO, No. 2, Supplement II, April 1963, para. 460. 19. Yearbook on the European Convention on Human Rights, Vol. 1, at 128-131 and Vol. 2, at 174-198. 20. Id., Vol. 3, at 68-70; Vol. 4, at 112-182; Vol. 5, at 54-60.

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people in Northern Ireland.21 The cases brought by Cyprus against Turkey concerned the situation in the part of Cyprus which was under Turkish control.22 The case of Denmark against Turkey was partly for the benefit of a Danish citizen; partly it served to examine, more in general, the Turkish interrogation techniques.23 Only rarely can cases under the European Convention on Human Rights be regarded as pure examples of supervision by foreign governments of the general application of the convention. In 1967, the governments of Denmark, Sweden, Norway and the Netherlands lodged complaints against the Greek government for violation of the Convention in respect of Greek citizens.24 No national interests of the complainant states were involved other than the general concern for respect of the convention. In 1970, Denmark, Norway and Sweden brought a further case against Greece in the same field.25 In 1982 the governments of Denmark, France, the Netherlands, Norway and Sweden lodged an application against Turkey with the European Commission of Human Rights. This complaint ended in a friendly settlement (Article 30 of the European Convention).26 These examples, however, are exceptions, which are insufficient to support a general conclusion that supervision by the other member states is an adequate instrument to secure implementation.

§1401. It is partly as a result of inefficient supervision by other governments that international organizations have often been charged with supervisory tasks. Seidl-Hohenveldern even submits that such tasks are the raison d’être of any international organization.27 Does supervision by the organization exclude individual control by the other members if there are no clear provisions to that effect? In its judgment of 21 July 1962 (South West Africa), the International Court of Justice considered: “...the manifest scope and purport of the provisions of [Article 7 of the Mandate] indicate that the members of the League were understood to have a legal right or interest in the observance by the mandatory of its obligations, both toward the inhabitants of the mandated territory, and toward the League of Nations and its members”.28

This suggests that the members of the League would have had some right of supervision, even when the mandatory system of the League was still functioning. In its much disputed judgment of 18 July 1966 (South West Africa), the Court, however, stated:

21. Id., Vol. 21 (1978), Judgment of the Court of Human Rights of 18 Jan. 1978. 22. Id., Vol. 20 (1977), at 98. See also Report Committee of Ministers of 19 Jan. 1979, and Application no. 25781/94, Judgment of 10 May 2001. 23. Application no. 34382/97, Judgment of 5 April 2000 (friendly settlement) of the European Court of Human Rights. 24. Cases No. 3321/67, 3322/67, 3323/67 and 3344/67. 25. Case No. 4448/70. 26. See L. Zwaak, A Friendly Settlement in the European Inter-State Complaints Against Turkey, SIM Newsletter (February 1986), at 44-48. 27. Seidl-Hohenveldern, op. cit. note 1. 28. ICJ Rep. 1962, at 343.

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Supervision and sanctions

§1401

“In actual fact, in the 27 years of the League, all questions were, by one means or another, resolved in the Council; ... so far as is known, no member of the League attempted to settle direct with the mandatory any question that did not affect its own interests as a state or those of its nationals, and no cases were referred to the Permanent Court under the adjudication clause except the various phases of one single case (that of the Mavrommatis Concessions) coming under the head of “special interests”. These facts may not be conclusive in themselves; but they have a significance which the Court cannot overlook, as suggesting that any divergences of view concerning the conduct of a mandate were regarded as being matters that had their place in the political field, the settlement of which lay between the mandatory and the competent organs of the League – not between the mandatory and individual members of the League”.29

This statement seems to imply that individual members lose their right to supervise the observance of the rules of the organization if the organization itself fulfils this task. However, the distinction between states which have a direct interest and states which have no such interest seems unsound. All states, as members of an organization, have an interest in its functioning. It may be justifiable to restrict their right to impose unilateral sanctions when the organization itself has some power to do so (see below, §1449), but it would not be reasonable to withhold from them the right to observe the application of the rules and to notify possible violations. Other organizations, such as the IMF, the World Bank and the European Communities have recognized the general interest of the members in the observance of the rules and permit them to submit questions on the application of the law of the organization to the competent organ.30 The statement of the International Court indicates, however, that member states do not actually fulfil any supervisory functions when organs of the organization are available for that purpose. In the EC, members may bring alleged violations before the Court of Justice pursuant to Article 227. However, the Court of Justice has rendered only two such decisions.31 On a few occasions, such procedures under Article 227 were discontinued. An example is a case initiated by Ireland against France over the restriction of mutton and lamb imports, but this was discontinued when it was agreed to exempt Irish produce.32 In 1992, a complaint was lodged by Spain against the UK, but this was also discontinued.33

29. ICJ Rep. 1966, at 45. 30. See above, §1379-1386, for questions of interpretation. 31. Case 141/78, France v. United Kingdom, ECR 1979, at 2923; Case C-388/95, Belgium v. Spain, ECR 2000, at I-3123. 32. Case 58/77. See A. Dashwood and R. White, Enforcement Actions under Articles 169 and 170 EEC, in 14 ELRev. (1989), at 409. 33. Case C-349/92; OJ 1992, C 346/6.

§1402

Chapter 10

B.

Supervision by or on behalf of the organization

1.

Supervision based on reports of the members

880

§1402. Several international organizations oblige their members to report on the measures which they have taken to fulfil their obligations to the organization. This is a well established method of supervision which was already a feature of the sugar convention of 5 March 1902.34 It has been developed by the ILO35 and subsequently by several other international organizations, in particular for the supervision of their conventions.36 The ICAO37 and the WMO38request their members to notify any discrepancies between their own regulations and those of the organization. In some cases, the obligation to report is relatively extensive,39 while in other cases, only national legislation has to be submitted.40 The obligation to send in reports is usually derived from a treaty, but in some cases the reports are requested by resolution.

34. Convention relative au régime des sucres, Bruxelles, 5 Mars 1902, Art. 7, de Martens, Nouveau général de Traités, Deuxième serie, Vol. 31, at 280. 35. For a survey of the supervision by the ILO, see UN Doc. E/4144. See also E.A. Landy, The Effectiveness of International Supervision; Thirty Years of ILO Experience 9-52 (1966); C. Wilfred Jenks, Social Justice in the Law of Nations, The ILO Impact after Fifty Years 33-45 (1970); N. Valticos, Droit international du travail 562-580 (1970); N. Valticos, Once More About the ILO System of Supervision: In What Respect is it Still a Model?, in Blokker and Muller, op. cit. note 1, at 99-113. 36. FAO, Art. 11.1; WHO, Art. 62; UNESCO, Art. 8; European Convention on Human Rights, Art. 52; UN Covenant on Civil and Political Rights, Art. 40 On the UNESCO provisions see UNJY 1965, at 237-241; H. Saba, L’Activité quasi-législative des Institutions Spécialisées des Nations Unies, 111 RdC (1964 I), at 651-671, or O. Lefranc, Les Problèmes juridiques posés devant la XIIe session de la Conference Générale de l’UNESCO, 8 AFDI 657-666 (1962); M. Schreiber, La pratique récente des Nations Unies dans le domaine de la protection des droits de l’homme, 145 RdC (1975 II), at 325-343; E. Tistounet, Améliorations des procédures conventionnelles des Nations Unies en matière de droits de l’homme, 5 Revue Universelle des Droits de L’homme 145-155 (1993). See further I. Boerefijn, The Reporting Procedure under the Covenant on Civil and Political Rights – Practice and Procedures of the Human Rights Committee (1999); A.F. Bayefsky (ed.), The UN Human Rights System in the 21st Century (2000), in particular Part I (An Analysis and Evaluation of the System of State Reporting); P. Alston and J. Crawford (eds.), The Future of UN Human Rights Treaty Monitoring (2000). Bayefsky in general has a negative view of the UN human rights system and points at a large number of implementation shortfalls (see her introduction, at xvii-xx). Alston in his concluding chapter criticizes Bayefsky’s views (as expressed in works published earlier than the 2000 study mentioned above) for being “unbalanced and unrealistic” (at 516) and concludes that “[t]he human rights treaty supervisory system has come a very long way in a relatively short time” (at 522). 37. ICAO, Art. 38. The article requires reports on digressions from the Standards of ICAO. The Council also requests reports on differences in ICAO Recommended Practices, see E. Yemin, Legislative Powers of the United Nations and the Specialized Agencies 132 (1969); Buergenthal, op. cit. note 11, at 88-101. 38. WMO, Art. 9(b); Resolutions 17 and 20 of the Second WMO Congress (1955); Yemin, op. cit. note 37, at 172. 39. Single Convention on Narcotic Drugs 1961, Arts. 18, 19, 20 (520 UNTS, at 151). 40. E.g. on stateless persons and refugees, see UN Doc. E/4143, at 13 ff.

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Supervision and sanctions

§1403

In 1961, the Committee of Ministers of the Council of Europe adopted a resolution by which each member is to make a yearly report indicating which Council of Europe Conventions it has ratified, the steps it has taken towards the ratification of others and, where possible and appropriate, the reasons why conventions have not been submitted for ratification within a period of eighteen months of signature.41 The 1986 Ministerial Declaration of Punta del Este, launching the Uruguay Round of Multilateral Trade Negotiations, provided the basis for the GATT Trade Policy Review Mechanism. This mechanism was subsequently included in the 1994 Agreement establishing the World Trade Organization. The purpose of this mechanism is to contribute to improved rule compliance. The basis for the review of the trade policies and practices of the members is a report submitted by the member.42

§1403. Requests may be made for reports on particular obligations43 or on the progress made towards achieving the objectives of the organization in general. The response varies. When, in 1948, the FAO asked for general reports from its members, more than 60 per cent of the members complied with the request; in 1964, this percentage had dropped to 20, the majority of which arrived after the deadline. In 1969, only six reports (5 per cent) had arrived on time, and only 23 per cent were received before the opening of the session of the general congress in which they were to be discussed. In 1969, the general congress of FAO decided that no reports should be required for 1969-70;44 in 1971, the organization decided that, in future, reports should only be requested by the Director-General on specific issues.45 In the area of human rights, the backlog in reporting by state parties to UN conventions is well known. In 1998 more than hundred reports were overdue under each of the six main conventions. Under the Convention on the Elimination of all forms of Racial Discrimination, there were 390 overdue reports that year.46 The duty of the members to furnish reports on their own conduct does not, by itself, provide a sufficient degree of supervision. Further regulations are needed to obtain detailed reports on every issue requiring examination. Although the method of reporting by members has its advantages (for example, while complaints procedures deal with alleged violations of rules, reports give a more general indication of rule implementation), these advantages have

41. CoE Res. (61)6 of 27 February 1961. See also A.-C. Kiss, Le Conseil de l’Europe et les suites données par les États membres aux textes adoptés par ses organes, 13 AFDI 547-565 (1967), in particular at 560. 42. Annex 3 to the 1994 Agreement. 43. Such as narcotic drugs. See W. Bogaard, International Control of the Legitimate Trade in Narcotic Drugs, 3 NYIL 97-133 (1972); M. Bettati, Le contrôle international des stupéfiants, 78 RGDIP 170-227 (1974). 44. J.P. Dobbert, Decisions of International Organizations-Effectiveness in Member States, Some Aspects of the Law and Practice of FAO, in Schwebel, op. cit. note 5, at 214-215. 45. FAO Conference, 16th session, amendment adopted to Art. 11 of the Constitution. 46. J. Crawford, The UN human rights treaty system: a system in crisis?, in Alston and Crawford (eds.), op. cit. note 36, at 1-12 (figures on overdue reports at 5).

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usually been overshadowed by one basic flaw: states usually lack self-criticism.47 §1404. Numerous attempts have been made to overcome this basic flaw, and to make this method of supervision more efficient. (1) Reporting at regular intervals makes it possible to compare the various reports of one member and to trace the development of its legislation. In most cases, annual reports are requested. Too many reports, however, render careful study impossible. The ILO, therefore, changed to reporting on ratified conventions every two or four years.48 In relation to unratified conventions and recommendations, the members need only report on request. Each year, the board of the organization chooses a limited number of conventions and recommendations of current interest and requests the members to supply reports on them. Many human rights conventions specify the intervals for reporting, for example two years49 or five years.50 State parties to the International Covenant on Civil and Political Rights have to submit reports within one year of the entry into force of this Covenant for the party concerned, and thereafter whenever the Human Rights Committee so requests.51 The Committee originally decided – following extensive discussions – that state parties would have to submit subsequent reports every five years.52 In 1998 however, the Committee decided to abolish this ‘equal periodicity for all state parties’ in favour of a more flexible approach. For each state party the Committee now decides when a new report is due. In taking these decisions the following criteria are used: (i) delays in submission of reports, (ii) delays in the consideration of these reports if attributable to the state, (iii) quality of the reports and of the dialogue, and (iv) nature of the concerns and recommendations expressed in the concluding observations.53 (2) Careful study and comparison of reports can be greatly facilitated by harmonizing their lay-out. Organizations often indicate the main headings under which information is required, or they use questionnaires,54 guidelines55

47. N. Blokker and S. Muller, Towards More Effective Supervision by International Organizations, in Blokker and Muller, op. cit. note 1, at 281-282. See also S. Leckie, The Committee on Economic, Social and Cultural Rights: catalyst for change in a system needing reform, in Alston and Crawford (eds.), op. cit. note 36, at 129-144. 48. See more in detail, E. Osieke, Constitutional Law and Practice in the International Labour Organisation 164-165 (1985); V.-Y. Ghebali, The International Labour Organisation 222-225 (1989). 49. E.g. Convention on the Elimination of all forms of Racial Discrimination, Art. 9. 50. E.g. Convention on the Rights of the Child, Art. 44. 51. International Covenant on Civil and Political Rights, Art. 40. 52. Boerefijn, op. cit. note 36, at 184-185. 53. UN Doc. A/53/40, Vol. I, Annex VIII (para. 7). See Boerefijn, op. cit. note 36, at 186-187. 54. See e.g. WHO Resolutions WHA 2.37 and EB 7.R 71. 55. E.g. the Human Rights Committee; see Boerefijn, op. cit. note 36, at 178-182. Another example is the UN Counter-Terrorism Committee established pursuant to Security Council Res. 1373; this Committee has issued a number of guidelines for the submission of reports

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Supervision and sanctions

§1404

or standard forms. The board of the ILO adopts a report form for each convention in force, calling for detailed information on the relevant national laws and regulations.56 (3) The coordination of national reports is of the greatest importance. It is practically useless to present long and numerous reports to a general congress. In the ILO for example, in the past, thousands of governmental reports were examined each year.57 More recently this has been reduced following the decision to require reports concerning many conventions only every two or four years. Nevertheless, in 1993 still some 1,200 reports were received from governments (this amounted to only 65 per cent of the reports due).58 No general congress would be able to make recommendations on these reports without preparation by other organs. The secretariat will usually be charged with making summaries and surveys of national reports. In the ILO, a special committee of independent experts (the Committee of Experts on the Application of Conventions and Recommendations) examines all reports (see above, §655)59 and may request further information from the members when national reports are not satisfactory. A Conference Committee on the Application of Conventions and Recommendations discusses the reports of the members and that of the Committee of Experts during the sessions of the general congress.60 The governments concerned also participate in this committee. The report of the Committee of Experts is discussed in the general congress. In most international organizations, the reports are eventually published. In the ILO, copies of national reports are forwarded to the representative organizations of employers and workers of the members concerned. The publication of reports may have national political repercussions when the reports are unsatisfactory. (4) A particularly effective way to remedy the absence of self-criticism by states is to open the possibility for non-governmental groups to present comments. Such groups are potentially well-informed of the (lack of) national implementation. The ILO has a long-standing experience in this respect as well. Governments are requested to send copies of their reports to national organizations of employers and workers, which may present comments. Valticos considers this to be “a considerable safeguard, provided such organizations, and particularly workers’ organizations are sufficiently equipped to do the necessary checking and do not hesitate to address them to the ILO”.61 From a quantitative point of view also, this element in the reporting procedure seems to be successful:

56. 57. 58. 59. 60. 61.

by states (see e.g. UN Doc. SCA/20/01(6) and the website of this Committee, www.un.org/ Docs/sc/committees/1373/). UN Doc. E/4144. Valticos (in: Blokker and Muller), op. cit. note 35, at 110-111. Id., at 102-103. See P. Cornil, Le rôle de la Commission d’experts de l’O.I.T. dans le contrôle de l’application des conventions du travail, 6 RBDI 265-277 (1970). The Committee’s report is reproduced as an appendix to the Record of Proceedings of the Conference, and is also published in offprint form, which is circulated to all member states. Valticos (in: Blokker and Muller), op. cit. note 35, at 102.

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in 1993 some 1,200 reports were submitted by governments, and 234 observations were received from employers’ and workers’ organizations.62 Parties to the UN Covenant on Civil and Political Rights have incidentally referred to comments by non-governmental organizations on government reports, which has assisted the Human Rights Committee in its supervisory task. However, contrary to the situation in the ILO, parties are not obliged to request such comments. In practice the Human Rights Committee has increasingly used information obtained from ngo’s. As of 1990 ngo’s have been invited to send information to the Committee. In addition, since 1996 the Committee encourages its members when preparing for the discussion of reports to actively seek ngo information.63 (5) A substantial discussion of the report between the supervising body and the state party concerned may also improve the quality of the report. When preparing reports state parties will usually anticipate such a discussion. A good example is the practice of the Human Rights Committee to engage in a “constructive dialogue” with the state concerned on the basis of the latter’s report. Governments are always invited to discuss their reports with the Committee, and they almost always accept this invitation, although their level of representation is often criticized by the Committee. Often new information comes to light, enabling the Committee to obtain a more complete impression of the party’s implementation of the Covenant.64 §1405. EC Directives are binding as to the result to be achieved, but leave to the national authorities the choice of form and methods. Directives usually oblige member states to communicate to the EC Commission the provisions of national law which have been adopted to execute the Directive in question, to enable the Commission to perform its role as watchdog over the execution of Community obligations. In addition, incomplete or incorrect implementation may be invoked by individuals before national courts. In order to emphasize that the implementation is an EC obligation which has to remain within the confines of the relevant directive, in 1990 the Council decided that national legislation implementing directives must include a standard text in which reference is made to the specific directive on which the implementing legislation is based. It was indicated that the reason for inclusion of such standard wording is “to increase legal security, transparency and the effectiveness of controls in the carrying out of EC directives by the Commission as well as to inform operators and public opinion in general”.65

62. 63. 64. 65.

Id., at 102-103. Boerefijn, op. cit. note 36, at 218-219. See for more details Boerefijn, op. cit. note 36, at 198-203. Europe, 28 November 1990, at 14.

885

2.

Supervision and sanctions

§1406

Supervision based on information collected by the organization

§1406. Reports submitted by members are often superficial, especially where obligations remain unfulfilled. Experience has shown that members’ reports only lead to effective supervision when they are actively encouraged by the organization. The secretariat often plays an active role in this regard and sometimes a special committee supervises the reporting (such as the Committee of Experts in the case of the ILO). Even when the organization actively encourages systematic reporting, it still remains dependent on the data provided by the individual governments. Several international organizations empower their organs to collect information on the way in which governments fulfil their obligations from sources other than official reporting by the members themselves. Such sources may be laws and decrees or other acts published by the member concerned, official and unofficial reports from that member or information provided by other members or by other international organizations. Other members and organizations may expressly be invited to transmit the information.66 §1407. The Security Council of the UN may investigate any dispute or situation which might lead to international friction.67 The UN Sub-Commission on Prevention of Discrimination and Protection of Minorities and the UN Commission on Human Rights collect facts from several sources, mainly from (a) governments, (b) the Secretary-General of the UN, (c) specialized agencies, (d) private international organizations and (e) the writings of recognized scholars and scientists.68 A Special Rapporteur for each study prepares a summary of material dealing with each country and forwards it to the government concerned for comment and supplementary data. In the light of the answers received, the rapporteur may revise his survey. The collection of material from private international organizations and from writings of scholars enables the UN organs to obtain more information than the governments may be willing to release, thereby extending the fact-finding and supervision by the organization.69

66. See e.g. GA Res. 3255 B(XXIX). On the legality of collecting information from other organizations, see also UNJY 1972, at 164, 166. 67. UN Charter, Art. 34. On this provision, see E.L. Kerley, The Powers of Investigation of the United Nations Security Council, 55 AJIL 892-918 (1961). See also J.-P. Cot and A. Pellet (eds.), La Charte des Nations Unies (2nd ed. 1991), at 575-586, and B. Simma (ed.), The Charter of the United Nations (2nd ed. 2002), at 594-608. 68. UN Doc. E/4143, para. 6 (at 4) and para. 7 (at 5). See also the Study on methods of factfinding with respect to the execution of international agreements, prepared by the SecretaryGeneral of the UN, Doc. A/6228. 69. Cf. R.B. Lillich (ed.), Fact-finding before International Tribunals: Eleventh Sokol Colloquium (1992).

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§1408. Since the 1970s, the Human Rights Commission of the UN has become more active in collecting information about violations of human rights.70 Visits on the spot are initiated by Human Rights Rapporteurs established by this Commission. There are two kinds of such rapporteurs: first, those which have been appointed to supervise the implementation of specific human rights norms, for example the prohibition to torture.71 Secondly, there are rapporteurs whose mandate is directed at specific country situations, like for instance Mr. Mazowiecki, who reported on the human rights situation in the territory of the former Yugoslavia. In 1993 this development culminated in the creation of a High Commissioner for Human Rights who, inter alia, has to supervise the implementation of all human rights.72 §1409. One organ which is of particular interest is the UN Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, since this committee was established to promote the implementation, not of a Charter provision, but of a declaration of the General Assembly. The Special Committee was directed to carry out its task by employing all means at its disposal73 and to seek the most suitable ways and means for the speedy and total application of the Declaration.74 However, the UN has no means of sanctioning its declarations. The Special Committee collects information from every source75 and appeals to governments and to public opinion by publishing its reports. §1410. The European Communities have wide powers to collect information even without the cooperation of the governments of its members. To ensure the orderly functioning and development of the Common Market, the Commission is obliged to ensure the application of the Communities’ legal order and to issue recommendations and opinions on matters within the scope of the treaties whenever it considers this necessary.76 This broad authority provides the Commission sufficient basis to conduct its own fact-finding projects whenever necessary. In other Treaty articles, the Commission is expressly empowered to collect information.77 The staff of the Commission systematically

70. See J.-B. Marie, La situation des droits de l’homme au Chili: enquête de la Commission des Droits de l’Homme des Nations Unies, 22 AFDI 305-335 (1976). 71. See B. Rudolf, The Thematic Rapporteurs and Working Groups of the United Nations Commission on Human Rights, 4 Max Planck UNYB 2000, at 289-329. 72. UN GA Res. 48/141. See A. Clapham, Creating the High Commisioner for Human Rights: The Outside Story, 5 EJIL 556-568 (1994). Already long ago proposals for the creation of such a Commissioner have been made; cf. R.S. Clark, A United Nations High Commissioner for Human Rights (1972). 73. GA Res. 1654 (XVI); see also below, §1414 (inspection). 74. GA Res. 1810 (XVII), 1956 (XVIIl) and 2105 (XX). On the work of the Special Committee, see its reports to the General Assembly. 75. See e.g. YUN 1976, at 687-690; UN Doc. A/47/23. 76. EC, Art. 211; Euratom, Art. 124. 77. EC, Art. 284; Euratom, Art. 187.

887

Supervision and sanctions

§1411

scrutinizes the official publications of the members,78 and consequently national laws which violate Community obligations will not easily escape their attention. The members of the European Parliament can also bring possible violations to the attention of the Commission by exercising their right to ask questions (“Is it known to the Commission that ... ?”). Complaints from individuals are also received and studied. Several Community regulations provide additional means of obtaining information. Regulation No. 7 of Euratom obliges all those who operate nuclear installations to send specific information to the Commission. Regulation No. 17 of the EEC Council provides that the Commission must be notified of all agreements between enterprises which are likely to affect the prevention, restriction or distortion of competition within the Common Market. The Commission may also be informed of such agreements, decisions or concerted practices by persons other than the parties to the agreements. The Commission may collect all necessary information from national authorities as well as from enterprises and can request the authorities of member states to verify the information. By sending out inspectors to the firms concerned, the Commission itself can even verify the information given by enterprises (see below, §1420). Finally, it may conduct a general inquiry and has the power to impose penalties on enterprises which supply erroneous or insufficient information. §1411. It is not the possibility of collecting information which allows these organizations to exert influence. This course would be open to any diligent organization. The influence of the organization stems both from its competence to gather the information and from the obligation of the members to supply it. This competence provides a basis for using the information and for exerting pressure on the member concerned; the obligation of the member precludes the argument that the organization may have been wrongly informed. §1412. The role of the secretariat varies in relation to the collection of information about members’ performance of their obligations. In many organizations the secretariat has no power to collect information on its own initiative, and has no supervisory duties. In other organizations such as the Central American Common Market, the secretariat plays a more important role. It may convene a meeting to study the performance of members.79 In some other organizations, the secretariat may enquire what measures members have taken for the execution of rules of the organization.80 Supervision by the secretariat is probably more effective than supervision by other members or by policy-making organs. The secretariat operates to

78. M. Gaudet, Director-General of the Legal Service of the European Communities in Schwebel, op. cit. note 5, at 326-327. 79. F. Orrego Vicuña, Contemporary International Law in the Economic Integration of Latin America, Problems and Perspectives, Hague Academy of International Law, Colloquium 1971, at 172. 80. See e.g. European Convention on Human Rights, Art. 52.

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safeguard the interest of the organization and may accordingly be less influenced by political factors than policy-making organs. §1413. Within the European Commission, supervision is decentralized. Every directorate-general has its own section for supervising execution in the field in which it operates. This seems to work more effectively than one large division for control, as the specific problems of the field are better known to sections of the directorates-general. Additionally, these directorates-general monitor performance by the members from the beginning.81 3.

Supervision based on inspection82

§1414. The most direct method of collecting information is by inspection. A commission is sent to collect all necessary information on the spot. International inspection systems outside the scope of an international organization are rare.83 Two different types of inspection by a special organ of the organization may be distinguished: (a) continuous inspection of a situation or of a territory, for the purposes of establishing facts and reporting thereon, and (b) ad hoc retrospective inspection for the purposes of verifying accounts of past events, the details of which have been disputed. a.

Continuing supervision

§1415. The UN has established supervising commissions mainly in two fields: decolonization and peace-keeping. In relation to decolonization, the UN Charter provides for periodic visits to trust territories,84 which was subsequently extended to cover other dependent territories. In the trusteeship agreements the members administering trust territories had agreed to receive visiting missions but for other dependent territories no such obligation exists. The administering state has often in fact accepted visiting missions85 and sometimes they have even been invited,86 although in other cases admission to the territory has been refused. In the latter instances, the mission may be

H.A.H. Audretsch, Supervision in European Community Law 290-294 (2nd ed. 1986). See also G. Fischer and D. Vignes (ed.), L’inspection internationale (1976). Some examples are mentioned in the second edition of this book, paras. 1266-1267. UN Charter, Art. 87. For examples, see UN Doc. A/6228, at 19 and YUN 1976, at 689. More recently, concerning the last trust territory (Palau, which was part of the former Trust Territory of the Pacific Islands), UN Documents T/1942 and T/1978. See R. Goy, Le dernier territoire sous tutelle: les Iles du Pacifique, 34 AFDI 454-474 (1988); L.A. McKibben, The Political Relationship Between the United States and Pacific Islands Entities: The Path to Self-Government in the Northern Mariana Islands, Palau, and Guam, in 31 HILJ 257-293 (1990); P. Tavernier in 39 AFDI (1993), at 715. In 1994, the applicability of this trusteeship agreement was terminated with respect to Palau (Res. 2199 of the Trusteeship Council; SC Res. 956). 86. See e.g. YUN 1974, at 764; YUN 1991, at 811.

81. 82. 83. 84. 85.

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Supervision and sanctions

§1416

cancelled,87 or a mission may be sent to neighbouring countries to conduct hearings or collect other information there.88 Under the trusteeship system, each Trust Territory was visited once every three years by a visiting mission composed of nationals of four members of the Trusteeship Council, two from administering and two from non-administering states. The missions acted on the instruction of the Council and were exclusively responsible to it. The UN Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples89 dispatched visiting groups to various non-autonomous territories.90

§1416. In the field of peace-keeping, the UN was able to build upon the experience of the League of Nations. In 1920, the League sent a mission to Wilna to observe the demarcation-line between Poland and Lithuania.91 Over many years, the UN has itself accumulated a great deal of experience with missions sent to areas where the peace has been disturbed. The UN Truce Supervision Organization in Palestine (UNTSO) was established in 1948 to take over from the Truce Commission for Palestine composed of career consular officers in Jerusalem and, therefore, available on the spot when the truce was agreed. UNTSO is composed of military personnel. It has observation posts in the area which report on the state of the cease-fire.92 Subsequently, the UN created numerous other observer groups. For example, in 1950, the UN Security Council established a Military Observer Group in India and Pakistan.93 The UN Observation Group in Lebanon operated from 11 June to 9 December 1958, “to ensure that there is no illegal infiltration of personnel or supply of arms or other matériel across the Lebanese borders”.94 Other examples are the Iran-Iraq Military Observer Group (UNIIMOG, created in 1988) and the Observer Group in Central America (ONUCA, functioning between 1989 and 1991).95 A final example is the UN Aouzou Strip Observer Group (UNASOG), created to observe the implementation of the agreement of 4 April 1994 between Chad and Libya.96 This agreement

87. E.g. a mission to British Guyana in 1965, see YUN 1965, at 567. 88. E.g. missions to Aden in 1963 and 1964, see YUN 1967, at 650-653. 89. Established by GA Resolutions 1654 (XVI) and 1810 (XVII). Its competence was enlarged by Res. 1970 (XVIII). On the functioning of the Committee, see e.g. YUN 1974, at 761-762. 90. Cf. UN Doc. A/AC.109/2004 (1994). 91. A.L. Karaosmanog˘lu, Les actions militaires coercitives et non coercitives des Nations Unies 27 (1970). 92. Y. El-Ayouty, The United Nations Truce Supervision Organization in Palestine, 30 REDI 120-133 (1974); M. Ghali, United Nations Truce Supervision Organization, in W.J. Durch, The Evolution of UN Peacekeeping 84-103 (1993). 93. SC Res. 80 (1950). See K.Th. Birgisson, United Nations Military Observer Group in India and Pakistan, in Durch, op. cit. note 92, at 273-284. 94. Based on SC Res. 128. See G.L. Curtis, The United Nations Observation Group in Lebanon, 18 International Organization 738-765 (1964); M. Gali, United Nations Observation Group in Lebanon, in Durch, op. cit. note 92, at 163-180. 95. See for analyses of these and other observer groups Durch, op. cit. note 92. 96. Res. 915 of the UN Security Council.

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related to the implementation of the judgment of the International Court of Justice of 3 February 1994 concerning the Aouzou strip. The UN peace-keeping forces (see below, §1495 ff.) also perform supervisory functions, apart from the other tasks for which they are established.

§1417. Apart from decolonization and peace-keeping, the UN has occasionally established other organs for the supervision of specific situations. Some precedent was offered to them by the machinery set up by the League of Nations to supervise the sanctions which were imposed against Italy in 1935 and 1936.97 The UN Temporary Commission on Korea98 was charged with supervising elections in Korea. Its task was later transferred to the UN Commission on Korea99 and finally to the UN Commission for the Unification and Rehabilitation of Korea (UNCURK),100 which supervised the Southern Korean elections in 1963.101 The Security Council committees established to supervise the application of the economic sanctions are of particular importance.102 Such mandatory sanctions were introduced for the first time against Rhodesia after the unilateral declaration of independence in November 1965.103 This committee carefully studied some 400 cases brought to its attention by governments, international organizations and individuals, and reported on them.104 A similar committee was created for the supervision of the mandatory arms embargo against South Africa.105 Subsequently, other sanction committees were created when economic sanctions were introduced by the Security Council, for example against Iraq,106 the Federal Republic of Yugoslavia (Serbia and Montenegro),107 the Taliban,108 terrorists and terrorist groups.109

§1418. Strong inspection systems have been created in particular in the area of disarmament and arms control. The International Atomic Energy Agency

97. 98. 99. 100. 101. 102.

103. 104.

105. 106. 107. 108. 109.

See thereon C. Lloyd Brown-John, Multilateral Sanctions in International Law, A Comparative Analysis (1975). Established by GA Res. 122 (II). Established by GA Res. 195 (III). Established by GA Res. 376 (V), new mandate in GA Res. 2132 (XX). Publication No. 77 of the Netherlands Ministry of Foreign Affairs, at 79. Officially, the term sanctions (economic sanctions, sanctions committee) is usually avoided. Instead, diplomatic euphemisms are employed, such as “measures” and “Committee established by Res. 661 (1990) concerning the situation between Iraq and Kuwait”. See for the establishment of the sanctions committee SC Res. 253 (1968). See P.J. Kuyper, The limits of supervision: the Security Council Watchdog Committee on Rhodesian sanctions, 25 NILR 159-194 (1978); P.J. Kuyper, The Implementation of International Sanctions: The Netherlands and Rhodesia, (1978); V. Gowlland-Debbas, Collective Responses to Illegal Acts in International Law – United Nations Action in the Question of Southern Rhodesia (1990). SC Res. 421 (1977). SC Res. 661 (1990). SC Res. 757 (1992). SC Res. 1267 (1999). SC Res. 1373 (2001).

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Supervision and sanctions

§1418

(IAEA) has a well developed system of inspection.110 This was initiated in the early years of the IAEA, to examine operations conducted by the organization,111 but was later expanded and refined when the IAEA was charged with supervision of the Non Proliferation Treaty.112 Under that treaty, the IAEA has concluded safeguard agreements, incorporating provisions for inspection, with most non-nuclear-weapon states. The organization has established a staff of inspectors which it can send into the territories of these states. By the end of 1999, the IAEA had carried out safeguard inspections at 900 installations in 70 states.113 Before each inspection, the IAEA is obliged to inform the state concerned, which may refuse to accept particular inspectors. The board of the IAEA must be informed when no agreement can be found on the inspectors. According to the safeguards agreements, the IAEA inspectors may visit the states concerned to verify information which they have obtained. The states have the right to have the inspectors accompanied by their own representatives, provided that the inspectors are not thereby delayed or otherwise impeded in the exercise of their functions.114 The inspectors must at all times have access to all places and data and to any person who by reason of his occupation deals with materials, equipment, or facilities. They have to verify that the prescribed health and safety measures are being respected and that adequate measures are taken to prevent materials from being used to further any military purpose. Any breach of these obligations will be reported to the Director-General of the organization who transmits the report to the board, which may then impose sanctions, and report cases of non-compliance to all member states, and to the Security Council and the General Assembly of the UN.115 The Director-General of the IAEA, under the supervision of the board, bears responsibility for the appointment, organization and functioning of the staff to which the inspectors belong.116 This dependence on the Director-General might impede the critical inspection of installations of the organization itself. However, as the responsibil-

110.

111. 112. 113. 114.

115. 116.

See P.C. Szasz, The Law of International Atomic Energy Agency Safeguards, 3 RBDI 196-240 (1967), with references to further literature; P.C. Szasz, The Law and Practices of the International Atomic Energy Agency, IAEA Legal Series No. 7 (1970), at 531-657; R.H. Rainer and P.C. Szasz, The Law and Practices of the International Atomic Energy Agency 1970-1980: Suppl. 1 to the 1970 ed. of Legal Series No. 7 (1993). See also IAEA Documents CG(V)/INF/39 (August 1961); INFCIRC/66 (3 Dec. 1965) and INFCIRC/153 (May 1971); Sayed Anwar Abou-Ali, Système de garanties de l’Agence Internationale de l’Énergie Atomique, 26 REDI 58-87 (1970); L. Scheinman, Safeguarding Nuclear Materials, 30 Science and Public Affairs (1974); Safeguards Against Nuclear Proliferation, a SIPRI monograph (1975)(quoted below as SIPRI report); N. Horbach, International Atomic Energy Agency, in G. Blanpain (general ed.), International Encyclopedia of Laws, Vol. 1, M. Eyskens and K. Wellens (eds.), Intergovernmental Organizations, Suppl. 3 (Oct. 1998). IAEA, Art. XII. For the IAEA’s “own” safeguards system, see IAEA Document INFCIRC/ 66/Rev.2. Non Proliferation Treaty, Art. 3. YIO 2002-2003, Vol. 1, at 1372. The Agency’s inspectorate, Memorandum by the Director-General, IAEA Doc. GD (V) INF. 39, para. 5; INFCIRC 153, para. 89, both documents have been published as annexes to the SIPRI Report. IAEA Statute, Art. XII C. IAEA, Art VII, paras. B and C; SIPRI Report, at 43-45.

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ity of the Director-General for the operations of the organization is limited, undue pressure on the inspectors seems unlikely. The advantages in their forming part of an established secretariat outweigh the drawbacks of their partial dependence on the Director-General. The IAEA inspection system has been extended by the many agreements which it has concluded with members which had bilaterally agreed to cooperate in the peaceful use of atomic energy.117 In such agreements, the agency is charged with verifying that nuclear material is not diverted to nuclear weapons or other nuclear explosive devices (at its own expense – so as not to make its inspection financially dependent on the states concerned). As of 2002, the IAEA had concluded 225 safeguards agreements with 140 states.118 The board of the IAEA has adopted a model to be used as the basis for negotiating safeguards agreements with non-nuclear-weapon states.119 Furthermore, a member can ask the organization to inspect national reactors. Thus, for example, Mexico has brought all its peaceful uses of atomic energy within the inspection system of the IAEA.120 Some concern was expressed that safeguards inspection should not become an undue burden on the industry and that it might cause industrial secrets to pass into the hands of unauthorized persons. However, practice has shown that these fears were exaggerated.121 Practice has also shown that IAEA inspections can never provide a full guarantee that no illegal activities are carried out. IAEA missions to Iraq prior to the invasion of Kuwait did not uncover any such activities, and Iraqi activities all appeared to be above board. However, more recent inspections after the end of the Gulf War, on the basis of Security Council Resolution 687, uncovered a large and advanced secret complex for the manufacture of nuclear weapons, in flagrant violation of Iraq’s obligations under the Non-Proliferation Treaty.122 The refusal by North Korea to admit IAEA inspectors, which was reported by the IAEA Board of Governors to all member states, and to the Security Council and the General Assembly of the UN, is another example of non-compliance.123

§1418A. More recently a strong inspection system has been created by the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction. This Convention established the Organization for the Prohibition of Chemical Weapons (OPCW) that started its operations with the entry into force of the Convention in 1997.

117. 118. 119. 120. 121. 122.

123.

See www.iaea.org. See www.iaea.org. IAEA Doc. INFCIRC/153 (May 1971); 10 ILM (1971), at 855-872. SIPRI Report, at 73-94. IAEA Report to the 23rd Session of the General Assembly of the UN; Agreement between the IAEA and Mexico, 6 September 1968, 8 ILM 42-47 (1969). SIPRI Report, at 33. B. Monahan, Giving the Non-Proliferation Treaty Teeth: Strengthening the Special Inspection Procedures of the International Atomic Energy Agency, 33 VJIL 161-196 (1992); Horbach, op. cit. note 110, at 67-72. See also the Resolution adopted 18 July 1991 by the IAEA Board of Governors, concerning non-compliance of Iraq with the IAEA Safeguards Agreement (published in Nuclear Law Bulletin No. 48 (December 1991), at 71-72). See UN Doc. A/48/133 or S/25556 (1993) and SC Res. 825.

893

Supervision and sanctions

§1418A

The objective of the Convention is to eliminate an entire category of weapons of mass destruction; the instrument of inspections is essential for achieving this objective.124 On the basis of the 1993 Convention three types of inspection may be carried out: routine inspections, challenge inspections and investigations of alleged use of chemical weapons.125 Parties to the Convention are obliged to submit declarations concerning their existing chemical weapons and their chemicals, materials and equipment that could be used to produce more such weapons.126 These declarations can be seen as a form of reporting (see above, §1402-§1405). Routine inspections are carried out to verify the information given in declarations. Detailed rules regulate the procedure followed and cover the stages of pre-inspection activities (to prepare the inspection), the crucial conduct of inspections in the member state concerned, and the post-inspection activities (debriefing and preparing of the final report).127 While routine inspections are “cooperative events” to verify the content of declarations,128 this is different for challenge inspections that are triggered by suspicions of non-compliance. Challenge inspections may be requested by any state party “for the sole purpose of clarifying and resolving any questions concerning possible non-compliance with the provisions of this Convention”.129 The target state has no right to refuse challenge inspections, which may be carried out at very short notice, at any time and at any place in the territory of the country concerned or in any other place under the state party’s jurisdiction or control. In general states are reluctant to accept intrusive inspection regimes such as this one. In this case, such reluctance was overcome due to the abhorrent experience of the use of chemical weapons (e.g. in 1988 in northern Iraq) and the mutual interest in preventing future use of this weapon of mass destruction. In practice challenge inspections have so far not yet been requested.130

124.

125.

126. 127. 128. 129. 130.

See S. Batsanov et al., The Organization for the Prohibition of Chemical Weapons, in Eyskens and Wellens (eds.), op. cit. note 110, Suppl. 7 (Oct. 2000), at 1; Den Dekker, op. cit. note 2, at 219-269; L. Tabassi, The OPCW: Model or Anomaly?, 14 Hague Yearbook of International Law 2001, at 55-72. See for a brief description Factsheet No. 1, published by the OPCW. The most recent information may be obtained from the OPCW website: www.opcw.org. See the Chemical Weapons Convention, in particular its Annex on implementation and verification. See also Batsanov et al., op. cit. note 124. See for a brief description Factsheet No. 5, published by the OPCW. Chemical Weapons Convention, Art. III. See for details the Annex on implementation and verification to the Chemical Weapons Convention, Part IID-G, paras. 31-65. OPCW Factsheet No. 5, op. cit. note 125. Chemical Weapons Convention, Art. IX.8. On a few occasions trial challenge inspections have been carried out in order to obtain practical experience with this type of inspection. Such a trial challenge inspection was for example carried out in the US by a team of ten OPCW inspectors. See the OPCW Press Release of 1 August 2001, on www.opcw.org/html/global/press_releases/2k1/ pr17_2001.htm.

§1419

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The third type of inspection is carried out in case of alleged use of chemical weapons.131 Such inspections must in principle commence within 24 hours of the receipt of the request; the inspection team shall not later than 24 hours after its arrival on the territory of the inspected state send a situation report to the OPCW Director-General and must not later than 72 hours after return submit a preliminary report.132 OPCW inspectors are independent experts; they are staff members appointed by the Director-General in accordance with a detailed procedure. States parties may object to one or more individuals on the list of inspectors; in that case the individual(s) concerned may not participate in verification activities in the country concerned. However, a state party that has been notified of an inspection is not allowed at that time to seek removal from the inspection team of any designated inspector.133 Inspectors have privileges and immunities; when on the territory of an inspected state their privileges and immunities are those accorded to diplomatic agents under the 1961 Vienna Convention on Diplomatic Relations.134 There are some 200 inspectors recruited from some 60 states parties.135 Not all OPCW inspectors may carry out challenge inspections; this type of inspections may only be performed by inspectors and inspection assistants especially designated for this function.136 Another inspection system has been proposed within the context of the negotiations for the establishment of an Organization for the Prohibition of Biological Weapons (OPBW). The negotiations for the creation of the OPBW bogged down in 2001, in particular because the United States could not accept a proposed draft Protocol in view of the far reaching rules on inspection.137 §1419. Apart from the UN, the IAEA and the OPCW, several other universal organizations also use some form of inspection to ensure that their rules are properly applied. For example, in 1960 the board (Council) of the ICAO established the Standing Group on Implementation which replaced a Special Panel formed for the same purpose in 1956. The Standing Group is composed of persons serving in their independent capacity, who are mainly required to consider whether the plans of the organization for different regions in relation to the operation of air navigation services are being adequately

131. 132. 133. 134. 135. 136. 137.

Chemical Weapons Convention, Annex on implementation and verification to the Chemical Weapons Convention, Part IX, paras. 1-27. Id., paras. 11-12, 22-23. Id., Part II, paras. 1-9. Id., Part. II, paras. 10-15. OPCW Factsheet No. 5, op. cit note 125. Chemical Weapons Convention, Verification Annex, Part X, para. 1. See further N.A. Sims, Nurturing the BWC: Agenda for the Fifth Review Conference and Beyond. 53 The CBW Conventions Bulletin 3-5 (2001); N.A. Sims, Using the Resumed BWC Fifth Review Conference, 56 The CBW Conventions Bulletin 2-7 (2002).

895

Supervision and sanctions

§1420

implemented by the members concerned. The panel or its members undertake missions to different regions and submit reports and recommendations to the board of ICAO.138 A comparable kind of supervision is carried out by the IMF. Since 1978, the Fund exercises “firm surveillance over the exchange rate policies of members”.139 For this purpose, IMF teams visit member states on a regular basis for consultation concerning these policies. This consultation is followed by discussions in the Executive Board and by advice transmitted to members, although the members are not obliged to comply with it. Only persuasive pressure can be exerted. Another universal organization, though not a strictly public one, which can supervise the activities of states is the International Committee of the Red Cross. According to Article 126 of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949140 representatives of Protecting Powers and delegates of the International Committee of the Red Cross shall have permission to go to all places where prisoners of war may be held. They must be able to interview the prisoners and, in particular, the prisoners’ representatives, without witnesses, either personally or through an interpreter. The pressure from this supervision is limited by the provision that the Protecting Power must be selected by the detaining state and that its approval is required for the appointment of delegates of the International Committee of the Red Cross.

§1420. Another very detailed inspection system is that of Euratom. It is not limited to installations and materials of the organization itself, but covers all nuclear activities within the territories of the member states,141 with the exception of military installations.142 Euratom has special control over fissionable materials, since the Euratom Treaty makes it the owner of all special fissionable materials in the territory of the Community,143 again with the exception of the material used for military purposes. States, persons or enterprises have the widest rights in the use and consumption of the materials properly in their possession but they cannot own them.144 The Commission may send inspectors into the territories of the members,145 where they enjoy approximately the same powers as their colleagues of the IAEA. In April 1973, Euratom and seven of its members concluded a mixed agreement (see below, §1756 ff.) with the IAEA integrating the Euratom controls into the IAEA system.146 On the basis of this agreement, ad hoc inspec-

138. 139. 140. 141. 142. 143. 144. 145. 146.

UN Doc. A/6288, at 27-28; Buergenthal, op. cit. note 11, at 114; FitzGerald, op. cit. note 11, at 181-185. IMF, Art. IV, Section 3(b). 75 UNTS, at 136; Publication No. 24 of the Netherlands Ministry of Foreign Affairs, at 268. Euratom, Art. 77 ff. Euratom, Art. 84. Euratom, Art. 86. Euratom, Art. 87. Euratom, Art. 81. See Eleventh General Report on the Activities of the European Communities 197-198, 243 (1977); O. Kimminich, Die internationale Kontrolle der europäischen Atomenergie, 33 ZaöRV 636-672 (1973).

§1421

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tions are conducted jointly. Separate agreements, between the Community and the United Kingdom on the one hand, and the IAEA on the other, and between the Community and France on the one hand, and the IAEA on the other, were concluded on 6 September 1976 and on 27 July 1978, respectively. The Euratom inspectors have access to all places and data and to any person who by reason of his occupation deals with materials, equipment or facilities subject to control. Inspectors appointed by the Commission must be accompanied by representatives of the authorities of the state concerned if that state so requests, provided that the inspectors are thereby not delayed or otherwise impeded in the exercise of their functions.147 Inspection teams are usually composed of 12 inspectors, experts in administration, accounting and nuclear energy and at least one of them is a national of the state visited. Euratom closely cooperates with the IAEA under a special agreement on the inspections (see above, §1418 and below, §1760). The Commission is responsible to the European Parliament for inspections. Any dispute can be settled by the Court of Justice. In 1990, the Commission applied sanctions for the first time on the basis of Article 83 Euratom. A German firm, ANF Lingen, was placed under administration for four months.148 The company appealed for an annulment of this decision to the Court, but this was rejected. 149Subsequently, in a few more cases the Commission has applied Article 83 sanctions.

§1421. Under the ECSC Treaty (now expired), the High Authority (at present the Commission of the European Communities) has sent inspectors to companies to verify data obtained from them. The Court of Justice accepted the view that coal and steel enterprises are obliged to make all information available, even for activities which might not directly be related to production of coal or steel.150 §1422. In the European Community, the Commission can send out inspectors under Regulations No. 11 and No. 17.151 Staff members of the Commission are entitled to examine the accounts and other business documents of the undertakings concerned, and to make copies or extracts thereof. They may request verbal explanation on the spot and they have access to all premises, land and vehicles of enterprises. Representatives of the national authorities may accompany the inspectors if the state concerned or the Commission so requests. Member states must render all necessary support.

147.

148. 149. 150. 151.

Euratom, Art. 81. More specific rules are given in Commission Regulation 3227/76 of 19 October 1976, concerning the application of the provisions on Euratom safeguards (OJ 1976, L 363; amended several times). OJ 1990, L 209; Nuclear Law Bulletin No. 47. Case C-308/90, ECR 1993, at I-309; see also Nuclear Law Bulletin No. 52, December 1993. Case 31/59, Brescia, 6 Jur., at 155 ff; 6 Rec., at 151 ff; ECR 71 (1960). In both regulations, Art. 14.

897

Supervision and sanctions

§1423

§1423. An innovative system of supervision was set up in the 1987 Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, concluded within the framework of the Council of Europe.152 This Convention created the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT, see above, §670). The CPT carries out inspections of all places within the states parties to the Convention where persons are deprived of their liberty by a public authority. According to Article 8.1 of the Convention the CPT has to notify the government concerned of its intention to carry out a visit. During a visit, the Committee has the right to examine all kinds of places such as police stations, prisons, psychiatric institutions, and it may freely move around and speak with any relevant person. If a state party fails to cooperate or refuses to improve the situation in the light of recommendations of the CPT, the Committee may decide, after the party has had an opportunity to make its views known, by a majority of two-thirds of its members to make a public statement on the matter (Article 10.2 of the Convention). Such a public statement was made for the first time in December 1992 and concerned the situation in Turkey.153 The first president of the CPT rightly emphasized that this new body has made deep and important inroads into states’ jurisdictions. First, by freely entering places that previously had been regarded as their sancta sanctorum. Secondly, by making very specific recommendations, ranging from legislative to judicial and administrative matters, which often encroach upon delicate areas of the state machinery, and may involve financial burdens.154 The possibility to carry out inspections has also been introduced under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, but is less developed than the CPT procedure for inspections.155 b.

Retrospective fact-finding

§1424. The United Nations has established several committees to study the facts of particular events. For example, in 1946 the Greek government alleged that Albania, Bulgaria and Yugoslavia were supporting guerrillas in northern Greece, an allegation which was denied by the states concerned. On 19 December 1946, the Security Council established a Commission of Investigation concerning Greek incidents composed of one representative from each member of the Security Council for 1947. From January to April 1947, the

152.

153. 154. 155.

See on this system of inspection A. Cassese, The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment Comes of Age, in Blokker and Muller, op. cit. note 1, at 115-125; R. Morgan and M. Evans, Combating torture in Europe – The work and standards of the European Committee for the Prevention of Torture (2001). The text of the statement has been reproduced in 4 EJIL 119-127 (1993). Cassese, op. cit. note 152, at 124-125. See above, §613; cf. UN Doc. E/CN.4/1994/42, at 7-8.

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Commission carried out investigations on the spot. It published its report156 on 25 June 1947, concluding that all three states had supported illegal activities in Greece.157 In April 1965, a political crisis developed in the Dominican Republic. The US landed troops “in order to protect citizens of the US”. At the request of the Security Council, the Secretary-General of the UN sent a representative, Mr. Jose Antonio Mayobre, to the Dominican Republic “for the purpose of reporting to the Security Council on the present situation”.158 The representative actually did more than collect facts on past events. He stayed in the Dominican Republic for several months and supervised the cease-fire called for in the same Security Council resolution.159 The Trusteeship Council has sent fact-finding missions to Trust Territories when petitions have contained allegations which required investigation. For example, in 1947 a special visiting mission was sent to Western Samoa, with the consent of the Administering Authority, to investigate the political organization and social structure of the Territory.160 In 1965, the Trusteeship Council invited the WHO to examine the complaints made concerning public health services in the Trust Territory of the Pacific Islands.161 The report of the mission which visited the Territory was discussed by the Trusteeship Council in 1966.162 It is of course preferable for fact-finding missions to be able to find facts on the spot concerned. This may however not always be possible, and fact-finding missions must then use other sources of information (submitted by, e.g., member states and nongovernmental organizations; information in press reports). An example is the 2002 report on Jenin by the Secretary-General of the United Nations. In April 2002 the Israeli Defence Forces entered Jenin, a Palestinian refugee camp, and other Palestinian cities. Severe fighting took place. In the Jenin camp alone at least 52 Palestinians were killed as well as 23 Israeli soldiers. The UN Secretary-General decided to take the initiative to establish a fact-finding team headed by the former President of Finland, Martti Ahtisaari. This initiative was supported by the Security Council.163 While Israel originally indicated that it would cooperate with the fact-finding team, it subsequently raised concerns regarding the work of the team. The Secretary-General concluded that this made the timely deployment of the team impossible and decided to disband it.164 In May 2002 the General Assembly requested the Secretary-General to present a report “drawing upon the available resources and information, on the recent events that took place in Jenin and other Palestinian cities”.165 The Secretary-General presented his report 1 August 2002.166

156. 157. 158. 159. 160. 161. 162. 163. 164.

165. 166.

UN Doc. S/360. YUN 1947-48, at 338. SC Res. 203. YUN 1965, at 140-159. UN Doc. A/6228, at 16. Id. YUN 1966, at 549-550. SC Res. 1405. Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/ 10, presented on 1 August 2002 to the General Assembly meeting in Emergency Special Session (‘Jenin Report’), para. 4. GA Res. ES-10/10. Jenin Report, op. cit. note 164.

899

Supervision and sanctions

§1425

§1425. The board of the ILO may appoint a Commission of Inquiry when a member complains that another member has failed to observe an ILO convention to which both are parties.167 The same is possible at the initiative of delegates to the general congress, who may be workers or employers.168 For example, the board appointed Commissions of Inquiry following the complaints of Ghana against Portugal in February 1961, of Portugal against Liberia in August 1961, of a number of workers representatives against Greece in March 1969, of other workers representatives against Chile in 1974, and of workers’ delegates of France and Norway against Poland.169 In all cases, the Commission found at least parts of the claim well founded.170 Up to 2002, some twenty-five complaints have been submitted; some of these did not lead to the establishment of a Commission of Inquiry.171 The conclusions of these Commissions of Inquiry are legally binding.172 In addition, special “freedom of association procedures” have been created, even against states members which had not ratified the relevant ILO conventions.173

§1426. Of particular interest in relation to the issue of inspections by international organizations is the so-called “direct contacts” procedure introduced in 1968 and developed in practice within the ILO. In the event of persistent divergence between the terms of a ratified convention and national legislation, it is possible to send an ILO representative to the member in question, for direct dialogue and discreet discussions with national authorities. In 1994 Valticos reported that this diplomatic method was successfully utilized in some thirty to fourty countries in relation to many hundreds of cases.174

167.

168. 169. 170.

171. 172. 173. 174.

ILO, Art. 26. See C. Wilfred Jenks, Social Justice in the Law of Nations, The ILO Impact after Fifty Years (1970), at 45-68. See also N. Valticos, Les Commissions d’enquête de l’Organisation internationale du Travail, 91 RGDIP 847-879 (1987). ILO, Art. 26.4. On the complaints against Chile, see N. Valticos, Un double type d’enquête de l’Organisation Internationale des Travail au Chili, 21 AFDI 483-502 (1975). For the complaints against Ghana and Portugal, see Official Bulletin of the ILO, Vol. 45, Supplement II, para. 720 ff and Vol. 46, Supplement II, para. 460 and G. White, The Ploughing of Two Furrows: The International Labour Organisation (ILO) Commissions of Inquiry of 1961 and 1962, Australian Yearbook of International Law 1966, at 47-66. On the complaints against Greece, see 10 ILM 453-509 (1971); K. Hailbronner, Verfahren gegen Griechenland als Beispielsfall einer Beschwerde im Rahmen der Internationalen Arbeitsorganisation, 31 ZaöRV 548-565 (1971); V. Coussirat-Coustére, Certains aspects du contrôle au sein de l’O.I.T. (à propos du rapport sur la liberté syndicale en Grèce), 16 AFDI 590-595 (1970); for the report in the case against Poland, see ILO Official Bulletin, Vol. LXVII (1984), Series B, Special Suppl. See www.ilo.org. Valticos (in: Blokker and Muller), op. cit. note 35, at 108. In particular ILO Convention No. 87; see Valticos, op. cit. note 7, at 367-379, and Valticos (in: Blokker and Muller), op. cit. note 35, at 105-107. See N. Valticos, Une nouvelle forme d’action internationale: les “contacts directs” de l’OIT en matière d’application de conventions et de liberté syndicale, in 27 AFDI 477-489 (1981); Valticos (in: Blokker and Muller), op. cit. note 35, at 109-110; G. von Potobsky, On-the-spot visits: an important cog in the ILO supervisory machinery, 120 International Labour Review 581-596 (1981).

§1427

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§1427. On the initiative of the EFTA Council, Examining Committees can be established when a member considers that any benefit conferred upon it by the constitution is being or may be frustrated.175 One of the functions of the former European Commission of Human Rights was to ascertain the facts behind a complaint, which it was empowered to do by means of an investigation on the spot.176 This right has occasionally been used, for example following the Greek complaints against the UK, when representatives of the Commission were sent to Cyprus, and in several factfinding missions to Turkey during the last years of the Commission’s existence.177 The ‘new’ European Court of Human Rights, in operation since November 1998, may also decide to carry out investigations on the spot, at any stage of the examination of an application.178 Private international organizations may also perform fact-finding functions. For example, in wartime the International Committee of the Red Cross has sometimes been charged by both parties with a fact-finding mission.179 C.

Supervision by individuals

§1428. In Van Gend en Loos, the Court of Justice of the European Communities considered: “The vigilance of individuals concerned to protect their rights amounts to an effective supervision in addition to the supervision entrusted by Articles 169 and 170 to the diligence of the Commission and of the member states”.180 How right this consideration is! There is no supervisor more alert than an individual or company whose personal interests are involved. The best way to ensure that possible violations of the law are discovered is to allow interested individuals to complain about them. In cases where only states have interests, supervision by the states or by the organization itself may be sufficient, but in cases where individual interests are involved, the individuals should have a right of petition. However logical this may seem, in practice it has been difficult to bestow a supervisory function on private individuals. According to the traditional doctrine of international law, the national government alone is sovereign over a state’s territory and all its inhabitants. Other states and international organizations would not be allowed to pierce this sovereign veil and have any direct relations with the population. This doctrine does not permit distributing international rights to private citizens and, still

175. 176. 177. 178. 179.

180.

EFTA, Arts. 31, 33. European Convention on Human Rights, Art. 28(a). See, e.g. European Court of Human Rights, Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996, at 2260, §23. Rule 19.2 of the Rules of the Court. Revue internationale de la Croix-Rouge et Supplément, December 1951, Vol. IV, No. 2, quoted in UN Doc. A/6228, at 55-56. See on fact-finding by ngo’s in general, H. Thoolen and B. Verstappen, Human Rights Missions, A Study of the Fact-finding Practice of Nongovernmental Organizations (1986). Case 26/62, Van Gend en Loos, ECR 1963, at 13.

901

Supervision and sanctions

§1429

less, allowing them to institute actions before international tribunals against their own states. The proposition that international law traditionally only concerned states is, however, untrue. There are several examples of international rights being granted long ago to others, especially to minority groups. When Roman Catholic Belgium was united with the protestant Netherlands in 1815, the Dutch King had to accept that nothing would be changed in the articles of the Dutch constitution on freedom of religion.181 In the peace treaty of Paris of 1856, the Sultan of Turkey confirmed that he had issued a decree which “consacre ses généreuses intentions envers les populations Chrétiennes de son Empire.” It was made clear, however, that this obligation would give no rights to the other parties to the treaty.182 The treaty of Berlin of 13 July 1878,183 attributes freedom of religion to the peoples of Bulgaria,184 Montenegro,185 Serbia,186 and Rumania.187 The “Sublime Porte” undertook to improve the situation of the Armenians.188 These minority groups obtained rights, but no power even to complain when these rights were violated (as frequently happened in the case of the Armenians).189

In modern international law an increasing number of rules directly concern individuals. It seems appropriate to grant those individuals some role in the supervision of the application of such rules. 1.

Petitions

§1429. When the League of Nations was established in 1919, a right of petition was given to some protected minorities and to the inhabitants of territories held under mandate. Individuals thus obtained a limited right to supervise the fulfilment of obligations by states. They could notify alleged violations to organs of the League. The protection was however limited to specific groups of persons for whom inferior treatment was feared. The states which accepted the right of petition for these peoples did not really limit their sovereignty since they had never had full jurisdiction over the peoples concerned. The

181.

182. 183. 184. 185. 186. 187. 188. 189.

Acte signé par le Secrétaire d’État de S.A.R. le Prince des Pays-Bas pour l’acceptation de la Souveraineté des Provinces Belgiques sur les bases convenues, à la Haye ce 21 Juillet 1814, Art. 2, de Martens, Nouveau Receuil de Traités, Vol. II, at 39. The act was confirmed in Vienna, de Martens, id., at 332 (Art. 8). Peace Treaty of Paris, 30 March 1856, Art. 9, de Martens, Nouveau Receuil Général de Traités, Vol. XV, at 774- 775. Treaty of Berlin of 13 July 1878, de Martens, Nouveau Receuil Général de Traités, deuxième Série, Vol. III, at 449 ff. Id., Art. 5. Id., Art. 27. Id., Art. 35. Id., Art. 44. Id., Art. 61. J.P.A. François, Handboek van het Volkenrecht, Vol. I (2nd ed., 1949), at 488-489.

§1430

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transfer of the peoples to their sovereignty was made under the restriction, inter alia, of a right of petition. Within the League of Nations, considerable experience was acquired with petitions and with the way to handle them.190 Building upon the practice of the League of Nations, the UN has accepted petitions from the peoples of dependent territories. Between 1952 and 1962, a standing Committee of the Trusteeship Council examined all petitions received from inhabitants of Trust Territories.191 Since 1962, the Trusteeship Council has considered all petitions itself. All petitions are carefully studied and many of them lead to resolutions of the Trusteeship Council. In two cases, fact-finding missions were dispatched to investigate allegations contained in petitions.192 The UN Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples also receives petitions. Between 1962 and 1965, it accepted more than one thousand.193 These petitions are studied by a subcommittee of the Special Committee.194 The number of petitions it considers and circulates has decreased over the years. In 1975, it considered six communications, of which four were circulated as petitions.195 The right to complain about violations of international standards is limited to a special group of citizens (those of colonial territories) but in this case it is given to people who were formerly subject to the unrestricted powers of the colonial government. The acceptance of petitions demonstrates that sovereignty over colonial territories is limited by new rules of international law.

§1430. A further limitation on the full jurisdiction over the inhabitants was sought following the Second World War to internationalize the protection of basic human rights. The first efforts failed: the Universal Declaration on Human Rights offers no more than general principles. Western Europe had some success in granting rights to individuals under the European Convention on Human Rights. This offers individuals the opportunity to appeal when their rights have been violated (see below). Stimulated by this success, the UN succeeded in drafting further rules on the protection of all citizens of member states. In the 1970s the UN Secretariat received some 20,000 to 30,000 individual complaints annually. These ranged from telegrams of three lines to detailed reports (often by non-governmental organizations) of 200-300 pages.196

190. 191. 192. 193.

194. 195. 196.

See L.B. Sohn and T. Buergenthal, International Protection of Human Rights 225-294 (1973). UN Charter, Art. 87. See e.g. YUN 1946-47, at 727, 728, 764. UN Doc. A/6228, paras. 32-33 (see above, §1424). Id., para. 42; Publication No. 81 of the Netherlands Ministry of Foreign Affairs, at 115, 117; YUN 1964, at 412-413; O.Y. Asamoah, The Legal Significance of the Declarations of the General Assembly of the United Nations 169 (1966). For (parts of) its reports, see Annex to the reports of the Special Committee, e.g. UN Documents A/31/23/Rev.1, at 173-176 and A/32/23/Rev.1, at 166-168. UN Doc. A/10023/Rev 1 (GAOR 30/Suppl. 23), para. 52. In more recent documents, no figures of the number of petitions are mentioned. Information received from the Human Rights Department of the UN Secretariat in November 1977. See in general T.J.M. Zuijdwijk, Petitioning the United Nations (1982).

903

Supervision and sanctions

§1431

Initially, such complaints were forwarded to the states concerned, but in 1970, proceedings were introduced permitting the Sub-Commission of the UN Human Rights Commission to consider complaints by individuals and private international organizations against states on the basis of a report of a working group.197 On average, the working group deals with 20,000 to 25,000 communications per year.198 On the basis of petitions, the working party and the sub-commission study situations in particular countries. They do not handle individual cases, which can be brought before a UN organ only under the procedures of several UN human rights conventions (see below, §1431). The sub-commission may refer situations to the UN Commission on Human Rights, if they appear to reveal a constant pattern of gross and reliably attested violations of human rights, requiring consideration by the Commission. The Commission may subsequently report to the ECOSOC, although to date it has never done so. Instead, the Commission has used other means to exert pressure, such as the creation of special rapporteurs. §1431. In the International Convention on the Elimination of All Forms of Racial Discrimination, accepted by the General Assembly on 21 December 1965, a Committee on the Elimination of Racial Discrimination was established which may receive and consider petitions submitted by individuals subject to the jurisdiction of states which have expressly given such persons this right of petition.199 The same method was adopted in other human rights conventions; for example, the Optional Protocol to the International Covenant on Civil and Political Rights, accepted by the UN on 16 December 1966,200 and the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.201 The European Convention on Human Rights contains supranational legislation for the benefit of the peoples of the treaty-making states. These states accepted international

197.

198. 199.

200.

201.

These procedures were accepted by the ECOSOC in its resolution 1503 (XLVIII). See M.H. Guggenheim, Key Provisions of the New United Nations Rules Dealing with Human Rights Petitions, 6 NYUJInt.’l L&Pol 427-454 (1973); ECOSOC Resolutions 1235 (XLII) and 1503 (XLVII); Marie, op. cit. note 70, at 309; Schreiber, op. cit. note 36, at 344-359; F. Newman and D. Weisbrodt, International Human Rights (1990), in particular Chapter IV; Orientation Manual on the UN Commission on Human Rights, its Sub-Commission, and Related Procedures, published by the Minnesota Advocates for Human Rights and the International Service for Human Rights (prepared by D. Weisbrodt and P. Parker, 1993), at 11-14. See also UN Doc. E/CN.4/1994/42. Orientation manual cited in note 168, at 12. International Convention on the Elimination of All Forms of Racial Discrimination, adopted by GA Res. 2106 (XX), Art. 14. On this Convention, see N. Lerner, The UN Convention on the Elimination of all Forms of Racial Discrimination (1970) and T. Buergenthal, Implementing the UN Racial Convention, 12 Tex. ILJ 187-221 (1977). GA Res. 2200 (XXI). The Optional Protocol entered into force on 23 March 1976. On this protocol, see E. Schwelb, The International Measures of Implementation of the International Covenant on Civil and Political Rights and of the Optional Protocol, 12 Tex. ILJ 141-186 (1977). GA Res. 39/46.

§1431

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standards for the treatment of citizens who previously had been subject to their full jurisdiction. Initially, it did not prove generally acceptable to allow a right of petition to these citizens for alleged infringements of their rights. Several states considered that this would be too great a violation of their sovereignty. Basically, the Convention only recognizes the right of the other treaty-making states to act against violations. The drafters of the treaty were well aware, however, of the shortcomings of this form of supervision. Would one state be willing to make the effort – or to risk political embarrassment – to bring an action against another state solely for the benefit of the individuals subject to the jurisdiction of that other state? When discussing above (§1400) supervision by other states, it was observed that in most cases a special relation already existed with the people concerned. Only rarely were members of the Council of Europe willing to take action against another member for the sake of people with which they had no specific relationship. It was essential, therefore, to grant some right to individuals to bring actions independently. Only some of the states which participated in the drafting of the Convention were however willing to accept supervision by individuals. To make the Convention as effective as possible, a provision was therefore included to allow a right of individual petition in those states which had made an express declaration acknowledging this right.202 By virtue of the 11th Protocol to the Convention the right of individual petition has been made an integral part of the Convention itself, no longer subject to a separate declaration.203 The vigilance of the individuals concerned is shown by the fact that, compared to a very limited number of complaints by states, thousands of petitions are presented by individuals each year (see above, §628). Although the vast majority of these complaints proved to be unfounded, some led to changes in the law of the state concerned. Under the American Convention on Human Rights, adopted on 22 November 1969 and brought into force on 18 July 1978,204 the right of individual petition was accepted immediately by the states parties and required no special declaration.205 The consideration of complaints brought by states, on the other hand, depends on an explicit declaration.206 Under the African Charter on Human and Peoples’ Rights individuals and nongovernmental organizations may send complaints to the African Commission.207 Under the 1998 Protocol on the African Court of Human and Peoples’ Rights, such a right of individual petition is optional; states must explicitly accept this right.208

202. 203.

204.

205. 206. 207. 208.

European Convention on Human Rights, Art. 25. The 11th Protocol was signed on 11 May 1994 and has been published in 15 Human Rights Law Journal 86-90 (1994). It entered into force 1 November 1998. On the 11th Protocol, see H.G. Schermers, The Eleventh Protocol to the European Convention on Human Rights, 19 ELR 367-384 (August 1994). See P.P. Camargo, The American Convention on Human Rights, 3 RDH 333-357 (1970); H. Gros Espiell, Le système interaméricain comme régime régional de protection internationale de droits de l’homme, 145 RdC (1975 II), at 1-55. American Convention on Human Rights, Art. 44. Id., Art. 45. Art. 55 of the African Charter. Art. 5(3) of the Protocol. See E. de Wet, The Protection Mechanism under the African Charter and the Protocol on the African Court of Human and Peoples’ Rights, in G. Alfredsson et al. (eds.), International Human Rights Monitoring Mechanisms 713-729 (2001).

905

Supervision and sanctions

§1432

§1432. Apart from the protection of minorities and human rights, petitions are only admitted in rare cases. In the ILO, industrial associations of employers or workers may complain that member states have failed to secure the effective observance of ILO conventions.209 The associations represented in the general congress may also initiate the procedure of Article 26 (see above, §1425). In 1950, the ILO and the ECOSOC established special machinery for the examination of complaints of alleged infringements of trade union rights, which may be submitted by governments, or by workers’ or employers’ organizations.210 Many complaints have been lodged pursuant to these provisions, the most successful ones having been against Spain.211 On the establishment of the GATT, a proposal was made for direct citizen complaint to the organization, but it failed to obtain sufficient support.212

§1433. Whenever petitions are permitted, they should be preceded by the exhaustion of such local remedies as exist. States may be blamed only when their own judicial organs are unable or unwilling to restore the situation.213 §1434. In all these cases, examination by international organs enhances the importance of petitions. Individuals may also usefully submit petitions where no international organ is obliged to consider them. The Secretary-General of the UN forwards to the government concerned any complaints which are not to be studied by a UN organ. The European Commission may itself carry out investigations. Petitions which need not be studied by an international organ are weak, however, since they cannot form a ground for action by the organization. 2.

Court proceedings

§1435. In the European Coal and Steel Community (ECSC) – which has ceased to exist in 2002 – an interested individual could require the European Commission to act against a state violating the ECSC Treaty. If the Commission failed

209. 210. 211.

212.

213.

ILO, Art. 24. See C. Wilfred Jenks, The International Protection of Trade Union Freedom (1957); N. Valticos, The International Labour Organisation, in Schwebel, op. cit. note 5, at 150-151. N. Valticos, Une nouvelle expérience de protection des droits de l’homme: Le Groupe d’étude de l’0.I.T. chargé d’examiner les situations en matière de travail et en matière syndicale en Espagne, 16 AFDI 567-589 (1970). For complaints against Japan and Greece, see J.A.R. Nafzinger, The International Labour Organisation and Social Change: The Fact-Finding and Conciliation Commission on Freedom of Association, 2 NYUJILP 1-34 (1969). J.H. Jackson, World Trade and the Law of GATT 187-189 (1969); see also M.C.J.E. Bronckers, Selective Safeguard Measures in Multilateral Trade Relations (1985), in particular Chapter V. See A.A. Cançado Trindade, Exhaustion of local remedies in the jurisprudence of the European Court of Human Rights: an appraisal, 10 HRJ 141-185 (1977).

§1436

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to do so, he could appeal to the Court of Justice.214 Under the EC and Euratom treaties however, individuals have no such power,215 although they may bring alleged violations by states before national courts. By requesting a preliminary ruling on the issue (see above, §1374-1376), the national court may transfer to the EC Court the basic question as to whether EC law should be so interpreted that the states remain competent to issue or maintain particular legislation. 3.

National committees

§1436. Certain international organizations have established or promoted national committees to further their interests.216 Such committees may stimulate the implementation of decisions of the organization. Several members of the ICAO have established National Facilitation Committees to promote the implementation of Annex 9 to the ICAO constitution (on facilitation of international air transport). These committees supervise the implementation of ICAO rules within the member state concerned and advise the government on any possible improvements. In some states, the National Facilitation Committees have been extremely effective.217 4.

Effect

§1437. The activities of individuals have important indirect effects. Through petitions, situations receive attention which may finally lead to political pressure. Indirectly, individuals do play an important role in the enforcement of the laws of international organizations. For the purposes of protection of individual human rights, the right of petition, however useful, has proved insufficient. A further redefinition of the concept of national sovereignty would seem necessary. Salzberg considers that hundreds of thousands of human lives could have been saved if the UN had intervened in East Pakistan early in the hostilities which occurred in 1971, before the territory became the independent state of Bangladesh.218 The same is probably true for Uganda: earlier international action against the Amin government would have saved many lives. In the late 1970s, many lives lost in Cambodia and Vietnam might have been saved through international intervention. In all these cases, unorganized, powerless groups of

214. 215.

216. 217. 218.

ECSC, Arts. 88 and 35. See H.G. Schermers and D. Waelbroeck, Judicial Protection in the European Union (6th ed. 2001), at 592-594. See EC Arts. 226 and 232; R. Kovar, Le droit des personnes privées à obtenir devant la Cour des Communautés le respect par les États membres du droit communautaire, 12 AFDI 509-543 (1966); Schermers and Waelbroeck, op. cit. note 214, at 644-645. E.g. FAO, UNESCO. Buergenthal, op. cit. note 11, at 110-112. J. Salzberg, UN Prevention of Human Rights Violations: The Bangladesh Case, 27 International Organization 115-127 (1973).

907

Supervision and sanctions

§1438

individuals were left without any defence against governments which, for whatever reason, threatened their lives. §1438. On the other hand, it is very difficult to grant powers of intervention to an international organization for the protection of human rights. All states fear that such powers might be abused and are therefore unwilling to grant them. Sufficient guarantees against abuse cannot be given. An independent organ such as a court, in which all states have full confidence, would be needed. At the universal level, this seems impossible in the near future; at the regional level, it is conceivable that, apart from the protection of peace, protection of human lives could also receive priority over the prohibition of intervention in matters which are essentially within the domestic jurisdiction of a state.219 In 1999 NATO carried out Operation Allied Force against the Federal Republic of Yugoslavia in view of the suppression of the province of Kosovo by the Milosevic regime. On the one hand, this operation was criticized because no authorization to use force on the basis of Chapter VII of the UN Charter was obtained from the Security Council. For this reason – as appears from the subsequent discussions in the Security Council and the General Assembly – this NATO operation has remained controversial. On the other hand, the NATO military action may have prevented another humanitarian tragedy on the territory of the former Yugoslavia. In legal terms, the operation has been justified by some participating states by referring to the – not generally accepted – doctrine of humanitarian intervention; in other cases by claiming that the Security Council had implicitly ‘sufficiently’ authorized the operation. The dilemma facing the international community in these cases has been well described by the UN Secretary-General, as follows. “To those for whom the greatest threat to the future of international order is the use of force in the absence of a Security Council mandate, one might ask – not in the context of Kosovo – but in the context of Rwanda: if, in those dark days and hours leading up to the genocide, a coalition of states had been prepared to act in defence of the Tutsi population, but did not receive prompt Council authorization, should such a coalition have stood aside and allowed the horror to unfold? To those for whom the Kosovo action heralded a new era when states and groups of states can take military action outside the established mechanisms for enforcing international law, one might ask: Is there not a danger of such interventions undermining the imperfect, yet resilient, security system created after the Second World War, and of setting dangerous precedents for future interventions without a clear criterion to decide who might invoke these precedents and in what circumstances?”220

219.

220.

According to the Charter of the UN, only the application of enforcement measures under Chapter VII of the UN Charter takes priority over the prohibition to intervene in matters which are essentially within the domestic jurisdiction of states (Art. 2.7). UN Doc. SG/SM/7136 or UN Doc. GA/9596.

§1439

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III. Official recognition of violations §1439. The purpose of supervision outlined above is to ensure that obligations are fulfilled satisfactorily. The attention of others may persuade members to adopt a more responsible attitude towards their duties, although it is not always effective. A state may choose, for political reasons, not to fulfil its obligations, or there may be a difference of opinion as to precisely what the obligations entail. In both cases, the member concerned usually contends that it is fulfilling its obligations. In the latter situation it really believes that it does; in the former it will defend such a narrow interpretation of the obligation that the alleged violations fall outside its scope. It will almost always be possible for a member to find an interpretation to suit its purposes. If the constitution of the organization does not provide for a review of this interpretation (see above, §1355, §1363), the other members will have little power to reject it, since in international law every state interprets its own obligations. Before any sanctions can be imposed (see below, §1445 ff.), it will be necessary officially to recognize whether obligations have been violated. Such recognition is usually the task of the organ which decides on the sanctions. This organ must first decide whether there is a violation. Where no sanctions can be imposed, it may be equally important to recognize officially that obligations have been violated. A decision recognizing a member’s violation of its obligations constitutes a kind of a sanction, even if it has no further legal consequences within the organization.221 It may form a basis for national legal action (see below, §1521) or for further political pressure in two areas. First, the violation may lead to national “mobilization of shame”,222 which may damage the position of the government concerned; secondly, the international relations of the state concerned will suffer. The first effect in particular, will vary from state to state (see below, §1520). The effect of official recognition of a violation will largely depend on the way in which such recognition is published. When tucked away in voluminous mimeographed documents, read only by experts, the effect will be less serious than when published in the printed yearly report of the organization. §1440. It is not clear whether an organ can recognize a violation officially when no further proceedings are anticipated. It may be submitted that an organ’s right to discuss the report of a supervisory organ includes the right to express an opinion on whether obligations have actually been violated. The discussion itself involves a degree of pressure, in particular when it is in public or when

221.

222.

In the words of the Permanent Court of Arbitration: “La constatation [of the violation] surtout dans une sentence arbitrale constitue déjà une sanction sérieuse”. See Scott, Traveaux, Cour Permanente d’Arbitrage, at 356, quoted by A.J.P. Tammes, Internationaal Publiekrecht 227 (1966). A. Zimmern, The League of Nations and the Rule of Law, 1918-1935 (1936), at 472.

909

Supervision and sanctions

§1441

representatives or observers of the national opposition or of interest groups participate. Official recognition of a violation will not only be based on the facts, but also on an interpretation of the obligation. This is therefore primarily a judicial task, to be performed by a judicial organ. The ITU and the UPU refer such questions to arbitration.223 In all other universal organizations, a political organ will have to decide. In the ILO, the general congress discusses the reports on the application of the ILO conventions and identifies cases of violation. The Conference Committee on the Application of Conventions even publishes special lists of members which for a number of years have persistently failed to apply conventions they have ratified (usually known as the “black lists”).224 As the decisions of the general congress are founded upon the conclusions of a committee of individual experts, the non-political element is relatively strong. Valticos has accurately stressed “the importance which attaches to the independence of the supervisory bodies. Insistence on that principle has been the greatest service that the ILO has rendered to the respect of the rule of law at the international level”.225 The political organs of most universal organizations may base their decision concerning a violation of their laws on an advisory opinion of the International Court of Justice. When the Court replied to the General Assembly of the UN that certain expenses constituted expenses of the organization within the meaning of Article 17.2 of the Charter, it actually established that those members unwilling to pay had breached their obligations.226 §1441. In most European organizations, political organs will also have to recognize a member’s violation of obligations officially. Two important exceptions where the decision is taken by a judicial organ are the European Court of Human Rights and the European Court of Justice. Under the European Convention on Human Rights, the decision as to whether a state has violated its obligations is submitted to the European Court of Human Rights. Official recognition of a violation by the Court legally obliges the state concerned to terminate the violation.227 §1442. In the EC and Euratom, the Commission has to ensure that the Treaty obligations are honoured.228 When it considers that a member state has failed to fulfil any of its obligations, the Commission first tries to persuade the member to change its policy. If such informal discussions prove unsuccessful, the Commission submits a reasoned opinion in which the violation is exposed

223. 224. 225. 226. 227. 228.

UPU, Art. 32; ITU Constitution, Art. 56. Valticos in Schwebel, op. cit. note 5, at 434. Valticos, op. cit. note 34, at 105. Certain Expenses Case, ICJ Rep. 1962, at 179-180. European Convention on Human Rights, Art. 46. EC, Art. 211; Euratom, Art. 124.

§1442

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and a change of policy is requested.229 The Commission may refer the matter to the Court of Justice if the state does not comply with the terms of the reasoned opinion and the Court may officially establish that the member has violated its obligations. The member is then obliged to take the necessary measures to comply with the judgment of the Court.230 Between 1 January 1958, when the EEC Treaty came into force, and 14 October 2002, the Commission brought 1839 actions before the Court, under the procedure of Article 226 EC. These actions resulted in 983 judgments (the overwhelming majority finding for the Commission).231 Article 141 of the Euratom Treaty was applied only a few times.232 The Court sets no time limits for the implementation of its decisions under Article 226 of the EC Treaty (or Article 141 of the Euratom Treaty). Originally, the members usually complied with the decisions within a reasonable period of time.233 Gradually however, more judgments remained unimplemented.234 In response to this, the Commission brought an increasing number of “follow-up” actions before the Court, the substance of the new action not being the earlier violation of an EC obligation, but a new violation of EC law, namely the refusal to carry out a judgment of the Court.235 Prior to 1984, only three judgments under such “follow-up” procedures had been delivered. Since then, thirty such rulings have been given.236

229.

230. 231. 232. 233.

234.

235. 236.

EC, Art. 226; Euratom, Art. 141. See also J. Mertens de Wilmars and I.M. Verhougstraete, Proceedings against Member States for Failure to Fulfil their Obligations, 7 CMLRev. 385-406 (1970); A. Barav, Failure of Member States to fulfil their obligations under Community Law, 12 CMLRev 369-383 (1975); Audretsch, op. cit. note 81; Dashwood and White, op. cit. note 32; Schermers and Waelbroeck, op. cit. note 214, at601 ff.; C.W.A. Timmermans, Judicial Protection Against the Member States – Articles 169 and 177 EEC Revisited, in D. Curtin and T. Heukels, Institutional Dynamics of European Integration, Essays in Honour of Henry G. Schermers, Vol. II (1994), at 391-407. EC, Art. 228; Euratom, Art. 143. Calculated on the basis of data published in the annual General Reports on the Activities of the European Communities, and information obtained from the Court of Justice. E.g. Case 7/71, Commission v. France, ECR 1971, at 1003; Case C-21/96, Commission v. Spain, ECR 1997, at I-5481. 13 OJ (1970), No. C 73, at 3. An exception is recorded in Case 48/71, an action of the Commission against Italy for non-compliance with the decision of the Court of 10 December 1968 (Case 7/68). Excellent overviews of the implementation or lack of implementation of judgments are given in the annual Commission reports to the European Parliament on monitoring the application of Community law. See for example OJ 1994, C 154, in particular Annex V (169-173), mentioning no less than 91 cases of Court judgments which were not yet complied with (situation as of 31 December 1993). In 2002 the Commission reported that 107 Court judgments remained unimplemented (situation as of 31 December 2001); see the 19th annual report on monitoring the application of Community law (2001), Annex V (EU Doc. COM (2003)324, transmitted to the European Parliament on 6 September 2002; see http://europa.eu.int/eur-lex/pri/en/dpi/rtp/doc/2002/com2002_0324en.html). Art. 228 EC, Art. 143 Euratom. Calculated on the basis of the European Court Reports; additional information obtained from the Court of Justice. Status as of 14 October 2002.

911

Supervision and sanctions

§1443

§1443. An official declaration qualifying a situation as illegal entails that measures to correct it should be taken. The International Court of Justice considered in 1971: “It would be an untenable interpretation to maintain that, once such a declaration has been made by the Security Council under Article 24 of the Charter, on behalf of all member states, those members would be free to act in disregard of such illegality ... A binding determination made by a competent organ of the United Nations to the effect that a situation is illegal cannot remain without consequence”.237 What that consequence may be varies from case to case. In the Namibia Case, the International Court considered all members of the UN obliged to refrain from any dealings with the Government of South Africa which lent support or assistance to South African administration of Namibia.238

IV.

Waiver of obligations

§1444. When a member fails to fulfil its obligations, the organization can adopt one of two positions: it can accept the situation, or it can try to change it by exerting pressure on the member concerned. Some constitutions of international organizations expressly provide for the possibility of waiving the obligations of members either in general or under certain conditions (see also above, §157).239 Members of the IMF may normally not impose restrictions on payments for current international transactions, nor may they engage in discriminatory currency arrangements, but the organization may authorize them to make exceptions to these obligations.240 The general conferences of some commodity councils may relieve a member of an obligation on account of exceptional or emergency circumstances.241 The Council of the EFTA may authorize a member state to suspend its obligations under the EFTA constitution if it considers that the circumstances are sufficiently serious.242 Article IX of the Agreement establishing the World Trade Organization provides for a procedure to waive obligations imposed on a member state.

237.

238. 239. 240. 241. 242.

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Res. 276 (1970), Advisory Opinion, ICJ Rep. 1971, at 52, 54. Id., at 58. See J. Gold, “Dispensing” and “Suspending” Powers of International Organizations, 19 Ned TIR (1972), at 170-171; also published in Selected Essays, quoted above (note 15), at 354. IMF, Art. VIII (2), (3). E.g. Art. 47 of the 2001 International Cocoa Agreement. EFTA, Art. 31 (5).

§1445

V.

Chapter 10

912

Sanctions

§1445. Supervision implies that the supervisor may arrive at the conclusion that rules have not been complied with. The state concerned then faces two possibilities. Either it decides to comply with the rules in question, or it refuses to accept the conclusions of the supervisor and the non-observance of the rules continues. In this situation, the possibility of imposing sanctions is important to persuade states to opt for the former course of action. However, this touches upon one of the classical difficulties of international organizations, emanating from the traditional, decentralized system of international law enforcement. The prevailing manner of enforcing international law is still essentially “self help”; that is the reaction by states to alleged breaches of international obligations by other states. It is therefore not surprising that members sometimes impose sanctions to coerce other members to comply with rules of the organization (see below, Section A). Nevertheless, in a number of cases states have attributed international organizations the power to impose sanctions (see below, Section B). Some of these sanctions are implemented by the organization, others are authorized by the organization and implemented by member states. Another possibility to promote rule compliance is enforcement within the national legal order of the member states. National parliaments and courts may be able to compel governments to act in accordance with rules of international organizations (see below, Section C). §1446. There is no fully developed international criminal law. Persons who violate international obligations can be prosecuted and punished only in exceptional situations such as genocide, crimes against humanity and war crimes. Only exceptionally may international organizations impose sanctions upon individuals (see below, Section D). In the vast majority of cases, the state itself will be held responsible for violations committed by its government. Sanctions against the states will not only injure the governments responsible but also many innocent citizens. The ultimate sanction (the use of force) will cause so much suffering to the population affected that it can only be applied as an ultimum remedium. Indeed, it is forbidden, in principle, by the UN Charter.243 Some weaker sanctions, or means of pressure, are available, however, in the law of many international organizations as well as in general international law. Sometimes effective sanctions are possible through the domestic laws of member states. Sanctions against an entity such as a state, as opposed to sanctions against individuals, are not meant to be punitive in the sense that “crime should be revenged”. Their only purpose is to exert sufficient pressure to induce addressees not to violate the rules in the future (the preventive function), or to stop current violations (the repressive function). For an international organiza-

243.

UN Charter, Art. 2.4.

913

Supervision and sanctions

§1447

tion, the best sanction is the one which exerts the greatest pressure whilst causing the least harm to the people of the state concerned. §1447. Gold uses a wider definition of sanction by including in it the measures of supervision previously discussed in this Chapter. He prefers to use the term “remedy” rather than “sanction”, because it need not have a punitive element. Sanctions (remedies) may be applied without the requirement of a prior finding that a member has neglected its obligations. Some remedies are not connected to obligations.244 As a rule, international organizations are reluctant to apply sanctions even when they are available. Governments do not enjoy being singled out for disciplinary action and may react by diminishing or even terminating further cooperation with the organization. In practice, more can often be obtained by informal persuasion.245 §1448. Some authors distinguish “positive sanctions” which are “rewards” for good behaviour rather than “punishments” for bad behaviour.246 Such rewards seem acceptable when states do more than they are obliged to. For a normal performance of obligations, “rewards” would be normal services of the organization. These services should not then be seen as favours, but withdrawal of the services would constitute a sanction (see below, §1463-1465). A.

Sanctions by the other members

§1449. The obligations which a state accepts by adhering to an international organization are partly obligations towards the other members. According to the classical rules of international law, a state may take retaliatory measures against another state which violates obligations owed to it (“self help”). It might therefore be possible for an interested state to apply sanctions coercing another state into fulfilling its obligations to an international organization. Would this be permissible? Some international organizations expressly forbid enforcement measures by individual members against other members. The EC constitution provides: “Member states undertake not to submit a dispute concerning the interpretation or application of this Treaty to any method of settlement other than those provided for therein”.247

244. 245. 246.

247.

Gold, op. cit. note 15, at 738-739, respectively 149-150. J. Gold, Certain aspects of the Law and practice of the International Monetary Fund, in Schwebel, op. cit. note 5, at 75. See H. Morgenthau, Théorie des sanctions internationales, in Revue de Droit International et de Législation Comparée (1935), at 474-503 and 809-836, quoted by J. Combacau, Le Pouvoir de Sanction de l’ONU 6 (1974). EC, Art. 292. See also Euratom, Art. 193; Benelux, Art. 51 and Court of Justice of the European Communities, Cases 90 and 91/63, ECR 1964, at 631-632; J. Schwarze, Das

§1449

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Usually, international organizations have no such express constitutional provision. Nevertheless, even then it may be doubted whether other members may take enforcement measures unilaterally. The very existence of collective organs may form sufficient basis for excluding individual sanctions in the absence of, at least, the agreement of the organization. The rule that each state may enforce the law in which it is interested has developed for lack of a better alternative. In the absence of any supranational power, states have had to defend their own rights. However, international organizations are created to regulate certain international fields of activity on a multilateral basis and therefore seem to preclude unilateral enforcement measures in these fields. International organizations usually object to individual retaliation by members.248 In practice, individual members do not often unilaterally enforce legal rules of international organizations against other individual members without some involvement or the agreement of the organization itself. It is more common for members to notify alleged violations to the organization (see above, §1400-1401; 1439). An exceptional case of unilateral enforcement by individual members are the sanctions adopted in 2000 against Austria by the 14 other EU member states. In the October 1999 elections in Austria the Freedom Party (FPÖ) obtained 26.9 per cent of the votes and became the second largest party. Jörg Haider, the leader of this party, was regularly accused of Nazi sympathies. His party had been opposed against Austria becoming a member of the European Union and was opposed against further enlargement of the Union. In January 2000 – following unsuccessful attempts by other parties to form a new government – negotiations started between the People’s Party and the Freedom Party to form a new government. Within a few days the perspective of a new Austrian government emerged. Many people within the EU were shocked by the idea that an extreme right wing party with a leader such as Haider could become part of a government of one of the member states. On 31 January 2000 the Portuguese presidency of the EU presented a statement on behalf of 14 member states (all EU members except Austria). This statement announced that the following sanctions would apply in case the new Austrian government would include the Freedom Party: “- governments of XIV member states will not promote or accept any bilateral official contacts at political level with an Austrian Government integrating the FPÖ; - there will be no support in favour of Austrian candidates seeking positions in international organizations; - Austrian ambassadors in EU capitals will only be received at a technical level.” In addition, “the Portuguese prime minister and the minister of foreign affairs had already informed the Austrian authorities that there would be no business as usual in the bilateral relations with a government integrating the FPÖ”.249 On 1 February 2000, agreement was reached between the People’s Party and the Freedom Party to form the new Austrian government that was sworn in on 5 February. Subsequently

248. 249.

allgemeine Völkerrecht in den innergemeinschaftlichen Rechtsbeziehungen, 18 Europarecht 1-39 (1983), in particular at 14 ff.; Schermers and Waelbroeck, op. cit. note 214, at 643. See e.g. Gold on the IMF in Schwebel, op. cit. note 5, at 478. See for the text and for further details M. Happold, Fourteen against one: the EU member states’response to freedom party participation in the Austrian government, 49 ICLQ 953963 (2000). See further the articles in 55 Austrian Journal of Public and International Law (Heft 3).

915

Supervision and sanctions

§1449

the sanctions by 14 member states took effect. They were withdrawn in September 2000 following the recommendations by three ‘wise men’.250 The EU Treaty does not provide for sanctions by member states such as these. However, according to Article 7 EU, the Council may determine the existence of a serious and persistent breach by a member state of principles mentioned in Article 6.1 (“the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the member states”). When such a determination is made the Council may decide “to suspend certain of the rights deriving from the application of this Treaty to the member state in question, including the voting rights of the representative of the government of that member state in the Council”. However this procedure was not followed, and it was decided to take the joint bilateral measures indicated above. Although these were bilateral measures by the individual member states, there was indeed also an ‘EU element’. In particular, the sanctions were officially announced by the EU presidency on behalf of the 14. At the same time, the European Commission was not formally consulted but was only informed of the statement of the 14 a few hours in advance. On 1 February, the Commission presented its own declaration. It “notes” the statement of the 14 and “shares the concerns which underlie that decision”. At the same time however it indicated that it “will continue to fulfil its duty as guardian of the provisions and the values set down in the Treaties”, referring to Articles 6 and 7 EU. “At this stage the working of the European institutions is not affected”.251 External affairs Commissioner Patten stated that “it’s understandable that member states have acted as they have. But the EU is an organization of rules and laws and treaties, and we in the Commission act as the guardian … of that legal framework”.252 The European Parliament adopted a resolution with a very large majority in which it, inter alia, in general terms called upon the Council and the Commission to be prepared to take action under Article 7 EU.253 It is clear therefore that the developments in Austria led to strong reactions within the EU and by EU member states, but that the EU mechanism of Article 7 was considered too strong as a sanction at the time, and coordinated bilateral sanctions were used instead. This is not unlawful. Article 7 EU neither explicitly nor implicitly excludes the possibility that member states may adopt bilateral sanctions against (an)other member state(s). At the same time, since the principles of Article 6.1 are considered principles common to the member states, it would be preferable if an alleged violation of those EU principles could be dealt with by a true common EU approach involving the relevant EU institutions (that would then no longer need to issue separate declarations). The adaptation of Article 7 in the 2001 Nice Treaty, extending and strengthening the procedure laid down in Article 7, must be seen against the background of this

250.

251. 252. 253.

Mr. Ahtisaari, Mr. Frowein and Mr. Oreja, who recommended on 8 September 2000, inter alia, “the introduction of preventive and monitoring procedures into Article 7 of the EU Treaty, so that a situation similar to the current situation in Austria would be dealt with within the EU from the very start”. Quotation from M. Hofstötter, Suspension of Rights by International Organizations: the European Union, the European Communities and other International Organizations, in V. Kronenberger (ed.), The European Union and the International Legal Order: Discord or Harmony? 23-52 (2001), at 48. See Europe No. 7646, at 3. Happold, op. cit. note 249, at 957. See Europe No. 7648, at 3.

§1450

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experience with the joint bilateral sanctions by the 14 and seems to offer better perspectives for following a common EU approach should the need arise.

B.

Sanctions (authorized) by the organization

1.

The possibility of imposing sanctions

§1450. As long as member states are neither dependent on international organizations nor convinced of their indispensability, the organizations cannot effectively impose many sanctions, even if their constitutions would allow them to do so. Actions of an organization which antagonize a member may lead to that member severing its relations with the organization. When the League of Nations required too high a contribution from Costa Rica in 1924, it withdrew from the League.254 When the Council of Europe considered applying sanctions against Greece in 1969, Greece withdrew from the Council. How far an organization can go depends on the extent to which a member can operate without the organization and on the strength or the resolve of the organization not to lose the member. Even those organizations which are almost indispensable for their members, such as the UPU and the ITU, do not readily impose sanctions. Measures against states, even if legally possible, will lie dormant when they are considered too strong to be exerted without antagonizing the members concerned. On the other hand, UN member states such as Iraq and the Federal Republic of Yugoslavia never withdrew from the UN even though the organization applied or authorized severe economic and military sanctions against these members. As has been discussed above (§134135) the UN Charter does not contain an explicit right of withdrawal. However these members continued to consider themselves dependent on cooperation within the organization. On balance the benefits of membership outweighed the benefits of withdrawal. §1451. The constitutions of most international organizations provide for some degree of coercion, but not for severe sanctions. This coercion can usually be introduced in all cases where there is a major breach of obligations, but sometimes its use is restricted to particular situations, such as the non-payment of contributions. The amendments of the constitutions of the ILO and the WHO, adopted in 1964 and 1965, provided for sanctions only against members pursuing a policy of racial discrimination. §1452. In some cases, the general congress may only impose specific sanctions. These sanctions usually deprive members of rights or privileges which result from their participation in the organization.255

254. 255.

J.G. Stoessinger, Financing the United Nations System 42 (1964). C. Leben, Les sanctions privatives de droits ou de qualité dans les organisations internationales spécialisées (1979).

917

Supervision and sanctions

§1452

In other organizations, possible sanctions are not specified: the organization is empowered to take any coercive measures which it deems appropriate. For example, Article 94.2 of the UN Charter provides that, if any party to a case fails to perform the obligations incumbent upon it pursuant to a judgment rendered by the International Court of Justice, the other party may have recourse to the Security Council, which may, if it deems it necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.256 In the only case in which recourse was had to the Council under Article 94.2, the United States used its veto to prevent the Council from acting.257 Another example is Article 33 of the constitution of the International Labour Organization. If the member state concerned fails to carry out recommendations of the Commission of Inquiry – appointed to consider complaints of nonobservance of an ILO Convention – or of the International Court of Justice, the ILO may take “such action as it may deem wise and expedient to secure compliance” with such recommendations. This provision was applied for the first time in 2000 when measures were taken against Myanmar. The Commission of Inquiry had found that Myanmar did not observe its obligations under the Forced Labour Convention and Myanmar did not fully implement the recommendations of the Commission of Inquiry. The measures taken by the ILO included a recommendation to the governments, employers and workers of the ILO members to review their relations with Myanmar and “take appropriate measures to ensure that [Myanmar] cannot take advantage of such relations to perpetuate or extend the system of forced or compulsory labour”. Furthermore the ILO Director-General was invited to inform international organizations of Myanmar’s failure to comply and to call on them to reconsider their cooperation with this country.258 One more example is the European Convention for the Peaceful Settlement of Disputes of the Council of Europe. According to this convention, disputes must be submitted to the International Court of Justice or to arbitration. The convention then provides:

256.

257.

258.

If the Security Council would consider to make recommendations on the basis of Chapter VI of the Charter, there is probably no obligation for the parties involved to abstain from voting (either because it is not considered to be a dispute, or because a determination by the Court that a matter is a “legal dispute” under Article 36.2 of the Statute of the Court is not determinative of whether that matter is also a “dispute” within the meaning of Chapter VI and Article 27.3 of the Charter). See UNJY 1986, at 283-285. Following the judgment of the Court in the Nicaragua Case (ICJ Rep. 1986); see UN Doc. S/18415. Two weeks later, the General Assembly adopted Res. 41/31, containing essentially the same request as the vetoed draft resolution of the Security Council. In this Resolution, the Assembly “urgently calls for full and immediate compliance” with the judgment of the Court. See also Simma, op. cit. note 67, at 1174-1179. Resolution adopted by the International Labour Conference at its 88th Session (June 2000), see ILO Doc. GB.279/6/1/Annexes. These measures took effect on 30 November 2000.

§1453

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“If one of the parties to a dispute fails to carry out its obligations under a decision of the International Court of Justice or an award of the Arbitral Tribunal, the other party to the dispute may appeal to the Committee of Ministers of the Council of Europe. Should it deem necessary, the latter, acting by a two-thirds majority of the representatives entitled to sit on the Committee, may make recommendations with a view to ensuring compliance with the said decision or award.”259

§1453. Two general questions are relevant: (1) May international organizations impose sanctions on members which have violated obligations other than those contained in the constitution of the organization? (2) May sanctions be taken which are not provided for in the constitution of the organization? A strict interpretation of powers would suggest a negative answer to both questions. An international organization’s task is limited. It has no power to act beyond the field attributed to it. Expediency would also suggest a negative answer, at least to the first question.260 A delegation of meteorologists to a meeting of the WMO, for example, must decide whether WMO members fulfil their obligations under the WMO constitution. They may not be the most suitable people to judge whether a certain state is an aggressor or has violated basic principles of international law. On the other hand, international organizations are not isolated units: they form part of a general international structure and therefore should abide by the rules of that structure. The possibility of using sanctions against members which have violated extra-constitutional obligations has been fervently debated in the specialized agencies in relation to Spain, South Africa and Portugal. Shortly after the Second World War, the fascism of the Spanish government was considered such a strong violation of humanitarian principles that measures against Spain were taken in all specialized agencies. Since the 1960s, the racist and colonial policies of South Africa and Portugal have provoked strong debates in all specialized agencies and have raised the question as to whether any measures should be taken. There have always been strong voices in favour of leaving any initiative for action to the UN. However, in several cases, specialized agencies have acted on their own initiative, although they were following strong resolutions of the UN against the policies pursued by Portugal and South Africa.261

§1454. Many constitutions do not expressly provide for sanctions. Even in such cases, several sanctions are possible in the fields in which the organization enjoys discretionary powers. An organization may, for example, refuse to elect a particular state to subsidiary organs or it may restrict services it renders to that state. In the following discussion of the sanctions which international organizations apply, it should be noted that several of them have been used without a constitutional basis.

259. 260. 261.

European Convention for the Peaceful Settlement of Disputes (1957), Art. 39.2, 320 UNTS, at 243; Trb. 1957, at 203. See Leben, op. cit. note 255, Partie II, Chapt. II (L’abus de sanctions), at 223-283. On possible sanctions against South Africa, see J. Barker and M. Spices, Sanctions against South Africa-Options for the West, 55 Int. Aff. 385-401 (1979).

919

2.

Supervision and sanctions

§1455

Suspension of voting rights

§1455. Suspension of voting rights is mainly used as a sanction for the nonpayment of financial contributions.262 As a sanction it may vary in intensity. Some organizations may deprive their members of voting rights in all organs of the organization263 or in some organs,264 while others may only suspend the voting rights in the general congress.265 The latter rule seems to be preferable. In subsidiary organs, members are usually elected, not only for their own benefit but also as representatives of a group or region. Their loss of voting rights may then mean that the vote of an entire region is lost. UNIDO remedies this disadvantage by allowing any organ to restore a member’s voting rights in that organ, but the remedy is partial as it may be applied only when the organ is satisfied that the failure to pay contributions is due to conditions beyond the member’s control.266 However, many organs may not be suited to take this sort of decision. In the ILO, voting rights can be restored only by the general congress deciding by a two-thirds majority.267 §1456. The form of the sanction may also vary. In some organizations, a member will automatically lose its right to vote as soon as the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two years (one year in the UNESCO and in the IMO,268 six or seven months in some commodity councils269).270 The general congress of the organization may then restore the voting rights if satisfied that the failure to pay is due to conditions beyond the control of the member. This restoration of voting rights requires an express decision. For example, the ILO took such a decision in 1961, when special arrangements were made for Bolivia, China, Spain and Hungary.271 UNESCO has taken similar steps

262. 263. 264. 265. 266. 267. 268. 269. 270.

271.

As a rule, such a suspension covers voting on both substantive and procedural issues; see UNJY 1983, at 182-183. E.g. ILO. UPU General Regulations, Art. 126.1. E.g. FAO and ICAO; cf. ICC Statute, Art. 112.8 (Assembly of States Parties and its Bureau). UNIDO, Art. 5. ILO, Art. 13.4. UNESCO, Art. 4, para. 8; IMO, Art. 56. 2001 International Coffee Agreement (6 months; Art. 25.2); 2001 International Cocoa Agreement (7 months; Art. 26.3). E.g. UPU General Regulations, Art. 126.1. However, the member concerned will only lose its right to vote automatically if it is unable or unwilling to cooperate in making arrangements pursuant to Art. 125, paras. 9 and 10. These provisions have been introduced during the 1999 Beijing Congress. International Labour Conference, 45th Session, Financial and Budgetary Questions (1961), at 107.

§1457

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on a number of occasions,272 as has the FAO. At the 1977 session, the general congress of FAO noted that six members had no vote because their contributions were in arrears. In two cases, voting rights were restored as the arrears were about to be paid, which subsequently happened during the session.273 The IAEA restored the voting rights of Cuba at its fourth session, but such a decision is exceptional in this organization. Normally the member concerned will simply not be entitled to vote.274

§1457. International organizations have usually restored the voting rights of members which had lost them automatically because their contributions were in arrears. This was most clearly demonstrated by the general congress of the IMCO (the predecessor of IMO) which in November 1979 restored the voting rights of the Dominican Republic, which had not paid any contributions since 1964. §1458. In the WHO and the ICAO, members do not automatically lose their right to vote. The general congress may suspend the voting rights of a member which fails to meet its financial obligations.275 This sanction is weaker since it does not come into effect automatically but requires an express decision for which a member must take the initiative and which a majority of the members must support. For many years, Article 7 of the WHO constitution, which allows the suspension of voting rights in all WHO organs, was not applied as a sanction for non-payment of contributions. In 1956, when a number of inactive members returned to active membership, the organization accepted a token payment of 5 per cent.276 When Bolivia, which was six years in arrears in 1961, made special provision to pay one-tenth of those arrears, the organization decided not to impose sanctions.277 The article was applied twice in other exceptional circumstances: in 1964 against South Africa,278 and in 1966 against Portugal.279 In 1984, it was decided that Article 7 should be applied more strictly, and that voting rights should be suspended “as a matter of course, unless in a particular case there were exceptional circumstances”.280 However, in subsequent

272. 273. 274. 275.

276.

277. 278. 279. 280.

UN Doc. A/6905, para. 135. Conference FAO, 19th Session, Report (FAO Doc. C77/Rep) 24. P.C. Szasz, The Law and Practices of the International Atomic Energy Agency, IAEA, Legal Series No. 7 (1970), at 857. WHO, Art. 7; ICAO, Art. 62. On the application of this ICAO provision, see R. Mankiewicz, L’organisation de l’aviation civile internationale, 11 AFDI 639-641 (1965) and in 14 AFDI 493-495 (1968) and especially T. Buergenthal, op. cit. note 11, at 46-55. The same was done when Belarus and Ukraine resumed active membership; see Res. 45.23 of the World Health Assembly (1992). According to this Resolution, these countries have to pay their contributions in full for the years 1948 and 1949, during which they were active members. For the years 1950 to 1991, during which they did not actively participate in the work of the organization, a token payment of 5 per cent of the amount assessed each year was required. Stoessinger, op. cit. note 253, at 222. WHA 17th Session, Official Records No. 136. WHA 19th Session, Official Records No. 152, at 503. Res. 37.7 of the World Health Assembly.

921

Supervision and sanctions

§1459

years the organization failed to implement this stricter policy, and the voting rights of the members which were in arrears were not suspended.281 In 1988, the World Health Assembly adopted a statement of principles governing the application of Article 7, which again, in more strict terms, introduced a new policy.282 Subsequently, the voting rights of a number of members have been suspended.283 The general congress of ICAO further clarified Article 62 of the ICAO constitution. It decided that the “reasonable period” mentioned in the article should be two years and that exceptions might be made for states unable to pay due to circumstances beyond their control.284 It decided, furthermore, that voting rights might also be suspended in subsidiary organs and that even general services could be suspended pursuant to this article.285 The ICAO has used its power several times to suspend the voting rights of members. For example, in 1948, Bolivia, El Salvador, Jordan, Nicaragua, Paraguay and Poland lost their voting rights; in 1952, Bolivia, Czechoslovakia, El Salvador, Guatemala, Jordan and Poland. The states in question have subsequently settled their accounts.286

§1459. The Soviet Union has argued that in the General Assembly of the UN an express decision would also be required before a member could lose its voting rights. Such a decision would only be possible by a two-thirds majority.287 The text of Article 19 of the UN Charter offers little support for this argument however,288 nor was it accepted by the UN Secretariat. In roll-call votes the names of the members in arrears for more than two years are not called.289 On one occasion, the Soviet Union, France and several other states refused to pay their share of the UN peace-keeping activities (see above, §1213). According to the International Court of Justice, these expenses constituted expenses of the organization.290 When the amount of arrears of the states concerned exceeded the amount of contributions due for the preceding two

281. 282. 283. 284. 285. 286. 287. 288. 289.

290.

See World Health Assembly Resolutions 38.13 (1985), 39.16 and 39.17 (1986), 40.5 (1987). Res. 41.7 (1988). See Res. 41.20 (1988), Res. 44.12 (1991), Res. 45.8 (1992), and 46.10 (1993). ICAO Assembly Res. A9-6, ICAO Doc. 7595 (Aq.-p./12), 1955. See Buergenthal, op. cit. note 11, at 49-51. Buergenthal, op. cit. note 11, at 50. Stoessinger, op. cit. note 253, at 236. UN Doc. A/5431 (1963). On Art. 19 UN Charter, see D. Ciobanu, Financial Obligations of States under Article 19 of the UN Charter (1973); Simma, op. cit. note 67, at 363-376. See note of 26 July 1968 of the Legal Council of the UN annexed to UN Doc. A/7146, UNJY 1968, at 186-188. See also Memorandum of the UN Office of Legal Affairs of 4 April 1974, UNJY 1974, at 156-157. See UNJY 1983, at 167-169, on the question of how to take into account, for the purpose of establishing the amount of contributions due from a member state for the preceding two full years, increases or decreases in the advances that it may be required to make to the Working Capital Fund. See on the method of calculation of arrears for the purpose of the application of Art. 19, UN Docs. A/55/789 and A/57/60. See for a more extensive analysis Simma, op. cit. note 67, at 363-376, and Cot and Pellet, op. cit. note 67, at 395-401. Certain Expenses Case, Advisory Opinion, ICJ Rep. 1962.

§1460

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full years, Article 19 of the Charter had to be applied, which meant that the states concerned forfeited their voting power. The subsequent crisis in the General Assembly, particularly during its 19th session, demonstrated the danger of applying sanctions automatically. At that session, it became clear that the organization was not strong enough to deny voting rights to some of its most important members. Yet it should have done so according to the Charter. The General Assembly did not vote throughout its entire 19th session. Decisions were either postponed or taken by acclamation. A special committee was finally appointed to study the problem. On the basis of its reports, it was decided that the 20th session should meet as normal.291 No voting rights would be suspended. The expenses of peace-keeping operations would be paid out of a special fund open to contributions of all members. After separating these expenses from the normal budget of the organization, Article 19 was no longer applicable since the states concerned were not significantly in arrears in the payment of their normal contributions.292 §1460. Apart from the situation where a member is in arrears in paying its financial contributions, voting rights may be suspended in relation to only a few other obligations. The ICAO may also suspend the voting rights of members which are found to be in default in executing a judgment or a decision under Chapter XVIII of the ICAO constitution (settlement of disputes, operation of airlines in conformity with ICAO provisions).293 This provision was never applied.294 Under the 1983 International Coffee Agreement, a member which would exceed the quota allocated to it would have one or more of its subsequent quotas reduced by a quantity equal to 110% of that excess. Only when three or more succeeding quotas would have been exceeded, the voting rights of the member “shall be suspended”.295 In the case of an importing member, the Council “may suspend voting rights” where a member failed to comply with the obligation of limitations of the imports from nonmembers (when export quotas are in effect).296 The subsequent coffee agreements (1994, 2001) do not contain the instrument of quotas to regulate trade in coffee; therefore there was no need to maintain this sanction. The Third Amendment of the IMF Articles of Agreement, which entered into force on 11 November 1992, endowed the organization with three new sanctions, one being the possibility to suspend the voting rights of a member. First, if a member fails to fulfil any of its obligations under the IMF Articles of Agreement, the Fund may declare

291. 292.

293. 294. 295. 296.

See YUN 1964, at 3-60. Publication No. 78 of the Netherlands Ministry of Foreign Affairs; T. Higgens, The UN financial crisis, The World Today (March 1965); R. Higgins, United Nations Peacekeeping – political and financial problems, The World Today (August 1965); N.J. Padelford, Financing Peacekeeping: Politics and Crisis, 19 International Organization 444-462 (1965). ICAO, Art. 88. Buergenthal, op. cit. note 11, at 52; information obtained from the ICAO Secretariat (April 1994). Art. 42, paras. 3 and 5. Art. 45 (5).

923

Supervision and sanctions

§1460

the member ineligible to use its general resources (excluding its Special Drawing Rights obligations). Second, if after the expiration of a reasonable period following such a declaration of ineligibility the member persists in such failure, the IMF may, by a 70 per cent majority of the total voting power, suspend the voting rights of that member. The same majority is required to terminate this suspension.297 The third new sanction is the denial of the right of a member to be involved in the process of amending the Articles of Agreement (except in two cases), and the denial of the right to participate in the appointment or election of the officers who compose the IMF’s organs.298 According to the travaux préparatoires, these three sanctions are to be applied in combination. It remains to be seen however whether this interpretation will be followed in practice.299 The few cases in which the provisions of the third amendment have been applied do not yet permit any conclusions on this point. In the cases of Sudan and the Democratic Republic of the Congo voting rights were suspended (effective August 9, 1993, and June 2, 1994, respectively).300 With effect from August 1, 2000, the IMF decided to lift the suspension of Sudan’s voting rights.301 Why was the third amendment adopted and were new IMF sanctions added to the existing ones? Gold considers the reason for this addition to have been “sensitivity about the reputation of the IMF as a competent manager of its resources. This sensitivity might have been heightened by the desirability of a massive increase in the IMF’s resources and the fear that approval of it might be prejudiced by an unfavourable public and legislative reaction, particularly in the United States, which has a veto over proposed increases because of the necessity for an 85 per cent majority of voting power for any change in quotas”.302 Theoretically, the new sanctions might be applied against any member. However, if applied, it seems likely that developing countries will be the targets, since they are the users of the IMF’s resources, and the problem of arrears has been confined to them.303 According to Rule 8.5.c of its Rules of Procedure, the Parliamentary Assembly of the Council of Europe may deprive or suspend the exercise of some of the rights of participation or representation of members in the activities of the Assembly and its bodies. On the basis of this rule, the Assembly decided on 6 April 2000 to suspend the voting rights of the members of the Russian delegation to the Assembly, in view of the violation of human rights in Chechnya.304 The advantage of this sanction in comparison with the rejection of the credentials of a delegation is that members of the delegation concerned are allowed to participate in the meetings of the Assembly. This made it possible for the Assembly, “together with the Russian parliamentary delegation, to search for ways to solve the conflict in Chechnya in a manner which is consistent with the Council of Europe’s principles and standards”.305

297.

298. 299. 300. 301. 302. 303. 304. 305.

Art. XXVI, Section 2(b). See on this Third Amendment J. Gold, The IMF Invents New Penalties, in Blokker and Muller, op. cit. note 1, at 127-147 (1994). Gold stresses that the “obligations” concerned are not confined to those of a financial character (at 139). IMF Articles of Agreement, Schedule L; see Gold, op. cit. note 297, at 142-144. Id., at 143-144. IMF Annual Report 2000, at 73. IMF Press Release No. 00/46 (www.imf.org/external/np/sec/pr/2000/pr0046.htm). Id., at 145. Id., at 145. Council of Europe, Press Release, 6 April 2000. Parliamentary Assembly, Doc. 8631, para. 31.

§1461

3.

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924

Suspension of representation

§1461. The general congress (Committee of Ministers) of the Council of Europe may suspend the right of representation of a member which has failed to fulfil its financial obligations.306 The sanction is however limited to the main organs of the organization (Committee of Ministers and Parliamentary Assembly). A comparison of Articles 8 and 9 of the Statute of the Council leads to the conclusion that the defaulting member would be allowed to continue to send representatives with full rights to the committees of experts of the Council of Europe. The vast powers vested in the general congresses of the IAEA and the WMO to suspend a member’s rights will enable them to withdraw a member’s right of representation.307 §1462. The sanction of suspension of representation has been used several times without express constitutional authority. An implied basis may sometimes be found in the power of each organ to approve the credentials of the delegates sent by its members. A broad interpretation of this power could enable the organs to decide that a particular delegation does not properly represent the state (see above, §259-263), which could be used as a sanction against states violating the general principle that a government must represent its entire population. It could not however be used as a sanction against other violations. Another implied basis for the power to exclude the representatives of particular members is the competence of the organization to form its own inferior organs, which would provide a basis for a denial of representation in those organs. For example, South Africa was denied representation at the 15th and subsequent sessions of the general congress of the UPU (1964),308 and at the general congress of the ITU as of September 1965.309 On 28 November 1966, the general congress of UNESCO decided to exclude Portugal from further participation in any activities of the organization. On 12 November 1974, the UN decided to suspend South Africa from participation in the work of the 29th session of the General Assembly. It did so by upholding a ruling rejecting that state’s credentials (see above, §262-263).310

4.

Suspension of services of the organization

§1463. Many international organizations render important assistance to their members. This makes the members dependent on the organization and thus enables the organization to exert pressure on them. The threat of withholding

306. 307. 308. 309. 310.

CoE, Art. 9. IAEA, Art. XIX B; WMO, Art. 31. H.G. Schermers, Some Constitutional Notes on the Fifteenth Congress of the Universal Postal Union, 14 ICLQ (1965), at 637. See Res. No. 45 of the ITU Congress of 1965, UNJY 1965, at 143-144. See YUN 1974, at 106, 117.

925

Supervision and sanctions

§1463

assistance may persuade a member to comply with the rules.311 When, for example, the members wish the organization to distribute particular data to the other members, it may enforce its decision that data should be submitted in a particular form, by ignoring information presented in any other way. The IMF may declare a member ineligible to use its resources in the following cases: (1) If a member fails to fulfil any of its obligations under the constitution.312 (2) When the IMF is of the opinion that a member is using its resources in a manner contrary to its purposes.313 (3) If a member fails to exercise appropriate control to prevent the use of IMF resources to meet a large or sustained outflow of capital.314 Prior to the constitutional amendment of 30 April 1976 (which entered into effect on 1 April 1978), there was only one situation in which a member automatically became ineligible for use of the IMF resources, unless the organization expressly decided not to apply this sanction (or rather “remedy”, because there was no question of failure to fulfil an obligation): namely if a member changed the par value of its currency despite the objection of the IMF.315 The IMF was however reluctant to use this sanction.316 If it wished to exert pressure, which has happened more frequently since the 1980s, it has preferred to do so through other means, Examples are the stand-by arrangements (which have a less official character since they are not classified as agreements under international law),317 “mobilization of shame” and the Executive Board’s decision that members are not permitted to have increases in their quotas unless overdue obligations to make payments for credit to the general resources have been discharged.318 Members of the IAEA may enter into an agreement with the organization to provide assistance in a nuclear energy project.319 The board of the organization will report any non-compliance with such an agreement to all members of the organization and to the Security Council and the General Assembly of the UN. Where the state fails to take full corrective action, the board may curtail or suspend the assistance of the organization or of another member and call for the return of materials. It may also recommend that the general congress suspend all privileges and rights of membership (see below, §1466).320 The members of the Nuclear Energy Agency of the OECD are bound by the obligations of the Convention on the Establishment of a Security Control in the Field of

311.

312. 313. 314. 315. 316. 317. 318. 319. 320.

As C. Wilfred Jenks wrote in The Prospects of International Adjudication 726 (1964), “as nations become increasingly dependent on certain world public services the withholding of such services becomes an increasingly effective sanction for any failure to respect the conditions on which they are made available”. IMF, Art. XXVI, Section 2(a). See also Schedule C para. 8. IMF, Art. V Section 5. IMF, Art. VI, Section 1. IMF, Art. IV, Section 6 (original text). Gold, op. cit. note 248, at 72-76. Id., at 82. Gold, op. cit. note 297, at 130-137. IAEA, Art. XI. IAEA, Art. XII, para. 7 C.

§1464

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Nuclear Energy of 20 December 1957.321 If these obligations are not observed, the Agency may request that any steps necessary to remedy the situation be taken; if this is not done within a reasonable period, the Agency may prescribe one or more of the following measures: (i) the suspension or termination of deliveries of materials, equipment or services supplied by or under the supervision of the Agency; (ii) the return of materials and equipment supplied by or under the supervision of the Agency.322

§1464. Many international organizations provide development assistance to their developing members. This assistance may be discontinued if a member fails to fulfil the terms of the agreements on which it is based. The Pro-Forma Basic Agreement of the World Food Programme, for example, provides for the possibility of suspension or withdrawal of assistance “in the event of failure on the part of the Government to fulfil any of its obligations assumed under the present agreement or any agreement concluded by virtue thereof”.323

§1465. In general, it may be submitted that by giving assistance to their members, international organizations acquire a lever of power which encourages the implementation of their legal rules. Instead of punishing those who infringe the rules, they may reward those who apply them. By contrast to the cases mentioned above – where the sanction concerned particular services which could be withheld in particular situations – members are more dependent on the organization when the latter has acquired discretionary powers to decide to which members and on which conditions aid will be granted.324 This gives the organization general power over its members, which enables it to withhold services without this being expressly provided for as a sanction. The European Commission may require the withdrawal of national regulations which are contrary to Community law in any particular field as a condition of taking measures in that field which will benefit the state concerned.325 In 1961, for example, the Commission refused to consider a Belgian and Luxembourg request for authorization to take protective measures under Article 226 of the EEC Treaty (now repealed) as long as Belgium and Luxembourg continued to levy certain import taxes on the products concerned.326 The power of the Commission to exert pressure on the members could increase if the members were to become more dependent on it for exemptions and authorizations. But the Commission’s freedom to demand compliance with the law before it grants favours is limited. It is generally obliged to grant authorizations or

321. 322. 323. 324. 325. 326.

Trb. 1958, at 55. Id., Art. 5, para. b. Dobbert, op. cit. note 44, at 226. See also the “stick and carrot” discussions in Schwebel, op. cit. note 5, at 79-80, 459-488. H.G. Schermers, Het toezicht door de Commissie op de naleving der verdragsverplichtingen door lidstaten en particulieren, Europese Monografieën No. 6 (1966), at 144. Gingerbread case, No. 2-3/62; 8 Jur. (1962), at 851; 8 Rec. (1962), at 813; 8 Samml. (1962), at 867; ECR 1962, at 425.

927

Supervision and sanctions

§1466

exemptions from the rules when special conditions are fulfilled. The Commission would be misusing its powers if it were to impose conditions not directly connected with the exemptions or authorizations requested. On this basis, the (positive or negative) decision based on such considerations could be annulled by the Court of Justice.327 There was a direct connection between a violation by Liberia and the withholding of services by the League of Nations in 1934. The League had offered support to Liberia for improving the conditions of the population in the interior of that state. Liberia suppressed the people concerned and, therefore, violated its obligation to secure just treatment of the native inhabitants of territories under its control.328 The League considered expelling Liberia, but finally decided to withdraw its offer of support, thus applying a sanction which was not provided for in the Covenant.329

5.

Suspension of rights and privileges of membership

§1466. The constitutions of some organizations invest general congresses with the power to suspend the rights and privileges of membership.330 This may also be achieved by a separate treaty. The International Air Services Transit Agreement, for example, attributes power to the board of ICAO to ask for corrective action if measures adopted by a state cause hardship to another. Where the response elicited from the state is deemed insufficient, the general congress of ICAO may suspend the state’s rights and privileges until satisfactory action has been taken.331 Apart from the suspension of rights and privileges of members, international organizations may also suspend rights and privileges of other participants in their work, for example observers. In 1997 the Parliamentary Assembly of the Council of Europe decided to suspend Belarus’ status of special guest (see above, §181) when it found that the new constitution of Belarus did not respect minimum democratic standards and violated the separation of powers and the rule of law. The Chair of the Assembly indicated that this special

327. 328. 329.

330.

331.

EC, Arts. 230, 232. LoN Covenant, Art. 23b. LoN Official Journal 15th Ass. 511 (1934); L.B. Sohn, Expulsion or forced withdrawal from an international organization, 77 Harv. L. Rev. 1384-1386 (1964); von Gretschaninow, Der Versuch eines Ausschlussverfahrens gegen Liberia nach Art. 16 abs. 4 der Volkerbundssatzung, 5 ZaöRV 174-178 (1935). See e.g. UN Charter, Art. 5; WMO, Art. 31; IAEA, Art. XIX B; World Tourism Organization, Art. 34; Inter-American Development Bank, Art. 9(2); Asian Development Bank, Art. 42. Cf. also WHO, Art. 7, according to which voting privileges and services may be suspended. See also J.-M. Lavieille, La procédure de suspension des droits d’un état membre des Nations Unies, 81 RGDIP 431-465 (1977); Chayes and Chayes, op. cit note 2, at 68-87; K.D. Magliveras, Exclusion from Participation in International Organizations – The Law and Practice behind Member States’ Expulsion and Suspension of Membership (1999), at 80-83; M. Hofstötter, Suspension of rights by international organizations: the European Union, the European Communities and other international organizations, in V. Kronenberger (ed.), The European Union and the International Legal Order: Discord or Harmony? 23-52 (2001). International Air Services Transit Agreement, Art. 2 (1). See also ICJ Rep. 57-58 (1972).

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guest status was suspended and not withdrawn in order to “maintain contacts and support any positive development in the country”.332

§1467. The power to suspend a state’s rights and privileges of membership has rarely been used by international organizations. One example is the WMO’s decision “that the government of the Republic of South Africa shall be immediately suspended from exercising its rights and enjoying privileges as a member of WMO until it renounces its policy of racial discrimination, and abides by the United Nations resolutions concerning Namibia”; earlier, the WMO Congress had established that “the discriminatory and colonial policies practised by the government of the Republic of South Africa were not conducive to promoting the technical and scientific collaboration necessary to the fulfilment of the objectives of the WMO”.333 Nevertheless, it is an open secret that, in practice, WMO technical cooperation with South Africa continued, on an unofficial basis, as there was strong mutual interest in such cooperation: for South Africa to receive technical information from the WMO, and for the WMO to receive meteorological information from South Africa. In 1982, during the Plenipotentiary Conference of the ITU (“Nairobi Conference”), a draft resolution was submitted which aimed at the suspension of Israel’s rights and privileges of ITU membership. Several delegates questioned the legality of such a sanction and the ITU’s legal advisor was invited to present a legal opinion on the matter. In this, he mentioned that the relevant ITU Convention provided for sanctions only in two specific cases, which were not at stake in the draft resolution concerning Israel.334 This raised the following general question: what does it mean that no other sanctions are mentioned? “Does it mean that the Convention [...] remained deliberately silent, because it was intended to leave free way for the imposition upon a member of the Union of any other, further sanctions? Or does it mean that it was not intended to provide a possibility for the imposition of any such other sanctions, e.g. like the one now envisaged [...]?” The legal advisor came to the conclusion that the latter answer is correct. He convincingly demonstrated that the member states had deliberately not included the possibility to apply sanctions other than the two mentioned in the Convention. Moreover, he emphasized that even the Plenipotentiary Conference, the ITU’s supreme organ, is not free to take any decision, but is bound by the organization’s constitution. In stressing this basic rule of international institutional law, he relied on an important conclusion drawn earlier by the International Court of Justice in the First Admission Case (1948):335

332. 333. 334. 335.

Europe No. 6892, at 5. WMO Res. 38(Cg-VII) (1975). Reproduced in UNJY 1982, at 214-217. Id., at 215.

929

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§1468

“The political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for its judgment. To ascertain whether an organ has freedom of choice for its decisions, reference must be made to the terms of its constitution.”

§1468. The power to suspend all rights and privileges of membership apparently covers all the above-mentioned provisions for sanctions. However, it is questionable whether a general congress would be able to choose to apply only some of these sanctions. It could be argued on the one hand, that the right to impose the general sanction implies competence to exercise any one of the specific measures from which it is comprised. The power to suspend all rights and privileges may thus be applied only to the right to vote or the right to receive particular services. On the other hand, the constitutions expressly state that a member shall be suspended from exercising the rights and privileges of membership whenever the general congress decides to use this sanction. The constitution of the IFAD provides: “While under suspension, a member shall not be entitled to exercise any rights under the agreement, except the right of withdrawal, but shall remain subject to all of its obligations.”336 This clear provision leaves the general congress no choice but to apply the entire sanction. The drafters may not have intended to create this situation, as sanctions are more easily imposed when discussions as to the measures applicable in a particular case are precluded. Both interpretations have their merits. But since an organization’s services are often suspended even without constitutional provision, and as a certain degree of flexibility is always desirable, it would seem to be more appropriate to allow the organization some freedom to determine the form of the sanction to be imposed in each case. §1469. In these cases, the rights and privileges to be suspended are rights and privileges which the organization offers to its members. Besides these rights and privileges, the organization may suspend rights and duties which exist mutually between members inter se. In some organizations, the obligation to grant mutual benefits is one of the organization’s main objectives. Granting permission to the other members to withhold particular benefits from a member falling short of the required standard can be a serious sanction. In the ICAO, for example, a member must recognize the validity of the certificates of airworthiness and licenses issued by other members, provided that the requirements under which they were issued are equal to or above the minimum ICAO standards.337 No state engaging in international air navigation can risk non-recognition of its certificates and licences. All states are therefore virtually obliged to abide by the minimum requirements of ICAO (see also above, §1233).

336. 337.

IFAD, Art. 9. Section 2(b). ICAO, Art. 33. See Buergenthal, op. cit. note 11, at 86-88.

§1470

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The Agreement establishing the World Trade Organization contains a number of provisions on the basis of which authorizations may be granted to members to suspend the application vis-à-vis the member concerned of concessions or other obligations.338 A declaration of scarcity by the IMF authorizes members to take retaliatory measures against the member which has been engaging in practices leading to the scarcity of its currency.339 The EFTA constitution provides: “If a member state does not or is unable to comply with a recommendation made in accordance with paragraph 3 of this article and the Council finds, by majority vote, that an obligation under this Convention has not been fulfilled, the Council may, by majority decision, authorize any member state to suspend to the member state which has not complied with the recommendation the application of such obligations under this Convention as the Council considers appropriate”.340

6.

Expulsion from specific organs

§1470. No constitution provides for expulsion from particular organs as a sanction, but a member normally has no constitutional right to participate in an organ, apart from the general congress. An organization can usually decide autonomously on the composition of its subsidiary organs. It can ban a member from non-plenary organs by refusing to elect it. In the International Coffee Agreement it has been expressly provided that no member is eligible for election to the Executive Board if it is in arrears in payment of its financial contributions for six months.341 The general congress of an international organization can often exclude a member from a subsidiary organ by defining its composition in a particular way. Unless the constitution describes the regions (which is only rarely the case), an organization can not be prevented from forming a regional organ or convening a regional conference for a specifically designated area only; for example, for those African states situated north of the Limpopo River (thus excluding South Africa).342 §1471. Every member is entitled to participate in the sessions of the general congress. It has been disputed whether a member may be expelled from such sessions, in the absence of an express constitutional provision. Similar arguments apply as to expulsion from the organization itself in these circumstances (see above, §146-148). When the stronger sanction is permitted, the weaker

338. 339. 340. 341. 342.

E.g. GATT 1994, Art. XII.4.c and d; Art. XXIII.2; World Trade Organization, Understanding on rules and procedures governing the settlement of disputes, para. 22. Gold, op. cit. note 15, at 748. EFTA, Art. 31.4. For further examples, see International Wheat Agreement 1962, Art. 21; 444 UNTS, at 48; Trb. 1962 No. 57; EC, Arts. 108, 134.1; ECSC, Art. 88, para. 3(b). International Coffee Agreement (2001), Art. 25.2. The formulation of such resolutions often indicate, however, that a particular geographic description is used in order to exert pressure on a member state. See e.g. Res. No. 44 of the ITU Congress of 1965, UNJY 1965, at 143.

931

Supervision and sanctions

§1472

one should also be acceptable. In practice, states have been expelled from sessions of general congresses by suspending their representation, in the absence of constitutional provision. §1472. The question which organ may expel members from other organs may pose problems. As a general rule, this power should be attributed to the organ empowered to expel members from the organization. The competence to impose sanctions should not be scattered over different organs. Although an organ creating suborgans has the power to determine their composition, its power to create suborgans composed of all members but one may be disputed, as may its competence to change the composition of plenary organs in such a way that one member is excluded from future participation. In the UN, the power to impose sanctions is held jointly by the General Assembly and the Security Council.343 May the General Assembly, nevertheless, create organs which are composed of all members but one? The question provoked heated discussions during the 23rd session of the UN General Assembly (1968), when it was proposed that South African membership of UNCTAD be suspended. The Second Committee of the General Assembly considered that the expulsion of South Africa from UNCTAD concerned the composition of a subsidiary organ and was not intended to be a sanction. The General Assembly was considered competent to prescribe the composition of UNCTAD in such a way that South Africa was excluded, especially as it had requested that its members break off diplomatic and economic relations with South Africa.344 The Legal Counsel of the UN offered different advice.345 In his view, procedures for the suspension of a member from an organ open to the general membership were laid down exclusively in Article 5 of the Charter, which permits suspension only through joint action by both the Security Council and the General Assembly. Had the drafters of the Charter intended to curtail membership rights in a manner other than those provided for in Articles 5, 6 and 19 of the Charter, they would have included provisions to that end. In plenary session, the General Assembly required a two-thirds majority to change the composition of UNCTAD in such a way that South Africa could no longer participate. This majority was not obtained and South Africa therefore remained a member of UNCTAD.346 South Africa did not, however, appear at meetings, nor did it enlist itself as a member of UNCTAD when all members of the UN were invited to do so. On that basis, it was no longer considered a member of UNCTAD after 1977.

§1473. Other questions which have provoked disputes include whether members may be banned from all conferences convened by the organization347

343. 344. 345. 346.

347.

UN Charter, Arts. 5 and 6. GA Res. 1761 (XVII). Published in UNJY 1968, at 195-200. See also 8 ILM 213-219 (1969). P.R. Baehr, The Role of a National Delegation in the General Assembly, Occasional Paper No. 9 of the Carnegie Endowment for International Peace 62 (1970); 8 ILM 209-213 (1969). G. Fischer, L’Afrique du Sud et la CNUCED, 14 AFDI 475-482 (1968). On this question, see UNJY 1966, at 153-164 (Portugal in UNESCO).

§1474

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and whether a conference arranged by an organization may decide to exclude states invited by the organization.348 Portugal and South Africa have been excluded from many organs of the UN and the specialized agencies. Both states were expelled from the Economic Commission for Africa of the UN.349 South Africa was no longer invited to participate in any capacity in activities of the FAO,350 or of the ICAO.351 Before Portugal was excluded from all activities of UNESCO, it was banned from the 28th International Conference on Public Education (Geneva, July 1965)352 and from the conference of Ministers of Education on Illiteracy in Teheran in September 1965. Until the termination of the apartheid policy, South Africa was excluded from all UNESCO activities.353

§1474. As a sanction, expulsion from specific organs seems preferable to expulsion from the organization,354 because some contact with the state concerned is maintained. Cooperation can thus be discontinued in those fields in which the state has violated its obligations, or where the sanction seems most effective or least harmful to the organization itself. By changing the number of organs to which the sanction applies, its impact can be increased or diminished if and when the state changes its policy. 7.

Expulsion from the organization

§1475. The most drastic sanction is expulsion from the organization, in which case all relations with the state concerned are severed. However, the effectiveness of the sanction is open to doubt since, when the organization loses contact, it is no longer able to exert pressure on the ex-member. The constitutional provisions for expulsion and the possibility of expulsion without such provision have been discussed already (see above, §138-148). 8.

Sanctions through other organizations

§1476. Expulsion from some organizations automatically leads to ejection from others. Thus, states expelled from the UN cease to be members of UNESCO;355 states expelled from the IMF cease to be members of the World

348. 349. 350. 351. 352. 353. 354. 355.

On this question, see UNJY 1968, at 205-206 (South Africa was not represented at the International Conference on Human Rights, see UN Doc. A/CONF.32/41). ECOSOC Res. 974 (XXXVI) D of 30 July 1963, Doc. E/3816, at 3 and 4. See D. Ruzié, Organisations internationales et sanctions internationales 54-55 (1971). FAO Conference, 12th Session, Res. 38/63. ICAO Res. A 18-4 of July 1971. Decision of the board of UNESCO of 17 May 1965. See e.g. YUN 1974, at 1027. Sohn, op. cit. note 329, at 1425. UNESCO, Art. 2.4. The International Refugee Organization had the same constitutional provision (Art. 4).

933

Supervision and sanctions

§1477

Bank;356 states that are no longer members of the World Bank cease to be members of the IFC and the IDA.357 In the latter cases the provision seems logical, since membership of IFC and IDA is only open to members of the World Bank, and membership of World Bank is limited to members of the IMF. In the case of UNESCO, the loss of membership following expulsion from the UN seems less appropriate. UNESCO has a separate membership, the conditions for which differ from those for UN membership. Expulsion from the UN might be based on reasons which do not justify expulsion from a specialized agency. It is difficult to see why states which have been expelled from the UN lose their membership of UNESCO while other states which (perhaps for the same reason) have not been admitted to the UN, may become members of UNESCO. The constitutional provisions of the ICAO and the IMO seem to provide a more appropriate solution, providing that the General Assembly of the UN has the right to expel members of these specialized agencies by addressing a specific decision to them.358 In taking this decision, the General Assembly can take account of the situation in the specialized agency. §1477. The General Assembly of the UN has no right to expel members of the other specialized agencies. The agencies are obliged to submit UN recommendations to their appropriate organs,359 but it is the organ’s autonomous decision whether the recommendations will be followed. Only decisions of the Security Council for the maintenance or restoration of international peace and security are binding on the specialized agencies.360 The Security Council could therefore instruct an agency to impose sanctions on a member.361 These instructions may only be issued, however, where the agency is constitutionally empowered to apply the sanctions concerned. The Security Council may not require a specialized agency to take measures which the latter is incompetent to take. 9.

Economic sanctions

§1478. Economic sanctions by the members at the request of an international organization can be effective if the organization’s appeal to its members is strong enough to mobilize general support both of members and of nonmembers. When, in 1965, the Security Council was able to achieve this against India and Pakistan, both states had to accept the Council’s demand for a

356. 357. 358. 359. 360. 361.

World Bank, Art. VI, Section 3. IFC, Art. 5, Section 3; IDA, Art. 7, Section 3. ICAO, Art. 93bis; IMO, Art. 10. See e.g. Agreement between UN and FAO, Art. 4. See e.g. Agreement between UN and FAO, Art. 6. See W. Reisman, The Role of Economic Agencies in the Enforcement of International Judgments and Awards, 19 International Organization 927-947 (1965).

§1479

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cessation of hostilities.362 More often, however, it has been impossible to obtain this level of general support. Economic sanctions cannot be effective where a few important commercial partners fail to participate.363 §1479. Some states are more vulnerable to economic sanctions than others.364 There are disadvantages to economic sanctions: if unsuccessful, they damage the prestige of the organization. Through sheer self interest, all sections of the economy of the target state will cooperate in minimizing the effect of an embargo; the sanction may thus lead to a fostering of the unity of the target state and to a weakening of the internal opposition to the policy provoking the sanctions. Sanctions may promote self-sufficiency of the national economy.365 Furthermore, economic sanctions have a harmful effect on the economy of at least one state (the target of the sanction), which may not be in the long-term interest of the world at large.366 On the other hand, even if not effective, they serve useful political purposes. They may ultimately succeed because they constantly focus attention on the problem and implicitly legitimize actions against the target state which otherwise would be illegal.367 Additionally, economic sanctions perform an important function as an alternative to military sanctions, if it is felt necessary to show disapproval not only by condemnatory resolutions, but also by concrete measures. §1480. The power to take economic sanctions has been attributed to a number of international organizations. In practice, such sanctions have been applied, for example, by the OAS and by the EC, following mandatory Security Council resolutions and without such a basis.368 In a large number of cases, economic sanctions have also been taken by states outside the framework of organizations. In the following analysis, the focus will mainly be on the relevant United Nations rules and practice. §1481. The Covenant of the League of Nations provided for the possibility of taking sanctions against members who had resorted to war in violation of

362. 363.

364. 365. 366. 367. 368.

Publication No. 82 of the Netherlands Ministry of Foreign Affairs, at 64ff. On economic sanctions, see M.P. Doxey, Economic Sanctions and International Enforcement (1971); Brown-John, op. cit. note 97; M.S. Daoudi and M.S. Dajani, Economic Sanctions – Ideals and Experience (1983); D. Leyton-Brown (ed.), The Utility of International Economic Sanctions (1987); G.C. Hufbauer, J.J. Schott and K.A. Elliott, Economic Sanctions Reconsidered: History and Current Policy (2nd. ed. 1990); P.A.G. van Bergeijk, Economic Diplomacy, Trade and Commercial Policy: Positive and Negative Sanctions in a New World Order (1994); Chayes and Chayes, op. cit note 2, at 43-67. Doxey, op. cit. note 363, at 98-100. Id., at 125-129. Id., at 140. Lloyd Brown-John, op. cit. note 97, at 368. See for example the case studies in 18 RBDI (1984-1985, I), and M. Vaucher, L’évolution récente de la pratique des sanctions communautaires à l’encontre des Etats tiers, 29 RTDE 39-54 (1993).

935

Supervision and sanctions

§1482

the provisions of the Covenant.369 On the basis of this provision, the members were asked to apply economic sanctions against Italy after it had committed aggression against Ethiopia in 1935.370 The political climate was however not favourable to sanctions against Italy and the League did not make any strong efforts to ensure the cooperation of non-members – they were merely informed about the sanctions.371 The sanctions were not faithfully applied by all members and had virtually no effect. §1482. Chapter VII of the UN Charter offers wider possibilities for enforcement measures. The Security Council may decide which measures not involving the use of armed force are to be employed to give effect to its decisions, and may call upon the members of the UN to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication, and the severance of diplomatic relations.372 If the Security Council considers that these sanctions are inadequate, it may take recourse to military sanctions.373 While the Security Council and the General Assembly may both recommend such economic sanctions, the power to introduce binding measures has only been attributed to the former organ, which has primary responsibility for the maintenance of international peace and security.374 For example, on 12 December 1946, the General Assembly of the UN recommended that all UN members should immediately recall from Madrid their ambassadors and ministers plenipotentiary accredited to the Spanish government. It also recommended that the Franco government of Spain should be barred from participating in international organizations, conferences and other activities.375 The recommendation was applied, many ambassadors were recalled and Spain was excluded from the greater part of international cooperation. However, the desired change in the Spanish government was not obtained. It is difficult to speculate whether this result could have been achieved if all members of the UN had cooperated more wholeheartedly or whether

369. 370. 371.

372.

373. 374. 375.

LoN Covenant, Art. 16.1. On the application of this provision, see R.B. Henig, The League of Nations 91-152 (1973). Monthly Summary of the League of Nations 254-255 (1935). G.W. Baer, Sanctions and Security: The League of Nations and the Italian-Ethiopian War 19351936, 27 International Organization 165-179 (1973); Ch. Rousseau, L’application des sanctions contre l’Italie et le droit international, Revue de Droit International et de Législation Comparée (1936), at 5 ff. UN Charter, Art. 41. For the question whether neutral states may participate in such action, see R.L. Bindschedler, Das Problem der Beteiligung der Schweiz an Sanktionen der Vereinigten Nationen besonders im Falle Rhodesiens, 28 ZaöRV 1-32 (1968, summary in English). See also 30 Archiv des Völkerrechts (1992), devoted to “Third states and sanctions in public international law”. UN Charter, Art. 42. UN Charter, Art. 24.1. GA Res. 39 (I). See Lino di Qual, Les effets des résolutions des Nations Unies 230-233 (1967).

§1482

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the sanction was inherently unfit for this purpose. The resolution was finally withdrawn in 1950.376 On 18 May 1951, the General Assembly recommended that every state apply an embargo on the shipment of several commodities to areas under the control of communist China and of North Korea.377 The resolution caused many states to stop such shipments, but it did not lead to any noticeable change in the behaviour of the governments concerned. When Southern Rhodesia had unilaterally declared itself independent under a white minority government, the UN first appealed to all states to break off economic relations. Subsequently, on 16 December 1966 the Security Council decided that all member states of the UN should halt trade with Southern Rhodesia in a number of specified commodities.378 In later resolutions the scope of these sanctions was extended to all trade and to the severance of relations with Southern Rhodesia in general.379 The Council invoked Article 25 of the UN Charter, by which the members of the UN agreed to carry out decisions of the Security Council. Although most states prohibited trade with Southern Rhodesia,380 the decision had no immediate results. However, the sanctions did add to the pressures exerted on the Rhodesian Government, which finally led to changes in the composition of the government and to a solution which enabled the Security Council to lift the sanctions in December 1979.381 In 1962, the General Assembly recommended that the members of the UN sever their diplomatic relations with South Africa, close their territory to South African ships and aircraft, boycott South African goods, halt exports to South Africa and forbid their ships to visit the country.382 This recommendation was followed by many others. The Security Council also adopted a number of resolutions in which it showed its opposition to the apartheid policies of the South African government, and/or to South African’s illegal occupation of Namibia.383 In 1977, the Security Council determined that “the acquisition by South Africa of arms and related matériel constitutes a threat to the maintenance of international peace and security”, and decided to introduce a (mandatory) arms embargo.384 However, this embargo led to intensified efforts by South Africa to build up its own capacity to manufacture armaments. In response to this development, the Security Council adopted a non-binding resolution, in which all states were requested to refrain from importing arms, ammunition of all types and

376. 377. 378. 379. 380.

381. 382. 383. 384.

By GA Res. 386 (V), YUN 1950, at 384. See also R.E. Sanders, Spain and the United Nations, 1945-1950 (1966). GA Res. 500 (V). SC Res. 232 (1966). See in particular SC Resolutions 253 (1968); 277 (1970); 333 (1973); 388 (1976); 409 (1977). For the application of the resolutions, see UN Documents S/6681 and addenda 2 to 5; S/8786 and addenda 1 to 5. See also M.S. McDougal and W.M. Reisman, Rhodesia and the United Nations: the Lawfulness of International Concern, 62 AJIL 1-19 (1968); M. Doxey, The Rhodesian Sanctions Experiment, 25 The Yearbook of World Affairs 142-162 (1971); H.L. Cryer, Legal Aspects of the “Johanna V” and “Manuela” Incidents, April 1966, Australian Yearbook of International Law 85-98 (1966); Ruzié, op. cit. note 349, at 112-124; L.T. Kapungu, The United Nations and Economic Sanctions against Rhodesia (1973); Kuyper, op. cit. note 104; Gowlland-Debbas, op. cit. 104. SC Res. 460 (1979). GA Res. 1761 (XVII). See also Res. 1699 (XVI) against Portugal. E.g. Res. 311 (1972). Res. 418 (1977).

937

Supervision and sanctions

§1483

military vehicles produced in South Africa.385 Other non-binding economic sanctions were subsequently introduced against this UN member (for example, suspension of investments, prohibition of the sale of krugerrands, restrictions on sports and cultural relations).386

§1483. For many years, the comprehensive economic sanctions against Southern Rhodesia and the arms embargo of South Africa were the only two cases of mandatory economic sanctions which the Security Council had imposed. Since 1990, this situation has changed. This change should be seen against the background of the end of the Cold War, increasing instability in international relations, claims for self-determination within states and growing possibilities for the five principal powers in the Security Council to reach agreement. The Security Council has introduced binding economic sanctions in a number of cases.387 A distinction can be drawn between embargoes on the delivery of weapons and/or petroleum and petroleum products, and more comprehensive sanctions.388 In some cases (Federal Republic of Yugoslavia, Libya, Haiti), sanctions have gradually been extended from a limited embargo to comprehensive sanctions. Only in the case of Iraq did the Security Council immediately introduce comprehensive economic sanctions. Where comprehensive economic sanctions are imposed, supplies intended strictly for medical purposes and (under certain conditions) foodstuffs, are excluded from the sanctions. One disadvantage of the introduction of economic sanctions against a state is the harm they may cause to innocent people of that state, in particular if comprehensive sanctions are imposed (see also below, §1577). The Security Council has therefore increasingly used the instrument of ‘targeted’ or ‘smart’

385. 386. 387.

388.

Res. 558 (1984). Resolutions 566 (1985), 569 (1985), 591 (1986). See for a survey of economic sanctions imposed by the Security Council in the early 1990s, N.J. Schrijver, The Use of Economic Sanctions by the UN Security Council: an International Law Perspective, in H.M.G. Post (ed.), International Economic Law During Armed Conflict 123-161 (1994). See further M. Bennouna, L’embargo dans la pratique des Nations Unies: radioscopie d’un moyen de pression, in E.Yakpo and T. Boumedra (eds.), Liber Amicorum Judge Mohammed Bedjaoui 555-583 (1999); V. Gowlland-Debbas (ed.), United Nations sanctions and international law (2001). Embargoes on the delivery of weapons: e.g. Resolutions 713 (1991; Yugoslavia), 733 (1992; Somalia), 788 (1992; Liberia), 1298 (2000; Eritrea and Ethiopia); see also Res. 1196 (general recommendations for improving the implementation of arms embargoes in Africa). Petroleum embargo: e.g. Res. 792 (1992; Cambodia, Khmer Rouge). Weapons and petroleum embargo: Res. 864 (1993; Angola). More comprehensive economic sanctions have for example been taken in the cases of Iraq (Res. 661), Libya (Res. 748 and 883), Federal Republic of Yugoslavia (Res. 757, 787, 820), and Haiti (Res. 841 and 917; see also Res. 861, 862 and 872). In a number of cases, flight bans have been introduced: e.g. Res. 670 (Iraq), 748 (Libya), 757 (Federal Republic of Yugoslavia), 1070 (Sudan); 1267 (Afghanistan, Taliban); it was also decided to ban military flights in the airspace of Bosnia and Herzegovina (Res. 781).

§1484

Chapter 10

938

sanctions.389 These sanctions are mostly directed at the leaders of a country whose conduct the Security Council aims to change. Examples are sanctions to reduce the number and the level of the staff at diplomatic missions and consular posts of a country,390 travel restrictions for senior officials,391 and the prohibition of the import of diamonds.392 In addition, the Security Council has decided that all states have to take a wide range of measures against terrorists,393 and against the Taliban and members of the Al-Qaida organization.394 While this development towards smart sanctions must be welcomed, it has also created new problems. For example, a list containing names of individuals has been drawn up for the implementation of the sanctions against members of Al-Qaida. However, some individuals included in this list have denied any connection to Al-Qaida but faced considerable difficulties in having their names removed from the list. The relevant Security Council resolutions do not provide for any form of judicial protection for the individuals concerned. For these side-effects of the targeting of economic sanctions proper solutions have to be found in order not to jeopardize the instrument of smart sanctions.395 §1484. To supervise the implementation of economic sanctions, the Security Council usually establishes a committee consisting of all the members of the Council.396 Such “sanction committees” are charged, inter alia, with examining the reports submitted by all UN members on the measures taken to implement the sanctions, with considering any information about possible violations of the sanctions, and deciding upon requests for exemptions from the sanctions (for example, if for humanitarian reasons the supply of foodstuffs is justified). In addition, in some cases UN peace-keeping forces have been charged with supervising the implementation of the sanctions on the spot.397

389.

390. 391. 392. 393. 394. 395. 396.

397.

See M. Craven, Humanitarism and the Quest for Smarter Sanctions, 13 EJIL 43-61 (2002); P. Wallensteen, G. Staibano and M. Eriksson (eds.), Making Targeted Sanctions Effective – Guidelines for the implementation of UN Policy Options (Results from the Stockholm Process on the Implementation of Targeted Sanctions) (2003; see www.smartsanctions.se). The last mentioned report was presented to the UN Security Council on 25 February 2003, 4713th meeting; see Press Release SC/7672. E.g. Res. 1054 (Sudan). E.g. Res. 1127 (Angola). E.g. Res. 1173 (Angola); Res. 1306 (Sierra Leone). Res. 1373. E.g. Res. 1267, 1333, 1390. See further E. de Wet and A. Nollkaemper, Review of Security Council Decisions by National Courts, 45 GYIL 2002, at 166-202. See for example Resolutions 661 (Iraq), 748 (Libya), 751 (Somalia) and 864 (Angola). On the functioning of the “Yugoslavia” Sanctions Committee, see M.P. Scharf and J.L. Dorosin, Interpreting UN Sanctions, The Rulings and Role of the Yugoslavia Sanctions Committee, in 19 Brooklyn Journal of International Law 771-827 (1993). For example, Resolutions 769 (UNPROFOR, former Yugoslavia) and 866 (UNOMIL, Liberia).

939

Supervision and sanctions

§1485

§1485. In the League of Nations Covenant, it was already recognized that the imposition of economic sanctions might have harmful effects on the economies of members other than the target state. For this reason, Article 16.3 of the Covenant obliged the members to cooperate to minimize the loss and inconvenience resulting from the sanctions. Article 50 of the UN Charter deals with the same issue. Under this provision, any state other than the target of preventive or enforcement measures has the right to consult the Security Council with regard to the solution of special economic problems arising from these measures. In a number of cases, the Security Council has charged the respective sanctions committees with examining requests for assistance under this provision.398 §1486. Where economic sanctions are applied, attempts are always made to circumvent the sanctions, for financial, political or other reasons. The Security Council may of course call upon states to prevent such circumvention but, sooner or later, it may be necessary to have recourse to the military enforcement of economic sanctions to retain credibility. It appears to be generally accepted that a separate authorization for such enforcement by the Security Council is necessary. The introduction of economic sanctions as such does not imply the right to enforce these sanctions by military means. Economic sanctions by the Security Council are based on Article 41 of the Charter, covering measures not involving the use of armed force. Military sanctions (discussed below), including action to enforce economic sanctions are not covered by this article. In practice, the Security Council has given such authorizations in a number of cases, generally without referring explicitly to the “use of force” and using euphemisms instead.399 In practice, such enforcement of economic sanctions has been successful in stopping trade with the state in question.400 10.

Forces of international organizations and military enforcement

§1487. In a few cases, international organizations have required troops to help enforce their resolutions. In such cases they may ask their members to take

398.

399.

400.

For example, Resolutions 669 (Iraq), 843 (Federal Republic of Yugoslavia), and 883 (Libya). See on the application of Art. 50 of the Charter, Schrijver, op. cit. note 347; Simma, op. cit. note 67, at 784-788. For example “such measures commensurate to the specific circumstances as may be necessary” (Resolutions 665 (Iraq), 787 (former Yugoslavia), 875 (Haiti)); and “all necessary measures” (Res. 816, enforcement of the ban on military flights in Bosnia and Herzegovina). Earlier, in the case of sanctions against Southern Rhodesia, the Security Council used clearer language: “... to prevent, by the use of force if necessary, the arrival at Beira of vessels reasonably believed to be carrying oil destined for Southern Rhodesia ...” (Res. 221, 1966). Remarks by J. Bayliss, in ASIL/NVIR, Contemporary International Law Issues: Opportunities at a Time of Momentous Change (Proceedings of the 1993 ASIL/NVIR Joint Conference, edited by R. Lefeber, 1994), at 339 ff.

§1487

Chapter 10

940

military action (see below, §1507-1508) or they may themselves mobilize military units. In the latter case, several problems may arise. First, there is the question whether an international organization is competent to establish military forces. Most international organizations have no power to do so. Only the UN and certain general regional organizations enjoy such power.401 Secondly, the question arises what law should be applied to such forces. In their internal relations it will be a question of criminal jurisdiction,402 whereas in their relations with others, the main problem will be the applicability of the international laws on warfare (see below, §1572, §1577). Forces of international organizations probably bear even more responsibility than national (or allied) armies. They are not commanded by a strong political power, nor do they protect particular well-defined interests, but they are mobilized by a politically weak organization to safeguard diverse and delicately-balanced interests. On the one hand, these forces should be guided by the political organs which bear the responsibility, but on the other, they should enjoy sufficient freedom to operate independently in an emergency when there is no time for consultation with the political organs. Their operations will only succeed when the forces are headed by a commander with diplomatic skill, assisted by political advisors.403 International organizations form their military units from national military forces. Usually such forces are recruited ad hoc; in some cases governments keep special forces available for this purpose.404 Some international forces have been dominated by troops from one specific state, which prejudices their international character. It is preferable that forces of international organizations should be recruited from many states in different regions.405 The legal position of these forces is rather complex. The competence and responsibility of the international organizations is usually limited to the official functions of the forces. The staff of the force remains under national jurisdiction,406 whilst the territorial jurisdiction is exerted by the host state.407

401. 402. 403. 404.

405. 406.

L.B. Sohn, The Authority of the United Nations to establish and maintain a Permanent United Nations Force, 52 AJIL 229-240 (1958). D.S. Wijewardane, Criminal Jurisdiction over visiting Forces with special Reference to International Forces, 41 BYIL (1965-66), at 122-197. D.H. Popper, Lessons of United Nations Peacekeeping in Cyprus, 64 AJIL (1970), No. 4 (Proceedings of the American Society of International Law), at 5-6. E. Johansson, Die nordischen Bereitschaftstruppen für die UNO, 15 Jahrbuch 138-151 (1971). See also W. Strasser, Die Beteiligung nationaler Kontingente an Hilfeinsätzen internationaler Organisationen, 34 ZaöRV 706-707 (1974). For the composition of international forces, see E. Zoller, Le principe de la répartition géographique dans la composition des forces des Nations Unies, 21 AFDI 503-545 (1975). According to the House of Lords, action can be brought against the British Crown for damages caused by British troops serving within United Nations forces, see AttorneyGeneral v. Nissan, 11 Feb. 1969, 44 ILR (1972), at 360; according to a Belgian court the United Nations may invoke immunity against similar claims, see M. v. UN and Belgium, 11 May 1966, 45 ILM (1972), at 447, 448, 455.

941

Supervision and sanctions

§1488

Below, some examples of the use of troops within the framework of regional organizations will be discussed. Subsequently, brief attention will be paid to the experience of the League of Nations in this field. Finally, the relevant UN rules and practice will be summarized. §1488. In 1965, the Organization of American States sent armed forces to the Dominican Republic. These forces, under command of a Brazilian general, mainly comprised troops from the US, with others from Brazil, Costa Rica, El Salvador, Honduras and Nicaragua. The purpose of these forces was: “in a spirit of democratic impartiality, that of cooperating in the restoration of normal conditions in the Dominican Republic, in maintaining the security of its inhabitants, and the inviolability of human rights, and in the establishment of an atmosphere of peace and conciliation that will permit the functioning of democratic institutions”.408 One of the considerations in sending the force was: “The formation of an interamerican force will signify ipso facto the transformation of the forces presently in Dominican territory into another force that would not be that of one state, (the US had landed troops in the Dominican Republic a week before the resolution was taken) or of a group of states but that of the Organization of American States, an interstatal organization, which organization is charged with the responsibility of interpreting the democratic will of its members” (emphasis added).409

§1489. In August 1968, troops from several Warsaw Pact members (mainly the USSR) invaded Czechoslovakia to protect what they considered to be the true version of communism.410 §1490. In June 1976, the Arab League decided to create an Arab Force in the Lebanon to replace Syrian troops. By October 1976, the composition of this force was such that it was dominated by the very large Syrian contingent.411

407.

408.

409. 410.

411.

See P. Dewast, Quelques aspects du statut des “Casques bleus”, 81 RGDIP 1007-1046 (1977). On the powers and obligations of the states involved, see also W.R. Williams, jr., Intergovernmental Military Forces and World Public Order 394-575 (1971). OAS Res. of 6 May 1965, The OAS Chronicle, Vol. I, No. 1 August 1965, at 23-24. On this action see Dominican Action 1965, Intervention or cooperation? (The Center for Strategic Studies, special report series No. 2, 1966); C.G. Fenwick, The Dominican Republic: Intervention or Collective Self-defence, 60 AJIL 64-67 (1966), criticized by R.T. Bohan, The Dominican Case: Unilateral Intervention, 60 AJIL 809-812 (1966); Y.F. Ferguson, The Dominican Intervention of 1965: Recent Interpretations, 27 International Organization 517-528 (1973). On the concept of an Interamerican Force, see G. Kutzner, Die Organisation der Amerikanischen Staaten (OAS) 212-223 (1970). See 7 ILM 1265-1339 (1968). On this action see also K. Rider Schmeltzer, Soviet and American Attitudes Toward Intervention: The Dominican Republic, Hungary and Czechoslovakia, 11 VJIL 116-122 (1970-71). On this force, see G. Feuer, La force arabe de sécurité au Liban, 22 AFDI 51-62 (1976).

§1491

Chapter 10

942

§1491. In the Dominican and Czechoslovak cases, military forces were used to protect the aims for which the international organization had been established. In both cases, it may be doubted whether the armed intervention was permissible in the absence of the express approval of the government concerned, since the constitutions of the organizations contained no provision allowing such intervention.412 Apart from the contrasting values which the forces sought to protect, other differences between both cases exist; most notably, in the former case a civil war endangered public order, while in the latter, the government was supported by the population. In the first case, foreign (US) troops in the country concerned were “replaced” by the forces of the organization; in the second case, there were no foreign troops to be replaced when the action started. Operations in the second case took considerably longer than in the first. The Arab force in Lebanon may be seen as a collective guarantee following a mediation by the Arab League.413 §1492. The League of Nations Covenant did not provide for a machinery for military enforcement by the organization – despite French attempts during the Covenant negotiations to establish a permanent international police force, which would have given the organization the teeth necessary to impose its will upon the members. A largely decentralized mechanism for maintaining or restoring international peace and security was laid down by Article 16 of the Covenant. Were a League member to resort to war, it was “ipso facto [to] be deemed to have committed an act of war against all other members of the League”, which were obliged to introduce economic (but not military) sanctions.414 The League Council was merely obliged to issue recommendations concerning military sanctions.415 Although the League Covenant did not provide for the creation of “League forces”, in practice the League of Nations sent a force to the border area between Colombia and Peru in 1933 (which was administered for one year by a League Commission). This force was composed of a few Colombian troops, but was nevertheless recognized as an international force. In 1934 another force was mobilized in the Saar (Germany). This was the first truly international force, composed of some troops from the Netherlands and Sweden, and some larger contingents from Italy and the United Kingdom. It was placed under the authority of the Governing Commission of the Saar, for the purpose of assisting it in maintaining order during the plebiscite.416

412. 413. 414. 415. 416.

For a comparison of both cases and for the arguments by which they were supported and attached, see Schmeltzer, op. cit. note 410, at 97-124. Feuer, op. cit. note 411, at 61. LoN Covenant, Art. 16.1. LoN Covenant, Art. 16.2. F. Seyersted, United Nations Forces 28-29 (1966). On military actions of the League of Nations, see also Karaosmanog˘lu, op. cit. note 91, at 27-30. On the history of intergovernmental military forces, see Williams, op. cit. note 407, at 17-87.

943

Supervision and sanctions

§1493

§1493. In comparison with the League of Nations Covenant, the UN Charter provides for a much more centralized system of enforcement measures. The ultimate sanction in this system is military enforcement. According to Article 42 of the Charter, the Security Council “may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security”. These forces must be supplied by the member states, which “undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security”.417 The agreement or agreements were to be negotiated as soon as possible on the initiative of the Security Council.418 These provisions are far-reaching. The member states agreed to a system under which they were obliged to supply armed forces, but decisions to deploy these forces were beyond the full control of all but five of them.419 Thus, two inroads were made upon one of the core aspects of state sovereignty, the state’s monopoly of the use of force. Decisions would be taken elsewhere to use “their” forces, for purposes to which the supplying member might not subscribe. Secondly, military enforcement measures might be taken by a supranational body against the wishes of most member states. §1494. The far-reaching scope of these military enforcement provisions was confirmed when it proved impossible to implement the system envisaged by the drafters of the Charter. The Cold War soon split wartime alliances, and the Security Council was unable to take the initiative for the negotiation of Article 43 agreements. But these Charter rules also remained unimplemented after the Cold War was over. In his 1992 Agenda for Peace, the UN SecretaryGeneral recommended that the Security Council initiate negotiations for the conclusion of Article 43 agreements. In his view, the option of taking military action to maintain or restore international peace and security “is essential to the credibility of the United Nations as a guarantor of international security. This will require bringing into being, through negotiations, the special agreements foreseen in Article 43 of the Charter, [...] not only on an ad hoc basis but on a permanent basis. Under the political circumstances that now exist for the first time since the Charter was adopted, the long-standing obstacles to the conclusion of such special agreements should no longer prevail.”420 However, the members’ subsequent lack of enthusiasm for this recommendation demonstrated that these Charter provisions will remain unimplemented for some time to come. Moreover, it also showed that those who blamed the

417. 418. 419.

420.

UN Charter, Art. 43.1. UN Charter, Art. 43.3. Art. 44 of the Charter only stipulates that the Security Council, before calling upon a member not represented on it to provide armed forces, shall invite that member to participate in the decisions of the Council concerning the employment of contingents of that member’s armed forces. UN Doc. A/47/277 (S/24111), at 12-13. Cf. also UN Doc. A/50/60.

§1495

Chapter 10

944

Cold War for the failure to establish a permanent UN force were being overly simplistic. §1495. As a consequence of the absence of Article 43 agreements, member states are not obliged to provide the Security Council with troops on call. This is an important weakening of the collective security system as envisaged by the founding fathers of the UN. However, in the words of the International Court of Justice, “it cannot be said that the Charter has left the Security Council impotent in the face of an emergency situation when agreements under Article 43 have not been concluded”.421 In practice, the vacuum in the UN collective security scheme was to some extent filled by enforcement operations under the authorization of the Security Council but conducted by the member states or regional organizations (see below, §1507 ff.), and by ad hoc UN observer and peace-keeping missions, sometimes created by the General Assembly but mostly by the Security Council. Traditionally, UN observer and peace-keeping missions have no enforcement tasks. Sometimes a distinction is drawn between observer groups and peace-keeping operations. The former are relatively small and in most cases unarmed. They have to supervise the implementation of, inter alia, truces and demarcation lines. Examples are the UN Truce Supervision Organization and the Lebanon Observer Group, which each numbered over 500 men; their cost amounted to 12.6 per cent and 6 per cent of the 1949 and 1958 budgets respectively.422 Another example was the UN Observer Group in Central America (1989-1991), with a maximum strength of 1098 men.423 Peace-keeping forces are usually larger and armed. The traditional difference between peace-keeping forces and the UN force envisaged in the Charter clearly appears from the more limited possibilities for the use of armed force in the former: such use is only permitted in the exercise of self-defence. This is the result of the more limited task of these “soldiers without enemies”.424 In general, they are charged to keep a pre-existing peace agreed between the parties involved, as opposed to imposing a non-existing peace. However, since the beginning of the 1990s this traditional distinction between peace-keeping and peace enforcement has become increasingly blurred. The “classical” peace-keeping operations will now be discussed briefly, and an indication will be given of the extent to which some more recent operations are different.

421.

422. 423. 424.

Expenses Case, ICJ Rep. 1962, at 167. See also UNJY 1982, at 183-185; J.A. Frowein, Legal Consequences for International Law Enforcement in Case of Security Council Inaction, in J. Delbrück (ed.), The Future of International Law Enforcement (Proceedings of an International Symposium of the Kiel Institute of International Law, 1993), at 111-124; Durch, op. cit. note 92. Stoessinger, op. cit. note 253, at 105. For the financing of UN forces, see above, §951-954. The Blue Helmets (2nd ed. 1990), at 389-401. See also B.D. Smith and W.J. Durch, UN Observer Group in Central America, in Durch, op. cit. note 92, at 436-462. This is the title of a book by L.L. Fabian published in 1971.

945

Supervision and sanctions

§1496

§1496. In 1956, the General Assembly formed the First United Nations Emergency Force in the Middle East (UNEF I) as an organ of the UN.425 It was commanded by the chief of staff of the UN Truce Supervisory Organization, who was already carrying out observer functions on behalf of the UN. UNEF I was composed of units from many states, but not from any of the major powers.426 Its task was “to secure the cessation of hostilities in accordance with all the terms” of the Resolution of 2 November 1956 of the General Assembly. The Force had no rights other than those necessary for the exercise of its functions, in cooperation with local authorities. It was more than an observers corps, but in no way a military force which fully controlled the territory in which it was stationed; nor had the Force military functions exceeding those necessary to establish peaceful conditions, on the assumption that the parties to the conflict would take all steps necessary to comply with the recommendation of the General Assembly.427

The experience with UNEF I formed the basis for a report by the SecretaryGeneral of the UN which greatly influenced the establishment of other UN forces.428 UNEF I operated on Egyptian territory with the permission of the Egyptian government.429 The Secretary-General of the UN withdrew the Force and actually dissolved it when the Egyptian president revoked the consent to have the forces stay on Egyptian territory on 17 May 1967.430

425.

426. 427. 428. 429. 430.

GA Res. 1000 (ES-1) of 5 November 1956. On UNEF I, see publications, No. 46, 52, and 58 of the Netherlands Ministry of Foreign Affairs; YUN 1967, at 258-259; YUN 1968, at 888; G. Rosner, The United Nations Emergency Force (1963); Seyersted, op. cit. note 416; D.W. Bowett, United Nations Forces (1964); J.I. Garvey, UN Peacekeeping and Host State Consent, 64 AJIL (1970), at 241-269 (against withdrawal); E. Menzel, Die militärischen Einsätze der Vereinten Nationen zur Sicherung des Friedens, 15 Jahrbuch 11-137 (1971); P. Manin, L’Organisation des Nations Unies et le maintien de la paix (1971); J. Ballaloud, L’ONU et les operations de Maintien de la Paix (1971); J.M. Boyd, United Nations PeaceKeeping Operations: A Military and Political Appraisal (1971); R. Higgins, United Nations Peacekeeping, Documents and Commentary (Vol. I, Middle East, 1969), at 218-529; J.A. Stegenga, Peacekeeping: Post-Mortems or Previews, 27 International Organization 373-385 (1973); L.L. Fabian, Toward a peacekeeping renaissance, 30 International Organization 153-161 (1976); The Blue Helmets, op. cit. note 423, at 43-78 ; M. Ghali, United Nations Emergency Force I, in Durch, op. cit. note 92, at 104-130. For the composition of UNEF I, see The Blue Helmets, op. cit. note 423, at 56-57. GA Res. 1001 (ES-1). UN Doc. A/3943, GA 13th Session Annexes Agenda Item 65, at 8-33, also published as Annex 27 to Publication No. 58 of the Netherlands Ministry of Foreign Affairs. For the agreement between the UN and Egypt, see 260 UNTS, at 62. UN Documents A/6669 and A/6672. The revocation was notified to the UN on 18 May but Egyptian forces entered the territory earlier. See Higgins, op. cit. note 425, Vol. I, at 335-367; YUN 1967, at 162-174; UNJY 1967, at 87-107; Y. Tandon, UNEF, the SecretaryGeneral and the International Diplomacy in the Third Arab-Israeli War, 22 International Organization 529-556 (1968).

§1497

Chapter 10

946

§1497. The second peace-keeping force was the UN Operation in the Congo (ONUC), which was partly charged with the enforcement of UN resolutions, but should mainly be regarded as a mission to assist a member state in performing its functions as a state (see below, §1833). This force involved 20,000 troops and civilians, and operated between 1960 and 1964.431 The United Nations Force in Cyprus (UNFICYP) should also primarily be considered as a mission to assist a member to maintain internal law and order (see below, §1833). Created in 1964, UNFICYP was different from the earlier peace-keeping forces in at least two respects. First, in view of the financial and political crisis facing the UN after the creation of UNEF I and ONUC it was financed from voluntary, and not from compulsory contributions. Secondly, one of the permanent members of the Security Council, the United Kingdom, was a prominent participant in this force, Cyprus being a former British colony. The fact that UNFICYP has now been in existence for fourty years proves that a peace-keeping force as such is no easy route to solve a conflict. At most, peace-keeping contributes to the climate in which a political solution must be sought.432 §1498. The Second United Nations Emergency Force in the Middle East (UNEF II) was formed by the Security Council of the UN in 1973 and functioned until 1979 when its mandate was not renewed.433 UNEF II was an entirely new force, not a revival of UNEF I.434 The Security Council expressly confirmed the previous practice that no forces of its permanent members would participate in UNEF II. The original strength of UNEF II was almost 7,000 men,435 but after the creation of the United Nations Disengagement Observer Force for the Golan Heights this number was reduced to just over 4,000.436 The task of UNEF II was to ensure compliance by Israel and Egypt with the cease-fire provisions of the Security Council’s Resolutions 338, 339 and 340 of October 1973.437 No troops from the permanent members of the Security Council participated in UNEF II. §1499. On 31 May 1974, the United Nations Disengagement Observer Force (UNDOF) was established by the Security Council, to maintain the cease-fire

431.

432. 433.

434. 435. 436. 437.

See The Blue Helmets, op. cit. note 423, at 213-259; G. Abi-Saab, The United Nations Operation in the Congo, 1960-1964 (1978); Higgins, op. cit. note 425, Vol.III (1980); W.J. Durch, The UN Operation in the Congo: 1960-1964, in Durch, op. cit. note 92, at 315-352. See on UNFICYP Higgins, op. cit. note 425, Vol. IV, at 77-411; The Blue Helmets, op. cit. note 423, at 213-259. For the establishment of UNEF II, see SC Res. 340 of 25 Oct. 1973. On this resolution, see P. Manin, L’ONU et la guerre du Moyen Orient, 19 AFDI 538-563 (1973). On UNEF II, see The Blue Helmets, op. cit. note 423, at 79-98; M. Ghali, United Nations Emergency Force II: 1973-1979, in Durch, op. cit. note 92, at 131-151. See UNJY 1974, at 159. In February 1974, see YUN 1974, at 191. YUN 1975, at 208; YUN 1976, at 214. YUN 1973, at 213.

947

Supervision and sanctions

§1500

between Israel and Syria of the same date which was called for by Security Council Resolution 338 (1973).438 UNDOF also supervises the disengagement agreement with regard to areas of separation and limitations of armaments and forces.439 The maximum authorized strength of UNDOF is 1,450 men.440 No contingents from permanent members of the Security Council have participated in it. §1500. On 19 March 1978, the Security Council created the United Nations Interim Force for Southern Lebanon (UNIFIL), “for the purpose of confirming the withdrawal of Israeli forces, restoring international peace and security and assisting the Government of Lebanon in ensuring the return of its effective authority in the area.”441 The maximum authorized strength of UNIFIL is 7,000 troops.442 A French contingent formed an important part of this peacekeeping force. §1501. Until the end of the 1980s, no new UN peace-keeping operations were established. Since then, however, both the number and the scope of such operations have mushroomed. As in the case of economic sanctions introduced by the Security Council, this should be seen against the background of the end of the Cold War, increasing instability in international relations, claims for self-determination within states and growing possibilities for the five principal powers in the Security Council to reach agreement. A number of observer missions were created,443 more or less with the same features as their Cold War predecessors: of relatively limited size, generally unarmed, and with observation/supervision tasks. On the other hand, the peace-keeping forces created in the post Cold War era differ from their predecessors in a number of respects.444

438. 439. 440. 441. 442. 443.

444.

See on UNDOF The Blue Helmets, op. cit. note 423, at 99-110; M. Ghali, United Nations Disengagement Observer Force, in Durch, op. cit. note 92, at 152-162. YUN 1974, at 189. The Blue Helmets, op. cit. note 423, at 425. SC Res. 425 (1978). The Blue Helmets, op. cit. note 423, at 427; in practice UNIFIL’s strength was between 5000 and 6000 men. For example, the UN Iran-Iraq Military Observer Group (1988-1991), the UN Observer Mission Uganda Rwanda (1993-1994), the UN Observer Mission in Georgia (created in 1993), the UN Mission of Observers in Prevlaka (created in 1996), and the UN Observer Mission in Angola (1997-1999). See also B. Boutros-Ghali, Empowering the United Nations, in 71 Foreign Affairs (Winter 1992-93), at 89-102; P.H. Kooijmans, Maintaining the Peace in the Shadowland Between the Old and the New International Order, Uhlenbeck-Lecture X (1992); L.F. Damrosch, The Role of the Great Powers in United Nations Peacekeeping, 18 Yale Journal of International Law 429-434 (1993); J. Delbrück (ed.), op. cit. note 421; W.M. Reisman, Peacemaking, 18 Yale Journal of International Law 415-423 (1993); N.D. White, Keeping the Peace – The United Nations and the Maintenance of International Peace and Security (1993); New Peacekeeping after the Cold War, 5th English language issue of the Internationale Spectator (November 1993); K. Zemanek, Peace-keeping or Peace-making?, in Blokker and

§1502

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§1502. First and foremost, the mandate of a number of the more recent peacekeeping forces is more comprehensive than that of the earlier operations. While the latter were often created to deal with conflicts between states (UNEF I, UNEF II, UNDOF, to some extent UNIFIL), the current peace-keeping forces mostly concern conflicts within states. The UN Transition Assistance Group (1989-1990) had to supervise the transition of Namibia towards independence.445 Subsequently, the UN Transitional Authority in Cambodia (19921993),446 the UN Operation in Mozambique (1992-1995),447 the UN operations in Haiti (since 1993),448 the UN Assistance Mission for Rwanda (19931996),449 and in particular the UN operations in former Yugoslavia (UNPROFOR (1992-1995), UNMIBH (created in 1995) and UNMIK (created in 1999)), Somalia (UNOSOM I (1992-1993) and II (1993-1995)), Sierra Leone (UNAMSIL, created in 1999), the Democratic Republic of the Congo (MONUC, created in 1999), and in East Timor (UNTAET (1999-2002) and UNMISET (created in 2002)) were given mandates which far surpassed those of the earlier forces.450 §1503. It is beyond the scope of this book to analyze in detail the mandates of these more recent operations. Two examples will be taken that not only clarify the differences with earlier peace-keeping forces, but also indicate the new type of problems encountered: UNPROFOR and UNOSOM. The difference with earlier UN peace-keeping forces becomes clear if their most important tasks are mentioned. UNPROFOR had to control the so-called UN Protected Areas (occupied by Serbia) in Croatia. Subsequently, it was charged to ensure the security and functioning of Sarajevo airport, and to guarantee the safe movement of humanitarian aid and related personnel. It had to supervise the implementation of economic sanctions in the UN Protected Areas and the ban on military flights in the airspace of Bosnia and Herzegovina. To prevent the war escalating, UNPROFOR troops were also deployed in Macedonia. Additionally, UNPROFOR was given the task of monitoring the humanitarian situation in the so-called safe areas, and of deterring attacks against the safe areas. The

445. 446. 447. 448. 449. 450.

Muller, op. cit. note 1, at 29-47; D. Warner (ed.), New Dimensions of Peacekeeping (1995); J.P. Isselé, La métamorphose des opérations de maintien de la paix des Nations Unies, in L. Boisson de Chazournes and V. Gowlland-Debbas (eds.), The International Legal System in Quest of Equity and Universality – Liber Amicorum Georges Abi-Saab 777-796 (2001). SC Resolutions 435 (1978) and 629 (1989). SC Res. 745 (1992). SC Res. 797 (1992). SC Res. 867 (1993) and subsequent resolutions. SC Res. 872 (1993). UNPROFOR was created in SC Res. 743 (1992), but most of its tasks were given in subsequent resolutions, in response to developments on the spot. UNOSOM was established in SC Res. 751 (1992); UNOSOM II in SC Res. 814 (1993). UNMIBH was created in Res. 1035, UNMIK in Res. 1244. UNAMSIL: Res. 1270. UNTAET: Res. 1272; UNMISET: Res. 1410. MONUC: Res. 1279.

949

Supervision and sanctions

§1504

Srebrenica tragedy of July 1995 showed the limits of this answer by the international community to the conflict in the former Yugoslavia. It demonstrated, inter alia, that UNPROFOR, notwithstanding its broad mandate, lacked effective means to enforce this mandate and prevent the Bosnian Serbs from removing inhabitants, occupying the town of Srebrenica and killing thousands of men and boys. The international community was reluctant to use force against the Serbs and peacekeeping was used as a substitute. In the analysis of the UN Secretary-General: “we tried to keep the peace and apply the rules of peace-keeping when there was no peace to keep”.451 §1504. UNOSOM I was established in April 1992. Its main tasks were to supervise the ceasefire agreements, to assist in the distribution of humanitarian aid, and to contribute to the process of national reconciliation in Somalia. Notwithstanding the UN presence, fighting continued and the situation deteriorated. In December 1992, the Security Council authorized the member states (in practice: mainly the United States) to regain control of Somalia by the use of military force. The Unified Task Force was born, and functioned until May 1993 (see below, §1509). In March 1993 it was decided that a phased transition would take place from this Task Force of UN members to an expanded version of UNOSOM (UNOSOM II). As of May 1993, UNOSOM II was more or less given the task of exercising the functions of a government in Somalia. It had, inter alia, to monitor that all factions continued to respect the cessation of hostilities, to prevent any resumption of violence, to maintain control over the heavy weapons of the organized factions, to secure or maintain security at all ports, airports and lines of communications required for the delivery of humanitarian assistance, to continue the programme for mineclearing and to assist in the repatriation of refugees and displaced persons.452 In November 1994, the Security Council decided to extend the mandate of UNOSOM II for a final period until 31 March 1995, “recognizing that the lack of progress in the Somali peace process and in national reconciliation, in particular the lack of sufficient cooperation from the Somali parties over security issues, has fundamentally undermined the United Nations objectives in Somalia and, in these circumstances, continuation of UNOSOM II beyond March 1995 cannot be justified”.453 UNOSOM II was withdrawn in March 1995. §1505. Other differences between the earlier and some of the more recent peacekeeping forces are directly related to the above mentioned basic differences between their mandates. The original requirement of host state consent to the

451. 452. 453.

UN Doc. A/54/549 (Report of the Secretary-General pursuant to General Assembly resolution 53/35 – The fall of Srebrenica), at 108 (para. 488). UN Doc. S/25354, SC Res. 814 (1993). SC Res. 954 (1994).

§1506

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presence of UN troops on its territory has not always been set more recently.454 Furthermore, there is more scope than before for the use of force by some UN forces.455 In addition, while the permanent members of the Security Council were generally absent in the forces of the Cold War era,456 to avoid any involvement of these powers in the conflict, they participate fully in the more recent peace-keeping operations. In general, the earlier strict separation between neutral peace-keeping and enforcement action has become blurred. This development is reflected in the “operational principles” for UN peacekeeping forces, established by the Security Council in 1993. These principles include “the consent of the government and, where appropriate, the parties concerned, save in exceptional circumstances”, “readiness of the Security Council to take appropriate measures against parties which do not observe its decisions”, and “the right of the Security Council to authorize all means necessary for United Nations forces to carry out their mandate”.457 §1506. But the vacuum in the UN collective security system, left when the envisaged UN enforcement army was not established, was not only filled by the more limited substitute of observer missions and peace-keeping forces. Another partial remedy was found in the form of the concept of enforcement operations under the authorization of the Security Council but conducted by the member states or regional organizations.458 This concept has also sometimes been used by regional organizations. For example, the OAS has sometimes asked its members to impose sanctions on a member which has acted in a way inconsistent with the aims of the organization.459 Thus, the OAS imposed economic sanctions upon the Dominican Republic in 1960 and on Cuba in January 1962. In October 1962, it recommended that its members should take all measures, including the use of armed force, to ensure that the Government of Cuba could not continue to receive military materials (missiles) from the Sino-Soviet Powers.460

454.

455. 456. 457. 458.

459. 460.

In particular in the case of UNPROFOR and UNOSOM II. See R. Siekmann, The Development of the United Nations Law concerning Peace-keeping Operations, 5 LJIL 278-281 (1992). See also A. Di Blase, The Role of the Host State Consent with regard to Non-Coercive Actions by the United Nations, in A. Cassese (ed.), United Nations Peace-keeping, Legal Essays (1978), at 55-94. See T. Findlay, The Use of Force in UN Peace Operations (2002). Exceptions are the participation of the United Kingdom in UNFICYP and the participation of France in UNIFIL. UN Doc. S/25859, at 1. See N. Blokker, Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by ‘Coalitions of the Able and Willing’, 11 EJIL 541-568 (2000), with references to further literature. See M. Akehurst, Enforcement Action by Regional Agencies with special reference to the Organization of American States, 42 BYIL 175-227 (1967). In 1965 the OAS did not ask its members to act against the Dominican Republic. It requested them to make forces available to the OAS, so that the organization itself could act (see above, §1488).

951

Supervision and sanctions

§1507

§1507. However, the concept of enforcement action authorized by an organization and carried out by the member states has received most attention in the cases in which it was applied by the UN. Some of these cases will now briefly be discussed: Korea (1950), Iraq (1990-1991), Somalia (1992-1993), Rwanda (1994), and Haiti (1994-1995).461 In its resolution of 25 June 1950 (passed in the absence of the USSR) the Security Council called for an immediate cessation of hostilities and for a withdrawal of North Korean troops from South Korea. In its resolution of 27 June 1950, (passed in the absence of the USSR), the Security Council noted that North Korea had neither ceased hostilities nor withdrawn its forces. The Council therefore recommended “that the members of the UN furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area”.462 In a later resolution of 7 July 1950,463 the Security Council (still without the Soviet Union) welcomed the prompt and vigorous support which governments and peoples of the UN had given to the resolutions of 25 and 27 June. It recommended that all members providing military forces and other assistance pursuant to these resolutions should make such forces and other assistance available to a Unified Command under the United States and it authorized the Unified Command to use the UN flag concurrently with the flags of the various participating nations. The action in Korea was effective in so far that the ultimate result was a restoration of the original situation. §1508. More or less the same method was used when military action was taken against Iraq.464 Almost four months after the Iraq’s invasion of Kuwait, the Security Council adopted Resolution 678, in which it authorized member states cooperating with the government of Kuwait “to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area”. There are differences with the Korea resolution. All permanent members of the Security Council were present, no UN flag was used this time, and the wording of the resolution was somewhat different (“authorizes” as compared to “recommends”). However, this enforcement operation was basically framed in the same way.

461. 462.

463. 464.

See also Chayes and Chayes, op. cit. note 2, at 34-67. See Publications No. 26, 31, 35 and 38 of the Netherlands Ministry of Foreign Affairs; Seyersted, op. cit. note 416); Bowett, op. cit. note 425; L. Gordenker, The United Nations Decisions and the Peaceful Unification of Korea (1959); G.D. Paige, The Korean Decision (1968); R. Higgins, United Nations Peacekeeping, Documents and Commentary (Vol. II, 1970), at 151-312. Publication No. 26 of the Netherlands Ministry of Foreign Affairs, at 71. O. Schachter, United Nations Law in the Gulf Conflict, 85 AJIL 452-473 (1991); Les aspects juridiques de la crise et de la guerre du golfe, Actes du colloque des 7 et 8 juin 1991 (1991).

§1509

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§1509. In the case of Somalia, the Security Council authorized “the SecretaryGeneral and member states cooperating to implement the offer referred to in paragraph 8 above [-by the US-] to use all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia”.465 The same model was used as in the cases of Korea and Iraq. However, in the case of Somalia, the tasks of the enforcement troops (the Unified Task Force, UNITAF) were far from completed when UNITAF was terminated at the end of April 1993, and replaced by UNOSOM II. The main difference between UNITAF and UNOSOM II is that the former was an enforcement operation like those in Korea and Iraq, whereas the latter is a true UN force. This time, the enforcement action was not only authorized, but also implemented by the UN. This is one step further in the direction of that which the drafters of the UN Charter had in mind, the only main difference being that UNOSOM II is an ad hoc force, while the “Charter force” is based on troops which would be available to the Security Council on a permanent basis, to be used “on its call”.466 As in the case of the model “Charter force”, but by contrast to the Korea and Iraq operations, in the case of UNOSOM II the organization carries out its own operation. In the Korea and Iraq operations, the UN had no control over the operation, since it gave a very broad mandate to the members concerned. In the case of Somalia however, it is essentially the organization, the UN (Security Council), which has to interpret and carry out its own mandate. Meanwhile the UNOSOM II experience has demonstrated that the organization remains heavily dependent upon the member states. Disagreement about the use of force by UNOSOM II led the commander of the Italian contingent to take independent initiatives that prompted the UN to seek his recall, which the Italian authorities refused.467 §1510. In 1994, two more cases of enforcement action authorized by the UN and carried out by the member states, took place. In relation to Rwanda, the Security Council determined “that the magnitude of the humanitarian crisis ... constitutes a threat to peace and security in the region”. It authorized the member states cooperating with the Secretary-General to use “all necessary means” for a relief operation.468 This operation (Opération Turquoise) was carried out mainly by France for a two month period. Subsequently, a UN force (UNAMIR) resumed its functions. §1511. In the case of Haiti, the Security Council authorized member states “to form a multinational force under unified command and control and, in this

465. 466. 467.

468.

SC Res. 794 (1992). Art. 43.1. W.J. Durch, Peacekeeping in Uncharted Territory, in Durch, op. cit. note 92, at 477, footnote 35. See in general about the position of national troops within peace-keeping forces R.C.R. Siekmann, National Contingents in United Nations Peace-Keeping Forces (1991). Res. 929.

953

Supervision and sanctions

§1512

framework, to use all necessary means to facilitate the departure from Haiti of the military leadership, consistent with the Governors Island Agreement, the prompt return of the legitimately elected President and the restoration of the legitimate authorities of the Government of Haiti, and to establish and maintain a secure and stable environment that will permit implementation of the Governors Island Agreement”.469 Following the termination of its mission, this multinational force was replaced by the UN Mission in Haiti (UNMIH). §1512. Thus, the years since the end of the Cold War have shown that there are new perspectives for law enforcement by the Security Council. Since 1990 more sanctions have been applied than during the first 45 years of existence of the UN. Nevertheless, the era since 1990 has also shown that the collective will for a UN military enforcement role is limited, in particular in intra-state conflicts. The end of the Cold War has revealed that there are more fundamental reasons for such limited collective will than were provided by the Cold War. “Why should we die for Danzig?” – the famous cry of the French on the eve of World War II – continues to illustrate “that the often-evoked international solidarity is not yet sufficiently developed to make the functioning of collective security or of peace-making a certainty”.470 11.

Other sanctions

§1513. Some constitutions of international organizations provide for other specific sanctions. Thus, under some of the earlier commodity agreements, the participating states were obliged not to sell more, or to buy less than the quotas attributed to them. States which sold more than their quota were “punished” by a reduction of their next quota.471 They could also be compelled to sell into a buffer stock,472 a quantity which was counted against their next quota and which could be up to double that of the excess.473 §1514. But the most interesting recent developments in this field have taken place within the European Union.474 Traditionally, within the EC there were

469. 470. 471. 472. 473. 474.

Res. 940. Zemanek, op. cit. note 444, at 46. See above, §1460, and B.S. Fischer, The International Coffee Agreement, A study in Coffee Diplomacy 81-91 (1972). See also the 6th International Tin Agreement (1981), Art. 36. E.g. International Cocoa Agreement 1975, Art. 35 (5); 6th International Tin Agreement (1981), Art. 36. International Cocoa Agreement 1975, Art. 35 (6). The text of this paragraph is almost completely taken from N. Blokker and S. Muller, Towards More Effective Supervision by International Organizations – Some Concluding Observations, in Blokker and Muller, op. cit. note 1, at 294-295.

§1515

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few means of enforcing judgments of the Court.475 Political pressure from other member states or even from the Commission could have some effect, but there were no “institutionalized” remedies. As a last resort, after the Court had already found that a member state had failed to fulfil an EC obligation, a new action could be brought before the Court when the state in question refused to carry out the judgment. The substance of this new action is not the earlier violation of an EC obligation, but a new violation of EC law, namely the refusal to take the necessary measures to comply with the earlier judgment (Article 228 EC). This “follow-up” procedure was scarcely used in the early days of the Communities, when judgments were generally complied with. This has however gradually changed in the face of increasing failure to implement judgments.476 Thus, the number of “follow-up” procedures increased. Before 1984, only three such judgments were delivered. Since then, thirty such rulings have been handed down.477 Apparently, being charged under this “followup” procedure does not induce the same sense of shame as it previously did. §1515. In 1991 and 1992, two new additional routes for enforcement were created, one by the Court and one by the member states themselves. The first was created in the famous Bonifaci/Francovich judgment, in which the Court found that it is a principle of Community law that the member states are obliged to pay compensation for harm caused to individuals by breaches of Community law for which the member states themselves can be held responsible. More specifically the Court concluded that, if the breach of Community law consists in the failure by a member state to take all the measures necessary to achieve the result prescribed by a directive (see above, §1326), there should be a right to reparation provided that three conditions are fulfilled. First, the result prescribed by the directive should entail the grant of rights to individuals. Second, it should be possible to identify the content of those rights on the basis of the provisions of the directive. Third, a causal link is required between the breach of the state’s obligation and the loss and damage suffered by the injured parties.478 What has thus been created, is essentially a decentralized enforcement procedure for injured individuals. They can raise an action against the member state before a national court, which, of course, may involve the EC Court through a request for a preliminary ruling. This possibility of claims for damages operates as an incentive for member states to comply more strictly with a number of EC obligations.479

475.

476. 477. 478. 479.

The most far-reaching possibilities for enforcement are to be found in the ECSC Treaty, Art. 88. Under this provision, the High Authority of the ECSC may “take measures” against a member which fails to fulfil its obligations. This sanction has never been applied. See for a specific example OJ 1988, C 160/3. See above, §1442. See above, §1442. Joined Cases C-6/90 and 9/90, Francovich v. Italy, Bonifaci v. Italy, ECR 1991, at I-5357. In this context it must be noted that not every violation of an EC obligation will result in damages for individuals.

955

Supervision and sanctions

§1516

Following the Bonifaci/Francovich judgment, the EC Court decided in Brasserie du Pêcheur/Factortame that a right to reparation does not only arise in the case of non-implementation of a directive, but more general in the case of any infringement of EC law.480 Subsequently the Court has further developed and refined this case-law.481 In particular, having established the principle of member state liability for the infringement of EC law vis-à-vis individuals, it has left important tasks for national courts in applying this principle in concrete cases.482 It is in principle for national courts to determine whether the conditions for liability have been met. In addition, it is for national courts to determine the extent of the reparation and the precise procedure to be followed. The EC Court has formulated some minimum conditions that in any case must be fulfilled by the national courts dealing with these cases; for example, reparation is required to be “commensurate with the loss or the damage sustained” by the individual(s) concerned. §1516. The second new route for enforcement has been created in the 1992 Maastricht Treaty on European Union. This Treaty added a new paragraph to what is now Article 228 EC, introducing the possibility that the Commission, in bringing a “follow-up” case before the Court, “shall specify the amount of the lump sum or penalty payment to be paid by the member state concerned which it considers appropriate in the circumstances”. The Court may then impose a lump sum or penalty payment. In 1996 the European Commission issued a memorandum on applying Article 228.483 In this memorandum it considered the penalty payment as the most appropriate instrument, since the “the basic object of the whole infringement procedure is to secure compliance as rapidly as possible”.484 The amount of the penalty payment is calculated on the basis of three fundamental criteria: the seriousness of the infringement, its duration, and the need to ensure that the penalty itself is a deterrent to further infringements.485 In 1997 the Commission agreed on a method for calculating the penalty.486 A uniform base sum (500 euro per day) is used that is applicable to all kinds of infringements. This sum is multiplied with two coefficients that take into account both the gravity of the infringement

480. 481. 482. 483.

484. 485. 486.

Cases C-46/93 and C-48/93, Brasserie du Pêcheur v. Germany and Factortame, ECR 1996, at I-1029. See for a concise overview P. Craig and G. de Búrca, EU Law 236-254 (2nd ed. 1998); S. Weatherill and P. Beaumont, EU Law 423-432 (3rd ed. 1999). See further T. Tridimas, Liability for Breach of Community Law: growing up and mellowing down?, 38 CMLRev. 301-332 (2001). OJ 1996, C 242/6. The Commission indicated that this is “only an initial approach to the question” (id., para. 2). Following the application of this instrument in concrete cases by the Commission and the Court, “the Commission will be able to gradually refine its views” (id.). See also Schermers and Waelbroeck, op. cit. note 214, at 638-640. Id., para. 4 (italics in the original). Id., para. 5. These criteria are further specified in the Commission memorandum, paras. 6-8. See Europe No. 6888, at 8-9; OJ 1997, C 63/2-4.

§1517

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and its duration, and with an invariable factor for each member state to take into account the financial situation of each member state. The factor for Luxembourg is 1, for Germany it is 26.4. A simulation by the Commission has demonstrated that these calculations may result in penalty payments proposed by the Commission ranging from 500 euro per day for Luxembourg to 791,293 euro per day for Germany.487 As of July 2003, the Court has decided one case in which a penalty payment was ordered.488 More cases are pending. §1517. The creation of these two new possibilities to stimulate member states to comply with their EC obligations is fascinating. The Bonifaci/Francovich judgment is remarkable, because there is no concrete basis in the Treaties for the introduction of the possibility of individual claims for compensation against the member state. It is therefore not surprising that the Court was forced to justify the introduction of this possibility by way of teleological reasoning, arguing that this principle of state liability is inherent in the system of the Treaty, and referring to Article 10 EC. Nor is it surprising that this judgment has been criticized for lack of motivation.489 The judgment seems to be welltimed, in a period of, on the one hand, increasing examples of non-compliance with EC obligations and, on the other, a willingness demonstrated by the member states to tackle this problem. This willingness can be seen not only because the member states agreed to the possibility of the imposition of a lump sum or penalty payment, but in particular because member states themselves (the United Kingdom in particular) took the initiative for adding this sanction to the limited existing avenues of enforcing Community law.490 Is this sheer masochism exposed by the member states? In all probability not; rather, it seems to be the result of a general perception that it is in everyone’s interest to ensure stricter compliance with EC law. C.

Enforcement within the national legal order

§1518. It has already been observed that adequate enforcement requires power. Since most international organizations have little power, their means of ensuring compliance with their legal rules are limited. Can the requisite powers be found outside the organization? General international law, which best covers international organizations and states, offers little assistance since it is also

487. 488.

489. 490.

Europe No. 6888, at 9. Case 387/97, Commission v. Greece, ECR 2000, at I-5047. In this case the Commission proposed a penalty payment of 24, 600 euro per day. This was reduced to 20,000 by the Court. Greece implemented the original Court judgment by 26 February 2001, and has paid a total amount of 5,4 million euro in penalty payments. See the 19th annual report on monitoring the application of Community law (2001), op. cit note 234, para. 1.7. See for example G. Bebr, Annotation of the Bonifaci/Francovich judgment, in 29 CMLRev. 557 (1992); Weatherill and Beaumont, op. cit. note 481, at 424-425. See C.W.A. Timmermans, op. cit. note 229.

957

Supervision and sanctions

§1519

basically powerless. It may be interesting to examine national legal orders more closely for possible sources of power to enforce international legal rules. When sanctions are needed against individuals, international organizations frequently call upon their members for help. A good example is the execution of the UN sanctions against Rhodesia. As violations of economic sanctions will normally be committed by private individuals, it is against individuals that action must be taken. Some states do so more loyally than others. According to the US representative in the Security Council, by February 1972, only the US, the UK and Denmark had taken action to prosecute firms found to be in violation of the Rhodesia sanctions.491

§1519. The usual addressees of decisions of international organizations are the member states. Enforcement, therefore, is normally needed against these states. Can the national legal order be of aid in that enforcement also? In international relations, state sovereignty and the unity of states can sometimes be overemphasized. States are sometimes held responsible for all acts of stateorgans, sometimes even for acts of their citizens. It is assumed that solidarity within a state is so strong that wrongful acts of one organ are supported by the other organs and by the population, so that sanctions can be applied generally and collectively. This is not correct however. There is no reason to suppose that a violation of an international obligation committed by one organ of the state cannot by definition be rejected by other organs. Rather than stressing the unity, the indivisibility of states, international organizations should refer to the internal powers available within a state for limiting, or possibly for terminating, a violation. Since (the executive branches of) governments are usually responsible for fulfilling international obligations, it is worth examining how their acts can be controlled. In many legal systems, government’s actions are subject to a number of legal constraints. They are bound by the political and legal restrictions of their own national constitutions. Can these restrictions be used to control the government acting within an international organization? §1520. There is one clear disadvantage to the use of national powers to persuade governments to fulfil international obligations: there are vast discrepancies between states. In some states, parliaments can be swayed easily by public opinion; in others, public opinion is controlled by the government. In certain states, parliaments have a strong influence; in others, they have not. Some national constitutions allow the judiciary to apply international law, possibly even with priority over national law, whereas other constitutions restrict the powers of courts to the application of national legal rules. Are these discre-

491.

11 ILM 681 (1972). On the application of these sanctions in the Netherlands and on the problems and solutions found by the Netherlands’ Government, see Kuyper, op. cit. note 104.

§1521

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pancies a reason not to use national powers to promote the execution of international obligations where this would be possible? It does not seem so. States should not undertake obligations which they are unwilling to execute. When accepting obligations, they should also accept that all possible means will be used to guarantee their application. If they intend to fulfil their obligations there is no need to fear sanctions. The possibility that violations by other states may escape legal control is no reason for refusing to accept supervision of obligations which have been undertaken. In law, the mere risk of nonfulfilment by others does not generally justify a relaxation of this supervision. 1.

Enforcement through national parliaments

§1521. The powers of parliaments vary greatly from state to state. Whenever a parliament has considerable control over the government, it will also have the power to compel that government to apply rules made by international organizations. Even where a parliamentary majority supports the government, it will be difficult to perpetrate a blatant violation of an international obligation if a minority may publicly denounce it. For governments which are dependent on electoral support, any public debate means pressure to meet obligations. The effect of the enforcement measures mentioned above under II (supervision over execution) and III (official recognition of violations) depends to a large extent on their impact on the parliament of the state concerned and on the power that parliament possesses. Certain international organizations use national parliaments to by-pass potentially uncooperative governments. Thus, the constitution of the ILO obliges the members to submit conventions to the authority competent to enact appropriate legislation or take other suitable action.492 An executive may not merely neglect a convention to which it objects. Its obligation to submit the convention to the parliament may lead to the adoption of a convention which lacks government support.493 If this were to happen, the organization would have promoted one of its aims (widespread acceptance of labour conventions) without the support of the government concerned. The example of the ILO has been followed by several other international organizations (see above, §1284-1286).

492. 493.

ILO, Art. 19, para. 5(b), see above, §1285, §1402-1404. J.E Howard, Parliament and Foreign Policy in France 126-127 (1948).

959

Supervision and sanctions

2.

Enforcement through national courts494

a.

Should national courts apply rules of international law?

(i)

Monist and dualist theories

§1522

§1522. National courts can be of great importance in the enforcement of legal obligations. Unlike the decisions of international courts, national courts’ decisions can usually be enforced in the state concerned. A national court’s decision ordering the government to discontinue certain actions, to pay damages or to safeguard particular freedoms, may be more effective than any international enforcement measures. It is therefore understandable that international organizations try to promote the enforcement of their rules in national courts. One way of doing so is to draw attention to national court decisions applying the laws of international organizations, by giving them wider publicity. Some legal advisors or legal departments of international organizations publish national court decisions.495 The ICAO decided in 1977 to publish national case-law on the conventions on private international air law.496 The provision of information by international organizations to domestic courts usually poses no problems.497

§1523. In many countries national court decisions can be easily obtained. As was observed above, there is no supervisor more alert than the individual whose personal interests are involved. When for political reasons governments or international organs will not act, or are disinterested, the individual concerned will often bring the case to court at the domestic level, if he is permitted to do so (see above, §1428). In many cases however, he is not, for in numerous legal systems, the possibilities for bringing actions against the government are restricted. But even if an individual were in general permitted to bring

494.

495. 496. 497.

C.H. Schreuer, The implementation of international judicial decisions by domestic courts, 24 ICLQ 153-183 (1975); M.G. Marcoff, Les règles d’application indirecte en droit international, 80 RGDIP 385-424 (1976). On the possible role of US courts, see R.B. Lillich, The Proper Role of Domestic Courts in the International Order, 11 VJIL 9-50 (1970-71). See also R.A. Falk, The Role of Domestic Courts in the International Legal Order (1964); Jenks, op. cit. note 311, at 706-715; R. Falk, Implementing International Law – The Role of Domestic Courts: Some Reflections on the United States Experience, in 3 LJIL (Special Issue) 67-76 (1990); H.G. Schermers, The Role of Domestic Courts in Effectuating International Law, in id., at 77-85; M.E. Schneider, International Organizations and Private Persons: The Case for a Direct Application of International Law, in C. Dominicé, R. Patry, C. Reymond (eds.), Études de droit international en l’honneur de Pierre Lalive 345-358 (1993). See J. Gold in Staff Papers; the Office of Legal Affairs of the UN in UNJY. R.H. Mankiewicz, L’Organisation de l’Aviation Civile Internationale, 23 AFDI 641-642 (1977). P. Wendt, Auskunftsplicht von Organen der Europäischen Gemeinschaften gegenüber nationalen Gerichten und Marktbürgern, 16 AWD 485-486 (1970).

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an action against his government, could he then do so on the ground that his government had violated an international obligation? May national courts take the law of international organizations into consideration or are they only empowered to apply national law? As the law of international organizations forms part of international law,498 the rules developed within international law will apply. §1524. National constitutions differ greatly in this respect. The Irish constitution, on the one hand, states that no other legislative authority than the Irish parliament has power to make laws for the state and that no international agreement shall be part of the domestic law of the state, except as may be determined by the parliament.499 In the absence of such express constitutional provision, other states follow the same rule.500 Many states, however, take a different approach, according to which treaties become “the law of the land” immediately upon ratification (plus publication or proclamation in some countries).501 The Netherlands’ constitution, for example, provides that international agreements and decisions of international organizations shall have binding effect in national law if their contents allow general application (selfexecuting provisions). National laws, either prior or subsequent to them, may not be applied in so far as they are incompatible with such international rules.502 Many other states follow the same practice.503 §1525. The theory underlying the Irish constitution is a “dualist” vision of the relationship between national and international law. It finds its roots in the sovereignty of the state, which precludes rules of other legal orders from being directly applied in the national legal order. Within a national legal system only national law can be applied. In order to become binding in national law, international rules have to be transformed into national law. This is at the same time, the only way to protect the parliament’s power of legislation in states where the executive is responsible for international relations. Without a formal act of parliament, no international engagement can become a binding domestic rule. §1526. The theory underlying the Dutch constitution is a “monist” vision on the relationship between national and international law. Monists accept that there are at least some rules of law which are generally binding. However vague they may sometimes be, certain basic legal rules bind states as well as

498. 499. 500. 501. 502. 503.

K. Skubiszewski, Resolutions of International Organizations and Municipal Law, 2 PYIL 80-108 (1968/69), at 81. Constitution of Ireland, Art. 15, para. (2)1; Art. 29, para. 6. For example, the UK, the Commonwealth and Scandinavian countries. See V. Leary, International Labour Conventions and National Law 2 (1982). Constitution of the Netherlands, Arts. 93-94. E.g. France (Art. 55 of the French constitution); Luxembourg and Belgium (see below, §1534, the case Belgian State v. Fromagerie Le Ski); many Latin American countries.

961

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individuals. These fundamental rules are superior to national legal rules and, therefore, in some way unite or at least interconnect all legal orders. One of the basic rules of law which can be accepted as generally binding is the rule that the law of the whole takes priority over the law of its constituent parts.504 Binding rules of international law prevail over national laws.505 Whenever a state undertakes an international legal obligation, all its organs, including the courts, are bound by it. Transformation into national law is unnecessary. The international rules have binding force per se. According to the monist theory, courts need not be limited to applying the rules of the legal order by which they have been established. They may apply all rules of law regardless of the system from which they are derived. One advantage of this theory is its promotion of the application of international law, making that law part of the legal order applied by the national courts. In the other system, governments can accept international obligations relatively lightly, knowing that there will be neither international nor national enforcement and that they can interpret the obligations in whatever manner they choose. When the obligation can be invoked before their own national courts, governments may be less willing to accept obligations; but, once accepted, their application is more certain. §1527. In practice, neither of the two systems is applied in its pure form. In the nineteenth century, when national sovereignty acquired its dominant position, the dualist theory was favoured, it being well-suited to the requirements at that time and it survived into the twentieth century. International relations were relatively infrequent and often purely intergovernmental. National courts benefited from the simplicity of only having to apply national laws. Some superior rules of international law were nevertheless recognized, when war criminals were punished under international law even in the absence of its transposition into their national legal orders. §1528. The application of treaties within the national legal order creates no great problems in a monist system, although it would be too simple to assume that such a system is per se a guarantee of effective domestic implementation of treaties.506

504. 505.

506.

See also J.D.B. Mitchell, The Sovereignty of Parliament and Community Law: The StumblingBlock That Isn’t There, 55 Int. Aff. 33-46 (1979). See also the 1988 Advisory Opinion of the ICJ (Applicability of the Obligation to Arbitrate under Section 21 of the UN Headquarters Agreement), ICJ Rep. 1988, at 34-35 (recalling “the fundamental principle of international law that international law prevails over domestic law”, and referring to case law). As has convincingly been demonstrated by Leary, op. cit. note 501, a comprehensive empirical study on the relationship of international and national law, in particular dealing with the application of labour conventions in six monist countries. Leary shows, inter alia, that national judges are generally reluctant to directly apply treaties (see id., at 77-95 and 163-164).

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In dualist states, transformation into national law is required. This can be achieved in one of two ways: either by general transformation or by specific transformation.507 Many dualist states approve treaties by means of a formal national law. In certain states (for example, the Federal Republic of Germany), this law of approval is considered as the law which incorporates the treaty into national law. The result of this general transformation comes very close to the monist system: as soon as a treaty is accepted by the state, it forms part of the national legal order. But, unlike the monist system, this variant of the dualist system may lead to problems of hierarchy. Since the international rules are incorporated in the national legal order by ordinary laws, they cannot have priority over subsequent legislation. In practice, this problem has never been acute since treaties have generally been used to cover very specific problems in relation to which conflict with national laws was unlikely. Whenever a clash was imminent, national courts usually succeeded in interpreting the national law so as not to cover the specific field of the treaty. In other “dualist” states, treaties do not need parliamentary approval or are not entirely incorporated in the national legal order by the parliamentary approval; special legislation is necessary. In this case, an additional problem may arise when some provisions of the treaty are not, or are incorrectly restated in the national legislation. The difference is clearly illustrated by a US court ruling: “Under our constitutional scheme, Congress can denounce treaties if it sees fit to do so, and there is nothing the other branches can do about it”.508 In the Dutch legal system, where the constitution provides that no national law may be applied which is contrary to an international agreement, a similar holding would be unthinkable.

§1529. There are three principal arguments which militate against obliging national courts to apply rules of international law. (1) National judges are appointed within a national legal system, by national authorities. They belong to the national legal system and should not apply legal rules from outside that system. The incorporation of international law into the national legal order can be left to the legislature, which may be better equipped to define the requirements of international obligations in terms of national rules. In countries where the legislature is publicly elected, its authority to bind the national population would also be greater than that of the courts. However, this argument seems weak. Modern courts are more than “la bouche de la loi”, but are instead important actors in promoting justice and creating an orderly society. The existence of different legal orders is a result

507. 508.

See also A. Bleckmann, Begriff und Kriterien der innerstaatlichen Anwendbarkeit völkerrechtlicher Verträge (1970), with an extensive survey of literature (at 322-333). US Court of Appeals, 31 Oct. 1972, 11 ILM 1258 (1972).

963

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of the existence of different legislatures for the national and international spheres. A difference in origin, however, does not necessarily lead to differences in legal force or methods of application. Wherever a legal rule is lawfully created, it can also be binding law in all other legal orders. According to a long established rule, a marriage lawfully contracted in one national legal order is valid, and has legal consequences in all other national legal orders, even if it does not fulfil their formal requirements. In a similar manner, an internal rule of an international organization can be binding law in national legal orders, and an obligation of a state validly imposed on a state by the internal legal order of an organization can also be an obligation in its own domestic legal order. There is no valid reason for national (and other) courts only to apply the rules of the legal order by which they have been established. If lower courts are incompetent to apply rules of international law properly, higher courts can rectify matters on appeal. In some cases, courts can obtain assistance in the application of international rules of law (preliminary rulings, see above, §1374-1376). §1530. (2) The national courts of one state may apply international legal rules in a very different manner from the courts of another state. While some courts are prepared to apply international rules even against their own states, others are not willing to apply them at all. This creates a discrepancy between states which seems difficult to justify, at least when viewed from the perspective of international law. Furthermore, national courts are not objective in international affairs, are influenced by national traditions and national public opinion. A Russian court will weigh arguments differently from a court in the US. An African or Latin American court may again decide differently. Dutch courts are generally open to international considerations. They hold a long international tradition; they represent the legal opinion of a small nation, extremely dependent on international relations and, therefore, reliant on general application of international law. Yet, when Indonesia nationalized all Dutch property, to pressurize the transferral of West New Guinea (West Irian) to Indonesia, even Dutch courts could not escape the influence of hostile public opinion. Some of the nationalized companies had transferred claims in foreign currency to their Dutch parent corporation (de Nederlanden van 1845). This corporation claimed payment from an Indonesian bank (Escomptobank) before the District Court (Rechtbank) in The Hague. Escomptobank replied that the transfer to de Nederlanden had been void not only under the Indonesian laws concerning nationalization, but also under Indonesian exchange control regulations. Since both the Netherlands and Indonesia were members of the IMF, exchange contracts contrary to Indonesian exchange control regulations were unenforceable in a Dutch court (IMF Article VIII, Section 2(b) (see above, §1384)). The District Court held:509 “Escomptobank further invoked the Agreement concluded at Bretton Woods in July 1944 relative to the International Monetary Fund to which both the Netherlands and Indonesia were parties. This Agreement establishes an obligation on the part of the

509.

N.J. 1965, No. 22; 13 Ned. TIR 61 (1969); Gold, 14 Staff Papers 393 (1967).

§1531

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contracting states to recognize each other’s foreign exchange control legislation. This provision was superseded by the Financial and Economic Agreement entered into by the Netherlands and Indonesia at the Round Table Conference. This Agreement regulated foreign exchange control matters, but it has been unilaterally broken by Indonesia. Consequently, a Netherlands court has no obligation to take into account agreements previously made with Indonesia concerning foreign exchange control.” The argument that the violation of the Financial and Economic Agreement would entail the nullity of the IMF Agreement is not very convincing. The Court probably used this argument because it did not want to support the Indonesian exchange control regulations. The case was appealed and finally came before the Netherlands’ Supreme Court (Hoge Raad). In relation to the application of the IMF agreement, its decision was no more convincing. The Supreme Court held:510 “Nor do the articles of the Agreement of Bretton Woods which have been cited constitute a bar, since they may likewise be held to concern exclusively regular financial intercourse between the states.” The Supreme Court refused to apply the IMF agreement in view of the illegality of previous Indonesian acts. This interpretation seems difficult to reconcile with the interpretation given by the executive board of the IMF on 10 June 1949. The board then considered: ....“the tribunal of the member country before which the proceedings are brought will not, on the ground that they are contrary to the public policy (ordre public) of the forum, refuse recognition of the exchange control regulations of the other members which are maintained or imposed consistently with the Fund Agreement.” Apparently the only ground admitted for non-recognition is inconsistency with the IMF Agreement. The above quotations are in no way a criticism of the final decisions of the Dutch courts, which may well prove correct. It may however be doubted whether Article VIII, Section 2(b) covered the Indonesian measures. The reasoning, however, demonstrates that national courts may be prejudiced. An Indonesian court would almost certainly have come to a different decision.

§1531. Although the argument – that national courts in different states may apply rules of international law differently – is valid, it is not decisive. A varying degree of application of international rules by different national courts is still better than no application at all. Furthermore, the discrepancies may not be as great as they seem in some extreme cases. A situation such as that between the Netherlands and Indonesia in 1958 is rare. In most cases, national courts are able to apply international provisions quite independently. The application of both Community law and the European Convention on Human Rights in national courts demonstrate that national courts generally enforce international rules efficiently, at least in an organization of a homogenous group of states.511 Even under difficult circumstances, enforcement of inter-

510. 511.

N.J. 1965 No. 22, at 90; 13 Ned. TIR 69 (1966); Gold, 14 Staff Papers 395 (1967). For the application of the European Convention on Human Rights by national courts, see the Yearbook of the European Convention on Human Rights; H.G. Schermers (ed.), The Influence of the European Commission of Human Rights (Mordenate College Publications No. 1, 1992); E.A. Alkema (ed.), The Domestic Implementation of the European Convention

965

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national rules by the national courts is probably to be preferred to enforcement by the national executive, since governments are even more vulnerable to political pressure and public opinion. §1532. (3) Even if willing to apply international rules, national courts differ so much from state to state that they are liable to decide the same question in a totally different way. Furthermore, where these rules require incorporation into national law, the dates on which they take effect in each state will vary. Although this argument may be valid in certain matters, there is nothing to suggest that conflicting national courts’ decisions are the rule rather than the exception. Even where there are differences, they would not invalidate the role of national courts. In a rudimentary international society, slight, or even important, differences in the way in which international obligations are fulfilled are not of primary importance. The main concern of international organizations is to ensure that their rules are applied. Certain differences in the dates from which the application becomes effective, caused by transformation into national law, or differences in interpretation, must be deemed acceptable. This is different in the European Union where a uniform interpretation is essential for many rules of Community law. The EC treaty provides that regulations be directly applicable in each member state, thus dispensing with transposition. The treaty also provides a means of acquiring a uniform interpretation in all national legal orders. This is obtained through cooperation between the national courts and the EC Court. The national courts adjudicate the cases brought before them. On all questions of Community law, they may ask for a preliminary ruling from the Court of Justice and in the last instance are even obliged to do so (see above, §1374). In its preliminary rulings, the Court of Justice answers the questions referred to it, thus interpreting the rules of Community law which are relevant to the national court. §1533. The strongest – and it is suggested decisive – argument in favour of the application of rules of international law by national courts is its role in

on Human Rights in Eastern and Western Europe (1993). For the application of Community law, see M. Waelbroeck, Traités internationaux et juridictions internes dans les pays du Marché commun (1969); P. Pescatore, L’Application directe des traités européens par les jurisdictions nationales: la jurisprudence nationale, 5 RTDE 697-723 (1969), with bibliography (German translation in 5 EuR (1970), at 56-79). J.P. Warner, The Relationship between European Community Law and the National Laws of Member States, 93 LQR 349-366 (1977); D. Carreau, Droit communautaire et droits nationaux; concurrence ou primauté? 14 RTDE 381-418 (1987). See also C.-D. Ehlermann, Ein Plädoyer für die dezentrale Kontrolle der Anwendung des Gemeinschaftsrechts durch die Mitgliedstaaten, in F. Capotorti et al. (eds.), Du droit international au droit de l’intégration, Liber Amicorum Pierre Pescatore (1987), at 205-226; D. Curtin, The Decentralized Enforcement of Community Law Rights. Judicial Snakes and Ladders, in: D. Curtin and D. O’Keeffe (eds.), Constitutional Adjudication in European Community and National Law, Essays for the Hon. Mr. Justice T.F. O’Higgins (1992), at 33-49.

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promoting the international legal order. Although it may be haphazard and pluriform, the accompanying strengthening of international legal rules should be welcomed, and national courts are an important source of strength. Justice, furthermore, will be served by as general an application as possible of those rules which have been accepted by the states concerned as binding rules of law. Finally, direct application of international rules will release national governments from the task of implementing those rules in national law. With the increasing amount of international legislation this may be an advantage, particularly for smaller states. When national courts apply rules of international law, their decisions are usually final. Only in exceptional cases may international courts supervise the decisions of national courts.512 §1534. The dualist theory led to problems, when treaties began to cover such wide fields that conflicts with subsequent national laws became more likely and, especially, when international organizations were empowered to take binding decisions. Transposition of such decisions into national law would, at the very least, delay their entry into force. In recent years, several states have realized that closer international cooperation is hampered by this separation of the legal systems created by the dualist doctrine. Thus, in 1946, France incorporated the monist theory into its constitution, apparently stimulated by the general desire for stronger international organization existing at the time.513 By a decree of 14 November 1954, decisions of international organizations were declared applicable in French law from the date of their publication by the organization. The monist articles in the Dutch constitution were adopted shortly after establishment of the European Coal and Steel Community which could take binding decisions. The Belgian and the Luxembourg constitutions allow the application of either system. Further development towards a monist approach in these countries has been stimulated by the European Convention on Human Rights and by the European Communities. It was in the application of the former convention that a Belgian Court held: “At the risk of depriving the international regulation, constituting a real supranational law having binding force as formal source of law, of any effect it should be considered that in case of conflict between the national law and the international law hierarchical priority has to be given to the international treaties in so far as, as in the present case, these have been approved by a Belgian law”.514

512. 513. 514.

See H. Rolin, Le contrôle international des juridictions nationales, 3 RBDI 1-23 (1967) and 160206 (1968). See L. Constantinesco, Effets et rang des traits et du droit communautaire en droit français, Rivista di diritto europeo 259-301 (1968). Civil Court of Brussels, 8 No. 1966, JT 685-687 (1966).

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Supervision and sanctions

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In a case concerning the EEC the Belgian Supreme Court considered: “Even when the consent to a treaty, required by Article 68, paragraph 2 of the Constitution, is given in the form of a law, the legislature does not exercise a normative function; The conflict which exists between a rule of law established by an international treaty and a rule of law established by a subsequent statute, is not a conflict between two laws; The rule, according to which a law repeals the earlier law in so far as the two contradict, is not applicable in the case of a treaty conflicting with a law; When the conflict is one between a rule of domestic law and a rule of international law having direct effects within the domestic legal order, the rule established by the treaty must prevail; its pre-eminence follows from the very nature of international treaty law”.515

§1535. Of the six original members of the European Communities, Germany and Italy are the only states which have traditionally been dualist. Conformity with the legal order of the Communities has thus been more difficult for these two states than for the others.516 Younger members of the Union which have a dualist tradition, and all the dualist states in other international organizations which are able to make binding rules of law, meet the same difficulties. The Court of Justice of the European Communities supported the monist theory in the Costa-ENEL case when it rejected the dualist theory with respect to the relationship between Community law and national law. In this case, a conflict arose before the Justice of the Peace in Milan between the treaty establishing the EEC (Article 177, now Article 234) and Italian national legislation. Italy had nationalized the production and distribution of electrical energy by a law of 6 December 1962. The assets of electrical enterprises were transferred to the newly established ENEL company. Mr. Costa claimed that this nationalization was void since it violated Articles 37[now: 31], 53[now repealed], 93[now: 88] and 102[now: 97] of the EEC Treaty. In conformity with the dualist theory, prevailing in Italy, the Justice of the Peace in Milan originally saw a possible conflict between two national rules: the law approving the EEC Treaty and the law nationalizing the electrical industries. He saw no need, however, to apply the later law in case of such a conflict as the Italian constitution provides:

515.

516.

Belgian Court of Cassation (first Chamber), decision of 27 May 1971 (Belgian State v. Fromagerie Le Ski), CMLR 372-373 (1972). Throughout the European Communities the case has generally received favourable support. For a critical note, see R. Senelle, De onschendbaarheid van de wet, 35 RW (1971-72), at 641-644 and comments at 876-877, 1127, 1128, 1515-1517. For the application of Community law in Germany, see R. Arnold, Das Rangverhältnis zwischen dem Recht der europäischen Gemeinschaften und dem innerdeutschen Recht (1968); D. Emrich, Das Verhältnis des Rechts der Europäischen Gemeinschaften zum Recht der Bundesrepublik Deutschland (1969); see also P.J.G. Kapteyn and P. VerLoren van Themaat, Introduction to the Law of the European Communities 77-89 ( 3rd ed. 1998, edited by L.W. Gormley).

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“Italy...agrees on conditions of equality with other states to such limitation of sovereignty as may be necessary for a system calculated to ensure peace and justice between nations, and promotes and encourages international organizations constituted for this purpose”.517 If the EEC was such an organization, this article of the Constitution would have given priority to the law approving the EEC over the nationalization law. The question was referred to the Italian Constitutional Court. The Constitutional Court replied that Article 11 of the Constitution created the possibility to restrict national sovereignty by an ordinary law giving effect to treaties. Article 11 did not, however, confer any greater effect upon such ordinary law than upon any other ordinary law. As in the case of any other conflict between two Italian laws, the courts had to apply the most recent: the nationalization law. Since the EEC treaty could not be applied anyway, the question of the interpretation of this treaty (and a possible reference to the Court of Justice of the European Communities) did not arise. The Constitutional Court acknowledged that application of the later law might constitute a violation of the EEC Treaty. Such violation would have consequences for the responsibility of the state at the international level, but would not detract from the (internal) validity of any conflicting law.518 In the meantime, however, Mr. Costa had received another electricity bill and had started a new case. On this occasion, the Justice of Peace in Milan had taken a more international point of view and had requested the opinion of the Court of Justice of the European Communities on the question whether Articles 37, 53, 93 and 102 of the EEC Treaty prohibited the nationalization of production of electrical energy. Before the Court of Justice, the Italian Government argued that the question was absolutely inadmissible. Since the Justice of the Peace had to apply the later Italian law in any case, the interpretation of the EEC Treaty could be of no relevance to him. In answering this preliminary objection, the Court of Justice held: “The Italian Government submits that the request of the Giudice Conciliatore is “absolutely inadmissible”, inasmuch as a national court which is obliged to apply a national law cannot avail itself of Article 177. By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the member states and which their courts are bound to apply. By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the states to the Community, the member states have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves. The integration into the laws of each member state of provisions which derive from the Community, and more generally the terms and the spirit of the Treaty, make it impossible for the states, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot, therefore, be inconsistent with that legal system. The executive

517. 518.

Constitution of Italy, Art. 11. Corte Costituzionale, 7 March 1964, Foro it. 1964, I Col. 465; 1964 CMLR, at 435-436; 2 CMLRev. (1964-65), at 224; L.J. Brinkhorst and H.G. Schermers, Judicial Remedies in the European Communities (2nd ed. 1977), at 210-212.

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force of Community law cannot vary from one state to another in deference to subsequent domestic laws, without jeopardizing the attainment of the objectives of the Treaty set out in Article 5 (2)[now: 10(2)] and giving rise to the discrimination prohibited by Article 7 [now: 12]. The obligations undertaken under the Treaty establishing the Community would not be unconditional, but merely contingent, if they could be called in question by subsequent legislative acts of the signatories. Wherever the Treaty grants the states the right to act unilaterally, it does this by clear and precise provisions […]. Applications, by member states for authority to derogate from the Treaty are subject to a special authorization procedure […] which would lose their purpose if the member states could renounce their obligations by means of an ordinary law. The precedence of Community law is confirmed by Article 189 [now: 249], whereby a regulation “shall be binding” and “directly applicable in all member states”. This provision, which is subject to no reservation, would be quite meaningless if a state could unilaterally nullify its effects by means of a legislative measure which could prevail over Community law. It follows from all these observations that the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question. The transfer by the states from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail. Consequently, Article 177 [now: 234] is to be applied regardless of any domestic law, whenever questions relating to the interpretation of the Treaty arise”.519

§1536. In an earlier case it had been disputed before the Court of Justice whether a domestic court would be entitled to ask for a preliminary ruling implying an answer to the question whether a member state had fulfilled its obligations. The Court of Justice decided this question to the affirmative in the Van Gend en Loos Case. Since the EC Treaty contains a special procedure to deal with defaulting members,520 the governments of Belgium, Germany and the Netherlands contested the possibility that an alleged violation of the treaty could be submitted to the Court by the procedure of a preliminary ruling. In their opinion, Article 177 [now: 234] empowered the Court to give an interpretation only – it could not render an opinion on the application of the Treaty. The Court held: “In addition the argument based on Articles 169 [now: 226] and 170 [now: 227] of the Treaty put forward by the three governments which have submitted observations to the Court in their statements of case is misconceived. The fact that these Articles of the Treaty enable the Commission and the member states to bring before the Court a state which has not fulfilled its obligations does not mean that individuals cannot

519. 520.

Case 6/64, Costa-ENEL, ECR 1964, at 593-594. EC Arts. 226, 227.

§1537

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plead these obligations, should the occasion arise, before a national court, any more than the fact that the Treaty places at the disposal of the Commission ways of ensuring that obligations imposed upon those subject to the Treaty are observed, precludes the possibility, in actions between individuals before a national court, of pleading infringements of these obligations. A restriction of the guarantees against an infringement of Article 12 [now: 25] by member states to the procedures under Article 169 and 170 would remove all direct legal protection of the individual rights of their nationals. There is the risk that recourse to the procedure under these Articles would be ineffective if it were to occur after the implementation of a national decision taken contrary to the provisions of the Treaty. The vigilance of individuals concerned to protect their rights amounts to an effective supervision in addition to the supervision entrusted by Articles 169 and 170 to the diligence of the Commission and of the member states. It follows from the foregoing considerations that, according to the spirit, the general scheme and the wording of the Treaty, Article 12 must be interpreted as producing direct effects and creating individual rights which national courts must protect.”521 In Costa-ENEL, the Court further explained that it could not itself decide upon the validity of a national law with regard to the Treaty, as it could do within the framework of Articles 169 and 170. Under Article 177 it will only interpret Community law. Any decision on the validity of national laws which may follow from the interpretation should be taken by the national court concerned.

§1537. The Court of Appeal for East Africa (now inactive) was far more restrictive in accepting priority of East African Community law over national law. It decided that the constitution of a member was superior to any law of the East African Community and that the provisions of a treaty did not become part of the municipal law of a member, save in so far as they were expressly stated to be so by the law of that member.522 The Andean Court of Justice has held, in initial preliminary rulings, that Andean community law takes precedence over national law, and referred to the Costa-ENEL case of the EC Court.523 (ii)

Application of constitutional provisions

§1538. In some cases, the constitutional provisions of international organizations are such that they cannot be applied by national courts. The composition and functioning of international organs are questions which must be decided by the international community itself. Before national courts, the principle of immunity will normally be invoked (see below, §1610-1612). Other constitutions, however, contain provisions of substantive law, suitable for application by national courts.524 The clearest example is offered by the

521. 522. 523. 524.

Case 26/62, Van Gend en Loos, ECR 1963, at 13. East African Community v. Republic of Kenya, Judgment of 25 February 1970, 9 ILM 561-566 (1970). J. Polakiewicz, Andean Common Market, Court of Justice, EPIL Vol. I, at 163-164 (1992). In fact such provisions are not constitutional, see above, §1146.

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European Communities, of which the provisions on free movement of goods and persons have frequently been invoked in national courts. Another example is found in the Articles of the Agreement creating the IMF. The IMF not only permits its members to restrict payments in particular circumstances, but also obliges the other members to respect such restrictions. National courts may no longer neglect such measures as being part of foreign public law which cannot be applied, or as being contrary to national public policy. The Articles of Agreement provide: “Exchange contracts which involve the currency of any member and which are contrary to the exchange control regulations of that member maintained or imposed consistently with this Agreement shall be unenforceable in the territories of any member.”525 The purpose of the article was to strengthen national exchange control regulations. At the Bretton Woods conference, where the organization was established, several delegations, particularly the delegation from the UK fought to establish a stronger text. They wished to make evasion of the exchange regulations of a member an offence in all other members.526

§1539. Several national courts have taken decisions based on Article VIII, Section 2(b) of the IMF.527 In most cases, no problems arose in the application of the provision within the national legal order, either directly or as implemented by national law.528 Conflicts between the provisions, of the IMF and subsequent national laws are unlikely to occur, since there will be no national legislation on the exchange control of foreign states. But conflicts with general national legislation are possible.

525. 526. 527.

528.

IMF Art. VIII, Section 2(b). See also above, §1384. Proceedings and documents of the United Nations Monetary and Financial Conference. Department of State Publication 2866 (1948), at 230, 334, 502, 576. J. Gold, The Fund Agreement in the Courts (1962), which reproduces seven articles on the IMF Agreement in the Courts, previously published in the Staff Papers of the IMF. The next four articles were issued as The Fund Agreement in the Courts: Parts VIII-XI (1976); The Fund Agreement in the Courts XII was published in 24 Staff Papers (1977), at 193-231, No. XIII appeared in 25 Staff Papers (1978), at 343-367 and No. XIV in 26 Staff Papers (1979), at 583-611. See e.g. UK, House of Lords, Frankman case, 1A 11 E.R. 337; 2A 11 E.R. 1025; 2A 11 ER. 671; Gold, op. cit. note 527, at 16; US, New York Court of Appeals, Perutz case (304 NY 533), 110 NE (2d) 6 (1953), Gold, id., 50-55; Luxembourg, Heynen-Bintner case (Pasicrie Luxembourgeoise 1957, at 36-39), Gold, id., at 94-96; Federal Republic of Germany, Bundesgerichtshof, decision of 9 April 1962 (Wertpapier-Mitteilungen, No. 21, 26 May 1962, at 601-2); AWD 146 (1962), decision of 27 April 1970, AWD 272 (1970), and decision of 12 February 1971, AWD 291-292 (1971). France, Moojen v. Reichert case (51 Critique de Droit International Privé, at 67); Gold, id., at 143-53, Gold, 11 Staff Papers (1964), at 465 and Daiei Motion Picture Co. V Zavicha, Gold, 24 Staff Papers (1977), at 194-196; Philippines, Supreme Court, Bacolod Murcia Milling case (summarized in Complete Monthly Digest of Supreme Court Decisions, Quezon City, No. 10, October 1963, at 364-66), Gold, FUND Staff Papers 477 (1964).

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In its decision of 2 July 1958,529 the Supreme Court of Austria considered that Austrian case law did not permit Austrian courts to take account of foreign compulsory measures in so far as they affect Austrian creditors, even where foreign law might be applicable to the case. Such a rule of case law would conflict with Article VIII, Section 2(b) of the Articles of Agreement of the IMF but, in this case, the Supreme Court failed to recognize this. It also considered that, even according to a newer doctrine which takes account of these Articles of Agreement, the foreign regulation would not be applicable. It based this conclusion on a narrow interpretation of Article VIII, Section 2(b). This case illustrates at least two points: first, that conflicts with national law are possible and secondly, that application largely depends on the interpretation of the international obligation by the national court concerned, even where it is willing to apply the international rules.

§1540. Apart from articles of the constitutions of the European Communities and Article VIII (2)(b) of the IMF, there are some articles of the GATT which could be applied directly within the national legal orders of the member states. Article III, which prohibits discrimination, has been applied in several judgments of the Italian Supreme Court (Corte di Cassazione) and of several American courts,530 but application has been refused by some German courts. The same applies to Articles II para. 1(b), which prohibits increases in customs duties, VIII, which limits fees to the costs of the services for which they are charged, and XI, which prohibits quantitative restrictions. The applicability of these rules in Italy seems to be largely due to the way in which they have been incorporated in Italian law.531

(iii) Application of international decisions §1541. When there are national laws approving treaties or otherwise incorporating them into the national legal order, the application of treaty provisions by national courts is usually not too difficult. The application of the “secondary law” of an international organization (its binding decisions) may however pose more problems. How are these decisions to be applied by national courts? No national approval is needed and they are therefore not expressly transformed into national law. Consequently, there is no national legal provision to which dualist courts can refer. §1542. The European Community is the most important international organization which takes binding decisions suitable for direct application by national courts. According to the constitution of the European Community, the European Parliament jointly with the Council, the Council and the Commission can issue regulations which are binding in their entirety and directly applicable

529. 530.

531.

Juristische Blätter 73-74 (1959); Gold, op. cit. note 527, at 109 ff. See M. Waelbroeck, Effect of GATT within the Legal Order of the EEC, 8 JWTL 614-623 (1974), at 619; J. Jackson in 66 Mich LR (1967), at 280-292; G. Sacerdoti, Application of G.A.T.T. by domestic courts: European and Italian case law, 2 It YIL (1976), at 224-247. Sacerdoti, op. cit. note 530, at 232.

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in all member states.532 Both the Commission and the Council have frequently done so, each within its own field of competence. On 7 November 1962, the Commission issued Regulation 135/62 fixing a levy on poultry. By a separate act of 15 November 1962, the German authorities adopted further rules on the application of this regulation. An importer, Neumann, subsequently contested the validity of the levy. The Court of Justice of the European Communities, in its ruling of 13 December 1967, clearly rejected the transformation theory for decisions of the Communities. In conformity with its decision in Costa ENEL (see above, §1535), it adopted a monist position with regard to the relationship between Community law and national law. The Court considered inter alia: “Since the levy is based on the Treaty and not on national law, is applicable simultaneously in all member states and not only in one, acts as a regulatory device for markets not in a national context but in a common organization, is defined with reference to a price level fixed in the light of the objectives of the Common Market and since its rate is flexible and may vary in terms of the hazards of the market, it therefore appears as a charge regulating external trade connected with a common price policy, whatever similarities it may have to tax or a customs duty. According to Article 189 [now: Article 249], Regulation No. 22, establishing the system of levies is “binding in its entirety and directly applicable in all member states”. This system must therefore be applied with the same binding force in all the member states within the context of the Community legal system which they have set up and which, by virtue of the Treaty, has been integrated into their legal systems. The states have thus conferred on the Community institutions power to take measures fixing the levy such as those which form the subject matter of Regulation No. 22, thus submitting their sovereign rights to a corresponding limitation. More particularly to the extent to which this concerns fiscal sovereignty, such a result is perfectly in accordance with the system of the Treaty”.533

§1543. Decisions of other international organizations are rarely directly applicable in national law, and cannot, therefore, easily be relied upon before national courts. Decisions for which the latter might be important potential instruments of enforcement, are Security Council decisions under Chapter VII of the UN Charter, imposing economic sanctions on defaulting states. However, in practice such sanctions have been drafted as obligations for states. Most writers therefore reject the direct effect of such resolutions. Generally, it seems likely that direct effect will be accepted more readily in relation to rights granted to individuals than in relation to obligations imposed upon them.534

532. 533. 534.

EC, Art. 249. Case 17/67, Neumann, ECR 1967, at 453; see also Case 39/72, Premiums for slaughtering cows, ECR 1973, at 114. See Kuyper, op. cit. note 104, at 75-76; Gowlland-Debbas, op. cit. note 104, at 558-559, 570.

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One example of such direct effect is the implementation of the UN economic sanctions against Rhodesia.535 Before any national laws were issued, the government of Cameroon applied the sanctions to a ship carrying Rhodesian tobacco.536 However, this was exceptional. Most states issued national legislation incorporating the sanctions in their national law. In many cases, independent laws were made prohibiting trade with Rhodesia, thereby executing the UN resolutions. In other cases, the text of the resolution was incorporated in a national law.537 Consequently, the date of entry into force varied widely among the members of the UN.538 Since immediate uniform application of the Security Council resolution was not essential, the disadvantage of the resolution not becoming effective in all member states simultaneously was not considered important.

§1544. Other international decisions which are suitable for application by national courts include the decisions by which the IMF interprets its own Articles of Agreement. Article XXIX of the IMF constitution (before 1978: Article XVIII) gives the executive board of the organization exclusive power to interpret the constitution. This means that interpretations by the board of the IMF are binding decisions. Some interpretations of the board contain elements of new legislation, a clear example being formed by the interpretation of 25 January 1956 on the question of whether the IMF is authorized to raise income by investing part of its gold assets. The board not only held that the organization could do so, but also enumerated the conditions to which it would be subject. This enumeration actually created new rules of law.539 However, most IMF members have not formally given Article XXIX force of law.540 How should their courts decide a case which depends on an interpretation by the board of the IMF? Could they follow the interpretation in the absence of a specific national legal provision? Monist courts do so without hesitation. A Luxembourg court declared: “By virtue of the authority conferred by Article XVIII of the above Agreement [-now: Article XXIX-], the Fund has interpreted the meaning and purpose of Article VIII, Section 2(b) as follows...”,541 an interpretation which it subsequently took into account. Courts finding the entire IMF constitution incorporated in their own national law would meet no problems either, but courts in states requiring specific transformation could experience difficulty. The English Court of Appeal deciding the Sharif v. Azad case could well have used the board’s interpretation of Article VIII, but did not even refer to it.542 Gold presumes that the reason for the absence of any reference to the interpretation is the

535. 536. 537. 538. 539. 540. 541. 542.

See in particular SC Resolutions 232 (1966), 253 (1968), and 277 (1970). On their application, see Kuyper, op. cit. note 104. UN Doc. S/7781, Annex 2, at 6. Chile S/8786/Add. 5, at 9-12; Venezuela S/8786/Add. 3, at 9-11. A reluctant member can easily postpone action. See e.g. the reply of Portugal to the Secretary-General, UN Doc. S/7781, Annex 2, at 51-55. Hexner in 53 AJIL (1959), at 364-365. Id., at 354. Tribunal d’Arrondissement de Luxembourg, 1 February 1956 (Pasicrie Luxembourgeoise 36-39 (1957)), Translation by Gold, op. cit. note 527, at 95. Decision of 5 October 1966, 3 WLR 1285 (1966); 3 Wa 11 ER (1966); Gold, 14 Staff Papers 380-387 (1967).

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question which this would raise of the effect of IMF interpretations under English law.543

b.

Initiative for decisions of national courts

§1545. Courts do not act on their own initiative. Even when national courts are willing to apply rules of international law, they can do so only when specific questions have been raised before them. In practice, the possibility of bringing such rules before national courts is limited, as courts only accept cases from parties which show a direct interest in them. Even then, many national legal systems do not admit actions against the state for acts performed in its official capacity. Widening the possibility of instituting actions against a state before its own national courts is a task for the national legislature, albeit one which an international court can decisively influence (see above, §1515). Judicial supervision of state acts is necessary in particular where parliamentary control is less effective. When is an interested party competent to bring an international case before a national court? Suppose a state has internationally undertaken to decrease its import duties, but fails to do so. May an importer sue for damages? His interest is obvious, although the amount of damages may be difficult to quantify. Finding such cases admissible would encourage compliance with international obligations and, at the same time, would aid individuals legitimately expecting a decrease in tariffs. National courts, however, do not admit such cases. If they ever apply international rules invoked by private parties, they limit themselves to those rules which can be applied without any further acts of the governments concerned (the self-executing rules). They will not allow damages for the failure of a government to act under its international obligations. Again, the situation within the European Communities forms an exception to this general rule (above, §1515). §1546. When is an international rule self-executing or directly applicable to the extent that an interested individual may invoke it?544 The Court of Justice of the European Communities has accepted that individuals have the right to invoke before national courts all rules of Community law which are complete, legally perfect, and which can thus produce direct effects in legal relations between the member states and the persons subject to their laws.545 The most important of these rules are the prohibitions. They are directly effective even when addressed to the member states. The Court of Justice has thus accepted, for example, the right of an individual to invoke the articles

543. 544. 545.

Id., at 382-383. See also F.A. Mann, Bretton Woods Agreements in English Courts, 16 ICLQ 539-542 (1967). Cf. PCIJ Series B, No. 15, at 17-18 (1928). See Schermers and Waelbroeck, op. cit. note 214, at 176-192.

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of the EC Treaty which prohibited states from introducing new import duties546 and from imposing any internal taxation on the products of other member states in excess of that imposed on similar domestic products.547 In principle, individuals may not only invoke provisions of the Treaties and regulations but also those of directives and decisions which produce direct effects.548 The position of the Court of Justice has influenced the attitude of national courts considerably. German Courts have followed, though reluctantly, the Court of Justice in accepting the direct effect of Article 90 of the EC Treaty. They did not, however accept the direct effect of the almost identical provision of the GATT (unlike some Dutch, Italian and American Courts, see above, §1540).549 When national judicial control is desired, international organizations should take care to draft their decisions in such a way that their direct effect is unquestionable. §1547. When they have the possibility and the interest to do so, individuals do not fail to bring violations of international rules of law before national courts. After the Court of Justice of the European Communities had decided that Article 90 of the EC Treaty (prohibiting internal charges on imported products in excess of similar charges on national products) had direct effect, over 340,000 claims for repayment were brought before German courts.550 But individuals are not always interested in invoking international rules before national courts. In 1966, the UN Security Council decided that all UN members must prevent the import into their territories of various Rhodesian products and any activities by their nationals promoting exports of those products from

546. 547.

548.

549. 550.

EC, Art. 25. Case 26/62, Van Gend en Loos, ECR 1963, at 13. EC, Art. 90. Case 57/65, Second Lütticke Case, ECR 1966, at 210-211. See also G. Bebr, Directly applicable provisions of Community law: the development of a Community concept, 19 ICLQ 257-298 (1970); P. Pescatore, The Doctrine of “Direct Effect”: An Infant Disease of Community Law, 8 ELRev. 155-177 (1983). For directives, see inter alia the following cases: Case 33/70, SACE, ECR 1970, at 1224; Case 41/74, Van Duyn, ECR 1974, at 1348; Case 148/78, Ratti, ECR 1979, at 1645; Case 8/81, Becker, ECR 1982, at 72; Case 152/84, Marshall, ECR 1986, at 749; Case 222/84, Johnston, ECR 1986, at 1691; Case C-188/89, Foster, ECR 1990, at I-3905. See D. Curtin, Directives: the Effectiveness of Judicial Protection of Individual Rights, 27 CMLRev. 709-739 (1990); D. Curtin, The Province of Government: Delimiting the Direct Effect of Directives in the Common Law Context, 2 ELRev. 195-223 (1990); Ph. Manin, L’invocabilité des directives: quelques interrogations, 4 RTDE 669-693 (1990); S. Prechal, Directives in European Community Law. A Study on EC Directives and their Enforcement by National Courts (1995); H.G. Schermers, No Direct Effect for Directives, 3 European Public Law 527-540 (1997); S. Prechal, Does Direct Effect Still Matter?, 37 CMLRev. 1047-1069 (2000). For decisions addressed to others than the plaintiff, see Case 9/70, Grad, ECR 1970, at 837. GATT, Art. 3.2. See S.A. Riesenfeld, The Doctrine of Self-Executing Treaties and GATT: A Notable German Judgement, 65 AJIL 548-550 (1971); Sacerdoti, op. cit. note 530, at 244-247. 14 AWD 241 (1968).

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Rhodesia.551 The resolution was binding and could be invoked before national courts by individuals wishing to annul contracts for the sale of the goods concerned. These individuals, however, appear not to have been willing to do so. In such cases, it may be desirable to establish a party interested to bring claims before national courts. If the Security Council resolution had transferred the ownership of the commodities concerned to some UN fund, that fund would have been sufficiently interested in submitting cases to national courts. As the competence of the Security Council to transfer ownership may be disputed, the position of such a UN fund before national courts might not have been very strong. Lauterpacht suggested that the British Government (the only lawfully recognized government in Rhodesia) should have vested in itself title to any goods sold for export in violation of the Security Council resolution. The British Government could then have sued as owner for their recovery or for their value in the national courts of other states.552 In that case, English law, rather than an international rule, would have been invoked before national courts. The position of the English law before foreign courts could, however, have been strengthened by a UN resolution asking the members to support the enforcement of such British legislation. §1548. In 1974, the UN Council for Namibia enacted a decree in which it provided that any natural resource taken from the territory of Namibia without the permission of the Namibia Council could be seized and forfeited for the benefit of the Namibia Council.553 As the Namibia Council has been recognized by the UN as the only legitimate representative of Namibia, it thus created the possibility of suing companies which violate the trade prohibition, before the national courts of all states.554 The decree has had some effect in dissuading firms from trading with Namibia. In 1987, after several years of hesitation, the Namibia Council instituted legal proceedings against two Dutch companies and the State of The Netherlands, concerning the alleged illegal processing of Namibian uranium.555 However, proceedings were discontinued when Namibia became independent. D.

Sanctions against individuals

§1549. Most legal rules of international organizations are addressed to the member states. They can thus only be violated by the members, and sanctions

551. 552. 553. 554.

555.

SC Res. 232 (1966). E. Lauterpacht, Implementations of Decisions of International Organizations through National Courts, in Schwebel, op. cit. note 5, at 57-65 and 507-512. Namibia Decree No. 1, GAOR 29, Suppl. 24 A (UN Doc. A/9624/ Add. 1), at 27-28. On the decree, see H.G. Schermers, The Namibia Decree in National Courts, 26 ICLQ 81-96 (1977). See also I. Sagay, The Right of the UN to bring actions in municipal courts in order to claim title to Namibian (S. W. African) products exported abroad, 66 AJIL 600-604 (1972). See N.J. Schrijver, The UN Council for Namibia vs. Urenco, UCN and the State of The Netherlands, 1 LJIL 25-47 (1988).

§1550

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can only be directed against the members. In some cases, however, legal rules of international organizations may be addressed to individuals or individual enterprises within the member states. These individuals may then infringe the rules, creating the necessity of sanctions being imposed. States are usually responsible for ensuring that their citizens obey international rules and indeed, sometimes states undertake to punish citizens for specific infractions of international law (see below, §1518). In the same way, it may be provided that the member state concerned will punish violations when international organizations are invested with powers over individuals. The international agreements may even set particular limits to the fines which can be imposed to harmonize national sanctions. This is done, for example, in the Act of Mannheim, according to which contraventions of police regulations for navigation on the Rhine are to be punished by a fine of 3 to 2500 Special Drawing Rights of the IMF.556 Nevertheless, punishment by national authorities is only an indirect sanction, the application of which depends on the cooperation of the relevant national authorities. If the organization is unpopular in the state concerned, its public prosecutors might refrain from acting and its courts may show too much leniency. The sanctions imposed on individuals directly by international organizations are more effective and more comprehensive than those imposed indirectly. They have certain supranational characteristics, giving an organization direct power over an individual with no opportunity for intervention by his government. Sanctions can even be applied in cases where the government would deny that the individual’s acts constituted a contravention. §1550. Possible sanctions by international organizations against individuals are: publicity,557 warning,558 withdrawal of support of the organization,559 withdrawal of support by all members of the organization560 and fines.561 Under some conventions, states accept the supervision of rules of law established by those conventions and to be observed by individuals of all participating states. Thus, under the Safety of Life at Sea Convention, the Load Line Convention and the Convention for the Prevention of the Pollution of the Sea by Oil, member states inspect ships of other members when in their harbours. In cases of infraction, they may take the requisite measures against

556.

557. 558. 559. 560. 561.

Revised act of Mannheim 1868 (establishing the Central Commission for the Navigation of the Rhine), Art. 32, as amended by Protocol No. 3 of 17 Oct. 1979, Trb. 1980, No. 8. See W.E. Haak, Experience in The Netherlands regarding the case-law of the Chamber of Appeal of the Central Commission for the Navigation on the Rhine, 19 NYIL (1988), at 3-51. EFTA, Art. 14.2. Euratom, Art. 83.1a. Euratom, Art. 83.1b, d. ICAO, Art. 87. EC, Art. 229; Central American Common Market, San José Protocol to the Agreement on Equalization of Import Charges, Art. 14; see Garcia-Amador in Schwebel, op. cit. note 5, at 353.

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such ships. The inspecting state thus often acts as the agent of the collective interest.562 §1551. The most important sanction which some international organizations may impose is the levying of fines. As this is a penal measure, an impartial tribunal is required to decide whether an infraction has been committed and, if so, how it should be dealt with.563 The European Commission for the Danube, established in 1856, had extensive powers over individual skippers on the Danube river. It could not only impose fines, but could also enforce them by using its own warships.564 The International Sanitary Council, established in Alexandria at the end of the last century, could fine ships which failed to apply the prescribed measures for quarantine.565 Both organizations have now disappeared but they proved that sanctions against individuals could be effective. Article 14 of the Protocol of San José to the Central American Agreement on the equalization of import charges provides, in regard to unfair trade practices: “In the case that evidence is produced on the existence of practices ... a sanction of $ 100 per gross kilo and 100% ad valorem shall be applied to the addressee of such goods by decision of the Executive Council... The decision shall have force in all five member countries. The sanction shall be applied by the government of the country in which the import took place, and by that of any other Central American country to which such goods are imported”.566 The European Community and Euratom may issue regulations enforced by fines. Under EC Regulation 11/60, fines may be imposed of up to 10,000 units of account (before the devaluation of the US dollar in 1971, a unit of account was equivalent to one US dollar).Under Regulations 17/62 and 1017/68 the fines may be much higher, from one thousand to one million units of account, and even in excess thereof, but not exceeding ten per cent of the turnover of the undertaking concerned.567 Since 1979 fines over one million ECU are no longer rare.568 In 1998 the European Commission published guidelines for the application of fines in the area of competition law.569

562. 563.

564. 565. 566. 567. 568.

569.

C.H. Alexandrowicz, The Law-Making Functions of the Specialized Agencies of the United Nations 113 (1973). In case of criminal charges an independent and impartial tribunal is required by the European Convention on Human Rights (Art. 6), the Universal Declaration of Human Rights (Art. 10) and the International Covenant on Civil and Political Rights (Art. 14). François, op. cit. note 189, at 1035-1041. P. Sands and P. Klein, Bowett’s Law of International Institutions (5th ed. 2001), at 8. Orrego Vicuña, op. cit. note 79, at 170. Schermers and Waelbroeck, op. cit. note 214, at 582-583. For example, in December 1990 the Commission imposed a fine of 30 million ECU upon Solvay and one of 17 million ECU upon ICI for limiting competition on the soda ash market. See Europe, 21 December 1990, at 11. More recently it imposed a fine of ECU 102 million on Volkswagen for restrictions to parallel imports (see Schermers and Waelbroeck, op. cit. note 214, at 583). OJ 1998, C9/3.

§1552

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§1552. In the European Community, the fines are imposed by the European Commission after it has heard the person or enterprise concerned. It may seem objectionable for the organ which made the regulation also to impose a fine in the event of violation. Can such an organ be sufficiently detached and impartial? Any objections are qualified by the possibility of appeal to the Court of Justice of the European Communities. Before this Court, the person concerned may request the annulment of the decision imposing the fine. His position is relatively weak, however, since, unlike in normal criminal proceedings, the burden of proof does not rest entirely with the prosecution. The individual has to persuade the Court that the decision by which the fine was imposed was illegal, although, because the Court has full jurisdiction, he is not limited to specific grounds of appeal. The Court may annul a decision imposing a fine if it considers the fine to have been imposed on the basis of insufficient evidence. The Court may also lower the fine. Individuals do appear to be adequately protected by the Court’s obligation to consider fully all aspects of the case.570 VI. Concluding observations571 §1553. It is widely recognized that supervision of the implementation of rules of law in general is important to promote compliance with these rules. This truism also applies to rules of international law. However, while supervision is equally important for the implementation of rules of domestic and international law, it is more difficult to set up an effective supervision machinery in the international society as compared to the domestic legal order. The notion of state sovereignty explains the reluctance displayed by states to accept the idea of an even higher authority supervising whether they have complied with rules of international law. Supervision and sovereignty are to some extent irreconcilable. If these concepts are reduced to their essence, they are mutually exclusive. Supervision implies the existence of some higher authority, while the notion of sovereignty embodies that highest authority itself (suprema potestas). This explains some of the strained supervision procedures which have been created within international organizations to promote rule compliance. Why is it necessary to review state reports in two stages, first by independent experts and subsequently by a committee half composed of government representatives, half of representatives of employers’ and workers’ organizations? Why are international trade disputes first dealt with by ad hoc panels

570.

571.

See Kapteyn and VerLoren van Themaat, op. cit. note 516, at 924 ff.; Schermers and Waelbroeck, op. cit. note 214, at 580-585; R. Winkler, Die Rechtsnatur der Geldbusse im Wettbewerbsrecht der Europäischen Wirtschaftsgemeinschaft (1971); G. Dannecker and J. Fischer-Fritsch, Das EG-Kartellrecht in der Bußgeldpraxis (1989). Cf. also H.G. Sevenster, Criminal Law and EC Law, 29 CMLRev. 29-70 (1992). These observations are partly taken from Blokker and Muller, op. cit. note 1, at 275-311.

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(“preferably” composed of governmental members, albeit serving in their “individual capacities”), and finally by an organ consisting of government representatives? Why does the election of UNAT and ICJ judges contain so many political elements which are difficult to reconcile with their function? §1554. Nevertheless, despite this basic irreconcilability of international supervision and state sovereignty, one of the most important tasks of international organizations has become control over compliance with their rules of law. As a consequence of interdependence, the traditional, sacrosanct concept of state sovereignty now belongs to the past. Rules of international law have expanded both quantitatively and qualitatively, which has changed the perceptions of states. It was felt that, although they were sovereign, they did not only serve their own needs by creating rules, but also by developing procedures for the supervision of these rules, and even, to a limited extent, by introducing possibilities of sanctions being imposed in case of non-compliance. International organizations were qualified candidates for the vacancy of international supervisors. Indeed, one of the classical functions attributed to international organizations has been to supervise rule compliance by the members states. As has been shown in this chapter, the methods used to this end differ from organization to organization and, in general, are very different from the supervisory methods developed within domestic legal orders. §1555. The imperative need to cooperate implies renouncing exclusive authority over domestic affairs. However, while the notion of sovereignty already entails certain reservations towards entering into international obligations, states are more reserved towards agreeing to international supervision beyond their control. Apparently the basic principle of pacta sunt servanda is less threatening than the idea that compliance with this principle is supervised. But states seem most reserved if it comes to the issue of enforcement, which is probably the most sensitive aspect of international supervision. In its second ruling on provisional measures in the Crime of Genocide case, the ICJ clearly alluded to this problem, when it declined to indicate new provisional measures, and noted that enforcement and implementation of the first ruling was required instead. There is an apparent mounting degree of resistance as interference with national policies and aspirations becomes more compelling: from submitting to international obligations and supervision of compliance with these obligations, to enforcement measures if supervision is not acted upon. §1556. Thus, this chapter has shown that, while an impressive body of supervisory procedures has grown within international organizations, the member states still play a crucial role. International law is still essentially “enforced not by a supranational or even a central authority, but by the reaction and

§1557

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interaction of states”.572 There is no procedure which does not reveal and require some form of dependence on the member states. There is little UN human rights rapporteurs can do if a government does not want to cooperate. Even a judgment of the EC Court is no guarantee of compliance with EC law. Nevertheless, there has been increasing recognition that there is a need to make supervision more meaningful and thus, in most cases, more independent. This has had a number of consequences. To begin with, for the methods of supervision. At present, checking rule compliance is not only done through state reports or complaints, but also initiated by the organization itself or by individuals. It has also influenced the composition of the supervisory bodies: individual experts rather than government representatives. Furthermore, and most spectacularly, it is increasingly recognized that effective supervision needs the backup of sanctions or enforcement. §1557. If sanctions are now examined, it is useful to refer to studies by Friedmann, who has drawn a distinction between the “traditional” international law of coexistence and the new international law of cooperation.573 While in “traditional” international law the role of (decentralized) sanctions was limited, “the most important aspect of the developing international law of cooperation is the effect it has on the role of sanction in international law. [...] Proportionate to the extent to which the cooperative activities become essential to life and development of the participating nations, it is the privilege of membership and participation in the common activities which provides the essential sanction. This is what we may call the sanction of non-participation. It is the exclusion from the benefits conferred on the participants by the joint activities that is the effective sanction for compliance with the obligations undertaken”.574 Most of Friedmann’s “international law of cooperation” has been created, and is developing within international organizations.575 Several studies have examined more closely to what extent Friedmann’s observation corresponds to reality. In studying the rules and practice of international organizations, the conclusion is generally drawn that their use of sanctions has given inter-

572.

573.

574. 575.

E. Fukatsu, Coercion and the Theory of Sanctions in International Law, in R.St.J. MacDonald and D.M. Johnson (eds.), The Structure and Process of International Law 1187-1205 (1983), at 1188. A similar outlook is taken by D. Vignes, The Impact of International Organizations on the Development and Application of International Law, in the same work, at 811-812. See in particular W.G. Friedmann, The Changing Structure of International Law (1964). Friedmann’s analysis has been confirmed – and brought up to date – in the 1984 study by UNITAR on the Legal Aspects of a New International Economic Order (UN Doc. A/ 39/504/Add.1). W.G. Friedmann, General Course in Public International Law, 127 RdC (1969 II), at 115-116. As is also observed in the NIEO study by UNITAR, op. cit. note 573, at 70: “... the international law of cooperation is by necessity an institutional law, and has always been intimately associated with international organizations”.

983

Supervision and sanctions

§1558

national law a more vertical character.576 At the same time, the extent of this improvement vis-à-vis the traditional situation is limited. Leben has demonstrated that these institutional sanctions are not strictly subjected to legal standards (the problem of “legality”), and are far from able to ensure compliance (the problem of “efficiency”). Part of the “legality” problem is that “the organs which centralize the rule of adjudication are mainly political organs, which act as judicial organs but are directed first by political motives”.577 The problem of “efficiency” is that sanctions are hardly ever enforced by international organizations, and their deterrent capacity has been shown to be weak.578 The analysis in this chapter has demonstrated that new developments have occurred, in particular as far as Leben’s problem of “efficiency” is concerned. Since 1990, the UN has taken more enforcement measures than between 1945 and 1990. Other organizations, for example the EC and the IMF, have introduced new possibilities to impose sanctions. §1558. The emerging picture is one of an area of international law or, more specifically, of the law of international organizations, which faces rapid changes. As in any part of international institutional law, such changes take place within individual international organizations in various ways and at a diverging pace. The general prospects for more effective supervision seem favourable. States are increasingly convinced of the need to take their rights and obligations seriously. How this will turn out for each individual organization is difficult to forecast. In our decentralized international political and legal order, there is no master organization elaborating master plans for international supervision. It is tentatively suggested that the pace, ways and means of development in this area will depend on the object and purpose of the organization in question and, more fundamentally, on the degree of interdependence existing in the organization’s field of operation. Even the most sophisticated techniques of supervision cannot overcome these two determinants.

576.

577. 578.

Leben, op. cit. note 255, at 364-365 (English summary), concludes that “the most radical innovation is found in the centralization, within these organizations, of the “secondary rule of adjudication” (to use the terminology of H.L.A. Hart, The Concept of Law) which forbids the sanctions to be decided sovereignly by the subjects of the law themselves”; E. Osieke, Sanctions in International Law: the Contribution of International Organizations, 31 NILR 183-198 (1984); Chowdhury, op. cit. note 2, in particular at 322-328. Leben, op. cit. note 255, at 365. Id.

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Chapter 11

Legal status

“[…] in itself the attribution of personality to an entity means nothing.”1 “Legal personality is now generally considered to be the most important constitutive element of international organizations.”2

§1559. Why is the legal status of international organizations in international law and within national legal orders important? Why is it necessary to examine whether, or to what extent, international organizations are international legal persons, or subjects of international law,3 or entities capable of bearing rights and obligations?4 Without such a status international organizations would not be able to function as independent units. They would not be in the position to conclude treaties with states, to rent buildings or own cars. They would lack the capacity to participate meaningfully in international and national legal life. In other words, they would simply not exist in the legal sphere. §1560. A brief look at the national legal order may help us to understand this. Generally, national legal systems confer the status of a legal person upon two categories of persons: natural and legal (or juridical) persons. Human beings are natural persons. They are so-called original legal persons, or the “prototype” of legal persons, since they have this quality simply by their objective

1. 2. 3.

4.

E. Lauterpacht, The development of the law of international organization by the decisions of international tribunals, 152 RdC (1976), Vol. 4, at 403. P. Sands and P. Klein, Bowett’s Law of International Institutions (5th ed. 2001), at 469. The notions “subject of international law” and “international legal person” are generally used interchangeably; see H. Mosler, Subjects of International Law, 7 EPIL (1984), at 443; C. Dominicé, La personnalité juridique dans le système du droit des gens, in J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21th Century – Essays in honour of Krzysztof Skubiszewski (1996), at 147-171. See more in general about international legal personality J.A. Barberis, Nouvelles questions concernant la personnalité juridique internationale, 179 RdC 145-304 (1983 I). Or, in French: “l’aptitude à être titulaire de droits et tenu d’obligations régis par le droit international”. See H. Mosler, Réflexions sur la personnalité juridique en droit international public, in: Mélanges Henri Rolin (1964), at 233; Dominicé, op. cit. note 3, at 148.

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existence.5 This is different for other legal persons, which must acquire such quality. National law prescribes the conditions and procedure for and by which corporations, foundations, societies, partnerships, trusts, limited liability or incorporated companies and other entities may enter into the legal domain by obtaining the status of legal person and consequently become capable of bearing rights and duties distinct from their members. The legal personality thus acquired is also referred to as derived personality, as opposed to the original personality of human beings. The circle of legal persons in a given legal order is determined by that legal order and may change over time. In the distant past, slaves knew to their cost that not all human beings have always been recognized as legal persons. In the middle ages, animals were sometimes accorded some limited legal status, when trials took place in which animals could be prosecuted and sentenced to death. In ancient Greece, not only animals were prosecuted but also lifeless objects: a statue for falling on a man and killing him, a sword used by a murderer, and a cart which ran over a child.6 The importance of a legal status also appears from the fact that (partial or complete) deprivation of this status has been used as a punishment: the medieval penalty to declare criminals outlaws, and the punishment of “civil death” (mort civile) which was used until the 19th century. §1561. International organizations maintain relations outside their own legal order. Such relations may be entered into with member states, in fields in which the organization alone could not operate, or with non-member states. In the next chapter, external relations will be discussed. In the present chapter we shall first discuss the status of international organizations in international law. Are they international persons and are they bound by international rules? The answer to these questions will be further illustrated in Chapter Twelve in which we shall discuss the instruments which international organizations use in their external relations. After dealing with the status of international organizations in international law, we shall consider their position in national legal systems. Finally, having established that international organizations are usually legal persons in both international and national law, we shall discuss the creation and the extinguishing of this legal personality: the duration of the organization.

5.

6.

The expression “prototype” of legal persons is taken from I. Seidl-Hohenveldern and G. Loibl, Das Recht der Internationalen Organisationen einschließlich der Supranationalen Gemeinschaften 48 (7th rev. ed. 2000). E.P. Evans, The Criminal Prosecution and Capital Punishment of Animals (1987, first published in 1906).

987

Legal status

I.

Status in international law

A.

Personality of international organizations in international law

§1562

§1562. In earlier centuries, states alone were recognized as persons in public international law. Other entities were precluded from obtaining the status of international legal persons. The notion of absolute state sovereignty was predominant. States were considered to be the supreme centres of authority. This was the prevailing view in the 19th century and into the beginning of the 20th century. But in such a context, how did the organizations of the time operate in international relations? In the old German Customs Union (Zollverein), all action taken under international law was entrusted to one member state (Prussia) which acted on behalf of the collective membership. In effect, the same still happens today in the Belgium-Luxembourg Economic Union (BLEU) where Belgium represents the Union abroad, and in Benelux, which is represented by one of the member states in external affairs.7 A rather unique situation is the case of the European Union. The Union originally had no international legal personality of its own. In its external relations the Union acted not through one of the member states, but “used” the legal personality of the Communities, or agreements by the collective member states,8 until it became a legal person (see further §1569). §1563. In the 20th century the notion of absolute state sovereignty has become obsolete. There was more need for international organizations to operate independently on the international level, separate from the member states. As in domestic legal orders, the circle of legal persons in international law has changed over time. There was increasing recognition that international organizations required legal personality within the domestic legal order, as well as under international law. It was accepted without much difficulty that international organizations should become legal persons under the domestic law of the member states. After all, they could simply be added to the existing categories of legal persons. It took longer however for states to accept international organizations in their midst as international legal persons, in the inner circle of happy few bearers of international rights and obligations. This is because of the absence of a centralized international legislative authority,

7.

8.

See for the BLEU: P. Pescatore, Belgium-Luxembourg Economic Union, EPIL Vol. 1 (1992), at 369-370. When creating Benelux, the three member states declared that this organization would not be an international legal person; Aide-Mémoire to Art. 95 of the constitution. See J.W. Schneider, The Netherlands and Benelux, in H.F. van Panhuys, W.P. Heere, J.W. Josephus Jitta, Ko Swan Sik, A.M. Stuyt (eds.), International Law in the Netherlands, Vol. II, 71-115 (1979), at 76-77. For example, when treaties are concluded between the EC and a third party, on the basis of Art. 228 EC. See D. Curtin, The Constitutional Structure of the Union: A Europe of Bits and Pieces, 30 CMLRev. (1993), at 27-28; A.D. Pliakos, La nature juridique de l’Union européenne, 29 RTDE (1993), at 208-213.

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competent to respond promptly to the recognized need of bestowing this quality upon international organizations. §1564. Therefore it took long before it became more common for constitutions of international organizations to provide expressly that these organizations have legal personality in international law.9 Such provisions oblige the members to accept the organization as a separate international person, competent to perform acts which under traditional international law could only be performed by states. They also clarify the status of the organization for nonmembers. If a non-member were to doubt the organization’s capacity to perform international acts, a clear constitutional provision may be of assistance. While such explicit constitutional provisions for a long time were rare, since the 1990s they have become more common.10 §1565. However, the constitutions of most international organizations lack explicit provisions on the legal status of the organization under international law. As a result, their position in international law was unclear. The United Nations is an example. At the 1945 UN Conference on International Organization (where the UN Charter was drafted), it was decided not to explicitly attribute international legal personality to the UN. The committee discussing this issue “considered it superfluous to make this the subject of a text. In effect, it will be determined implicitly from the provisions of the Charter as a whole”.11 According to the report of the US delegation to this conference, “[t]he Committee which discussed this matter was anxious to avoid any implication that the United Nations will be in any sense a ‘superstate’”.12

This situation gave rise to a substantial doctrinal debate concerning the basis of international legal personality of international organizations. Traditionally

9.

ECSC, Art. 6; EC, Art. 281 (as opposed to Art. 282); Central American Bank of Economic Integration, Art. 1; African Development Bank, Art. 50; IFAD, Art. 10, Section 1; International Olive Oil Council (see International Agreement on Olive Oil and Table Olives 1986, Art. 6.1. jo. the 1993 Protocol extending this agreement, amendment of Art. 6.1.); West Africa Rice Development Association, Art. II.1 (10 ILM 655 (1971)). 10. See e.g. Mercosur, Protocol of Ouro Preto (1994), Art. 34; Marrakesh Agreement establishing the World Trade Organization (1994), Art. VIII; Agreement on the Establishment of the International Network for Bamboo and Rattan (1997), Art. 1.2; ICC Statute (1998), Art. 4.1; Statutes for the Global Water Partnership Network and the Global Water Partnership Organization (2001), Art. 1.3 (see Trb. 2002, 93); Agreement establishing the Agency for International Trade Information and Cooperation as an Intergovernmental Organization (2002), Art. 13; in 1999, an agreement was concluded for the sole purpose of bestowing international legal personality upon the International Potato Center (see Trb. 2001, 32). 11. UNCIO Documents (1945), Vol. XIII, at 710. See id., at 622-623 for a report of the brief discussion on this subject. See id., at 63 for the proposal by Belgium in which “international status, together with the rights this involves” is given to the UN. 12. Department of State publication 349, Conference Series 71 (quoted by C.W. Jenks, The Legal Personality of International Organizations, 22 BYIL 1945, at 269-270).

989

Legal status

§1566

three schools of thought existed.13 According to the first school, such personality existed only if explicitly attributed to the organization in the constitution. Today this view has little if any support. In the past, it was supported mainly by socialist writers.14 The second school, of which F. Seyersted is the main proponent, has developed the idea of objective legal personality of international organizations.15 As long as organizations have at least one organ which has a will distinct from that of the member states, they are ipso facto international legal persons. Legal personality in this view is “objective” in the sense that its existence does not depend on the (subjective) will of the member states. It is bestowed upon the organization by international law, not by the intention of the parties. A third school of thought represents the currently prevailing view. According to this view, organizations are international legal persons not ipso facto, but because the status is given to them, either explicitly or, if there is no constitutional attribution of this quality, implicitly. If organizations are empowered to conclude treaties, to exchange diplomats, and to mobilize international forces (see Chapter Twelve), how can such powers be exercised without having the status of international legal person? While the second school holds that organizations have an original legal personality as do states, the “implied powers” school argues that states have an original, but organizations a derived, legal personality. This can be compared to original (or “prototype”) legal personality and derived legal personality within domestic legal orders. §1566. The latter point of view is supported by the International Court of Justice, which recognized the international personality of the UN in relation to its member states on four main grounds:16 (1) To achieve the ends of the UN the attribution of international personality is indispensable. (2) The organization is equipped with organs and has special tasks. (3) The Charter has defined the position of the member states in relation to the organization, by requiring them to give it every assistance in any action undertaken by it, and to accept and carry out the decisions of the Security

13. For a somewhat different approach, see M. Rama-Montaldo, International Legal Personality and Implied Powers of International Organizations, 44 BYIL 111-155 (1970). Cf. also B. Faßbender, Die Völkerrechtssubjektivität internationaler Organisationen, 37 ÖZöRV 17-49 (1986). 14. See for example G.I. Tunkin, The Legal Nature of the United Nations, 119 RdC (1966 III), at 20-25. However, not all “socialist” literature from the era before the end of the Cold War adhered to this view; see for example D. Feldman, International Personality, 191 RdC (1985 II), at 359. 15. See F. Seyersted, Objective International Personality of Intergovernmental Organizations, 34 Nordisk Tidsskrift for International Ret 1-112 (1964); F. Seyersted, The Legal Nature of International Organizations, 51 Nordisk Tidsskrift for International Ret 203-205 (1982). 16. Reparation for injuries suffered in the service of the United Nations, Advisory opinion, ICJ Rep. 1949, at 178-179.

§1567

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Council, by authorizing the General Assembly to make recommendations to the member states, by giving the organization legal capacity, privileges and immunities in the territory of each of its members, and by providing for the conclusion of agreements between the organization and its members. (4) Practice has confirmed this character of the organization, which occupies a position in certain respects in detachment from its member states. The Court concluded that the UN is an international person. Not “objectively”, irrespective of the will of the member states, but precisely because by implication this must have been the intention of the members. The member states, “by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged”.17 The Court expressly stated that its conclusion that the UN is an international person is not the same as saying that its legal personality, rights and duties are the same as those of a state. “Whereas a state possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice”.18 The Court intended to state merely that the UN “is a subject of international law and capable of possessing international rights and duties”.19 §1567. The International Court of Justice considered furthermore whether the international personality of the UN would also exist in its relations with nonmember states. This question was also answered in the affirmative, on the ground that the vast majority of states had the power, in conformity with international law, to bring into being an entity possessing international personality also vis-à-vis non-member states, and not merely personality recognized by the member states alone.20 §1568. By analogy, the reasoning of the Court can also be applied to other international organizations. Most arguments supporting the Court’s conclusion that the UN has international personality are also true for other organizations. In addition, other international organizations of a universal character could claim international personality vis-à-vis non-member states on the grounds cited by the International Court; closed international organizations could not.21 Closed organizations will have international personality only with regard to those states which have recognized them expressly, or implicitly by concluding

17. 18. 19. 20. 21.

Id., at 179. Id., at 180. Id., at 179 (emphasis added). Id., at 185. Cf. also C.F. Amerasinghe, Principles of the Institutional Law of International Organizations 85-91(1996); Sands and Klein, op. cit. note 2, at 476.

991

Legal status

§1569

mutual agreements, by exchanging diplomatic missions, or by entering into any other kind of mutual relations. This restriction does not affect the capacity of international organizations to act under international law. They are competent to enter into relations with all states wishing to do so. The fact that certain states shun mutual relations affects only the bilateral relationship between the organization and the state concerned. In this respect, the organization is no different from states which have not been universally recognized. §1569. Since the 1970s, there has been little discussion in doctrine or practice concerning the question of international personality of international organizations, except the discussion concerning the legal status of the EU and the OSCE. It is generally recognized that organizations have such capacity, unless there is clear evidence to the contrary.22 In practice, in cases of injury to an international organization, claims for damages have been raised against member states without any question of the right to make such a claim.23 The two main cases in which in recent years the issue of international legal personality has been a problem are the cases of the OSCE and the EU. The OSCE was created as an international conference and developed into an international organization (see above, §30). No agreement has been reached among the members of the organization (officially named ‘participating states’) to grant international legal personality to it.24 This has created a number of practical and legal difficulties. For example, OSCE staff does not have the necessary legal protection when on mission to countries that have not unilaterally granted privileges and immunities. The OSCE has no capacity to issue claims against states and has experienced difficulties in its cooperation with other international organizations (e.g. in the former Yugoslavia). Third parties can initiate legal proceedings against the OSCE staff and hamper the functioning of the organization. In the absence of treaty-making capacity of the organization, its members could not conclude proper seat agreements with the

22. See for example M. K. Yasseen, Création et personnalité juridique des organisations internationales, in R.-J. Dupuy (ed.), Manuel sur les organisations internationales 33-55 (1988), at 43; Seidl-Hohenveldern and Loibl, op. cit. note 5, at 45. See also Second Report by the Special Rapporteur, L. Diaz Gonzáles, on the relations between states and international organizations (second part of the topic), Yearbook of the ILC, Vol. II, Part I, at 107 (1985); P.H.F. Bekker, The Legal Position of Intergovernmental Organizations – A Functional Necessity Analysis of Their Legal Status and Immunities (1994), in particular at 90-93; J. Klabbers, An Introduction to International Institutional Law (2002), at 52-57. 23. See for example UNJY 1980, at 186-187. 24. Although in literature the view has been expressed that the members must be considered to have agreed implicitly to give such personality to the organization since the OSCE could not perform its tasks without it; see I. Seidl-Hohenveldern, Internationale Organisationen aufgrund von soft law, in U. Beyerlin et al. (eds.), Recht zwischen Umbruch und Bewahrung – Festschrift für Rudolf Bernhardt 229-239 (1995). In particular the US is opposed to conclude a convention in which the legal status, privileges and immunities of the OSCE are laid down. One of the reasons for its resistance to such a convention is the fear that this would change the nature of the OSCE from a flexible framework for cooperation into a more traditional international organization.

§1570

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OSCE concerning the status, privileges and immunities of various of its organs, and national laws have been adopted to at least provide for some arrangement.25 The case of the EU is different although political overtones also explain why it has taken a number of years before its status as an international legal person was accepted. The 1992 Maastricht Treaty establishing the EU did not explicitly grant international legal personality to the Union. Neither did the 1997 Amsterdam Treaty or the 2001 Nice Treaty. In some legal writings it was argued that the member states had implicitly given such personality to the EU.26 However until 2001 this was not accepted in practice. Only in April 2001 the EU became a party to a treaty in its own name, thereby assuming that it had the capacity to do so.27 In June 2003 the European Convention included in its Draft Treaty establishing a Constitution for Europe a provision explicitly giving legal personality to the Union.28 §1570. The fact that an international organization is an international person does not mean that it is in the same position as a state in international relations. To be an international person means only to be capable of bearing rights and duties. No answer is given to the question of what rights and duties individual organizations have.29 This is the question of powers attributed to the organization, which has been considered in Chapter Three. While the first question, relating to the personality of the organization, needs an absolute,

25. E.g. the Dutch Act of 31 October 2002 on the legal personality, privileges and immunities of the High Commissioner on National Minorities, Staatsblad 2002, 580 (Official Gazette of the Kingdom of the Netherlands). 26. R.A. Wessel, The International Legal Status of the European Union, 2 EFAR 109-129 (1997), and R.A. Wessel, Revisiting the International Legal Status of the EU, 5 EFAR 507-537 (2000) (both with many references to further literature); G. Hafner, The Amsterdam Treaty and the Treaty-Making Power of the European Union, in G. Hafner et al (eds.), Liber Amicorum Professor Ignaz Seidl-Hohenveldern in honour of his 80th birthday 257-284 (1998); J. Klabbers, Presumptive Personality: The European Union in International Law, in M. Koskenniemi (ed.), International Law Aspects of the European Union 231-253 (1998). See also N.M. Blokker and T. Heukels, The European Union: historical origins and institutional challenges, in T. Heukels, N. Blokker and M. Brus (eds.), The European Union after Amsterdam – A Legal Analysis 9-50 (1998). 27. Agreement concluded between the EU and Yugoslavia concerning the activities of the EU Monitoring Mission in Yugoslavia, OJ 2001, L 125/1. This agreement was approved by the Council on behalf of the EU. Other examples are the agreements between the EU and the US on extradition and on mutual legal assistance, signed 25 June 2003 (see OJ 2003, L 181/25). 28. Art. I.6: “The Union shall have legal personality”. 29. The same view has been expressed by other authors; see e.g. Amerasinghe, op. cit. note 21, at 69, 78; Sands and Klein, op. cit. note 2, at 473. By contrast, there have been some authors taking the view that organizations having international legal personality automatically have some rights and obligations (for example, the right to conclude treaties), irrespective of the content of the constitution. See the overview given by Rama-Montaldo, op. cit. note 13, at 116-122. However, this seems to be a minority view (see Mosler, op. cit. note 3, at 446).

993

Legal status

§1571

“black and white” answer (yes or no),30 the answers to the second question are relative, and vary from organization to organization. As has been discussed in Chapter Three, this is because organizations exercise only those powers which have been attributed to them, whereas the scope of state powers is fundamentally unlimited. Since the powers which fill, or give substance to, the organization’s personality are limited and determined by the latter’s purposes and functions, frequent reference is made to the functional nature of personality, or functional personality of international organizations.31 §1571. A problem concerning the international legal personality of international organizations which has not yet been resolved in doctrine, and for which different solutions have been found in practice, is the issue of (in)divisibility of international legal personality. Is it only the organization as a whole which has such personality, or is it possibly individual organs within the organization as well? For example, the European Investment Bank is an organ of the European Community. In international relations the EC generally acts on its behalf, but the Bank has nevertheless concluded agreements with some states, and is one of the founding members of the European Bank for Reconstruction and Development (as is the EC as such).32 The institutions of the European Communities (Council, Commission, European Parliament, Court of Justice, Court of Auditors) do not have separate international legal personality.33 Subsidiary organs of the UN, such as UNICEF, UNRWA, WFP and UNDP, which have been entrusted with a wide range of direct functions, have regularly entered into commercial contracts and agreements with states in their own names.34 In 1991 UNDP signed an agreement with a government for the establishment of the Centre for Environment and Development for the Arab Region and Europe. This Centre was to be an international organization jointly established by UNDP and the government in question. However, when this agreement was submitted for review to the UN Office of Legal Affairs, it was severely criticized. The Office concluded in

30. Therefore it is unfortunate that the Court in its Reparations for Injuries Advisory Opinion concludes that the UN has “a large measure of international personality” (ICJ Rep. 1949, at 179). This neglects the distinction between legal personality and powers of international organizations. 31. For example Mosler, op. cit. note 3, at 443 and 445; I. Brownlie, Principles of Public International Law 678 (5th ed. 1998); Seidl-Hohenveldern and Loibl, op. cit. note 5, at 48. 32. EC, Art. 198d. See D.R.R. Dunnett, The European Investment Bank: Autonomous Instrument of Common Policy?, 31 CMLRev. 721-763 (1994), in particular at 732. 33. See Cases 7/56 and 3/57-7/57, Algera, ECR 1957, at 58. Cf. also Case C-327/91, France v. Commission, ECR 1994, at I-3641. 34. Yb ILC 1967 II, Documents A/CN.4/L118 and Add. 1 and 2, at 207; UNJY 1976, at 159; UN Doc. A/CN.4/L.383 and Add. 1-3, at 152. See also UNJY 1990, at 276-277 (where, however, the question whether UNDP has separate legal personality is left unanswered). See further UNJY 1987, at 171-173 (reproducing a memorandum of the Office of Legal Affairs in which it was advised that the UN, not UNEP, should become a party to two conventions), and UNJY 1995, at 452-453 (legal personality of the Secretariat of the UN Framework Convention on Climate Change).

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its memorandum of 1 November 1991 “that UNDP does not possess the legal capacity to establish a new international organization alone or with only one other state”.35 It took a rather restrictive view with regard to the question whether international organizations have the capacity to establish other international organizations: “[i]nternational intergovernmental organizations which are the creation of states cannot in and of themselves create new organizations, endowed with the same international legal personality, unless they are specifically mandated to do so by states”.36

The International Law Commission and its Rapporteur P. Reuter found that the existence of a separate legal status of organs under international law was uncertain. In 1982, the ILC concluded therefore: “It would be useful to make it clear that, unless there is a properly established indication to the contrary, when an international organization binds itself by treaty, it also binds [all the entities, subsidiary organs, connected organs and related bodies which come within the orbit of that international organization and are incorporated in it to a greater or lesser extent]. Conversely, a treaty concluded on behalf of a subsidiary organ should bind the entire organization as well. However ... [t]his is an area in which notions, vocabulary and the practice of international organizations are not settled, and it seemed wisest to leave aside a subject which [it] is too early to codify”.37

B.

Application of international law

§1572. A large number of rules of international law are not relevant for international organizations, which have no territory, confer no nationality and do not exercise jurisdiction in the same sense as states.38 But some rules may be relevant. This raises the question of the extent to which rules of international law are applicable to international organizations.39 May international organizations be bound by treaties and rules of customary international law without their consent? Or, to give a practical example, are United Nations forces bound by the laws of war, such as the Geneva Conventions, even by sections thereof which have not been recognized as compulsory international law? Is it per-

35. UNJY 1991, at 296-301. 36. Id., para. 4. The Centre was created in 1991. Its website (www.cedare.org.eg) informs that it was established “on the basis of a joint commitment by the three principal sponsors, namely the government of Egypt, the Arab Fund for Economic and Social Development and the [UNDP]. The Conference of the Arab Ministers for Environmental Affairs adopted the ‘Damascus Convention on Cedare’ […]. This Convention became the primary legal instrument enabling the creation of the Centre”. 37. ILC Rep. on the work of its 34th session, GAOR 37th Session, Suppl. No. 10, at 80 (quoted in F. Morgenstern, Legal Problems of International Organizations 24 (1986)). 38. Morgenstern, op. cit. note 37, at 4. 39. H.G. Schermers, De binding van internationale organisaties aan regelingen ter bescherming van mensenrechten, in: Rechten van de Mens in Perspectief 121-137 (1968); A. Bleckmann, Zur Verbindlichkeit des Algemeinen Völkerrechts für internationale Organisationen, 37 ZaöRV 107-121 (1977); P. Klein, La responsabilité des organisations internationales – dans les ordres juridiques internes et en droit des gens 312-375 (1998).

995

Legal status

§1573

mitted for the UN Security Council to impose a total food blockade against a state, notwithstanding the existence of rules of humanitarian law such as those aiming to protect children under fifteen, expectant mothers and maternity cases,40 and those containing the prohibition of starvation of the civilian population as a means of warfare?41 Such questions have received more attention with the more vigorous role played by the UN Security Council since the end of the Cold War. Similar questions have increasingly become relevant for other organizations, such as the EC, the EU and NATO. §1573. The UN is not a party to these conventions and, according to many authors, the basis of international law is consent between states, express or tacit.42 States do not consider themselves bound by treaties which they have not ratified, nor do they apply rules of customary law which they have not (at least tacitly) accepted. §1574. There are several arguments why the position of international organizations differs from that of states and why their subordination to international law is clearer than that of states. These arguments may be a basis for considering international organizations bound by rules of international law even without their consent. (1) According to the principles of state succession, a new state is often bound by the obligations of its predecessor. By analogy, an organization formed by states will be bound by the obligations to which the individual states were committed when they transferred powers to the organization.43 (2) Historically, national legal orders are more powerful than the international legal order. National orders are the traditional centres of the law. International law has been formed by voluntary cooperation between states. Without their support, no rules of international law could be developed. International organizations, although established by states, have never possessed a potent legal order of their own. They are established under international law. Their constitutional roots are in international law. No superiority over international law can be pleaded on their behalf. (3) International organizations cannot participate in the creation of new rules of international law in the same way as states. Hitherto they have been accep-

40. The 1949 Fourth Geneva Convention (Relative to the Protection of Civilians Persons in Times of War), Art. 23. 41. The 1977 Protocol I to the Geneva Conventions, Art. 54. See R. Provost, Starvation as a Weapon: Legal Implications of the United Nations Food Blockade Against Iraq and Kuwait, 30 CJTL 577-639 (1992). See further below, §1577. 42. R. Jennings and A. Watts (eds.), Oppenheim’s International Law, 9th ed. Vol. I (1992), at 14-16. 43. See R.A. Lawson, Het EVRM en de Europese Gemeenschappen – Bouwstenen voor een aansprakelijkheidsregime voor het optreden van internationale organisaties 55-126 (1999) for an extensive and critical analysis of the application of what he calls the substitution theory in order to consider the EC bound by the European Convention on Human Rights.

§1574

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ted as parties to multilateral law-making treaties only exceptionally. Their general abstention from becoming such parties cannot therefore be interpreted as a desire not to be bound. In considering the question whether an international organization is subject to rules of treaty law, one cannot start from the hypothesis that this is not the case unless the organization expressly bound itself. It will often be necessary to search for the rules of international law which can bind an international organization, irrespective of its will. Thus it is not surprising that the International Court of Justice has considered that “international organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law ...”.44 The subordination of international organizations to international law means that their legal orders are partly made up of international rules, which they will have to apply both in their internal and external relations (see above, §1335).45 At the same time, as international organizations become more important and in some cases act in a way similar to states, there also is a greater need to make more clear whether and by what rules they are bound. This is similar to the need once felt for states to make it more clear whether and by what rules they were bound. Increasingly, their express or tacit consent will become the basis for considering international organizations bound by rules of international law. It is therefore relevant that a legal framework for treaties concluded by international organizations has been prepared: the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations.46 This so-called Vienna II Convention will affect the way in which international organizations that are party to it can be considered bound by treaties. According to the Vienna II Convention international organizations need to express their consent to be bound in order to become bound by a treaty – as is the case for states. Consequently, when an international organization has not expressed its consent to be bound, it should not be considered bound by following the arguments listed in the beginning of this paragraph. However at this point in the development of international organizations such a situation does not yet exist: the Vienna II Convention is not yet in force and when this will happen it may still take considerable time before international organizations are parties to it.

44. Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory opinion, ICJ Rep. 1980, at 90. See also the separate opinion by Judge El-Erian, id., at 168-169. 45. This is also true for the European Communities that have a more developed autonomous legal order than other organizations. See J. Vanhamme, Volkenrechtelijke beginselen in het Europees recht (2001). 46. Text published in UN Doc. A/CONF.129/15.

997

1.

Legal status

§1575

General principles of law

§1575. States which have founded an international organization are bound by general principles of law. These principles will also be applicable in the legal order of the organization. This means that a regional organization, such as the European Union, Benelux or the European Free Trade Association may be bound by general principles of law other than those applicable to organizations such as the Organization of African Unity and the Organization of American States. Even if general principles such as the freedom of expression or property rights are generally accepted, their substance is not the same in every region. It may be difficult to find principles of law applicable in specific cases. They will have to be derived from the national legal orders of the member states and from treaties into which the majority of the member states have entered. §1576. In a number of cases the EC Court has applied general principles of law, such as non bis in idem, estoppel and legal certainty, in order to give flesh to the legal order of the Communities.47 It has also declared that it will ensure respect for the basic principles of human rights, which are incorporated in the general principles of Community law.48 The EC is not a party to the European Convention on Human Rights. The EC Court has never come to the conclusion that the Communities are bound by this Convention. At most it has, sometimes inspired by specific provisions of the Convention, “translated” these provisions into general principles of Community law, which it must protect. The current “transformation procedure” as applied by the Court has been described as follows by Advocate General Darmon: “the existence in Community law of fundamental rights drawn from the European Convention on Human Rights does not derive from the wholly straightforward application of that instrument as interpreted by the Strasbourg authorities”. The Advocate General referred to the earlier Nold and Hauer judgments, where the Court stated that, in the discharge of its duty to safeguard the fundamental rights which form an integral part of Community law, “international treaties for the protection of human rights on which the member states have collaborated or of which they are signatories can supply guidelines which should be followed within the framework of Community law” (emphasis added). The Advocate General concluded that the EC Court “may therefore adopt, with respect to the provisions of the Convention, an interpretation which does not coincide exactly with that given by the Strasbourg authorities, in particular the European Court of Human Rights. It is not bound, in so

47. See H.G. Schermers and D. F. Waelbroeck, Judicial Protection in the European Union 28-133 (6th ed. 2001). 48. Case 29/69, Stauder, ECR 1969, at 425; Case 4/73, Second Nold, ECR 1974, at 507; Case 44/79, Hauer, ECR 1979, at 3727; of the more recent cases, see for example Case 5/88, Wachauf, ECR 1989, at 2609; Case C-185/95 P, Baustahlgewebe, ECR 1998, at I-8417.

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far as it does not have systematically to take into account, as regards fundamental rights under Community law, the interpretation of the Convention given by the Strasbourg authorities”.49

Thus in the absence of Community accession, the Court has reserved to itself the right to determine the extent to which rights of the European Convention will enter the Community legal order.50 Moreover, it appears from the analysis of Advocate General Darmon that the Court does not seem to consider itself bound by interpretations of the European Convention given by the European Commission of Human Rights and the European Court of Human Rights. This is essential, since the European Convention has acquired its impact mainly through the case law of these organs.51 Thus on present law only EC accession to the Convention would guarantee citizens the full application of their Convention rights vis-à-vis the Communities. In 1996 however the EC Court found (“as Community law now stands”) that the EC has no competence to accede to the Convention.52 Nevertheless, this did not conclude the discussion on the subject. The 2001 Laeken Declaration mentioned that “thought would also have to be given to […] whether the European Community should accede to the European Convention on Human Rights”.53 And this was done in the June 2003 Draft Treaty establishing a Constitution for Europe: “[t]he Union shall seek accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms”.54 It will now be for the EU member states to decide.

49. Opinion of Advocate General Darmon in Case 374/87, Orkem, ECR 1989, at 3338. 50. E.g. the Court decided that it cannot, in a reference for a preliminary ruling, give an interpretation on the question of the conformity of national legislation with fundamental rights (such as those laid down in the European Convention) where such national legislation is concerned with a situation which does not fall within the field of application of Community law. Case C-299/95 (Kremzow), ECR 1997, at I- 2629. 51. See on this matter H.G. Schermers, The European Communities bound by Fundamental Human Rights, 27 CMLRev. 249-258 (1990); K. Lenaerts, Fundamental Rights to be included in a Community Catalogue, 16 ELRev. 367-390 (1991); P. Pescatore, La Cour de Justice des Communautés européennes et la Convention européenne des Droits de l’Homme, in F. Matscher and H. Petzold (eds.), Protecting Human Rights: the European Dimension, Studies in Honour of Gerard J. Wiarda 441-455 (1988); R.A. Lawson, Confusion and Conflict? Diverging Interpretations of the European Convention on Human Rights in Strasbourg and Luxembourg, in R.A. Lawson and M. de Blois (eds.), The Dynamics of the Protection of Human Rights in Europe, Essays in Honour of Henry G. Schermers, Vol. III (1994), at 219-252; Lawson, op. cit. note 43; B. de Witte, The Past and Future Role of the European Court of Justice in the Protection of Human Rights, in P. Alston (ed.), The EU and Human Rights 859-897 (1999). 52. Opinion 2/94, ECR 1996, at I-1759. 53. Annex I to the Presidency Conclusion of this meeting of the European Council. See also “The future status of the EU Charter of fundamental rights”, House of Lords, session 20022003, Sixth Report (3 February 2003). 54. Article I-7.2. This Draft Treaty was proposed by the European Convention (created by the European Council in the 2001 Laeken Declaration to prepare the next intergovernmental conference and consider “the key issues arising for the Union’s future development and try to identify the various possible responses”).

999

2.

Legal status

§1577

Treaty law

§1577. International organizations may be parties to international agreements.55 In that case, the binding force of the agreements can be based on the consent of the organization. Often however treaties exclude the possibility for international organizations to become parties. Several treaties have been drafted by representatives of nearly all states with the intention of creating universal law. For traditional reasons, states claim the right to abstain from applying such treaties unless they have ratified them. International organizations have no grounds for such a claim. They will have to apply the main substantive provisions of general law-making treaties such as the Red Cross Conventions.56 Regional organizations will also be required to apply the main substantive provisions of regional law-making treaties such as the European Convention on Human Rights. The legal foundation of this obligation lies not in its character as an international treaty but rather in its character as a general principle of law codified by treaty. Whether a particular treaty contains such a general principle may be indicated by its mode of establishment. The number of states which participated in its drafting is important, and also whether the text has been unanimously – or almost unanimously – adopted. It will also be relevant to determine how long the treaty has been open to ratification and how many ratifications have been deposited. References in other treaties or public statements may also reinforce the view that a particular treaty contains general principles of law, binding not only on states but also on international organizations. The UN has instructed its forces to observe the principles and the spirit of the general international conventions concerning the behaviour of military personnel. It did not, however, undertake to comply with the detailed provisions of the Geneva Conventions of 1949.57 This is legally correct. Only the principles of the Geneva conventions are

55. See below, §1748-1755. 56. The UN has occasionally endorsed specific articles of those conventions, see e.g. GA Res. 2676 (XXV), but it is of the opinion that it cannot become a party. See UNJY 1972, at 153: “ ... the United Nations is not substantively in a position to become a party to the 1949 Conventions, which contain many obligations that can only be discharged by the exercise of juridical and administrative powers which the organization does not possess, such as the authority to exercise criminal jurisdiction over members of the forces, or administrative competence relating to territorial sovereignty. Thus the United Nations is unable to fulfil obligations which for their execution require the exercise of powers not granted to the organization ... ”. 57. F. Seyersted, United Nations Forces 190 (1966). See also D.W. Bowett, United Nations Forces, 484 ff. (1964); R. Simmonds, Legal Problems Arising from the UN Military Operations in the Congo, 168 ff. (1968); W. Strasser, Die Beteiligung Nationaler Kontingente an Hilfseinsatzen internationaler organisationen, 34 ZaöRV 700-704 (1974); B. Amrallah, The International Responsibility of the United Nations for Activities carried out by UN Peace-Keeping Forces, 32 REDI 57-82 (1976); Y. Sandoz, The Application of Humanitarian Law by the Armed Forces of the United Nations Organization, International Review of the Red Cross 274-284 (1978); D. Schindler, United Nations Forces and International Humanitarian Law, in C. Swinarski (ed.), Studies and

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part of general principles of law. The detailed provisions on the conduct required are too specific. But on the other hand, if only the general principles and spirit of the conventions were heeded by the UN, its obligations would be too vague. Considering the unity of the Geneva Conventions and the interdependence of their provisions, the UN would have been better advised to apply them in their entirety (as far as is practically possible). For practical purposes, this would be the same as if the UN adhered to the Red Cross Conventions (see below, §1774). In two resolutions of 20 December 1971, the General Assembly called upon all parties to any armed conflict to observe the rules laid down in the Hague Conventions of 1899 and 1907, the Geneva Protocol of 1925, the Geneva Conventions of 1949 and other humanitarian rules applicable in armed conflicts.58 This may imply an acceptance of those rules for armed forces of the organization. But such acceptance would be clearer if the UN was to undertake an explicit, formal engagement to respect these rules of international humanitarian law by accession to the conventions in question (if possible) or by adopting a unilateral declaration in which it accepted such rules.59 A significant development was the promulgation in 1999 by the UN Secretary-General of a Bulletin on “Observance by United Nations forces of international humanitarian law”.60 This Bulletin is an administrative issuance of the Secretary-General, part of the internal law of the UN, in this case addressed to members of UN forces.61 It is an important contribution to the observance by UN forces of international humanitarian law, although it has a number of shortcomings.62 At the same time, the Bulletin is part of the internal legal order of the UN. It is not a unilateral undertaking by the UN that creates external obligations for the UN under international law, as the Secretary-General has no competence to enter into such external obligations. A problem in this area is the fact that some of the troops taking part in UN operations may be provided by countries which are not parties to some of the relevant humanitarian law conventions.63 The same problem occurred in the case of the NATO military action against Yugoslavia in 1999. NATO was accused for having violated Protocol I Additional to the Geneva Conventions of 1949, relating to the Protection

58. 59. 60. 61.

62. 63.

Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet 521-530 (1984); H. Risse, Der Einsatz militärischer Kräfte durch die Vereinten Nationen und das Kriegsvölkerrecht (1988); R.C.R. Siekmann, National Contingents in United Nations Peace-Keeping Forces 128-129 (1991); U. Palwankar, Applicability of International Humanitarian Law to United Nations Peace-Keeping Forces, International Review of the Red Cross 227-240 (1993); UNJY 1992, at 430-431 (letter by the UN Legal Counsel to the President of the ICRC); M. Zwanenburg, Accountability under International Humanitarian Law for UN and NATO Peace Support Operations (dissertation Leiden University, forthcoming (2004)). GA Res. 2852 (XXVI) and GA Res. 2853 (XXVI). See Schindler, op. cit. note 57, at 528-530. UN Doc. ST/SGB/1999/13, 9 August 1999. See M. Zwanenburg, The Secretary-General’s Bulletin on Observance by United Nations Forces of International Humanitarian Law: a Pyrrhic Victory?, The Military Law and Law of War Review 15-33(2000), at 18; L. Condorelli, Les progrès du droit international humanitaire et la circulaire du Secrétaire Générale des Nations Unies du 6 août 1999, in L. Boisson de Chazournes and V. Gowlland-Debbas (eds.), The International Legal System in Quest of Equity and Universality – Liber Amicorum Georges Abi-Saab 495-505 (2001). E.g. some of the provisions of the Bulletin deviate from treaty or customary international humanitarian law. See Zwanenburg, op. cit. note 61. UNJY 1992, at 430-431.

1001

Legal status

§1577

of Victims of International Armed Conflicts. However, NATO itself and three of its members (France, Turkey and the US) were not parties to this Protocol.64 The question whether the UN is bound by treaties also arose in the context of Security Council resolutions imposing economic sanctions. Sanctions against Iraq have been particularly criticized for violating human rights such as the right to life and the right to health, laid down in human rights conventions. Such criticism has been expressed not only in academic writings.65 At the request of the UN Sub-Commission on Human Rights a former member of this Sub-Commission, Marc Bossuyt, prepared a working paper on “the adverse consequences of economic sanctions on the enjoyment of human rights”.66 One of the observations in this working paper was that “[t]he sanctions regime against Iraq is unequivocally illegal under existing international humanitarian law and human rights law”.67 The working paper was severely criticized by the UK and the US. The Sub-Commission discussed the working paper and, inter alia, “[appealed] to all states concerned to seek prompt termination of all aspects of sanctions regimes that adversely affect human rights, that contravene international law or that conflict with other norms of international law”. A preambular paragraph indicated that the Sub-Commission was “[a]ware that certain sanctions regimes must be addressed by relevant United Nations bodies as issues of the greatest urgency in the light of the analysis provided by Mr. Bossuyt”.68 The situation here is similar to the case of UN peace-keeping discussed above. Even though the Security Council is not formally bound by the specific rules laid down in relevant treaties of humanitarian or human rights law, the Council is bound by the principles inherent in these treaties. Developments in practice with regard to economic sanctions demonstrate – as in the case of peace-keeping – an increased tendency to take these principles into account.69 The negative consequences of economic sanctions are limited, e.g. by the use of so-called smart sanctions (targeted at specific (groups of) individuals) and by restricting the sanctions in time.70 The EC is now a member of the World Trade Organization. But prior to the creation of the WTO it was never a member of the GATT. Was the EC bound by the provisions of the GATT? The EC treaty provides: “[t]he rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding states, before the date of their

64. See the report by Amnesty International issued 7 June 2000 (NATO/Federal Republic of Yugoslavia – “collateral damage” or unlawful killings?). 65. E.g. W.M. Reisman and D.L. Stevick, The Applicability of International Law Standards to United Nations Economic Sanctions Programmes, 9 EJIL 86-141 (1998); E. de Wet, Human Rights Limitations to Economic Enforcement Measures Under Article 41 of the United Nations Charter and the Iraqi Sanctions Regime, 14 LJIL 277-300 (2001). 66. UN Doc. E/CN.4/Sub.2/2000/33. 67. Id., §71. 68. Resolution 2000/25 (adopted by consensus); reproduced in UN Doc. E/CN.4/2001/2; E/ CN.4/Sub.2/2000/46 (at 71). 69. See in this regard the letter from the permanent members of the Security Council containing a non-paper on the humanitarian impact of sanctions (UN Doc. S/1995/300). According to this non-paper sanctions “should be directed to minimize unintended adverse side-effects of sanctions on the most vulnerable segments of targeted countries”. A number of specific “considerations” are mentioned. 70. See also UN Doc. S/1999/92 (Note by the President of the Security Council containing practical proposals agreed by all members of the Council, to improve the work of the sanctions committees).

§1578

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accession, between one or more member states on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty”.71 In the third International Fruit Company case, the EC Court held that the Community as such was bound by the provisions of the GATT, in so far as under the EC Treaty the Community has assumed the powers previously exercised by the member states in the area covered by the General Agreement.72

§1578. Apart from law-making treaties, member states of international organizations may also be bound by contractual treaties, dealing with a specific subject matter concerning these states exclusively. Such treaties do not create general rules of law which are also binding for international organizations, but they restrict the powers which states party to them can transfer to these organizations. For this reason, they also limit the powers which international organizations can be accorded. 3.

Customary law

§1579. International custom will apply as much to international organizations as it does to states. In the same way as with states, it is often unclear whether custom is binding as an external legal rule or whether the customary rule is at the same time accepted as an internal (domestic) customary rule. In many national legal systems, international custom is considered part of the law of the land. Custom as part of the internal legal order of the organization has already been considered (see above, §1339).

71. Art. 307, para 1. 72. Case 21-24/72, Third International Fruit Company Case, ECR 1972, at 1227. See also Case 38/75, Second Nederlandse Spoorwegen Case, ECR 1975, at 1450; Case 70/87, Fediol, ECR 1989, at 1781 (in this case, the EC Court interpreted several GATT provisions); Case C-69/89, Nakajima, ECR 1991, at I-2069; Case C-280/93, Germany v. Council, ECR 1994, at I- 4973; Case C-149/96, Portuguese Republic v. Council, ECR 1999, at I-8395 (annotated by P. Egli and J. Kokott in 94 AJIL (2000), at 740-745). The EC Court has always held that “GATT provisions were not capable of conferring on citizens of the Community rights which they can invoke before the courts”. Nevertheless, in the Fediol Case the Court ruled that citizens may rely on GATT provisions before the Court in order to obtain a ruling on whether conduct criticized in a complaint lodged under Council Regulation 2641/84 (on the strengthening of the common commercial policy with regard in particular to protection against illicit commercial practices) constitutes an illicit commercial practice within the meaning of that regulation. It has to be noted that this regulation described illicit commercial practices as “any international trade practices attributable to third countries which are incompatible with international law or with the generally accepted rules” (ECR 1989, at 1830-1831). See also E.-U. Petersmann, The EEC as a GATT Member – Legal Conflicts between GATT Law and European Community Law, in M. Hilf, F. Jacobs, E.-U. Petersmann (eds.), The European Community and GATT 23-71 (1984). For the Council decision concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations, see OJ 1994, L 336/1.

1003

4.

Legal status

§1580

Decisions of other international organizations

§1580. Some decisions of international organizations may apply to other organizations because they bind the member states of these other organizations. Binding decisions of the European Community will bind the member states of Benelux. Therefore they will also have to be applied by the Benelux organization.73 Decisions of the Security Council can bind all UN members.74 They will therefore be binding on all organizations formed by UN member states.75 For example, resolutions of the Security Council introducing economic sanctions are binding for the European Communities, which usually adopt legislation to implement the decision of the Security Council.76 Another example is the order by the International Criminal Tribunal for the former Yugoslavia (ICTY) to the Stabilization Force (SFOR) and to NATO’s North Atlantic Council to disclose to the accused Stevan Todorovic specified information related to his apprehension. Article 29 of the ICTY Statute obliges only states to comply with such orders. According to ICTY however, “[a] purposive construction of the Statute yields the conclusion that such an order should be as applicable to collective enterprises of states as it is to individual states”.77 Many decisions of international organizations have contributed significantly to customary international institutional law. One clear example is found in the rules of procedure of the General Assembly of the UN. Many other rules of procedure follow this pattern and the rules of the General Assembly will probably be applied when no others are available. But rules of other organizations will not be binding by themselves. Their binding force will be based either on express acceptance or on custom. Rules of an international organization may also bind another organization without its express acceptance or in the absence of customary authority. There may be an explicit constitutional provision.

73. 74. 75. 76.

With the exception of cases covered by EC, Art. 306. UN Charter, Art. 25. See e.g. Agreement between the UN and the World Bank, Art. 6. See for example the Security Council resolutions introducing economic sanctions against Iraq, Libya and Haiti, implemented in, respectively, EC Council Regulations 2340/90 (OJ 1990, L 213/1), 245/92 (OJ 1992, L 101/53) and 1608/93 (OJ 1993, L 155/2). The legal basis under the EEC Treaty was Article 113 (now Art. 133); as of 1 November 1993 (entry into force of the TEU), the legal basis for comparable sanction regulations is Art. 228a (now: Art. 301) of the EC Treaty. See M. Vaucher, L’évolution récente de la pratique des sanctions communautaires à l’encontre des États tiers, 29 RTDE 39-59 (1993); S. Bohr, Sanctions by the United Nations Security Council and the European Community, 4 EJIL (1993), at 256-268. 77. Case no. IT-95-9-PT, Trial Chamber decision on the motion for judicial assistance to be provided by SFOR and others, 18 October 2000, para. 48. Before the order was issued, the SFOR legal advisor had stated that “ICTY has no authority to order SFOR to disclose any information” (id., para. 5). The Trial Chamber came to this conclusion in spite of earlier decisions of the Tribunal that pointed in a different direction (id., para. 50-57).

§1581

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The Benelux treaty, for example, provides that those disputes concerning its application which also concern the EC Treaty will be settled by the EC Court.78 This means that decisions of the Court will be binding for the Benelux Economic Union.

§1581. Some organizations are obliged to follow decisions of other organizations by virtue of an agreement between the organizations. Thus, the specialized agencies of the UN have agreed to render assistance to the Security Council and to cooperate with the other organs of the UN.79 Even in the absence of an express provision in an agreement, organizations may, because of their close relationship, be willing to follow decisions of other organizations. The UN will thus be obliged to adhere to the rules of the UPU for its postal service, even though the agreement between UN and UPU contains no provision to this effect. Similarly the UN would have to apply the regulations of the IMO if it were to operate ships under their flag. The distribution of different functions to various organizations obliges the world community to respect the competences of each organization. As long as these competences are clearly defined, as in the case of UPU, no practical problems will arise. The powers of the UN and the specialized agencies however are seldom easily distinguishable. In general, political issues fall within the scope of the UN. In questions such as the representation of China or the recognition of newly independent states, the specialized agencies have usually taken the view that they should await a decision of the UN. In practice, they will usually follow this decision even though they do not recognize the UN as competent to decide on their behalf.80 In several political matters the UN has addressed recommendations to the specialized agencies. The recommendation to banish Spain (see above, §1482) was reinforced by the sanction that no organization which failed to comply with the recommendation could achieve the status of a specialized agency. The organizations observed the resolution. On the other hand, the UN recommendations against South Africa and Portugal were not fully applied by the specialized agencies (see below, §1714).

C.

Responsibility and liability under international law

§1582. If an international organization is an international person (Section A above), and if it is bound by certain international legal obligations (Section B above), does this mean that it is also responsible vis-à-vis third parties which suffer injury by virtue of the non-fulfilment by the organization of its obligations? In addition, are international organizations liable for wrongful acts that did not involve violations of their obligations under international law? Further-

78. Benelux, Art. 51. 79. See e.g. Agreement between UN and ILO, Art. 6. 80. For lists of specialized agencies following the UN in recognizing the People’s Republic of China, see 11 ILM 561 (1972) and 12 ILM 1526 (1973).

1005

Legal status

§1583

more, whether or not the organization is responsible/liable, are the member states (also) responsible/liable for damage caused by ‘their’ organization? From the outset, a distinction should be made between responsibility/ liability of the organization under domestic law (discussed below, §1613-1616) and responsibility/liability of the organization under international law. Activities of international organizations governed by domestic law are generally governed by the responsibility and liability rules of that domestic legal order. Activities of international organizations governed by international law are governed by the international law rules on responsibility and liability.81 There is no generally agreed use of the terms “responsibility” and “liability”. Here the term “responsibility” is used in relation to acts that involve breaches of international law. “Liability” has a broader meaning; it also refers to acts that are not unlawful (but cause damage).82 The term ‘accountability’ is also sometimes used in this context. However, this term refers to something broader. It has been defined as not only covering responsibility and liability of international organizations, but also the extent to which they are and should be subject to or exercising forms of internal and external scrutiny and monitoring.83 §1583. Normally an organization, just as a natural person, is liable if its own legal acts cause injury to others. The existence of immunity of international organizations before national courts (see below, §1610-1612) does not affect the existence of liability. Immunity is used to prevent international organizations from being subject to an outside judiciary: it does not affect the rights and obligations of the organization. The Office of Legal Affairs of the UN once considered: “We hold the view that clear obligations of the UN should be paid, regardless of whether there is an appropriate resolution, or whether the organization has a claim against a third party for the sum in question on which it has not yet been able to collect”.84 Subsequently the UN Secretariat has emphasized that “[t]he international responsibility of the United Nations for the activities of United Nations forces is an attribute of its international legal personality and its capacity to bear international rights and obligations”.85 These principles have been applied in numerous specific cases, for example when authorized visitors to one of the UN’s peace-keeping forces (UNFICYP) suffered injury as a consequence of an accident with a helicopter of the British contingent of UNFICYP. In the latter case the Office of Legal Affairs took the view that the UN, as the carrier, “could and normally would be held liable by third parties”; whether ultimately the

81. Sands and Klein, op. cit. note 2, at 514 et ff. 82. Cf. Yearbook ILC 1973 (UN Doc. A/9010/Rev.1, Vol. II, at 169 (para. 38). See also the first report of the ILA Committee on accountability of international organizations (1998), at 17. 83. First report of the ILA Committee on accountability of international organizations (1998), at 17. Accountability issues are discussed elsewhere in this book, in particular in Chapter 5. 84. UNJY 1976, at 177. 85. UN Doc. A/51/389, at 4.

§1584

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UN or the United Kingdom (the owner of the helicopter) would bear the cost of possible compensation depended on the arrangements made between them.86

Therefore a first conclusion to be drawn is that international organizations are responsible for violations of their obligations and liable for their debts. This is as simple as logical: otherwise the separate legal personality of the organization, distinct from its member states, would be little more than a fiction.87 At present there is no agreed set of detailed rules of international law governing the responsibility/liability of international organizations. However, the main principles underlying the rules on state responsibility are applicable mutatis mutandis to international organizations.88 In 2001 the UN General Assembly requested the International Law Commission (ILC) to begin its work on the topic of responsibility of international organizations.89 In 2003 a first report was presented by ILC Special Rapporteur Gaja. In his report, the Special Rapporteur indicated that he intends to follow the model of the articles on state responsibility “both in the general outline and in the wording of the new text”, unless differences between international organizations and states would require a different approach or wording.90 One of the most interesting elements of the work of the ILC in this area will be the question where such differences exist. §1584. However, this is not the end of the matter. As has rightly been observed by the International Court of Justice, to say that an organization is an inter-

86. UNJY 1980, at 184-185. See for other examples of cases of liability of the UN: UNJY 1986, at 292-293 (death and injury and third-party liability in relation to Namibian trainees undergoing training within a UN programme); id., at 294-295 (liability of an international organization for requiring staff members to work in unsafe conditions); and id., at 300-301 (liability of the UN for claims involving off-duty acts of members of peace-keeping forces); UNJY 1995, at 459-462 (liability of the UN in respect of contingent-owned equipment); UNJY 1996, at 465-468 (responsibility for the costs of repairing aircraft used in peace-keeping operations). See also P.C. Szasz, The United Nations legislates to limit its liability, 81 AJIL 739744 (1987). See for the liability of the EC under international law J. Groux and P. Manin, The European Communities in the International Order (1985), at 141-147. 87. Cf. also E. Lauterpacht, The Development of the Law of International Organizations by the Decisions of International Tribunals, 152 RdC (1976 IV), at 412-413; ILC Commentary on Art. 57 of the Articles on State Responsibility (UN Doc. A/56/10, at 361). 88. M. Virally, Panorama du droit international contemporain, 183 RdC (1983), at 259; Klein, op. cit. note 33, at 394; Sands and Klein, op. cit. note 2, at 520. Also: ILC Special Rapporteur Gaja in his first report on responsibility of international organizations (UN Doc. A/CN.4/532 (2003), at 18-21. 89. Res. 56/82, para. 8. This request followed the conclusion of the work of the ILC on ‘Responsibility of states for internationally wrongful acts’ (see GA Res. 56/83). According to Art. 57 of the ILC Articles on State Responsibility, these articles “are without prejudice to any question of the responsibility under international law of an international organization, or of any state for the conduct of an international organization”. See also the syllabus on this topic prepared in 2000 for the ILC by its member Pellet (UN Doc. A/55/10, Annex 1). 90. UN Doc. A/CN.4/532 (2003), in particular at 6-7.

1007

Legal status

§1585

national person “is not the same thing as saying that it is a state, which it certainly is not, or that its legal personality and rights and duties are the same as those of a state”.91 In reality the problem of responsibility/liability of international organizations is more difficult, inter alia because most international organizations do not have their own resources, but depend on contributions from the member states (see above, §965 ff.). If the organization is liable, is there still a role for the member states? More specifically, three questions are relevant in this context. These questions will be addressed in turn, and an attempt will be made to formulate general answers. It is evident that in specific cases, more detailed answers can be given only when fully taking into account what has been agreed upon in the constitution of the organization and possibly in further rules. §1585. First, in cases where an international organization is liable, are the member states liable simultaneously? In general the answer is no, unless the constitution provides for such simultaneous liability.92 In principle, the acts for which the organization is liable are acts of the organization, not of the member states. To hold otherwise would unduly and unnecessarily dismantle the organization’s personality. §1586. Secondly, if the organization is liable, can it recover the costs from the member states? A related question is whether the organization could take recourse to the member states if it lacks sufficient funds to pay its debts. The general answer to this question would appear to be that in such cases the organization may fall back on its members. The members are obliged not to compensate creditors directly, but to put the organization in funds to meet its liabilities.93 As in the situation discussed above (§1585), this approach recognizes the existence of an important role for the member states in cases of liability of ‘their’ organization, but it shows much more respect for the

91. Reparation for Injuries, Advisory opinion, ICJ Rep. 1949, at 179. 92. See M. Hartwig, Die Haftung der Mitgliedstaaten für Internationale Organisationen (1993), in particular at 290-293. For example, under the Convention on International Liability for Damage Caused by Space Objects, international organizations and their members are jointly and severally liable for damage caused by the space activities of the organization (a claim must first be lodged with the organization); GA Res. 2777 (XXVI), Art. 22, para. 3. 93. See the report prepared by R. Higgins, The legal consequences for member states of the nonfulfilment by international organizations of their obligations toward third parties, 66 Annuaire de l’Institut de Droit International (Session of Lisbonne, Vol. I, 1995); H.G. Schermers, Liability of International Organizations, 1 LJIL 14 (1988); Hartwig, op. cit. note 92, at 298-306; I. Seidl-Hohenveldern, Liability of member states for acts or omissions of an international organization, in S. Schlemmer-Schulte and Ko-Yung Tung, Liber Amicorum Ibrahim F.I. Shihata (2001), at 727-739. As noted by Sands and Klein, in the Tin crisis (discussed below, §1588), the member states of the Tin Council “when they replenished the organization’s resources to enable it to settle the standing claims, took great care to insist on the fact that those payments could not be considered as a discharge of any direct obligation owed by them to third parties” (op. cit. note 2, at 525-526).

§1587

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personality of the latter, since no simultaneous liability of the member states is deemed to exist. §1587. Thirdly, if the creditors are unable to recover their money from the organization, because the latter’s funds are exhausted or because the members simply do not put ‘their’ organization in funds to meet its liabilities, should they be entitled to file a claim with the member states? In case of default of an international organization, can the member states be held liable by the creditors? If the answer is yes, the organization – and thus, in the end, the member states – is the victim, for the result is an assault on the organization’s independent legal status. As Higgins has rightly observed, if member states know that they are potentially liable for contractual damages or tortious harm caused by the acts of an international organization, they will necessarily intervene in virtually all decision-making by international organizations, and the latter’s “independent personality would be likely to become increasingly a sham”.94 If the answer is no, third party creditors are the victims, the member states shielding behind the veil of the organization. But in the long run, the organization will also suffer, since third parties will thereafter think twice before doing business with a non-(re)liable partner. §1588. Doctrine and case law proved to be extremely divided on the issues raised by this (third) question.95 While some authors have concluded that the member states are jointly and severally responsible,96 others have been more hesitant in recognizing such responsibility.97 In the 1984 ICC arbitration dealing with the Westland Helicopter case (Interim Award on Jurisdiction), the view that the express attribution of legal personality to the Arab Organization for Industrialization excluded the liability of the four member states of

94. Higgins, op. cit. note 93, at 419. 95. See for more extensive surveys of doctrine and case-law in this respect C.F. Amerasinghe, Liability to Third Parties of Member States of International Organizations: Practice, Principle and Judicial Precedent, 85 AJIL 259-280 (1991); Hartwig, op. cit. note 92; M. Hirsch, The Responsibility under International Law of International Organizations towards Third Parties: some Basic Principles (Thesis, Hebrew University, 1994), in particular Chapter 4; Higgins, op. cit. note 93, and the individual opinions of members of the Institut de Droit International, annexed to it; Klein, op. cit. note 39, at 426-520; Lawson, op. cit. note 43, 265-344; Sands and Klein, op. cit. note 2, at 512-526; Klabbers, op. cit. note 22, at 300-319 (2002). See also the ILC Commentary on Art. 57 of the Articles on State Responsibility (UN Doc. A/56/10, at 362). 96. I. Seidl-Hohenveldern, Corporations in and under International Law 121 (1987). 97. For example I.F.I. Shihata, Role of Law in Economic Development: The Legal Problems of International Public Ventures, 25 Revue Egyptienne de Droit International (1969), at 125; P. Cahier, The Strengths and Weaknesses of International Arbitration Involving a State as a Party, in J.D.M. Lew (ed.), Contemporary Problems in International Arbitration (1986), at 244.

1009

Legal status

§1589

this organization was explicitly rejected.98 In the subsequent 1991 Partial Award of the ICC on liability, the Arbitration Tribunal held that this organization did have legal personality and was liable for its own contracts. Moreover, it examined whether there was also a joint or residual liability by the member states. It found that “the states’ responsibility in each individual case can be assessed only on the basis of the acts constituting the joint organization when construed also in accordance with the behaviour of the founder states” (§56 of the award). The Tribunal found that in this case there was evidence that the states had not intended to exclude their liability, inter alia because of the absence of a clause excluding member states’ responsibility.99 These issues have been discussed in particular following the 1985 tin crisis. During the 1980s tin prices fell. Under the Tin Agreement, the buffer stock manager was bound to offer to buy tin on the market.100 Eventually funds to continue intervention buying ran short, and on 24 October 1985 the Buffer Stock Manager suspended his stabilizing activities on the London Metal Exchange. When the bill was made out, it appeared that the buffer stock had incurred liabilities of nine hundred million pounds sterling to a number of banks and tin brokers. How could these banks and brokers get their money? The creditors obtained arbitral awards, but not their money because of the insolvency of the organization. A number of proceedings were initiated in the UK, in other member states, and before the EC Court. However, most claims were dismissed (see below, §1614).101 In the proceedings in the UK, some judges took the view, on different grounds, that there was no concurrent or secondary liability on the part of members. Others concluded that in international law the attribution of legal personality to an international organization does not necessarily free its members from liability for its obligations.102

§1589. In view of the uncertain situation, it comes as no surprise that recent practice shows that a number of organizations expressly exclude liability of the member states. For example, most commodity agreements concluded after the tin crisis explicitly limited the liability of the member states, whereas previously they had been silent on this point.103 On the other hand, a number of constitutions of international organizations have long excluded any liability of the members.104

98.

99. 100. 101. 102. 103.

104.

The text of this arbitration award is reproduced in 23 ILM 1071 (1984). See on a subsequent judgment of 19 July 1988 by the Swiss Tribunal fédéral, C. Dominicé, Le Tribunal fédéral face à la personnalité juridique d’un organisme international, 130 Zeitschrift für Schweizerisches Recht 517-538 (1989). See Higgins, op. cit. note 93, at 393. Sixth International Tin Agreement, Art. 28.3. It was only in December 1989 that a general solution, a settlement of £ 182,5 million, was agreed between the Tin Council and its creditors. Higgins, op. cit. note 93, at 387-390. For example Art. 22.5 of the International Cocoa Agreement (1986); Art. 49 of the International Agreement on Olive Oil and Table Olives (1986); Art. 48.4 of the International Natural Rubber Agreement (1987); Art. 31 of the International Sugar Agreement (1992); Art. 7.2 and Art. 24 of the International Cocoa Agreement (2001); Art. 26 of the International Coffee Agreement (2001). For example, the constitutions of IAEA, IDA, IFC and regional development banks. See Amerasinghe, op. cit. note 95, at 270-271; Hartwig, op. cit. note 92, at 147-152.

§1590

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§1590. If this practice continues, it will have a number of consequences. First, for those organizations where liability of the member states is not excluded, it will be more easily accepted that member states may be held liable. Secondly, the counterparts of international organizations in the market – such as the banks and the brokers in the tin case – will and might be expected to be more reluctant when doing business with the organization, in particular when liability of the member states is explicitly excluded. They will try to hedge themselves against a possible lack of creditworthiness of the organization. §1590A. Another example in which the legal personality of an international organization was put to the test when it came to questions of responsibility/ liability is the case of the NATO military actions carried out against Yugoslavia in 1999 (Operation Allied Force). NATO is an international legal person. This military action was certainly an operation of the organization, carried out on the basis of decisions taken by the North Atlantic Council. In addition NATO itself has paid compensation to individuals whose property was damaged by missiles that lost direction.105 However, when Yugoslavia decided to take legal action before the ICJ against this NATO operation, and when some Yugoslav citizens complained before the European Court of Human Rights, it was not NATO but NATO members that were summoned. There was of course no alternative as NATO itself is not a party to the ICJ Statute or to the European Convention on Human Rights. However, this implied that the NATO veil had to be lifted in order to allow for judicial review. It is noteworthy that before the ICJ and before the European Court of Human Rights, the NATO member states concerned hardly used the argument that the complaints would have to be considered inadmissible since the operation was not carried out by these member states but by a different legal person not before the Court.106 Therefore neither the ICJ nor the European Court had to deal with this issue. This is a legal vacuum. NATO has both the capacity (as it is a legal person) and the power (disputed in this specific case)107 to carry out military action, but cannot itself be held responsible for such action. This implies the need

105. 106.

107.

E.g. in 2000, to a Bulgarian family living in Sofia (reported in the Dutch newspaper Trouw, 3 August 2000). The main exception being Canada before the ICJ (Hearings on the request for provisional measures by Yugoslavia, Public Sitting 10 May 1999, Doc. CR 99/16, at 15, and Public Sitting 12 May 1999, Doc. CR 99/27, at 10), and France that used this argument in the Bancovic case before the European Court; see ECHR, Grand Chamber Decision as to the admissibility of Application no. 52207/99, 12 December 2001 (in particular paras. 31, 32 and 83). In a report issued 7 June 2000, Amnesty International claimed that “NATO did not always meet its legal obligations in selecting targets and in choosing means and methods of attack” (NATO/Federal Republic of Yugoslavia – “collateral damage” or unlawful killings? (quotation at 25, italics added)). The report qualified the attack on the headquarters of Serbian state radio and television (RTS) as a war crime, and referred to disagreement among NATO members on the legality of this target (report, at 47-48). This attack was the subject of the complaint before the ECHR.

1011

Legal status

§1591

for member states to closely stay involved in all relevant decision-making in the organization, as they may later be held (co)responsible for its actions. In the long run this may hamper the decisiveness of the organization.108

II.

Status in national law

A.

Personality of international organizations in domestic law

1.

Personality in the law of member states109

a.

Constitutional provisions

§1591. Constitutional provisions of international organizations which grant them legal personality in municipal law allow the organizations to act as legal persons within the national legal order of each member state. Most constitutions of international organizations either provide that the organization is to enjoy the legal capacity necessary to exercise its functions110 or that it is to possess legal personality and have the capacity to contract, to acquire and dispose of immovable and movable property and to institute legal proceedings.111 Such provisions have also been included in separate treaties for some international organizations.112 Like international legal personality (see above, §1571), legal personality in municipal law is not necessarily attributed only to the organization which enjoys international personality “as a whole”. There are several cases where

108.

109.

110.

111.

112.

See also H.G. Schermers, Constituent Treaties of International Organizations Conflicting with Anterior Treaties, in J. Klabbers and R. Lefeber (eds.), Essays on the Law of Treaties 19-30 (1998); Klein, op. cit. note 39, in particular at 624-627. See B. Schlüter, Die innerstaatliche Rechtsstellung der internationalen Organisationen unter besonderer Berücksichtigung der Rechtslage in der Bundesrepublik Deutschland (Max-Planck-Institut fur ausländisches öffentliches Recht und Völkerrecht No. 57, 1972); C. Dominicé, Observations sur la personnalité juridique de droit interne des organisations internationales, in Hafner et al (eds.), op. cit. note 26, at 85-96. E.g. UN, Art. 104; FAO, Art. 16; WHO, Art. 6h; UNESCO, Art. 12; ICAO, Art. 47; ITU, Art. 31; WIPO, Art. 12.1; IFAD, Art. 10, Section 2; OPCW, Art. VIII.48; ICC Statute, Art. 4.1; Benelux, Art. 95(2); EC, Art. 282; Euratom, Art. 185; OAS, Art. 138; LAIA, Art. 52; SADC, Art. 3.2. See e.g. ILO, Art. 39; IMF, Art. IX, Section 2; World Bank, Art. VII, Section 2; IFC, Art. 6, Section 2; MIGA, Art. 1(b); EBRD, Art. 45; Convention on the Privileges and Immunities of the Specialized Agencies (33 UNTS, at 262), Art. 2, Section 3; EC, Art. 282; ECSC, Art. 6; International Coffee Agreement (2001), Art. 8.1. If the latter formula is used (capacity to contract, to acquire and dispose of immovable and immovable property and to institute legal proceedings), these capacities are not absolute or unlimited, but related to the exercise of the functions and the fulfilment of the purposes of the organization, as is the case if the former formula is used (capacity necessary to exercise the functions); see for example UNJY 1982, at 169-170. E.g. the General Agreement on Privileges and Immunities of the Council of Europe (Art. 1).

§1592

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organs belonging to an international person have obtained separate personality in the national law of the states concerned. The European Investment Bank is an organ of the European Community. The Bank possesses separate legal personality in municipal law.113 The same is true for the Supply Agency of Euratom114 and for the European Central Bank.115 The institutions of the European Communities (Council, Commission, European Parliament, Court of Justice, Court of Auditors) do not have separate legal personality.116 Subsidiary organs of the UN, such as UNICEF, UNRWA, WFP and UNDP, which have been entrusted with a wide range of direct functions, have regularly entered into commercial contracts and agreements with states in their own names.117

b.

Provisions in national law

§1592. Legal personality in national law can often be based on a provision of the national legal order. Some national laws expressly grant to international organizations of which the state is a member legal personality or the capacity to contract, to acquire and dispose of property and to institute legal proceedings. In the United Kingdom, the International Organizations Act 1968 grants the legal capacity of a body corporate to any organization declared by “Order in Council” to be an organization of which the UK and one or more foreign sovereign powers are members.118 The tin cases and subsequent proceedings before English courts offer interesting examples of domestic courts struggling with the concepts of legal personality and liability in all their international and domestic legal aspects. For example, after the House of Lords had concluded that the 1972 Order in Council created the International Tin Council in English law (and did not merely recognize a pre-existing legal person), in 1991 it was confronted with another case in which it had to decide whether the Arab Monetary Fund, an international organization in respect of which there was no Order in Council (because the UK was not a member), could sue in English courts. To avoid the consequences of its earlier decision, the House of Lords determined that the Fund, having legal personality under one of its member states (Abu Dhabi), was to be treated as a corporate body created by the law of Abu Dhabi and recognized

113.

114. 115. 116. 117.

118.

EC, Art. 266. See also J. Käser, The European Investment Bank: its Role and Place within the European Community System, 4 Yearbook of European Law 1984, at 303-325; Dunnett, op. cit. note 32. Euratom, Art. 54. EC, Art. 107.2. See Cases 7/56 and 3/57-7/57, Algera, ECR 1957, at 58, an. Cf. also Case C-327/91, France v. Commission, ECR 1994, at I-3641. Yb ILC 1967 II, Documents A/CN.4/L118 and Add. 1 and 2, at 207; UNJY 1976, at 159; UN Doc. A/CN.4/L.383 and Add. 1-3, at 152. See also O. Nakamura, The Status, Privileges and Immunities of International Organizations in Japan – An Overview, 35 The Japanese Annual of International Law 116-129 (1992). On the status of international organizations in English law, see J.W. Bridge, The United Nations and English Law, 18 ICLQ 689-717 (1969); G. Marston, The origin of the personality of international organizations in United Kingdom Law, 40 ICLQ 403-424 (1991).

1013

Legal status

§1593

as such – and thus allowed to sue in English courts. As Higgins has commented, the artificiality is apparent: some organizations are “created” by English Order in Council, others are considered as foreign corporations.119 In the US, the International Organizations Immunities Act (59 Stat. 669 (1945), 22 U.S.C. sec. 288 (1952)) provides that “a public international organization in which the US participates pursuant to any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation for such participation, and which shall have been designated by the President through appropriate Executive order” possesses the capacity (1) to contract, (2) to acquire and dispose of real and personal property and (3) to institute legal proceedings.120 In Balfour, Guthrie & Co. Ltd., et al. v. US, the US District Court ND California SD accepted that the capacity to institute legal proceedings includes the capacity to bring an action for damages against the US Government. In that case, the US Government, carrying on a commercial activity (shipping), had caused injury to the UN. The Court considered that the wide variety of activities in which international organizations engage is likely to give rise to claims against their member states which can most readily be disposed of in national courts.121

§1593. Other national legal systems grant legal status only to the UN and the specialized agencies or to particular organizations. For example, the UN and the specialized agencies originally acquired legal personality in Canada by virtue of the Privileges and lmmunities (UN) Act (Chap. 219, Revised Statutes of Canada 1952).122 Individual organizations have been accorded legal personality under many national acts. For example, the Caribbean Community acquired legal personality in Guyana (the host country) by the Privileges and Immunities (the Caribbean Community and the Caribbean Common Market) Order 1982.123

c.

In the absence of express provisions

§1594. The constitution of the UPU contains no specific provision on legal personality under municipal law. Not all members of UPU are parties to the

119.

120.

121. 122.

123.

Higgins, op. cit. note 93, at 390; see also F.A. Mann, International Organizations as National Corporations, The Law Quarterly Review 357-362 (1991). The Arab Monetary Fund Case has been published in 85 ILR 1-29 (1991). Title I, Section 1 and Section 2(a). The text of the act has been published in UN Doc. ST.LEG/SER.B/10, at 128-129. Cf. also R.J. Oparil, Immunity of International Organizations in United States Courts: Absolute or Restrictive?, 24 VJTL 689-710 (1991). 90 F Suppl. 831. Published in UN Doc. ST./LEG/SER.B/10, at 11; this document contains many other national laws granting legal status to the UN and the specialized agencies. The Canadian Act has been altered; see now the Privileges and Immunities (International Organizations) Act, R.S.C. 1985, c. P-23. See UN Doc. ST/LEG/17, at 10 (1987). This document contains copies of replies to a questionnaire concerning the status, privileges and immunities of regional organizations. A large number of national Acts have been published in UN Doc. ST/LEG/SER.B/11 (Sales No. 61.V.3).

§1595

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Convention on the Privileges and Immunities of the Specialized Agencies, which recognizes their legal personality.124 Their legal personality under municipal law could therefore be questioned in some of the large number of member states which have made no express provision in their national legal order. However, according to studies conducted by the Secretariat of the UN, the legal personality of the specialized agencies has been generally accepted in practice.125 §1595. National courts have usually recognized the legal personality of other international organizations as well. They apparently see no reason to deny the legal personality of organizations in which their own state participates. The constitution of the United Nations Relief and Rehabilitation Administration (UNRRA) did not specifically provide that the organization had legal personality. Nor did any Dutch law. In UNRRA v. Daan, such personality was disputed. The District Court of Utrecht concluded that the organization had legal personality since its constitution126 granted it the capacity to acquire, hold and convey property, to enter into contracts and to perform any legal act appropriate to its objects and purposes.127 In UN v. B. the Civil Tribunal in Brussels founded the legal personality of UNRRA, as well as that of the UN, on the fact that the organization had been recognized by Belgian law (the law of ratification).128 In Branno v. Ministry of War, the Italian Court of Cassation derived the legal personality of NATO under Italian law from its international personality. It held: “Subjects of international law and public bodies alike, in order to achieve the purposes for which they were established, may not only perform acts of a public law nature, but when they do not take advantage of their special status they may perform acts of a private law nature, including entering into contracts which are regulated by rules of private law”.129

§1596. One exceptional example of non-recognition of the legal personality of an international organization in the legal order of a member state is the case of the International Commission for the Northwest Atlantic Fisheries, which could not enter into a contract with an insurance company in Canada.130 §1597. While no legal personality was originally granted to the European Union, it has been argued that at least the capacity of the Union to operate

124. 125. 126. 127. 128. 129. 130.

Convention on the Privileges and Immunities of the Specialized Agencies (33 UNTS 262), Art. 2, Section 3. YbILC (1967 II), at 299-302; UN Doc. A/CN.4/L.383 and Add. 1-3. UNRRA, Art. 1. ILR 337 (1949); NJ No. 150 (1951). 19 ILR 490 (1952); Pasicrisie belge, 1953 III, at 65. Decision of 14 June 1954, ILR 756 (1955); Giurisprudenza Italiana, 1954 I, I, at 904. J.E. Carroz and A.G. Roche, The Proposed International Commission for the Conservation of Atlantic Tunas, 61 AJIL 698 (1967).

1015

Legal status

§1598

within the territory of the member states was indispensable for the performance of its functions (see above, §1569).131 2.

Personality in the law of non-member states

§1598. As far as we know, no state has ever placed any express limitation upon its recognition of the contractual capacity of the UN.132 The capacity of the UN to acquire and dispose of movable property has been fully recognized by non-members as well as by members.133 It is also widely recognized for immovable property.134 Nor have there been any registered cases where the legal personality of the specialized agencies under private law has been denied by non-state members.135 Regional organizations have need of legal personality under the laws of non-members no less than do organizations of a universal character. Their smaller territorial area makes it more likely that they will perform private law activities outside the jurisdiction of their members. The European Coal and Steel Community (now dissolved) and the European Atomic Energy Community (Euratom) have contracted important loans in the United States, and their representatives abroad (see below, §1836) perform(ed) legal acts in their host states, for which they require(d) legal personality.136 In practice, such personality is always granted on one or two grounds. (1) The state concerned recognizes the international personality of the organization; legal personality under private law follows from the international personality. (2) The organization has been lawfully established by foreign states; private international law accepts legal personality acquired abroad;137 this personality is not affected by the fact that it was granted by a group of states and not by one particular state. Only in very rare cases will there be an express national legal provision recognizing the legal personality of an organization of which the state is not a member.

131.

132.

133. 134. 135. 136.

137.

G. Ress, Democratic Decision-making in the European Union and the Role of the European Parliament, D. Curtin and T. Heukels, Institutional Dynamics of European Integration, Essays in Honour of Henry G. Schermers, Vol. II (1994), at 156. Study of the UN Secretariat on the status, privileges and immunities of the UN and the specialized agencies, Yearbook of the ILC 1967 II (further: 1967 study), at 208; UN Doc. A/CN.4/L.383 and Add. 1-3 (further: 1985 study), at 152. 1967 study, at 213. No new developments are mentioned in the 1985 study. 1967 study, at 209; 1985 study, at 160. 1967 study, at 299-302; 1985 study, at 182. P. Pescatore, Les Communautés en tant que personnes de droit international, in: Les novelles, droit des Communautés européennes, sous la direction de Ganshof van der Meersch (1969), at 128. See Art. 1 of The Hague Convention on the recognition of the legal personality of foreign corporations, associations and foundations of 1 June 1956, Trb. 1956, No. 131. See also Seidl-Hohenveldern and Loibl, op. cit. note 5, paras. 0342, 0721.

§1599

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1016

The British Copyright Act 1956 (c. 74, s. 33), now repealed, provided for the possibility that international organizations of which the UK is not a member may have legal personality for the purpose of holding, dealing with and enforcing copyright.138

B.

Application of domestic law

1.

Competence to make use of national laws

§1599. International organizations with personality in national law have the capacity to perform all acts which legal persons may normally perform. They can buy and sell goods, register patents, appear in court, and make contracts without the national authorities having any right to object. This capacity does not entail competence to do so, as such competence depends solely on the internal law of the organization. It may well be that the organization is competent to make gifts for one purpose, but not for another, or that it may buy particular commodities only. The national legal system may not make any rules or provisions affecting this competence. §1600. National law may contain restrictions as to its own application. It may, for example, be permissible to sell goods, but only under the restriction that no excessive prices will be charged. Though domestic laws will normally apply in their entirety, that is with all restrictions intrinsic to them, the application of restrictions to international organizations may cause problems. As a general rule, institutions of individual states may not evaluate policy acts of international organizations. For a judgment of the question whether, for example, prices charged for the publications of an international organization are excessively high or not, mutual consultation will be required. 2.

The law to be applied

§1601. In many legal relations, private international law designates a particular national legal system (for example the law of the place where immovable property is situated or where a contract has been concluded), which can be applied to international organizations as well as to any other subjects of law.139 There remain cases however where the organization must apply its

138. 139.

The text of the 1956 Act is published in UN Doc. ST./LEG/SER.B/l0, 126-127. It was repealed by the Copyright, Designs and Patents Act 1988, c. 48. Jenks carefully investigated all sorts of legal transactions of international organizations and what law would be applicable to them, in: The Proper Law of International Organizations, at 133-227. See also K. Ahluwalia, The Legal Status, Privileges and Immunities of the Specialized Agencies of the UN and certain other International Organizations (1964), at 72-81; F. Seyersted, Applicable Law and Competent Courts in Relations between Intergovernmental Organizations and Private Parties, 122 RdC (1967 III), at 427-616; N. Valticos, Les contrats conclus par les organisations internationales avec des personnes privées, 57 Annuaire de l’Institut de Droit International, Tome I (1977), at 1-191.

1017

Legal status

§1602

own law. This is primarily true for all legislative and administrative acts of the organization. §1602. The application of administrative laws of a member state and judgments with respect to damages caused by acts of international organizations may affect the organization’s policy and, therefore, its independence. In some administrative fields, such as rules concerning the civil service, international organizations can make their own rules or rely on general principles of law common to their member states. In other fields, they cannot be separated from the rules of the territory in which they operate. When, for example, the Government of Geneva makes extensive rules on building along the shores of the lake, it cannot accept that international organizations should be free to build anything they like.140 But the requirement of a licence for any expansion of its building could hamper the development of an organization. Consultation and cooperation seem the only possible solution. On the one hand, the organization must be considered bound by rules on environment, such as building regulations; on the other hand, the government is obliged to facilitate the development of the organization. As has been observed by the International Court of Justice: “ ... the paramount consideration both for the organization and the host state in every case must be their obligation to cooperate in good faith to promote the objectives and purposes of the organization as expressed in its constitution”.141 §1603. It is rare for an international organization to be subjected entirely to the law of one of its members. Even though the Bank for International Settlements was incorporated in Switzerland with the legal structure of a company limited by shares, its constitution, operation and activities are not subject to Swiss law. Indeed, it was expressly stipulated as from the foundation of the Bank that its Statutes and any duly adopted amendments thereto “shall be valid and operative notwithstanding any inconsistency therewith in the provisions of any present or future Swiss law”.142

It is more usual for the legal order of the host state to be used as a secondary source of law, applicable when no other rules of domestic law for the organization can be identified.143

140. 141.

142.

143.

On this problem, see B. Knapp, Questions juridiques relatives à la construction des immeubles par les organisations internationales, 33 SJIR 51-80 (1977). Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, ICJ Rep. 1980, at 96. See also S. Muller, International Organizations and Their Host States – Aspects of Their Legal Relationship (1995), in particular Chapter 9. BIS Constituent Charter, para. 5. See M. Giovanoli, The Role of the Bank for International Settlements in International Monetary Cooperation and Its Tasks Relating to the European Currency Unit, 23 The International Lawyer 841-864 (1989), in particular at 847. See Seidl-Hohenveldern and Loibl, op. cit. note 5, paras. 0340-0341.

§1604

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1018

For contractual obligations, the larger international organizations seek to avoid reference to any specific applicable law and to consider the proper law of the contract to be found in general principles of law, as well as in the contract itself.144 §1604. General principles common to the laws of the member states are difficult to apply in courts of third states and even in the domestic courts of the members themselves. They necessitate a general appreciation of the national legal systems of all members, and this cannot easily be expected from a court composed entirely of judges from one particular legal system. Such principles can be applied more readily by international courts. They are of particular importance in cases where international courts apply rules of private law. This is often done by international administrative tribunals (see above, §642-647), by arbitral tribunals (see above, §648 ff.) and by the EC Court. §1605. Article 288 of the EC Treaty and Article 188 of the Euratom Treaty expressly provide that the EC Court is to apply the general principles common to the laws of member states in cases of non-contractual liability. The Court has applied the former provision a number of times.145 It has also applied general principles of law in cases other than those of non-contractual liability.146 Once applied by a court or tribunal of an international organization, a general principle of law becomes part of the case law of that court and thus of the internal law of the organization. 3.

Limits imposed by privileges147

§1606. The body of law applicable to international organizations is limited by provisions in the constitution of the organization148 or by separate treaties granting privileges and immunities. For different reasons, some groups of national legal provisions (and all government activities based on these provisions) are not applicable to international organizations. Taxation of international organizations would place the host state, and those states in which business transactions are made, in an unduly favourable position. More fundamentally, it would prejudice the independence of the

144. 145. 146. 147.

148.

On the practice of the UN, see UNJY 1976, at 159-176. See Schermers and Waelbroeck, op. cit. note 47, at 519-571. Id., at 27-94. For the definition used for privileges and for references to treaties, agreements and literature, see above, §323). See in particular C. Wilfred Jenks, International Immunities 46-82 (1961) and Bekker, op. cit. note 22. See e.g. UN Charter, Art. 105; ILO, Art. 40; UNESCO, Art. 12; FAO, Art. 16; OAS, Art. 133; CoE, Art. 40.

1019

Legal status

§1606

organizations.149 For that reason, states cannot apply to international organizations their national legislation on: (1) direct taxation (for example: Convention UN,150 Section 7(a); Convention Agencies,151 Section 9(a); Agreement ICC,152 Art. 8.1; Agreement OAS,153 Art. 5(a); General Agreement CoE,154 Art. 7(a); Protocol Communities,155 Art. 3); (2) customs duties (for example: Convention UN, Section 7(b)(c); Convention Agencies, Section 9(b)(c); Agreement ICC, Art. 8.2; Agreement OAS, Art. 5(b)(c); General Agreement CoE, Art. 7(b)(c): Protocol Communities, Art. 4).156 The UN Office of Legal Affairs has given a large number of opinions dealing with questions of whether taxes such as stock transfer taxes, turnover taxes, stamp duty taxes, a harbour maintenance fee,157 road taxes (or taxes on circulation),158 a licensing fee for the allocation of radio frequences,159 an airport service charge,160 a departure tax on purchase of air tickets and excise tax on the sale of chemicals which deplete the ozone layer were covered by the exemption from taxation of the UN.161 At the same time no exceptions are generally claimed for taxes that are, in fact, no more than charges for public utility services (e.g. Convention UN, Section 7(a)). Examples are sewerage charges and waste collection charges. The UN Office of Legal Affairs has given a restrictive interpretation of such services, “both as a matter of principle and as a matter of obvious practical necessity for the Organization”: public utility services are “particular supplies or services rendered by a government or a corporation under

149.

150. 151. 152. 153. 154. 155.

156.

157. 158. 159. 160. 161.

See Muller, op. cit. note 141, at 233-256, and S. Muller, International Organizations and their Officials: to tax or not to tax?, 6 LJIL (1993), at 47-72, both with references to literature and practice. Convention on the Privileges and Immunities of the United Nations, 13 February 1946, 1 UNTS 16. Convention on the Privileges and Immunities of the Specialized Agencies, 1 November 1947, 33 UNTS 262. Agreement on the Privileges and Immunities of the International Criminal Court, 9 September 2002. Agreement of 15 May 1949 on the Privileges and Immunities of the Organization of American States, UN Doc. ST/LEG/SER.B/11 at 377. General Agreement on Privileges and Immunities of the Council of Europe of 2 September 1949, 250 UNTS 12. Protocol concerning the privileges and immunities of the European Communities of 8 April 1965, replacing the protocols on privileges and immunities originally existing for each of the Communities separately, OJ No. 152/13 of 13 July 1967. For example, it has been generally recognized that UN member states do not have the right to impose customs duties on UNICEF products such as greeting cards and calendars, which are imported by National UNICEF Committees. See UNJY 1990, at 293-294; UNJY 1991, at 324-326. UNJY 1987, at 213-214. UNJY 1992, at 472-473 and UNJY 1995, at 405-407. UNJY 1995, at 399-400. UNJY 1995, at 405-407. See for example UNJY 1977, at 238-246; UNJY 1986, at 321-322, UNJY 1990, at 288-293; UNJY 1991, at 322-323; UNJY 1996, at 439-440.

§1607

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1020

government regulation for which charges are made at fixed rate according to the amount of supplies furnished or services rendered and which can be specifically identified, described and itemized”.162

§1607. Other national rules which cannot be applied to international organizations, because they would endanger the independent functioning of the organization, are rules authorizing: (3) search, requisition, confiscation and expropriation of property (for example: Convention UN, Arts. 3, 4; Convention Agencies, Arts. 5, 6; Agreement ICC, Art. 6.2; Agreement OAS, Arts. 3, 4; General Agreement CoE, Arts. 4, 5; Protocol Communities, Arts. 1, 2);163 (4) censorship164 (for example: Convention UN, Art. 9; Convention Agencies, Art. 12; Agreement ICC, Art. 11.2; General Agreement CoE, Art. 8; Protocol Communities, Art. 6). Finally, no national rules should be applied which would prejudice the functioning of international organizations in order to protect the economy of the host state. Such laws would affect the independence of the organization as well as its operation. For this reason, international organizations remain beyond the reach of: (5) laws restricting the holding and transfer of currency (for example: Convention UN, Art. 5; Convention Agencies, Art. 7; Agreement ICC, Art. 10.1; Agreement OAS, Art. 6; General Agreement CoE, Art. 6; Protocol Communities, Art. 5 (only for the ECSC)).165 §1608. The foregoing enumeration of privileges is not necessarily exhaustive. Together they reflect a general rule of international institutional law to the effect that national laws should not be applied to international organizations if they could affect the proper functioning of the organization. This means, on the one hand, that privileges must be interpreted restrictively. International organizations should waive them when they are not really necessary. When they are not necessary, they should not be granted. One may have to be particularly careful in invoking privileges when an international organization performs large scale operational activities. In the case of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, it has been observed that the UN Convention,

162. 163.

164.

165.

UNJY 1992, at 474-475. See also UNJY 1995, at 399-400. See also Europe, No. 6425 and No. 6427 regarding the searching of the offices of Eurocommissioner Van Miert in 1995 in the context of the Agusta scandal (bribes paid to the Flemish Socialist Party by the Italian helicopter firm Agusta). Apart from documents, films are also immune from censorship, see UNJY 1969, at 205-206. See also UNJY 1981, at 154, mentioning that the UN has rarely been confronted with the problem of censorship. See UNJY 1987, at 214-215.

1021

Legal status

§1609

“... designed to cover representational arrangements between international organizations and governments, did not foresee an operational agency of UNRWA’s characteristics. Many complications arise in applying the fiscal exemptions of the Convention to UNRWA’s large scale purchase and movement of supplies needed to shelter and feed hundreds of thousands of persons and to provide for their health and education. Nor did the Convention’s provisions concerning privileges and immunities of United Nations personnel contemplate employment of thousands of locally recruited staff – ranging from highly trained professionals to day labourers – in the operation of a complex welfare enterprise”.166

The existence of a general rule of international institutional law granting privileges to international organizations also means, on the other hand, that privileges must occasionally be accorded which have not been expressly mentioned in any agreement. When a new press law, passed in a state member of the UN, required that “all periodical publications shall carry a record of”, among other things, the “name and surname of the editor”, the UN Office of Legal Affairs issued an opinion stating that this law had no application with respect to UN publications.167 The opinion was not challenged and the exception for UN publications was accepted.

§1609. Because of their special tasks, some international organizations may need more privileges than others, but the basic privileges guaranteeing their independent functioning are needed by all. In respect to them, a host state may not discriminate against any international organization. The OPEC was originally established in Switzerland. The refusal by the Swiss authorities to grant the privileges and immunities required by that organization may have been caused by a fear of conflict with consumer countries and oil companies.168 OPEC felt so discriminated against in relation to other organizations that it moved its headquarters to Austria. 4.

Limits imposed by immunity from jurisdiction169

§1610. Most rules of national law are applicable to international organizations in the same way as to other subjects within the national jurisdiction.170 Ad-

166. 167. 168. 169.

170.

E.H. Buehrig, The UN and the Palestine Refugees 66 (1971). UNJY 1970, at 167. See F. Rouhani, A History of O.P.E.C. 135 (1971). See Jenks, op. cit. note 147, at 37-45; M. Wenckstern, Die Immunität internationaler Organisationen (1994); Klein, op. cit. note 39, at 227-246; A. Reinisch, International Organizations Before National Courts (2000). For specific examples, see UNJY 1990, at 286-287. An express provision to this effect seems not necessary. As a general rule laws will apply when not excluded. Section 7(b) of the Headquarters Agreement between the UN and the US, however, states: “Except as otherwise provided in this agreement or in the General Convention, the federal, state and local law of the US shall apply within the headquarters district”. Similar provisions may be found in the headquarters agreements of the FAO

§1610

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1022

judication of the laws is limited, however, by the immunity from jurisdiction granted to almost every international organization. This immunity from jurisdiction is a matter to be judged not by reference to domestic law, but by public international law. As has been indicated by the UN Office of Legal Affairs: “It is not necessary for international organizations to claim the immunities to which they are entitled since such immunity exists as a matter of law and is a fact of which judicial notice must be taken. In practice, a suggestion of immunity is normally made to a court on behalf of an international organization by the competent executive authorities of the states concerned.171 It goes without saying that in such cases the international organization is not submitting to the jurisdiction of the court”.172 One typical example of a jurisdictional immunity case is the following. In September 1978 the Secretary of the UN Joint Staff Pension Fund received a letter from a Deputy Sheriff of the City of New York. The Secretary was requested to appear at the office of the Sheriff under pain of arrest for non-compliance. Reference was made to an Order by a Judge purporting to hold the Joint Staff Pension Fund and its Secretary in contempt of court for failure to comply with an earlier court order which sought to sequester assets of the Fund. Following this request, the UN Office of Legal Affairs wrote a letter to the US Permanent Mission to the UN in which it referred to the immunity from legal process enjoyed by the Fund and its Secretary, and in which it requested that the US Department of State issue a suggestion of immunity from legal process for the Fund and its Secretary to the Judge and Sheriff in question.173 A rather exceptional example of a jurisdictional immunity case is the complaint of discrimination by a former UN staff member to the New York City Commission on Human Rights. The complaint was directed against the UN General Assembly and some UN officials. The UN Office of Legal Affairs advised that the UN is also immune from the jurisdiction of quasi-judicial bodies such as this one.174 It may also happen however that an international organization has an interest in not invoking immunity in order to obtain the opinion of the quasi-judicial body in the merits stage of the proceedings. This happened e.g. in a case involving ESA (see below, §504). Where cases against international organizations are brought before national courts, this is usually before national courts of member states. But it may also happen before courts of non member states. For example, in 2002 a US national sued the Council of Europe, the European Court of Human Rights and others before a New York District Court, after his application against Finland before the European Court was rejected.

171.

172. 173. 174.

(Art. 6), IAEA (Art. VII), UNESCO (Art. 5) and CoE (Art. 1) but not in those of most other organizations; see Ahluwalia, op. cit. note 139, at 75. But if necessary by the organization itself. See e.g. the judgment of the Hague District Court in interim injunction proceedings, 26 February 2002 (Case no. KG 02/105; Miloševic v. ICTY and the State of the Netherlands). In this case the plaintiff summoned the ICTY to appear at a sitting. By letter the Registrar stated, on behalf of the ICTY, that the ICTY would not appear at this sitting, invoking the Tribunal’s immunity from jurisdiction. (The Court subsequently accepted this immunity claim.) UNJY 1984, at 188-189. See also UNJY 1980, at 224-242, UNJY 1981, at 177-178, and UNJY 1983, at 213-214; UNJY 1992, at 473-474; UNJY 1991, at 319-320. UNJY 1978, at 186-187. UNJY 1987, at 206-208.

1023

Legal status

§1610

The US – not a member of the Council of Europe – is not party to a treaty granting immunity to the Council of Europe and the European Court of Human Rights. Courts of third states may however accept immunity claims in such cases on other grounds: e.g. on the fact that international organizations are composed of states (which themselves may claim immunity), or on customary international law (see below, §1611). Even though the immunity may eventually be recognized by national courts of third states (as was done in this particular case), such cases may entail considerable costs for the organization concerned (and thus, for their members).175 Nevertheless, while the jurisdictional immunity of international organizations is usually recognized, occasionally national courts have rejected such immunity. For example, Italian courts have consistently given a restrictive interpretation of this immunity, and have applied the distinction between acta iure gestionis and acta iure imperii, a classic distinction in relation to the law of state immunities. In 1982, the Italian Supreme Court of Cassation recalled that “in a considerable number of decisions it had held that irrespective of their public or private character, whenever they acted in the private law domain, they [international organizations] placed themselves on the same footing as private persons with whom they had entered into contracts, and thus forewent the right to act as sovereign bodies that were not subject to the sovereignty of others”.176 However, the application of the distinction between acta iure gestionis and acta iure imperii to acts of international organizations has been explicitly rejected by courts of other countries,177 and is also generally rejected in doctrine. According to Higgins, “[t]o suggest that this distinction has any relevance to organizations is to assimilate them to states, which is not correct. Their basis of immunity is different. The relevant test under general international law is whether an immunity from jurisdiction to prescribe is necessary for the fulfilment of the organization’s purposes. That question cannot be answered by reference to whether it was, in respect of the matter under litigation, acting ‘in sovereign authority’ or ‘as a private person’”.178 The jurisdictional immunity of international organizations, in addition to the privileges granted, limits the scope of national jurisdiction. There is no reason to suppose however that national law is of no direct relevance.179 The availability of a legal system for transactions under private law may well be in the best interests of the organization. The European Communities do not enjoy general immunity from jurisdiction. The Treaties even expressly declare that cases to which the Communities are parties shall

175. 176.

177.

178. 179.

Information obtained from the Council of Europe. The Order of the US District Judge accepting the immunity claims was made on 31 December 2002. UNJY 1982, at 236. See Muller, op. cit. note 141, Chapter 5, and Reinisch, op. cit. note 169, at 131-134. Cf. Also UNJY 1992, at 506-507 (judgment of the Italian Supreme Court of Cassation, in which it held that an international organization (the International Centre for Advanced Technical and Vocational Training) had no “immunity from judgment or from measures of execution”). E.g. by Swiss courts. See L. Caflisch, Immunité de juridiction et respect des droits de l’homme, in Boisson de Chazournes and Gowlland-Debbas, op. cit. note 61, at 651-676 (in particular at 660-662). R. Higgins, Problems and Process – International Law and How We Use it 93 (1994). See further Seidl-Hohenveldern and Loibl, op. cit. note 5, at 282-283. F.A. Mann, International Corporations and National Law, 42 BYIL 150 (1967).

§1611

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not, for that reason alone, be excluded from the jurisdiction of domestic courts or tribunals.180

§1611. For most international organizations, immunity from every form of legal process before national courts is expressly provided in the constitution or in a special convention or agreement.181 Even without such express provision, national courts may grant immunity on the ground that international organizations are composed of sovereign states, each of which is immune from local jurisdiction, or pursuant to a rule of customary international law granting immunity to all international organizations.182 In addition, as the extensive study by Reinisch has shown, national courts use a wide variety of other means to avoid dealing with the substance of cases concerning international organizations. For example, in some cases US courts have applied the act of state doctrine or the ‘political questions’ doctrine to acts of international organizations.183 McKinnon Wood gave three reasons why international organizations should enjoy immunity from jurisdiction.184 (1) National courts may be prejudiced. Such prejudice would not necessarily be in bad faith. Their experience and participation in a particular legal order will have impressed upon judges legal notions which differ from the climate of judicial opinion elsewhere. (2) International organizations must be protected against baseless actions brought on improper motives or instigated by the numerous cranks, fanatics or cantankerous people who may believe either that they have a duty to

180. 181. 182.

183. 184.

EC, Art. 240; Euratom, Art. 155; ECSC, Art. 40, para. 3. Convention UN, Section 2; Convention Agencies, Section 4; Agreement OAS Art. 2; General Agreement CoE, Art. 3; Jenks, op. cit. note 147, at 37. The judgment of the Municipal Court of the District of Columbia of 27 November 1925 seems to be based on the first ground (organizations are composed of sovereign states), see 20 AJIL 255-262 (1926). See for an example of a national court using the second ground (customary international law): Spaans v. Iran-US Claims Tribunal, judgment by the Supreme Court of the Netherlands of 20 December 1985, English translation reproduced in 94 ILR 321-330 (1994). In this case the Dutch Supreme Court held that, “in the absence of a specific treaty providing for the immunity of an international organization in its host state, it could be assumed that customary international law conferred the same level of immunity as that provided for under treaty law” (at 323). Earlier, along similar lines: Eckhardt v. Eurocontrol, District Court of Maastricht, 12 January 1984, English translation reproduced in 16 NYIL (1985), at 464. For a survey of the immunity of states and international organizations as a rule of customary international law, see F. Schröer, De l’application de l’immunité juridictionnelle des états étrangers aux organisations internationales, 75 RGDIP 712-741 (1971); with regard to international organizations, see Reinisch, op. cit. note 169, at 145-157. Reinisch, op. cit. note 169, at 35-127. H. McKinnon Wood, Legal relations between Individuals and a World Organization of States, in 30 Transactions of the Grotius Society (for 1944), at 143-144, quoted by Jenks, op. cit. note 147, at 40. Cf. also the brief for the UN as amicus curiae in Broadbent et al. v. Organization of American States, Decision of 8 Jan. 1980 by the US Court of Appeals for the District of Columbia Circuit, reproduced in UNJY 1980, at 227-238.

1025

Legal status

§1612

compel the organization to adopt a particular course of action or that they have suffered wrong at its hands. This originally referred to the League of Nations but still applies to many international organizations. (3) The legal effects of acts performed by international organizations should not be determined, quite possibly in various ways, by national courts. While these three reasons still generally explain the need for international organizations to enjoy jurisdictional immunity there have been specific cases in which it was felt necessary to reconsider such need.185 One example are complaints by staff members against their organization. Originally national courts generally recognized the immunity of the organization in such cases concerning labour disputes within the organization. However, in more recent years national courts have also rejected immunity claims when staff members did not have a proper legal remedy, e.g. when there was no possibility to bring their claim before an international administrative tribunal (see above, §544A). Another example is the following case. Since 1999 the UN Mission in Kosovo (UNMIK) operated as interim administrative authority in Kosovo, the military force KFOR being the so-called international security presence. According to Regulation 2000/47 issued by UNMIK, UNMIK and KFOR are immune from any legal process. A large number of individuals owing property in Kosovo complained about the occupation and damage to their property by KFOR and about the impossibility of obtaining compensation. This matter was submitted to the Ombudsman for Kosovo (an institution created by UNMIK in 2000). The Ombudsman concluded the following: “[…] the main purpose of granting immunity to international organizations is to protect them against the unilateral interference by the individual government of the state in which they are located, a legitimate objective to ensure the effective operation of such organizations. […] The rationale for classical grants of immunity, however, does not apply to the circumstances prevailing in Kosovo, where the interim civilian administration (UNMIK) in fact acts as a surrogate state. It follows that the underlying purpose of a grant of immunity does not apply as there is no need for a government to be protected against itself”.

The Ombudsman therefore concluded that UNMIK Regulation 2000/47 was incompatible with recognized international human rights standards.186 §1612. Immunity from jurisdiction is not a privilege. It does not free the organization from any obligation. The laws remain applicable; it is only their adjudication in the courts which is prevented. This may frustrate the enforce-

185. 186.

See K. Wellens, Remedies against International Organizations (2002), in particular at 208219 (“The potential role of domestic courts”). Ombudsperson Institution in Kosovo, Special Report No. 1, 26 April 2001 (quotation taken from §23). See for the text of this report www.ombudspersonkosovo.org.

§1612

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ment of the law.187 When courts cannot settle disputes, organizations may choose to comply only with laws they are willing to accept. This would unduly prejudice other subjects of the law. Mainly for this reason, the UN Office of Legal Affairs has, in a number of cases, advised against participation by UN bodies in commercial affairs.188 UN activities of a commercial nature, such as publication of books and magazines or film production have been undertakings in which the main function was to publicize UN causes and objectives, not commercial aims.189 The injurious effects of immunity from jurisdiction are mitigated in two ways: (a) The organization can waive its immunity. After such a waiver, it appears in court in the same way as do all other persons. But a decision against the organization cannot be enforced. All treaties on the immunity of international organizations require an express waiver, as the Vienna Convention on Diplomatic Relations requires for diplomats. But the Vienna Convention adds: “The initiation of proceedings by a diplomatic agent ... shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim”.190 It seems reasonable to accept this addition as a general refinement of the law of international immunities which would also be applicable to international organizations. Authority to waive the immunity of the UN is vested exclusively in the SecretaryGeneral. Executive directors of semi-independent programmes have no such power.191

(b) Non-national courts or tribunals may be made available for the settlement of disputes. Many contracts of international organizations refer to arbitral tribunals for the settlement of disputes.192 Other contracts refer to the Administrative Tribunal of the ILO, which is competent to settle disputes arising from

187.

188.

189. 190. 191. 192.

Cf. E. Gaillard and I. Pingel-Lenuzza, International organizations and immunity from jurisdiction: to restrict or to bypass, 51 ICLQ 1-15 (2002). According to these authors the scope of the immunity of international organizations should be restricted, and the effectiveness of alternative means of dispute resolution (such as arbitration) should be reinforced. UNJY 1990, at 256-257 (UNICEF as a shareholder in a printing company); id., at 257-258 (on the advisability of the UN entering into a profit-making joint venture with a private publishing firm); and id., at 259-260 (UNDP as a founding member of a corporate body under the national law of a member state); UNJY 1992, at 478-479 (the UN University considering the possibility to provide security for its premises by way of a commercial arrangement with a security protection company). UNJY 1990, at 257-258. Vienna Convention on Diplomatic Relations (1961), Art. 32. UNJY 1969, at 224-225. See C. Dominicé, L’arbitrage et les immunités des organisations internationales, in C. Dominicé, R. Patry, and C. Reymond (eds.), Études de droit international en l’honneur de Pierre Lalive 483-497 (1993); Klein, op. cit. note 39, at 247-277; I. Seidl-Hohenveldern, International Immunity Law and Human Rights, in H.W. Arndt et al. (eds.), Völkerrecht und Deutsches Recht – Festschrift für Walter Rudolf 95-104 (2001), in particular at 100-101. See also UNJY 1987, at 203-205.

1027

Legal status

§1613

contracts of the ILO.193 Contracts of the European Communities – particularly the research contracts of Euratom, in which large funds are often involved – frequently refer disputes to the EC Court. The treaties designated that court as the sole competent court for non-contractual liability.194 Special courts will be particularly useful for non-contractual liability. Where it has committed wrongful acts, an international organization will probably invoke immunity before national courts. 5.

Liability under private law

§1613. As has been emphasized above, international organizations are liable if their acts cause injury to others.195 The fact that they generally have immunity before national courts does not affect that liability. If the organization is unwilling to waive its immunity in specific cases and if it has no competent judiciary of its own, it will have to look for a friendly settlement or for arbitration. §1614. As described above, the 1985 tin crisis involved liabilities of £ 900 million to a number of banks and tin brokers. Some of the contracts between the Tin Council and these banks and brokers contained an arbitration clause. A number of arbitration awards were obtained against the Tin Council, but remained unsatisfied (because of the insolvency of the organization), and the parties concerned commenced proceedings before the English courts, courts of other member states of the Tin Council, and before the EC Court.196 Parties to contracts which did not contain arbitration clauses took recourse to domestic courts directly.197 No court has taken the view that it could enforce the Tin Council’s liability for its debts.198 Thus, the remaining course for the creditors was to seek a general, “political” solution, which was reached in December 1989.

193. 194. 195. 196.

197.

198.

See C. Wilfred Jenks, The Proper Law of International Organizations 244 (1962). EC, Arts. 235, 240; Euratom, Arts. 151, 155; ECSC, Art. 40. See for examples in practice UNJY 1991, at 307-310. See also UNJY 1995, at 424-426. The two applications before the EC Court where withdrawn before a judgment was delivered. In one case the Advocate General delivered his opinion: Case C-241/87, Maclaine Watson v. EC Council and Commission, ECR 1990, at 1797. See for a brief overview of the tin cases before English courts, the 1989 Judgment of the House of Lords in Australia & New Zealand Banking Group et al. v. Australia et al., in particular the leading judgment given by Lord Oliver of Aylmerton; reproduced in 29 ILM (1990), at 690-692. A brief summary is also given by Amerasinghe, op. cit. note 95, at 260-265. In the words of Lord Oliver of Aylmerton: “It is axiomatic that municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law” (in: House of Lords, reproduced in ILM, op. cit. note 197, at 693).

§1615

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1028

In the words of Lord Griffiths: “... the obvious just solution is that the governments that contributed to the buffer stock should provide it with funds to settle its debts in the same proportion that they contributed to the buffer stock. But this end must be pursued through diplomacy and an international solution must be found to an international problem; it can not be solved through English domestic law”.199

§1615. The only international organizations having their own judiciary competent to decide questions of liability are the European Communities. Their constitutions expressly provide that in cases of non-contractual liability, the Communities shall make good any damage caused;200 the Court of Justice has exclusive jurisdiction in disputes relating to compensation for such damage.201 The contractual liability of the Communities is governed by the law applicable to the contract in question;202 here the Communities can be sued before the national courts of the member states. The drafters of the Community treaties decided that it was not necessary to create specific remedies before the EC Court for suits concerning contractual liability. The national legal systems of the member states are so similar and the courts of such a standing that neither significant national divergences in law nor discrimination against the Communities was to be expected or feared.203 There is extensive case-law of the EC Court concerning both contractual and non-contractual liability of the Communities.204 §1616. Wrongful acts may be committed by several persons acting together. It may be difficult to sue them for damages if such persons belong to different legal systems. In the European Communities, it has been very difficult to obtain compensation for damages caused by joint acts of the organization and its members. The EC Treaties do not contain rules for this situation. The member states and the organization each have to be sued for their own share. Decisions on liability of the members are taken by national courts, those on liability of the Community by the EC Court.205

III.

Duration

A.

Establishment

§1617. A prerequisite for establishing an international organization is the will of a number of states to cooperate. This is easily stimulated when it is clear

199. 200. 201. 202. 203. 204. 205.

House of Lords, as reproduced in ILM, op. cit. note 197, at 679. EC, Art. 288; Euratom, Art. 188; ECSC (now dissolved), Art. 40. EC, Art. 235; Euratom, Art. 151; ECSC (now dissolved), Art. 40. EC, Art. 288; Euratom, Art. 188; ECSC (now dissolved), Art. 40. Schermers and Waelbroeck, op. cit. note 47, at 520. Id., at 519-571; see further T. Heukels and A. McDonnell (eds.), The Action for Damages in Community Law (1997). Schermers and Waelbroeck, op. cit. note 47, at 530-532.

1029

Legal status

§1618

that international cooperation would be useful in the field concerned. Costs may then be the only barrier to participation. The more supranational the international organization is intended to be, the fewer states will wish to take part. States belonging to a minority will be reluctant to participate in an organization which takes majority decisions. Their participation will be even more unlikely when majority decisions may become binding. In his study of Central America, Karnes considered why the five Central American Republics, which have strived to create a federation since the early 19th century, have never succeeded in uniting. He draws some conclusions which may be valid for all attempts to establish supranational (or federal) organizations.206 1. No supranational authority is possible without representative government in the participating states. The electorate of a democratic state will never transfer powers to an organization partly composed of dictatorships. A dictatorship will not accept direct communication between an international organization and its citizens. 2. The states concerned must have a sufficiently developed governmental structure. A supranational organization cannot function properly if it is unable to make use of national instruments. 3. Nationalism should not be a prominent feature of any of the participant states. 4. The states should have sufficient common interest. This may also include such factors as the size of their respective national debts.

§1618. Once the will to cooperate has been established, certain measures must be taken to found the organization. An international organization is born when the treaty containing its constitution comes into force. But before that date, many preliminary steps are necessary. A conference is convened, for which provisional texts must be drafted. Such preparatory work is usually undertaken by one or more states or by an existing international organization. But even after the successful conclusion of the conference, when the text for the constitution of the organization is finally adopted, the preparatory period is not yet over. It may take several months before the constitution comes into force; it may even take years207 or it may never happen at all.208 Pending the coming into force of the constitution, further preparatory action may be required. The organization of the secretariat should be prepared in order that it may start functioning as soon as possible. Conditions should be established for the recruitment of personnel. Several regulations (such as rules of procedure and financial regulations) should be drafted. The agenda for the first meeting of the organization should be prepared.

206. 207. 208.

T.L. Karnes, The Failure of Union, Central America, 1824-1960 (1961), especially at 243-254. In the case of the IMCO (now IMO) it took ten years (1948-1958). As in the case of the International Trade Organization (Havana Charter, 1948) and the European Defence Community (1952).

§1619

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§1619. Certain founding conferences leave those tasks to those member states willing to perform them, while others create preparatory commissions responsible for the most essential functions. The United Nations Conference on International Organization during which the United Nations was created adopted interim arrangements by which the participant governments agreed to establish a Preparatory Commission “for the purpose of making provisional arrangements for the first sessions of the General Assembly, the Security Council, the Economic and Social Council, and the Trusteeship Council, for the establishment of the Secretariat and for the convening of the International Court of Justice”. The Commission consisted of one representative from each government signatory to the Charter. Its functions and powers were exercised by an Executive Committee of fourteen members. The expenses of the Commission were borne by the United Kingdom but could be deducted from its first contribution to the UN. The Commission ceased to exist upon the election of the Secretary-General of the UN.209 Similar preparatory commissions have been created for most specialized agencies.210 For the Organization of African Unity, the Ethiopian Government seconded personnel to set up a provisional secretariat. That functioned for over a year. Then the Secretary-General took office and the Ethiopian staff was gradually replaced.211 The United Nations Conference on the Establishment of an International Fund for Agricultural Development (IFAD) established a Preparatory Commission. Its expenses were to be met by loans provided by the UN, to be repaid by IFAD as soon as possible after the agreement entered into force. The Preparatory Commission established an interim secretariat and drafted rules of procedure and by-laws. It prepared the headquarters agreement and several agreements with other international organizations and it convened the first meetings.212 Other, more recent examples of commissions created to prepare the functioning of an international organization are the Preparatory Commission for the Organization for the Prohibition of Chemical Weapons, the Preparatory Committee for the World Trade Organization and the Preparatory Commission for the International Criminal Court.213

§1620. Preparatory commissions have important functions especially when the work of the organization must begin before its official coming into being. This was the case when the United Nations Relief and Rehabilitation Administration was liquidated in 1947 and 1948. Several of its functions had to be taken over by the International Refugee Organization and the World Health Orga-

209. 210. 211. 212. 213.

Interim arrangements concluded 26 June 1945, 15 UNCIO, at 512-513. See e.g. the agreement of 22 July 1946, establishing an Interim Commission for the WHO, 9 UNTS 33. J. Woronoff, Organizing African Unity 188-189 (1970). See UN Doc. IFAD/PC.13 of 28 Oct. 1977. See for the Organization for the Prohibition of Chemical Weapons, 32 ILM 800 ff. (1993); for the ICC PrepCom, see Resolution F adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court.

1031

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nization. Since neither of those organizations had officially come into being, the functions were taken over by their preparatory commissions.214 The composition, task and financing of preparatory commissions are usually regulated in separate agreements that are not subject to ratification.215 For example, the composition and task of the Preparatory Commission (PrepCom) for the International Criminal Court (ICC) were laid down in Resolution F adopted by the 1998 UN Diplomatic Conference of Plenipotentiaries on the establishment of an ICC. This PrepCom performed its functions in the period 1998-2002. According to Resolution F, the ICC PrepCom was to remain in existence until the conclusion of the first meeting of the Assembly of States Parties (in which all parties to the ICC Statute are represented). The ICC PrepCom prepared a number of proposals both in the field of international criminal law (e.g. Rules of Procedure and Evidence; Elements of Crime) and in institutional fields (e.g. rules of procedure of the Assembly of States Parties; an agreement on the privileges and immunities of the Court; basic principles governing a headquarters agreement to be negotiated between the Court and the host country). A specific problem in the case of the ICC was the absence of interim arrangements in the ICC Statute for the period between the entry into force of the Statute and the moment that the Court would become operational (i.e. following the election of the judges, the prosecutor and the registrar). For example, it was possible that within this period documents concerning international crimes would be sent to The Hague that later would become evidence before the Court. Who would take care of such documents? Partly for this reason the ICC PrepCom decided that an Advance Team would be created to carry out the necessary interim work. This Advance Team was paid by the European Commission and the MacArthur Foundation.216 It was composed of eight technical experts and performed its tasks between 1 July 2002 and 14 October 2002, when the Director of Common Services was appointed. Until the Registrar of the ICC was appointed and took office (4 July 2003), the Director of Common Services performed the functions of the Registrar.217 The Interim Commission for the International Trade Organization (ICITO) was never succeeded by the organization itself. Its Secretariat has always serviced the General Agreement on Tariffs and Trade (GATT). The staff of the GATT Secretariat has always remained the staff of ICITO and not that of the GATT.218 From 1948-1951, this Secre-

214. 215. 216. 217. 218.

G. Woodbridge, UNRRA, Vol. I (1950), at 303-306; 311-315. For the preparatory Commission of the IAEA, see Annex I to the IAEA constitution. See the letter by the Dutch Minister of Foreign Affairs to the Chairman of the Second Chamber of Parliament, 9 October 2002, Doc. TK 2002-2003, 28498, nr. 2, at 5. See www.icc-cpr.int. Mr. Bruno Cathala was appointed Registrar of the ICC on 24 June 2003; he has also been the first Director of Common Services of the Court. GATT, Analytical Index: Guide to GATT Law and Practice (6th ed. 1994), at 1035.

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tariat was financed by loans from the UN Working Capital Fund. Only in 1951 did the member states (Contracting Parties) begin to pay contributions.219

§1621. In the case of the Organization for European Economic Cooperation, the founding states could not wait for official ratification. They agreed to put the organization into operation on a provisional basis from the day the constitution was signed.220 In a similar way the constitutions of the Universal Postal Union and the International Telecommunications Union entered into force (provisionally) on predeterminated dates, 18 and less than 2½ months respectively after the date of signature.221 In effect, this happened in the case of the International Civil Aviation Organization (ICAO) as well. The founders of the organization did not want it to take effect provisionally, and so created an interim organization to undertake most of the functions of ICAO before it came into being.222 This interim organization, the Provisional International Civil Aviation Organization (PICAO), supervised international civil aviation from 6 June 1945, when it was created, until 4 April 1947, when the ICAO constitution entered into force.223 §1622. When the constitution of an international organization is drafted, it is assumed that all participants in the constitutional conference will become member states. This participation by all states concerned is so important for some organizations that their constitutions take effect only when all participants in the constitutional conference have accepted their membership.224 When one of the states (France) which had participated in the drafting of the European Defence Community refused to become a member, the organization could not come into being, notwithstanding ratification by the other five states involved. The founders of other international organizations considered that participation of only certain states was essential. They provided that the organization comes into being when some expressly mentioned states, and a certain number of others, had accepted the constitution. The UN Charter entered into force (24 October 1945) when it was ratified by China, France, the USSR, the USA and the United Kingdom, as well as by the majority of the other states which had participated in its creation.225 Many other organizations took effect as

219. 220. 221.

222. 223. 224. 225.

K.W. Dam, The GATT, Law and International Economic Organization 340 (1970). OEEC, Art. 24. UPU, Art. 33; Res. 1 adopted at the 1992 Additional Plenipotentiary Conference of the ITU. The ITU Constitution and Convention (1992) entered into force on 1 July 1994 between members having ratified these instruments. In practice, the ITU Constitution and Convention became fully effective as of 1 March 1993. Text in Staatsblad (Official Gazette of the Kingdom of the Netherlands) G.252; M.O. Hudson, International Legislation, Vol. 9 (1950), at 7. On its functioning, see YUN 1946-47, at 724-725. See e.g. EC, Art. 313; ECSC, Art. 99; Euratom, Art. 224; Benelux, Art. 100; EFTA, Art. 40. UN Charter, Art. 110.3; see also NATO, Art. 11.

1033

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§1623

soon as a certain number of the founding states accepted their membership.226 (For the position of the states that did not ratify in time, see above, §86.) In the case of the International Fund for Agricultural Development, a precondition for establishment was the pledging of voluntary contributions meeting a target of $ 1,000 million.227 B.

Dissolution of the organization.

1.

Termination or succession

§1623. Broadly speaking, there may be two reasons for dissolving an international organization: either its task has been completed or is outdated, or another organization has taken over its functions.228 In practice, both extremes are rare. Even where their tasks are clear and limited, international organizations rarely succeed in rounding up their affairs completely. But member states will not be prepared to maintain the full machinery of the organization when its task is so far accomplished that only comparatively few aspects remain to be resolved. The organization is likely to be disbanded with certain functions yet to be fulfilled; these functions are then likely to be transferred to one or more other international organizations. On the other hand, a complete transfer of all functions to a new international organization is equally rare. Often the reason for establishing a new organization will be that the states concerned wish to change or terminate at least some parts of the functions of the former organization. Most dissolutions of international organizations therefore contain aspects of succession as well as of termination. §1624. One example of an international organization which almost completed its task is the International Refugee Organization (IRO).229 Its dissolution in 1952 was based on the fact that the problem of refugees in Europe – by far the most important group of refugees administered by the organization – was so much reduced that it no longer required a separate organization. The US, which contributed about 60 per cent of the costs of IRO, became unwilling to continue to support the organization, whose target date for completing its work had originally been mid-1950.230 But the activities of the IRO were not halted altogether; many were continued by the UN High Commissioner for Refugees and the Intergovernmental Committee for European Migration.

226.

227. 228.

229. 230.

FAO, Art. 21 (20 out of 45); UNESCO, Art. 15 (20 out of 51); OECD, Art. 14, para.3 (15 out of 19); CoE, Art. 42 (7 out of 10); OAS, Art. 140 (two-thirds of the signatory states); OAU, Art. 25; AU, Art. 28 (two-thirds of the signatory states). YUN 1976, at 469. See also H. Chiu, Succession in International Organizations, 14 ICLQ 83-120 (1965); O.M. Ribbelink, Opvolging van Internationale Organisaties (1988); Myers, Succession between International Organizations (1993). See L.W. Holborn, L’Organisation Internationale pour les Refugiés 537-55 (1955). J.G. Stoessinger, Financing the United Nations System 199 (1964).

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Examples of outdated organizations are the Council for Mutual Economic Assistance (CMEA) and the Warsaw Pact. The former Soviet Union played a dominant role in these organizations. Principally as a result of the disintegration of the Soviet Union, there was general agreement among the member states that these organizations should be dissolved, which duly happened in 1991. Only CMEA was to be replaced by another organization, the Organization for International Economic Cooperation. §1625. Succession between international organizations has been defined as “the transfer of functions and their ancillary rights and obligations from one organization to another”.231 Succession between organizations is of a functional nature, as opposed to state succession, which is “complete”.232 And there are other differences with state succession: generally only one state can exercise sovereignty over a territory at any given time, while several organizations can exercise functions in the same field at the same time. Moreover, the transfer of functions to another organization raises the issue of the consent of the states affected.233 §1626. The most striking example of one international organization succeeding another is the replacement of the League of Nations by the United Nations in 1946.234 Another organization which relinquished its task to a new organization was the Organization for European Economic Cooperation (OEEC), the activities of which were, from 30 September 1961, taken over by the Organization for Economic Cooperation and Development (OECD), which also suc-

231. 232.

233.

234.

Myers, op. cit. note 228, at 12. Cf. G. Fitzmaurice, The Law and Procedure of the International Court of Justice: International Organizations and Tribunals, 29 BYIL (1952), at 9: “If, for the concept of territorial area there is substituted that of functional field, then the position might be stated as follows: that just as a territorial area passing from one state to another carries with it all rights and obligations specifically appertaining to that area in a territorial manner, so a functional field ‘passing’ from one international organization to another ... carries with it the rights, obligations and functions connected with that field, and appertaining to the capacity to act in it”, and D.P. O’Connell, International Law, Vol. I (1970), at 396: “Whereas state succession gives rise to a body of doctrine designed to minimize the impact of a change of sovereignty on the human beings associated with a distinct territory, the most that can be derived from the notion of a succession of organizations is a functional substitution” (quoted in Myers, op. cit. note 228, at 111 (footnote 70)). Myers, op. cit. note 228, at 11-12. See also M. Virally, L’ONU devant le droit, 99 JDI 501-533 (1972), who discusses relevant case law of the International Court of Justice and concludes that this case law “affirme la permanence de certaines fonctions internationales, indépendamment de l’identité de l’organisation qui en a la charge à une époque ou à une autre”. Thus there is a “succession fonctionnelle, par contraste avec la succession d’États, qui découle de la permanence du territoire (et de la population qui l’habite) sur lequel se succèdent des souverainetés différentes” (para. I.3). See D.P. Myers, Liquidation of League of Nations functions, 42 AJIL 320-354 (1948); E. Hoyt, The Unanimity Rule in the revision of treaties, a reexamination 72-78 (1959).

1035

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ceeded to its property and its obligations.235 The Latin American Integration Association may also be seen as the successor of the Latin American Free Trade Association (LAFTA); agreement on the dissolution of LAFTA was reached in August 1980.236 A special case is the expiry of the Treaty establishing the European Coal and Steel Community (ECSC) in 2002. It was decided neither to extend this treaty nor to create a new organization, but to place the coal and steel industries under the general regime of the EC Treaty. Assets and liabilities of the ECSC are managed by the European Commission and are used tot finance research in the sectors related to the coal and steel industry.237 There may be different reasons why a new international organization is established in order to fulfil the task of an existing one. In the case of the United Nations it was the alleged political failure of the League of Nations which required a new organization, not a revision and extension of the existing one.238 In the case of the OECD it was a fundamental change in purpose and regional scope. The International Meteorological Organization was replaced by the World Meteorological Organization in order to attain governmental status. The founders of the UN hesitated before deciding whether to retain the Permanent Court of International Justice or to replace it with a new court. The most important reason for the decision to establish a new court was the impossibility of amending the Statute of the existing court.239 The World Trade Organization was created in 1994 mainly because the GATT was gradually supplemented by a number of separate (“side”) agreements which were accepted by less than one third of the GATT members only. However, the other GATT members nevertheless benefitted from these agreements through the operation of GATT’s most-favoured-nation-clause. Thus free-riding was promoted and the incentive to participate in negotiations for trade liberalization was reduced.240 Furthermore, it was expected that the World Trade Organization, being a more formally constituted

235.

236. 237.

238. 239.

240.

See T. Kristensen, L’Organisation de Coopération et de Developpement économique, Ses origines, ses buts, sa structure, 9 Eur. Yb. 88 (1961), and H.J. Hahn, Continuity in the Law of International organisation, 13 ÖzöR (1964), at 167-239, in particular at 217-239. Art. 15 of the OECD constitution refers to “the reconstitution of the Organization for European Economic Cooperation”. According to Myers, this reconstitution should not be seen as a case of succession, but rather as a major constitutional change and a change of name; “so long as such changes have not affected the identity of the subject of the rights and obligations there is no succession”. Myers, op. cit. note 228, at 37. Ribbelink, op. cit. note 228, at 156-195 (English summary at 226-227). See the resolution of the Council and of the representatives of the governments of the member states, meeting within the Council, 21 June 1999 (OJ 1999, C 190/1); decision of the representatives of the governments of the member states, meeting within the Council, 27 February 2002 (OJ 2002, L 79/42). See L.M. Goodrich, From League of Nations to United Nations, 1 International Organization 3-21 (1947). R. Zacklin, The Amendment of the Constitutive Instruments of the United Nations and the Specialized Agencies 100 (1968); M.O. Hudson, The Succession of the International Court of Justice to the Permanent Court of International Justice, 51 AJIL (1957), at 569 ff. F. Roessler, The Agreement establishing the World Trade Organization, in J.H.J. Bourgeois et al. (eds.), The Uruguay Round Results – A European Lawyers’ Perspective 67-85 (1995), in particular at 69-70.

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organization than the GATT, would not only have better recognition and understanding by the public and officials, but also a more explicit authority to work out cooperative relationships with both intergovernmental and non-governmental organizations.241 Nevertheless, apart from these and some other improvements, the WTO strongly resembles the GATT. It has correctly been observed that the emphasis in the Agreement establishing the WTO is on continuity, and that the WTO is in fact the GATT adapted to expanded functions and put on a firmer legal footing.242 This agreement entered into force 1 January 1995. The new organization did not immediately replace the GATT.243 The International Vine and Wine Office (originally named the International Wine Office) was established in 1924. It had eight founding members. In 2003 it had 47 members; over the years there was an increasing difference of interests between the traditional wine producing countries such as France and Italy, and ‘new’ wine producing countries. In 1997, the General Assembly of this Office decided “to proceed, as necessary, with the adaptation of the International Vine and Wine Office to the new international environment. This involved adapting its missions, its human, material and budgetary resources and, as appropriate, its procedures and operating rules, in order to meet the challenges and secure the future of the world vine and wine sector”.244 It was decided to establish a new organization, the International Organization of Vine and Wine, which would replace the Office with regard to all its rights and obligations.245 It may also happen that cooperation between a particular group of states has not been thought to have been successful, but that an organization of different composition will lead to better results.

§1627. Most of the above-mentioned examples deal with the replacement of one organization by another, the latter created to fulfil essentially the same functions as the former. But there are also other forms of succession of international organizations. Myers distinguishes between the following forms (apart from the examples of replacement above). There is absorption if a limited function organization is absorbed by a broader based organization and becomes one of its organs. Sometimes two or more organizations are combined to form a

241.

242. 243.

244.

245.

See the testimonies by J.H. Jackson prepared for the US Senate Finance Committee Hearing on Uruguay Round Legislation (23 March 1994) and for the US Senate Committee on Foreign Relations Hearing on the World Trade Organization and US Sovereignty (14 June 1994). Roessler, op. cit. note 240, at 84. It was agreed that both organizations would be legally separate and would co-exist during a transitional period (Roessler, op. cit. note 240, at 80-82). The GATT Secretariat (formally the ICITO Secretariat) was to become the WTO Secretariat “to the extent practicable” (Agreement establishing the World Trade Organization, Art. 16.1). The institutional transition from the GATT to the WTO required an agreement between the GATT, ICITO, and the WTO (see the Preparatory Committee for the World Trade Organization, Doc. PC/BFA/2 (1994)). See the Preamble to the 2001 Agreement establishing the International Organization of Vine and Wine (Trb. 2001, 194, or www.oiv.int). It is expected that this Agreement will enter into force 1 January 2004. Id., Arts. 1.1 and 17.2.

1037

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single new entity (merger). A subsidiary organ might be separated from its parent institution and become a new organization (separation). Finally, specific functions of an organization can be transferred to another organization without otherwise affecting its existence (transfer of specific functions). In practice of course it is possible to find a mixture of several different forms of succession.246 Examples of absorption are the integration of the International Bureau of Education within the framework of UNESCO, as of 1 January 1969, and the absorption of the International Patent Institute by the European Patent Organization. An example of merger is the 1975 merger of the European Launcher Development Organization and the European Space Research Organization into the European Space Agency. Examples of separation are the separation of the Arab League Educational, Cultural and Scientific Organization from the League of Arab States, which became effective in 1970, and the transformation of UNIDO from an organ of the UN General Assembly into a specialized agency of the UN. Transfer of specific functions took place when in 1960 the social and cultural functions of the Western European Union were entrusted to the Council of Europe.247

§1628. The question of whether to dissolve an organization and to create a new one, or to amend the constitution of an existing organization, is mainly political. Legally it would have been possible to amend the constitution of the League of Nations or that of the OEEC in such a way that a new organization would have been unnecessary. Although drastic changes were made, the succession to the Brussels Treaty Organization of 1948 by the Western European Union in 1954 was effected by constitutional amendment. The Leagueaffiliated International Labour Organization (ILO) of the early 1920s was transformed into the present specialized agency by constitutional amendment, although several of the reasons for the replacement of the League by a new organization were equally valid for the ILO (not the main political reason). Only in the case of the transformation of the International Meteorological Organization to the WMO did the members have no alternative; the transformation from private into public international organization cannot be made by constitutional amendment. 2.

Methods of dissolution

a.

Constitutional provisions

§1629. It is rare for the constitution of an international organization to provide for its dissolution, although it has been suggested that this is the best system

246. 247.

Myers, op. cit. note 228, at 15 and 37. These examples are discussed by Myers, op. cit. note 228, at 26-36.

§1630

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for dealing with the practical consequences of such an event.248 On reflection, however, it seems doubtful whether the conditions for dissolution can be foreseen when an organization is created. Provisions intended to deal with this contingency might not be adaptable to prevailing circumstances. Most financial organizations (the IMF, the World Bank, the IFC, IDA, MIGA, the EBRD and the regional development banks) can be dissolved by their Boards of Governors (the general congresses).249 The vote required varies considerably. The IMF and the African Development Bank can be dissolved by majority vote; for the World Bank, IFC and IDA, a majority of the member states as well as a majority of the votes is required (because of the weighted voting, the two do not necessarily correspond in the financial organizations); in the EBRD, the Inter-American Development Bank and the Asian Development Bank, two-thirds of the member states and three-quarters of the votes must support a decision to liquidate. Since each financial organization administers substantial financial interests, provisions for a possible dissolution were especially necessary in these cases.

Some other constitutions also expressly empower the general congress to dissolve the organization.250 Often a qualified majority is required.251 The 1997 Eurocontrol Revised Convention contains the following provision: “If […] the Organization is dissolved, its legal personality and capacity […] shall continue to exist for the purposes of winding up the Organization” (Article 38.5). This is a very practical provision that seeks to prevent the continuation of the existence of the organization exclusively for the purpose of dissolving it. In this way the organization is given a limited afterlife in the continuation of its legal personality. §1630. Some constitutions provide that the organization must be dissolved when the number of members falls to fewer than five252 or three.253 In some

248.

249.

250.

251.

252.

C. Wilfred Jenks, Some Constitutional Problems of International Organizations, 22 BYIL 69-70 (1945); H.G. Schermers, De Gespecialiseerde Organisaties 68 (1957); A.-C. Kiss, Quelques aspects de la substitution d’une organisation internationale à une autre, 7 AFDI (1961), at 464 and 491. IMF, Art. XXVII, Section 2; World Bank, Art. VI, Section 5; IFC, Art. 5, Section 5; IDA, Art. 7, Section 5; MIGA, Art. 55; EBRD, Art. 41; Inter-American Development Bank, Art. 10, Section 2; African Development Bank, Art. 47; Asian Development Bank, Art. 45; Andean Development Corporation, Art. 44. IFAD, Art. 9(4); Organization of Wood Producing and Exporting African Countries (14 ILM (1975)), Art. 17; International Organization for Migration, Art. 33; European Organization for the Exploitation of Meteorological Satellites (EUMETSAT), Arts. 19 and 5.2(a) (Trb. 1983, No. 161). In IFAD, where the Western countries, the developing countries and the members of OPEC have each one-third of the votes, a majority of three-quarters is required, which means that each of the three groups has a right of veto. European Space Agency, Art. 25.

1039

Legal status

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cases, the organization will be dissolved when so many members withdraw that the level of the financial contributions to be paid by the remaining members is increased by one fifth above their initial levels. However, in these cases the general congress may decide to keep the organization in operation.254 §1631. Constitutions of temporary organizations will include some provisions on dissolution.255 The most important group is composed of the commodity organizations which have been established for limited periods. Some can be dissolved even within these periods.256 The most detailed regulations could be found in the International Tin Agreement, which provided not only how the organization can be dissolved, but also what will happen thereafter to its property and its archives.257 b.

Provisions in other treaties and implied succession

§1632. The treaty establishing an international organization can be annulled by a new treaty or protocol concluded between the same treaty partners.258 This new treaty may state that the organization is to be dissolved and describe the manner in which this is to be done. The states concerned may also transfer the functions of one organization to a successor organization without any explicit rules and procedures; the succession, and so the dissolution, may then considered to be implied.259 There will be a particularly strong inclination to dissolve one or more existing international organizations when a new international organization has been established in the same field. The founders of the new organization may then provide for the dissolution of existing ones and for the transfer of their functions. This can be done either by a separate agreement260 or in the

253. 254. 255.

256. 257. 258. 259. 260.

European Molecular Biology Laboratory (Trb. 1973, No. 162), Art. 14; International Fund for Compensation for Oil Pollution Damage (Trb. 1973, No. 101), Art. 43. European Centre for Medium Range Weather Forecasts (Trb. 1974, No. 7), Art. 21; EUMETSAT, Art. 19.2 (Trb. 1983, No. 161). Art. 35 of the European Payment Union provided for dissolution on 30 June 1952, but this date was subsequently postponed and finally the article was amended; the organization formed by the EEC and a group of African States under the Association Treaty of Yaounde of 20 July 1963, ended after five years (Art. 59); the International Energy Agency has been created for a period of ten years (Art. 69, para. 1). See e.g. Natural Rubber Agreement 1987, Art. 66.5. International Agreement on Jute and Jute Products 1989, Art. 46.5. International Sugar Agreement 1992, Art. 45.3. International Tin Agreement 1981, Art. 60. See also Art. 17 of the constitution of the West Africa Rice Development Association, 10 ILM 666-667 (1971). See also Myers, op. cit. note 228, at 40-42. This has happened in a few cases only. See Myers, op. cit. note 228, at 41-42. E.g. the protocol of 22 July 1946, dissolving the International Office of Public Hygiene of 1907 when the WHO had been established, see 9 UNTS 616; YUN 1946-47, at 801 ff.; Hahn, op. cit. note 235, at 178-179.

§1633

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constitution of the new organization.261 The latter procedure has the advantage that the dissolution article will enter into force at the time of the establishment of the new organization. It furthermore attributes to the new organization the power to replace the old one. In some cases, the constitution of a new international organization contains a more general provision empowering it to take over activities from existing organizations.262 Such provisions in the constitutions of new international organizations may stimulate a transfer. They are declarations of policy of the new organization and of its members rather than legal acts dissolving existing international organizations. That policy can be brought about through any of the means available for dissolving international organizations. §1633. According to general rules of international law, a new treaty or a provision in the constitution of a new international organization will result in the dissolution of an existing international organization only when all members of the organization take part in it. Nevertheless, a less stringent rule has sometimes been accepted. The International Institute of Agriculture (IIA),263 set up in 1905, was dissolved by a protocol of 30 April 1946 after the creation of the FAO. Though the IIA still had about 50 members, the protocol provided that it would take effect upon ratification by 35 members. When, on 27 February 1948, this condition was met, the standing committee of the IIA declared the organization dissolved, and the property of the organization was transferred to the FAO.264 The OEEC was dissolved by a protocol of 14 December 1960, which took effect on the same date as the OECD constitution. Ratification by 15 of the 20 signatory states was sufficient.265 The dissolution of the International Office of Public Hygiene was implemented before all members had expressed their approval.266 The Caribbean Free Trade Association (CARIFTA) was dissolved by a provision in the constitution of the Caribbean Community (CARICOM).267

261.

262. 263.

264. 265. 266. 267.

See, e.g. the World Tourism Organization, Art. 44; Art. 27 para. 5 of the International Sugar Agreement of 1953 which authorized the new Sugar Council to accept the records, assets and liabilities of the Sugar Council of 6 May 1937 (text quoted by B. Döll, Völkerrechtiche Kontinuitätsprobleme bei internationalen Organisationen 104 (1967)). See also Art. 3 of the 1992 International Sugar Agreement. See on the OAS as successor of the International Union of American Republics and the Union of American Republics, G. Kutzner, Die Organisation der Amerikanischen Staaten (OAS) 153-155 (1970). UNESCO, Art. 11, para. 2; WHO, Art. 72; WMO, Art. 26(c). See A. Hobson, The International Institute of Agriculture (1931); H.F.W.M. van Haastert, Het Internationaal Landbouw Instituut (IIA) en de Organisatie voor Voedsel en Landbouw (FAO) (1947). Hoyt, op. cit. note 234, at 41-43. OECD, Art. 14. Hahn, op. cit. note 235, at 178-179, 187. CARICOM, Annex, Art. 71, 12 ILM 1071 (1973). See also K.R. Simmonds, The Caribbean Economic Community: A New Venture in Regional Integration, 23 ICLQ 453-458 (1974); C.W. Dundas, The Law of the Caribbean Community, in B.G. Ramcharan and L.B. Francis (eds.), Caribbean Perspectives on International Law and Organizations 231-280 (1989).

1041

Legal status

§1634

In no case did any of the members which had not actively participated in the dissolution protest. Their silence may offer some basis for the submission that they agreed to the dissolution. §1634. A different policy was followed when the World Intellectual Property organization (WIPO) was established. Its predecessor, the United International Bureaux for the Protection of Intellectual Property (BIRPI, administrating, inter alia, the Paris Union for the protection of industrial property and the Berne Union for the protection of literary and artistic works) was dissolved with the creation of WIPO (1970). The Unions administered by BIRPI remained in existence. Thus it was foreseen that certain states would not (or not yet) become members of the WIPO while still members of one or more unions. The WIPO constitution therefore provides that as long as there are states members of the Paris or Berne Unions which have not become parties to the WIPO constitution, the WIPO Secretariat shall also function as BIRPI. Only upon all members of the Paris and Berne Unions becoming WIPO members will the rights, obligations and property of BIRPI devolve on to the WIPO Secretariat.268 §1635. In the case of the European Commission of the Danube and the International Commission of the Danube the situation was different. These commissions, governed by the Danube Convention of 1921,269 were dissolved by a supplementary protocol to the Convention regarding the regime of navigation on the Danube of 18 August 1948, by which a new Danube Commission was established.270 Four member states of the old Danube Commissions had not been invited to the conference creating the new one;271 two others272 had not signed the new convention and had declared that they considered the old one still in force.273 In March 1953, at an extraordinary session of the European Commission of the Danube held in Rome, delegates of France, Italy and the UK declared that the Commission would continue until dissolved by all member states.274 This European Danube Commission still owned a considerable amount of gold. France, the United Kingdom and Italy, “acting jointly as members of the European Danube Commission having its seat in Rome”, by an agreement of 23 April 1977 ceded to Rumania 50 kilograms of this gold

268. 269. 270. 271. 272. 273. 274.

WIPO, Art. 21 (3 and 4). See also A. Bogsch, Brief History of the First 25 Years of the World Intellectual Property Organization 9-18 (1992). League of Nations Treaty Series, Vol. 26, at 175-199. 33 UNTS 197-223. Belgium, Germany, Greece and Italy. Austria was represented by an observer. France, United Kingdom. The US which was not a member of the old commissions had also objected. Austria joined the new commission in January 1960. Art. 7 of the 1921 Convention expressly required unanimity for the dissolution of the European Commission of the Danube. B. Döll, op. cit. note 261, at 122. The same position was held by the European Commission of the Danube in: Un Siècle de co-opération internationale sur la Danube 1856-1956.

§1636

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1042

in return for Rumania’s waiver of all claims to the rest of the Commission’s gold and British Treasury Bonds.275 For all practical purposes, however, both old Danube Commissions have disappeared. On the basis of the 1948 protocol, their functions and their property (not their obligations; these were cancelled) were transferred to new organs.276 Only questions concerning the pensions of former staff remained for the old commissions to settle.277 The most directly affected Western states participate in the new Commission: Austria as a member,278 (West) Germany as an observer (since 1957).279 If the supplementary protocol to the Convention establishing the new Danube Commission did not dissolve the old Commissions, the latter have nevertheless come to an end through disuse.280 The case of the Danube Commissions shows how an organization can be dissolved by the collective will of those member states which control it. §1636. Instead of providing that an existing organization is to be dissolved on the establishment of a new one, the new organization may oblige its members to withdraw from the former.281 Such a provision may lead to numerous withdrawals which may strangle the older organization. But the provision itself does not provide for dissolution. c.

Acts of the general congress

§1637. Constitutions which provide for the dissolution of the organization empower the general congress to decide on its liquidation. Could it be a general principle of international institutional law that the general congress may dissolve an international organization? Every organ is the master of its own procedure. It may fix the date and agenda of its meetings, and so may continuously delay the date or reduce the agenda to nil. This means that it can practically stop its own functioning. Therefore it could be argued that it ought also to have the right formally to liquidate the organization. On the other hand, it may be inappropriate to leave such an important question to be decided by an organ of the organization, especially in organizations which impose more severe restrictions on amendment of the constitution and which do not allow their general congress to take binding decisions in other fields.

275. 276. 277. 278. 279. 280. 281.

I. Seidl-Hohenveldern, Danube River, in EPIL Vol. I (1992), at 934-937. Supplementary Protocol to the Convention regarding the Regime of Navigation on the Danube, Belgrade, 18 August 1948, Arts. 2, 3. Hahn, op. cit. note 235, at 200-201, footnote 175. From 1957 to 1960, Austria participated as an observer. See also Annex I to the Convention of Belgrade (1948). Seidl-Hohenveldern, op. cit. note 275, at 936. Döll, op. cit. note 261, at 123; Hahn, op. cit. note 235, at 200. See e.g. ICAO, Art. 8.

1043

Legal status

§1637

Several authors are therefore opposed to the use of this method.282 In practice, it has been followed on several occasions. The International Meteorological Organization (IMO) was dissolved by an act of its own general congress, which had initiated the establishment of its successor, the World Meteorological Organization (WMO).283 This act provided for the transfer of all functions and possessions to the WMO. The WMO constitution empowered that organization to accept the transfer (see above, §1632). For present purposes, the example is not entirely relevant, since the IMO was not a public international organization as defined in Chapter One. All functions of the United Nations Relief and Rehabilitation Administration (UNRRA) were transferred to other international organizations on the basis of resolutions made by its general congress.284 No objections to the resolutions have been published. In 1946, the League of Nations was dissolved by a decision of its general congress (the Assembly).285 This decision was taken unanimously, but only 35 of the 45 member states were present.286 The International Refugee Organization (IRO) was also dissolved by a resolution of its general congress.287 Of the eighteen members,288 Iceland was not represented when this resolution was adopted.289 The International Commission for Air Navigation (ICAN) was dissolved after the constitution of the International Civil Aviation Organization had been adopted.290 The decision to dissolve the ICAN was taken by its general congress but was to become effective only if no member state objected within 75 days. Since there was no opposition, the decision of the general congress can be considered as having been approved by the members by a negative ratification procedure (see above, §1288-1294). As in the case of the ICAN, none of the absent members protested over the dissolution of the League of Nations or of the IRO. Their silence may be regarded as tacit approval. The South East Asian Treaty Organization (SEATO) was gradually dissolved on the basis of a decision of its general congress taken on 24 September 1974.291 During

282. 283. 284. 285. 286.

287. 288. 289. 290. 291.

Kiss, op. cit. note 248, at 469. Hahn, op. cit. note 235, at 179-181. Resolutions 94, 95, 97, 99, 100, 103; Woodbridge, op. cit. note 214, Vol. III, at 157-168. Res. of the Assembly of 18 April 1946, Doc. A32(I) 1946(x), at 12; 23 BYIL 321 (1946); 42 AJIL 331 (1948). See also YUN 1946-47, at 110-113. Meyers in 42 AJIL 320 ff. (1948). The members are listed in footnote 35 (at 330), the total membership in footnotes 1 and 4 (at 321). Hoyt lists only seven absent members (op. cit. note 234, at 74). He did not count Estonia, Latvia and Lithuania since they were no longer states. Res. 108 of the General Council (9th session), Holborn, op. cit. note 229, at 748. Listed by Holborn, op. cit. note 229, at 509. Holborn, op. cit. note 229, at 757. Hahn, op. cit. note 235, at 175-176. See also id., at 177-178 for the dissolution of the International Technical Committee of Aerial Legal Experts. On SEATO, see R.A. Butwell, The Institutional growth of the Southeast Asian Treaty Organization: circumstances of the changes, 3 Asian Studies (University of the Philippines) 377-390

§1638

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1044

the two years following that decision, activities ceased and personnel moved away.292 On 12 August 1980 the general congress of the Latin American Free Trade Association (LAFTA) decided to dissolve the organization. The same day, the same representatives of the same governments created the Latin American Integration Association (LAIA). A smooth transition arrangement was agreed upon. According to this arrangement, the LAFTA legal order would continue to exist alongside that of LAIA for a maximum period of one year following the entry into force of the latter’s constitution. During this transition period the LAIA legal order would exist for the states members of LAIA; the LAFTA legal order would still be valid between states not yet members of LAIA and between those states on the one hand and members of LAIA on the other.293 The 1924 Agreement creating the International Wine Office (in 1958 renamed the International Vine and Wine Office) “shall be terminated by the unanimous decision of the first General Assembly following the entry into force of the [2001] Agreement [establishing the International Organization of Vine and Wine], unless all parties to [the 1924 Agreement] have unanimously agreed, prior to the entry into force of [the 2001] Agreement, on conditions for its termination”.294

§1638. Apart from the basic decision to dissolve the organization, acts of the general congress are the most appropriate way of deciding the manner of liquidation. Even when the decision to liquidate is taken elsewhere, the general congress may decide how to wind up the tasks and machinery of the organization. In practice, more than one organization will be involved when functions are to be taken over. In the case of the International Office of Public Hygiene, the organization and its successor (the World Health Organization) took parallel decisions on the transfer and the assumption of functions and assets.295 In other cases, general congresses have taken the same kind of action “in a bilateral way” by means of agreements with the organizations which acted as successors. d.

Agreements with other international organizations

§1639. Although not constituting the basic decision to dissolve an international organization, agreements with other international organizations play an important practical role by providing detailed rules on liquidation.

292. 293.

294.

295.

(1965); P. Lyon, SEATO in perspective, 19 Yearbook of World Affairs 113-136 (1965); G. Modelski et al., SEATO, Six studies (1962, reprint 1964). See J.M. Van der Kroef, Hoe dood is de ZOAVO? 30 Int. Spect. 674-681 (1976). Ribbelink, op. cit. note 228, at 180, 192 (English summary at 226-227); W. Hummer, Rechtsfragen aus Anlaß der Sukzession der ALALC durch die ALADI, in G. Lüke, G. Ress, M.R. Will (eds.), Rechtsvergleichung, Europarecht und Staatenintegration, Gedächtnisschrift für Leontin-Jean Constantinesco 259-282 (1983). Agreement establishing the International Organization of Vine and Wine (2001), see Trb. 2001, 194, or www.oiv.org. It is expected that this Agreement will enter into force 1 January 2004. Hahn, op. cit. note 235, at 179.

1045

Legal status

§1640

The League of Nations entered into a “Common Plan” with the UN concerning the transfer of activities and property.296 On the basis of this Plan, a number of agreements were drawn up with the UN on the transfer to the UN of League property,297 of services (such as the library and the stenographic service) and personnel,298 and of funds administered by the League.299 The United Nations Relief and Rehabilitation Administration (UNRRA) transferred its functions to several other international organizations. In each case, the general congress of UNRRA first took a decision upon which an agreement was made with the organization concerned. The transfers were effected after agreements with the (Interim Commission of the) World Health Organization (9 December 1946), the Food and Agriculture Organization (19 February 1947), the (Preparatory Commission of) International Refugee Organization (29 June 1947), and with the UN (27 September 1948).300 The International Institute of Intellectual Cooperation, which was closely linked to the League of Nations, was finally dissolved by an agreement with UNESCO.301 In a similar way, the International Bureau of Education and the International Relief Union transferred their resources and responsibilities to UNESCO,302 and the International Institute of Agriculture to the FAO.303 e.

Disuse

§1640. The Yearbook of International Organizations registers a number of public international organizations as inactive.304 Some organizations seem to have simply disappeared through disuse.305 This form of dissolution can apply only to organizations which do not or no longer have their own staff and which no longer operate, either for political reasons or because other organizations are better qualified to discharge their functions.

296. 297. 298. 299.

300.

301. 302. 303. 304. 305.

Approved by GA Res. 24 (I) of 12 February 1946. Agreements of 16 July 1946 (1 UNTS 109); 31 July 1946 (1 UNTS 119); 1 August 1946 (1 UNTS 132). Protocol of 1 August 1946 (1 UNTS 135). Protocols of 11 April 1947 (4 UNTS 443, International Press House Fund); 14 April 1947 (4 UNTS, 449, Library Endowment Fund); 27 June 1947 (5 UNTS 389, Léon Bernard Fund); 27 June 1947 (5 UNTS 395, Darling Foundation). For the texts, see Woodbridge, op. cit. note 214, Vol. III, at 305-362 and 27 UNTS 349. The agreement with the UN was made for the benefit of UNICEF, see K. Karunatilleke, Le Fonds des Nations Unies pour l’enfance 66-78 (1967). Hahn, op. cit. note 235, at 189-192. See UNJY 1968, at 153-155. FAO Second Conference Report (1946), at 62. YIO 2003-2004, Vol. 1, Appendix 3, at 2738-2739. See also I. Seidl-Hohenveldern, Der Rückgriff auf die Mitgliedstaaten in Internationalen Organisationen, in R. Bernhardt et al. (eds.), Völkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte, Festschrift für Hermann Mosler (1983), at 885.

§1641

Chapter 11

1046

On 15 November 1936 Germany withdrew from the International Commissions of the Elbe and the Oder.306 France, Britain and Czechoslovakia protested (9 December 1936).307 Since Germany fully controlled both rivers, no further activities of the Commission could be undertaken. Although not dissolved officially, both Commissions had for all practical purposes come to an end.

After the establishment of the Organization of African Unity in 1963 the Conference of Independent African States, which had met periodically since 1958, and the Inter-African and Malagasy Organization were no longer needed. Both stopped functioning.308 f.

Constitutional amendment

§1641. It might be feasible to dissolve an international organization by means of the procedure used for amendment of the constitution. This is legally acceptable. By modifying the constitution, a provision for dissolution could be inserted. By the same method, the tasks of the organization could be changed and thus be reduced to nil. Since such amendments would actually terminate the activities of the organization there can be hardly any legal objections to using the same procedure for its formal liquidation. But there may be a practical objection: amendment of the constitution takes a long time. In all international organizations amendment on important questions – and dissolution is certainly important – must be ratified by at least a majority of the member states. This is usually a slow process, which may be a reason why it has never been used for the dissolution of an international organization. g.

Changed circumstances

§1642. At the 1948 Conference in Belgrade which created a new Danube Commission, the Soviet Union submitted that the existing Danube Commissions (see above, §1635) had ceased to exist by application of the clausula rebus sic stantibus, a construction in international law which permits termination of a treaty in situations where there has been fundamental change in circumstances.309 The changes after the war were, it was suggested, so fundamental that this clause could be invoked. The Western powers did not accept this submission.310

306. 307. 308. 309. 310.

Keesing’s Historisch Archief, 1934-1937, at 2542. Id., at 2571. See H.F. Strauch, Panafrika (1964), at 144 ff. Vienna Convention on the Law of Treaties, Art. 62. I. Seidl-Hohenveldern, Die Belgrader Donaukonvention von 1948, 76 Archiv des Völkerrechts 256 (1958); L. Imbert, Le Régime Juridique Actuel du Danube, 55 RGDIP 73-94 (1951), at 79.

1047

Legal status

§1643

§1643. The termination of the East African Community is probably due to changed circumstances, both political and economic.311 As the partner states could not agree on any mode of termination, no legal arrangements were made for the dissolution of the organization. Most activities and most personnel were taken over by the national governments. h.

Conclusion

§1644. It can be submitted that liquidation of an international organization is impossible where none of the above-mentioned methods for dissolution is available. In such a case, the members could bring an international organization to an end only by denouncing their membership. Since an organization consists of at least two members the organization would be dissolved automatically when one of the last two members withdrew its membership. This method has never been applied and is unacceptable, for all property and debts of the organization would fall to one state. Equitable distribution of assets to members and the continuation of its useful functions by another organization would be impossible. It is therefore necessary that one of the above-mentioned methods of dissolution is available in any case. Constitutional amendment and an additional treaty to be ratified by all members are always legally possible. Either one of them should be used in principle. There may however be circumstances which do not permit long delay. If such circumstances can be shown to exist, the general congress, which in practice can stop the functioning of the organization, should be considered entitled to liquidate it. Rules on dissolution are often included in the constitution or in other instruments. This is useful for reasons of legal certainty, in particular for those states which took part in the dissolved organization but declined to join a possible successor organization. However, it has also been shown that once the time for dissolution has actually arrived, practical needs and expediency are usually considered more important than strict observance of the rules on dissolution.312 3.

Consequences of dissolution

a.

Functions of the organization313

§1645. It is unlikely that every function of an international organization will have been discharged at the time of its dissolution. The organization will cease its activities when its tasks have been reduced to such an extent that they no

311. 312. 313.

R.H. Green, The East African Community: Death, Funeral, Inheritance, 10 Afr. Cont. Rec. A125A137 (1977-1978). See also Myers, op. cit. note 228, at 49. Id., at 78-83.

§1646

Chapter 11

1048

longer justify the maintenance of the full organizational machinery. Any functions which remain will be transferred to one or more other international organizations. There will be few problems when all remaining functions are taken over by the same organization. In practice however this is not always the case. Sometimes the remaining functions have been divided among several other international organizations. The United Nations Relief and Rehabilitation Administration transferred its functions to the UN, the WHO, the FAO and UNICEF.314 It may also happen that the successor organization wishes to assume only some of the functions of the dissolving organization. The UN, being the main successor to the League of Nations, refused to take over the political functions of the League. Political functions are generally difficult to transfer since their character depends on the nature of the dissolving organization.315 The UN accepted only “in principle” certain specific functions and powers of the League of Nations.316 The most important of these were the custody of treaties, the Economic, Financial and Transit Departments, the Health Section and the Opium Section.

§1646. Where an organization does not transfer all its functions to one successor on dissolution, the fate of those functions for which no specific successor has been arranged must be determined. There will usually be an intention that these functions should be terminated, as in the case of, for example, the defective collective security system of the League of Nations, which was to be wound up and replaced by a different system. But such termination may be impossible. In such a case the most appropriate organization must be considered to be the successor even in the absence of specific provisions.317 When the mandate system of the League of Nations was replaced by the quite different trusteeship system of the UN, it was expected that all mandate agreements would be replaced by trusteeship agreements. South Africa however refused to comply for South-West Africa (Namibia). Subsequently it contended that the mandate had lapsed because the League had ceased to exist and had recognized in one of its final resolutions318 that its functions with respect to the mandated territories would come to an end. The UN had not expressly taken over any responsibility from the League under the mandate system.

314. 315. 316. 317.

318.

Woodbridge, op. cit. note 214, Vol. I, at 303-315; YUN 1946-47, at 160. Kiss, op. cit. note 248, at 473. GA Res. 24 (I) (UN Doc. A/64, at 35); YUN 1946-47, at 110-113. This form of succession should be distinguished from succession in private law. It is based on the necessity to continue specific international functions, see Hahn, op. cit. note 235, at 198-199. Res. of 18 April 1946, ICJ Rep. 1950, at 134.

1049

Legal status

§1647

The International Court of Justice rejected this contention.319 In its opinion, the dissolution of the League did not necessarily entail the lapse of the mandate. The mandate was created as an international institution, a “sacred trust of civilization” in the interest of the inhabitants of the territory.320 The authority of South Africa over the territory could not be separated from the obligations it had undertaken. If the mandate had lapsed South African authority in the territory would have lost all legal basis. The South African obligations to the people of the territory did not depend on the existence of the League of Nations; they could not be brought to an end merely because the supervisory organ had ceased to exist. Once it was decided that the South African obligations remained in force, the Court found little difficulty in establishing which international organ should exercise the supervisory functions previously exercised by the League of Nations. Since the General Assembly of the UN was authorized to discuss any question within the scope of the Charter, it was also competent to exercise this function.321

§1647. Since there is no uniform system of decision-making, the transfer of functions to an organ of another organization may influence the way in which they are carried out. When the General Assembly of the UN took over the supervision of the mandate over South-West Africa the decision-making by unanimity of the Council of the League of Nations was replaced by the General Assembly’s system of decision-making by qualified majority. The International Court of Justice accepted this as a consequence of the transfer.322 Sometimes the successor organization is able and willing to continue procedures of its predecessor. In December 1959, the General Assembly of the UN changed the regime for the deposit of the UN conventions with regard to reservations.323 The Secretariat however continued the old regime for conventions concluded under the auspices of the League of Nations.324

b.

Legal acts of the organization

§1648. Certain legal acts of international organizations are annulled when the organizations are dissolved. Others may be taken over by a successor organiza-

319.

320. 321. 322. 323. 324.

International status of South-West Africa, Advisory opinion, ICJ Rep. 1950, at 132-136. On this case, see J. Dugard (ed.), The South West Africa/Namibia Dispute, Documents and Scholarly Writings on the Controversy Between South Africa and the United Nations (1973); R. Dale, The glasspalace war over the international decolonization of South West Africa, 29 International Organization 535-544 (1975); Myers, op. cit. note 228, at 59-77. League of Nations Covenant, Art. 22.1. ICJ Rep. 1950, at 137. South-West Africa Voting Procedure, Advisory opinion, ICJ Rep. 1955, at 67-79. GA Res. 1452 B (XIV). UNJY 1971, at 224-225.

§1649

Chapter 11

1050

tion.325 The latter acts will lose their effect for those states which do not participate in the successor organization, just as acts of an organization lose force with respect to members which have withdrawn, but remain in force for the members of the original organization which are also members of the new one. Normally these acts will not be binding on those members of the new organization which did not participate in the previous one, unless it is clear that the new organization has taken over the act as an act of its own; this occurs when, for example, the new organization decides to use the rules of procedure of its predecessor. Acts taken over by a new organization enter into the legal order of that organization in the condition as at the time of succession, which means that existing interpretation and clarification also become part of the law of the new organization.326 §1649. Can acts which cease to bind a state not participating in the successor organization revive when that state subsequently joins that organization? This question arose with respect to the International Court of Justice.327 Article 36 of the Statute of the Permanent Court of International Justice allowed states to declare unilaterally that they recognize the jurisdiction of that Court as compulsory. Article 36 of the Statute of the International Court of Justice provides that any such declarations still in force are to be deemed acceptances of the compulsory jurisdiction of that Court for the period which they still have to run. Thus continuity was guaranteed for those states parties to the new Court on the date at which the old court disappeared (18 April 1946). But what about the states which became parties to the new Court after that date? The International Court of Justice decided that the declarations of those states had perished and could be revived only by a subsequent declaration of renewal.328 Much of the reasoning of the Court would also apply to other acts transferred from an international organization to its successor. In October 1957 Israel instituted proceedings before the International Court of Justice against Bulgaria, invoking a Bulgarian declaration of 29 July 1921 which recognized the compulsory jurisdiction of the Permanent Court of International Justice. The International Court of Justice found that it had no jurisdiction. It considered that the Bulgarian declaration of 1921 was no longer in force owing to the dissolution of the Permanent Court in 1946. Once defunct, the declaration could not revive when Bulgaria was admitted to the UN.329

325. 326. 327. 328. 329.

See e.g. International Coffee Agreement 2001, Art. 54; Agreement establishing the World Trade Organization, Art. 16.1. See also H.J. Hahn and A. Weber, Die OECD, Organisation für Wirtschaftliche Zusammenarbeit und Entwicklung 71-72 (1976). On the succession of the International Court of Justice to the Permanent Court of International Justice, see M.O. Hudson in 51 AJIL 569-573 (1957). Kiss, op. cit. note 248, at 478-480. Case concerning the Aerial incident of 27 July 1955 (Israël v. Bulgaria), Preliminary Objections, ICJ Rep. 1959, at 127-146 (in particular at 143-144).

1051

Legal status

§1650

In October 1959 Cambodia instituted proceedings before the International Court of Justice against Thailand, invoking a Thai declaration of 20 May 1950 by which Thailand’s acceptance in 1929 of compulsory jurisdiction was renewed. Referring to the case between Israel and Bulgaria, the Thai Government submitted that its 1929 declaration had lapsed on the dissolution of the Permanent Court in April 1946. It had not been revived in December 1946 when Thailand became a party to the Statute of the International Court of Justice. Consequently the Thai declaration of 20 May 1950, which merely renewed the declaration of 1929 for another ten years, had been ineffective ab initio. The Court rejected this submission. It considered that in 1950 Thailand had clearly evinced an intention to submit itself to the compulsory jurisdiction of the Court. The declaration of 1950, renewing the (defunct) acceptance of the compulsory jurisdiction of a defunct Court, revived and amended the original acceptance, which could thereafter be regarded as an acceptance of the compulsory jurisdiction of the International Court of Justice.330

(i) Recommendations and declarations §1650. There seems to be no problem as to recommendations and declarations since these derive no legal force from the organization (see above, §1220 ff.). States are free to follow recommendations of an international organization even if the organization no longer exists. Declarations may reflect binding rules of law when they are a restatement of customary law or of general principles of law (see above, §1248 ff.), but their legal force has its source in custom or general principles which remain valid after the organization has disappeared. (ii) Conventions §1651. Conventions do not derive their legal force from the organization which made them. They become binding rules of international law through ratification, and then only for the ratifying parties. Several conventions are open to ratification by non-members of the organization (see above, §1300-1304). In principle, dissolution of the organization will not affect the validity of conventions which it has drafted. In many cases, however, international organizations are involved in the execution of their own conventions. They may act as depositary,331 or they may even play an active role in the application of the convention. An example is the Single Convention on Narcotic Drugs of 13 March 1961,332 in which both the UN and the WHO play an important role. The member states of the International Narcotics Control Board, created by that convention, are elected by the Eco-

330. 331. 332.

Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Preliminary Objections, ICJ Rep. 1961, at 17-35. E.g. UN Convention on the Law of the Sea. Text in UN Doc. E/CONF.34/24/Add.1, at 300-315.

§1652

Chapter 11

1052

nomic and Social Council of the UN (ECOSOC), partly from a list of persons nominated by the WHO.333 The secretariat services are furnished by the Secretariat of the UN.334

§1652. Although the legal force of conventions survives, their practical application may be limited or nullified by the disappearance of the organization concerned. In order to save a convention from becoming inoperative the states parties to it may amend the relevant provisions.335 Would it be admissible to replace the disappearing organization with its successor without the express approval of all parties to the convention? The answer to this question depends on two factors: first, on the relationship between the old and the new organization and, secondly, on the role which the dissolving organization fulfilled under the convention. When the relationship between the old and the new organization is close, complete or almost complete replacement is acceptable. In the case of the succession of the Organization for European Economic Cooperation (OEEC) by the Organization for Economic Cooperation and Development (OECD) there was such a close relationship. The constitution of the OECD expressly provided that it was to take over the legal personality of the OEEC and that its general conference (the Council) had the power to make all acts of the OEEC effective as acts of the OECD.336 This constitutional provision excludes the need for express approval by the parties to each convention. There were no objections to the OECD actually taking over the functions of the OEEC under conventions.337 When the relationship between the old and the new organization is not so close that the new organization can automatically replace the old one, the role of the organization under the convention becomes relevant. In many cases international organizations function only as a secretariat, which neither affects the operation of the convention nor relates to the substantive rights and obligations of the parties. In such cases replacement of one organization by another seems acceptable, as it does not lead to any increase in the parties’ obligations. Furthermore, the alternative would be complete disappearance of the obligations incorporated in the convention. This would be unacceptable, as obligations in conventions are meant to be permanent and should certainly not depend on the existence of the organizations which administer the conventions. Even in case of an amendment to a convention, the original text remains in force for those states which do not accept the amendment.338 Parties to the convention should not be permitted to renounce their obligations without fulfilling the normal conditions for withdrawal on

333. 334. 335. 336. 337. 338.

Single Convention on Narcotic Drugs, Art. 9. Id., Art. 16. See e.g. the Protocol of 11 December 1946 amending the Agreements, Conventions and Protocols on Narcotic Drugs, 12 UNTS 180. OECD, Art. 15. Hahn, op. cit. note 235, at 222-223. Vienna Convention on the Law of Treaties, Arts. 39-41.

1053

Legal status

§1653

the pretext that the treaty has been changed by the replacement of one organization with another. The harm done by the discontinuation of a convention far outweighs the damaging consequences of the latter event. In practice the UN has taken over the functions of the League of Nations as custodian of the original texts of conventions and has charged its Secretariat “with the task of performing for the parties the functions, pertaining to a secretariat, formerly entrusted to the League of Nations”.339 The UN did not seek to obtain the agreement of those parties to the conventions which were not members of the UN; it simply assumed the functions by a resolution of the General Assembly. No objection was raised by any party.340

The international labour conventions adopted before the Second World War entrusted certain archive functions to the Secretary-General of the League of Nations and sometimes referred to the League Covenant. By a special convention the organs and the constitution of the ILO were substituted.341 This posed no problems. §1653. The situation may be different when the organization plays an active role in the application of the convention. In that case another organization, otherwise composed and pursuing different aims, cannot replace the disappearing one without the approval of the parties to the convention. After the dissolution of the League of Nations the General Assembly of the UN approved seven protocols which transferred the functions or powers formerly exercised by the League of Nations to organs of the UN.342 These protocols dealt with various treaties relating to narcotic drugs,343 economic statistics,344 circulation of obscene publications,345 white slave traffic,346 traffic in women and children,347 and slavery.348 These protocols came into force after ratification by the states concerned. Twenty-one conventions made under the auspices of the League of Nations authorized the Council of the League to invite additional states to become parties. Such an invitation is not a purely procedural matter; it includes an assessment of whether a state (or a supposed state) would be acceptable as a treaty partner. The UN had not initially

339.

340. 341.

342. 343. 344. 345. 346. 347. 348.

GA Res. 24(I)A. See also A/CN.4/154, at 15-17 and Report of the International Law Commission on the work of its 15th session. GAOR 18th Session, Suppl. 9 (A/5509), at 31. ILC Report, op. cit. note 339, at 31, para. 25. Convention of Montreal, 9 October 1946, 38 UNTS, at 4. It may be disputed whether this official substitution was necessary in all cases. In fact the substitution was effected before all states concerned had become party to this special convention. ILC Report, op. cit. note 339, para. 28. 12 UNTS 179. 20 UNTS 229. 30 UNTS 3 and 46 UNTS 169. 30 UNTS 23. 53 UNTS 13. 182 UNTS 51.

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taken over this function. By its Resolution of 18 November 1963 the General Assembly, acting on the recommendation of the International Law Commission, requested the Secretary-General of the UN to invite states which otherwise were not eligible to become party to those conventions to accede thereto by depositing an instrument of accession with the Secretary-General.349 The General Assembly based this decision on the transfer of tasks from the League of Nations to the UN and on the need to facilitate the admission of new parties. It also considered that the conventions involved were not of a political character.

(iii) Internal rules §1654. The internal rules governing an activity or an organ remain in force when that activity or organ is taken over completely by a successor organization.350 When, for example, the UN took over activities concerning narcotic drugs and statistics, most of the procedure relating to those activities was continued.351 The European Nuclear Energy Agency of the Organization for European Economic Cooperation (OEEC) was continued, without changing its internal rules, as an organ of the Organization for Economic Cooperation and Development (OECD).

§1655. In all other cases there is no need for internal rules to be continued. Some internal rules, however, have external effects (see above, §1206-1215). For that reason it might be desirable, for example, to provide that the statute governing personnel remain in force when the organization is dissolved. However, no legal order can include such a provision. Even if a constitution were to provide that the statute governing personnel should remain in force after dissolution of the organization, that provision – and the statute with it – would lose legal effect when the organization disappeared. The best way to retain the internal rules of a dissolving organization would be a binding decision of a new organization stating that the rules remain in force. Such a decision may perhaps be taken tacitly. The drafting of new rules does not create legal continuity, even if they are identical to the old ones. Rights obtained under the old rules will then disappear. Though many internal rules of the UN have been copied from the League of Nations, they are incorporated in new legal instruments and therefore constitute new rules. The many internal rules of the International Meteorological Organization which have been taken over by the World Meteorological Organization are nevertheless new rules as

349. 350. 351.

GA Res. 1903 (XVIII), para. 4. See also GA Res. 2021 (XX). Kiss, op. cit. note 248, at 490. See UN Doc. A/134.

1055

Legal status

§1656

they were re-adopted by the later organization.352 The Staff Regulations of the OEEC were not continued by the OECD.353

(iv) General regulations §1656. General regulations of an international organization are binding law in the legal order of each member state. Though their source is external, they belong to, are integrated into, the national legal order of each member. Other national legal rules may refer to them or may have been based upon them, and they regulate a part of national society. This will not change with the dissolution of the organization from which they are derived. To the extent that no specific provisions have been made, the general regulations will retain their legal force within the national legal order of each member. But their status will change. So long as the organization exists the general regulations have a supranational character: they stem from a higher source and have priority over national laws. But this higher source disappears when the (supranational) organization is dissolved. The general regulations continue only as provisions of the national legal order, and can be abrogated and changed by other rules of national law. Hitherto, there has been no case where an international organization has been dissolved with its general regulations still in operation. The European Commission for the Danube is not an example since its regulations became ineffective with the outbreak of the Second World War, prior to the disappearance of the Commission. (v) Binding Decisions §1657. Where does the legal force of Decisions – in the sense of acts binding on their addressees (see above, §1322) – originate? It is submitted that international organizations empowered to issue Decisions have legislative capacity. The legal force of the Decisions is derived from the legal order of the organization. If that legal order is continued by a successor organization, then the Decisions can remain in force; if there is no such successor, then the member states are alone competent to take over the Decisions in their legal order. For Decisions addressed to individuals, the situation is the same as for general regulations: they are binding under national law. For Decisions addressed to the member states, a transfer to the legal orders of those states entails a considerable weakness. Since a state is free to amend its own legal order the Decision can be amended as well, which constitutes a diminution of its binding character.

352. 353.

YUN 1951, at 952. OECD Appeals Board in the Aicher case (1964, Decision No. 37); M.B. Akehurst, The Law Governing Employment in International Organizations 63 (1967).

§1658

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§1658. Those who do not recognize the legislative capacity of an international organization will regard the Decisions as a form of delegated legislation. The member states arrived at a multilateral agreement on their obligations to the organization; they empowered its organs to take further Decisions on their behalf. These further Decisions may perish with the constitution of the organization in so far as they contain interpretation and elaboration thereof; they may remain in force as engagements under international law in so far as they can be regarded as independent acts made, on behalf of the members, by the organs of the organization. Much will depend on the wording of the Decision concerned. The closer the wording comes to “the members of the organization agree”, the more compelling the argument for maintaining the Decision as an international engagement after dissolution of the organization. In Resolution 1903 (XVIII) of the General Assembly the members of the UN “assent by the present resolution to the decision set forth in paragraph 1 above”, which bound those members to accept additional parties to certain multilateral treaties. This undertaking would not perish if the UN were dissolved.

§1659. Although this reasoning may help to preserve the international binding character of at least some Decisions after the extinction of an international organization, it will not be persuasive in all cases. The only sure way to retain the binding force of Decisions after dissolution of the organization is to incorporate them in the legal order of another international organization. Such a continuation may be implied when a new organization takes over all functions, or a specific part of all functions, of the dissolving organization.354 It may also be expressly stated in the constitution or in a resolution of the new organization or in an agreement between the dissolving organization and its successor. In few cases has a new international organization taken over all the Decisions of its predecessor. The WHO endorsed all technical decisions taken with regard to International Sanitary Conventions and their application, biological standards and habit forming drugs by the International office of Public Hygiene, the Health Organization of the League of Nations, the Quarantine Commission of the United Nations Relief and Rehabilitation Administration and the Interim Commission of the WHO itself.355 Likewise, the WMO endorsed all technical resolutions of the International Meteorological Organization.356

§1660. A successor organization usually continues certain acts of the dissolving organization and refuses to do so with others.

354. 355.

356.

Kiss, op. cit. note 248, at 482. Hahn, op. cit. note 235, at 179; Handbook of Resolutions and Decisions of the World Health Assembly and the Executive Board, Tenth Edition 313 (Executive Board Resolution EB2.R30) (1969). Hahn, op. cit. note 235, at 180; WMO Congress, 1st Session, Res. 4.

1057

Legal status

§1661

The OECD, which even succeeded to the same legal personality the Organization for European Economic Cooperation (OEEC), did not maintain its Decisions. The OECD constitution expressly provides that all acts of the OEEC require approval of the general congress (Council) of the OECD in order to remain effective.357 Such approval has subsequently been given for a number of acts.358

(vi) Agreements359 §1661. International organizations may enter into two types of agreement with other international organizations or with states. Most common are agreements concerning the functioning of the organization itself (agreements on mutual exchange of information, immunities etc. (see below, §1690, §1770)). Such agreements will usually perish when the organization is dissolved, for their content is such that their continuation by a successor organization, or by the member states individually, would not be appropriate.360 Only in rare cases have agreements of this kind been continued by another international organization. In these cases, the other parties have accepted such continuation. The agreements concluded by the Organization for European Economic Cooperation were not affected by the transformation of the organization into the OECD. The International Atomic Energy Agency, the Bank of International Settlements and the French Government agreed to the continuation.361

§1662. Of a quite different character are agreements concluded by international organizations with regard to external relations which would otherwise have been performed by their members. The best example is offered by the trade agreements of the European Community (EC).362 Each member once had its own trade agreements, but since the establishment of the Common Market national trade agreements have gradually been replaced by Community agreements (see below, §1772). This replacement is made with due consideration for vested rights.363 It would not be acceptable to declare that all such Community trade agreements would terminate if ever the EC were dissolved. The rules for state succession are much more appropriate and, accordingly, should be applied. Unless all parties agree otherwise, the obligations derived from trade agreements would remain with a successor organization or – if that did not exist – with the members of the EC, in so far as practically possible.

357. 358. 359. 360. 361. 362. 363.

OECD, Art. 15. The Organisation for Economic Cooperation and Development, published by the OEEC (1960), at 37-39, 67. For a definition of “agreement”, see below, §1744 ff. The rules contained in Arts. 61 and 62 of the Vienna Convention on the Law of Treaties will be applicable. Hahn, op. cit. note 235, at 222. EC, Arts. 133-134. EC, Art. 307.

§1663

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1058

When the Treaty establishing the European Coal and Steel Community (ECSC) expired in 2002, it was decided that the European Community would succeed to the rights and obligations flowing from the international agreements concluded by the ECSC with third countries. The European Commission informed third countries of this succession and prepared the necessary amendments to these agreements.364 §1663. Some agreements contain features of both of these groups: they concern the functioning of the organization but also contain substantial obligations which go beyond that functioning. One example is the agreement between the League of Nations and South Africa on the Mandate for the Territory of South-West Africa (Namibia).365 It provided not only the procedure for operating the Mandate, but also endorsed the inalienable rights of the population of the Territory. Because of these rights, the International Court of Justice decided that the Mandate agreement could not be considered extinct.366 (See also above, §1646.) Agreements made for the benefit of third parties may continue to exist, even when the organization which concluded them has been dissolved with no appointed successor. In such cases, enforcement may be difficult, amendment impossible. Article 4 of the Agreement of 19 July 1946 between the League of Nations and the UN367 reserved the right of access to the Library, the Assembly Hall and some other parts of the Palais des Nations for the International Labour Organization. This agreement could not be considered void after the dissolution of the League.368

§1664. Several states made declarations before the Council of the League of Nations by which they undertook to protect minorities. The Council subsequently adopted a resolution taking note of these declarations,369 which may be seen as agreements between the states concerned and the League. Had the UN wished to do so it could have taken over these agreements, but the preference was to create a different system of protection of minorities.370 However this does not exclude the possibility that the original declarations could remain in force as obligations for the benefit of the populations concerned.

364. 365. 366. 367. 368. 369. 370.

Council decision of 19 July 2002, OJ 2002, L 194/36. Decision of the Council of the League of Nations of 17 December 1920. International Status of South-West Africa, Advisory opinion, ICJ Rep. 1950, at 131-136. 1 UNTS 114. H. Chiu, The Capacity of International Organizations to conclude Treaties, and the Special Legal Aspects of the Treaties so concluded (1966), at 120. UN Doc. E/CN.4/367, referred to by L.B. Sohn and T. Buergenthal, International Protection of Human Rights 303 (1973). Sohn and Buergenthal, op. cit. note 369, at 304.

1059

Legal status

§1665

(vii) Contracts §1665. Contracts under private law – such as contracts for the sale of goods, contracts of employment, contracts for cleaning, maintenance or leasing equipment – will normally perish with the organization. Possible claims for damages will have to be met from the property of the organization before its liquidation.371 In some cases successor organizations have assumed responsibility for contracts. When the OECD succeeded the Organization for European Economic Cooperation (OEEC) the contracts of the latter remained in force by virtue of the constitutional provision of the OECD which provided that the legal personality of the OEEC would continue in the OECD.372 By special agreement, the UN took over a number of contracts when it succeeded the League of Nations.373 c.

Personnel of the organization

§1666. The personnel of a dissolving organization lose their jobs. The conditions of dismissal depend on the form of their appointments. Personnel appointed by contract under the private law of a state can be dismissed according to the terms of the contract as regulated by that law. Many international organizations appoint their staff by an act of authority, on conditions provided in a Statute of personnel. With time such appointments usually acquire a permanent character. Where this obtains the appointments are to be terminated according to the provisions of the Statute. All Statutes of personnel contain provisions for the termination of permanent appointments in the event of the necessities of the service requiring abolition of the post or reduction of the staff.374 These provisions will apply when the organization is dissolved. In most cases of dismissal at short notice the organization will be obliged to make indemnity payments. Such payments are part of the liabilities of the organization to be accounted for in its budget or satisfied from its property. §1667. Special funds for personnel (such as staff pension funds) are sometimes transferred to another organization.375 When this is impossible, the funds must be administered independently.

371. 372. 373. 374. 375.

See e.g. the Preparatory Committee for the World Trade Organization, Doc. PC/BFA/2 (1994). OECD, Art. 15. Arrangement of 31 July 1946, 1 UNTS 119-129. See e.g. UN Staff Regulation 9. 1(a). On a similar article of FAO, see the Administrative Tribunal of the ILO, Decision 269, 22 AFDI 238-239 (1976). E.g. The International Office for Public Hygiene transferred its pension fund to the WHO, which accepted it by Res. WHA, 1.84.

§1668

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The WHO not only continued payments to pensioners of the International Office of Public Hygiene from funds made available, but also supplemented the pensions when the cost of living increased. As the successor organization it considered that it had a moral obligation to do so.376

§1668. According to general practice a successor organization is not obliged to take over personnel of a dissolving organization.377 Whether or not it will wish to do so depends on the degree of continuity planned by both organizations. A complete take-over of all personnel, and particularly a take-over of the higher personnel, will facilitate continuity. Thus the World Meteorological Organization took over the Secretary-General and the staff of the International Meteorological organization in 1950-1951. The Provisional International Civil Aviation Organization took over the Secretary-General and some staff of the International Commission for Air Navigation of 1919. The Caribbean Common Market took the entire staff of the Caribbean Free Trade Association when it succeeded it on 1 May 1974.378 The OECD took over the Secretary-General and the great majority of the staff of the OEEC. For the OECD, the taking over of staff was facilitated by the provision that it continued the legal personality of the OEEC.379 This provision binds the OECD to all arrangements with third parties, including contracts with staff.380 The Secretariat of the World Trade Organization took over most staff of the GATT Secretariat, as was proposed by ther WTO PrepCom.381 §1669. If complete continuity is not desirable, the successor organization will prefer to remain free in recruiting its personnel either from the dissolving organization or from elsewhere. Thus it may better adapt its staff to its own needs and to its own membership. The structure and the budget of the successor organization will often not permit a full take-over of all personnel, even if this is desirable. The personnel of the dissolving organization do not usually have priority when applying for jobs with the successor or with any other international organization. Sometimes the dissolving organization has facilitated a massive take-over of personnel by its successor.

376. 377.

378. 379. 380.

381.

WHO Executive Board Resolutions EB 23.R24 and EB 27.R24. Similarly a succeeding state is not obliged to take over personnel on acquired territory, see D.P. O’Connell, State Succession in Municipal Law and International Law (1967), at 177 ff. K.R. Simmonds, The Caribbean Economic Community: A New Venture in Regional Integration, 23 ICLQ 453-458 (1974). OECD, Art. 15. Hahn, op. cit. note 235, at 236. The indemnities paid to those staff of OEEC not recruited by OECD, were larger than provided by the OEEC Statute, in pursuance of a special arrangement by the member states. See R. Bloch and J. Lefévre, La Fonction publique internationale et européenne 143-144 (1963). See Preparatory Committee for the World Trade Organization, Doc. PC/BFA/2 (1994).

1061

Legal status

§1670

The United Nations Relief and Rehabilitation Administration (UNRRA) did so by reducing its personnel, before its liquidation, to numbers which could be taken over by its successors. In 1946 UNRRA had 3,000 Class I employees working in refugee operations. It had planned to transfer these operations to a new organization, the International Refugee organization (IRO). The prospective budget of the Preparatory Commission for the IRO was far too modest to meet the expenses of such a large number of personnel. By mid-1947 UNRRA had reduced the number to 1,620. They were collectively transferred to the (Preparatory Commission for) IRO.382 Similarly, 92 employees were allocated to the FAO, 62 to WHO and 26 to UNICEF.383 Furthermore, some of the personnel responsible for the liquidation of UNRRA were transferred to the UN.384 The League of Nations transferred some of its staff collectively to the UN.385

§1670. In cases of collective transfer of personnel the dissolving organization should also assign funds to meet outstanding financial obligations, such as the costs of outstanding annual leave or repatriation.386 It is in the interest of a dissolving organization to help its personnel to find new employment or otherwise to grant extra financial support. If no special measures are taken the orderly liquidation of the organization may be frustrated. Employees will leave not when their work is ended but when happenstance offers them opportunities for new employment.387 Initial plans for liquidation may provoke a massive walk-out of personnel. In order to prevent such serious upheavals, the UNRRA adopted a Bonus Plan which gave an extra payment of thirty days salary to each employee whose service was terminated by the organization owing to the liquidation.388 The organization also actively supported the efforts of its staff to find new employment. §1671. The legal position of international civil servants is endangered when their organization is dissolved; the Statute of personnel no longer exists and administrative and judicial organs disappear. When in 1970 the World Intellectual Property Organization (WIPO) succeeded the United International Bureaux for the Protection of Intellectual Property (BIRPI389), WIPO agreed that it would take over all obligations concerning BIRPI’s personnel. Like BIRPI, WIPO was to accept the competence of the Administrative Tribunal

382. 383. 384. 385.

386. 387. 388. 389.

Woodbridge, op. cit. note 214, Vol. I, at 313, Vol. III, at 358 (agreement between the organizations, paras. 7 and 8). Id., Vol. I, at 319, Vol. III, at 354 (agreements with WHO and FAO). Id., Vol. III, at 361. The staff working at the Library, Internal Service, Household, General Stenographic Service, and Roneo and Multigraph Service; see Protocol No. II on the Transfer of certain services from the League of Nations to the UN, 1 August 1946, 1 UNTS 137. Woodbridge, op. cit. note 214, Vol. I, at 314. Id., Vol. I, at 316. Id. Bureaux Internationaux Réunis pour la Protection de la Propriété Intellectuelle.

§1672

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of the ILO for the settlement of disputes. Nonetheless, there was a risk that cases would be inadmissible before this tribunal when they had arisen before the date on which the WIPO accepted the competence of the tribunal. Such acceptance has no retroactive effect and the acceptance of the tribunal’s competence by BIRPI lost its effect as a result of the dissolution of that organization. A special agreement was made to overcome this difficulty.390 §1672. Similar problems do not necessarily arise when an independent organ of an organization is dissolved. The civil servants of that organ will still be entitled to bring claims against the organization itself. One Mr. Semaan, an employee of the First United Nations Emergency Force (UNEF I), was able to bring an action against the Secretary-General of the UN after the dissolution of UNEF I.391 Realization of claims against defunct organizations may be difficult. In 1941, Dr. Weiss was dismissed from the Secretariat of the International Institute of Intellectual Cooperation. In 1947 the Administrative Tribunal of the International Labour Organization awarded him compensation for his dismissal.392 The French courts granted exequatur of the award. Subsequently the French Government wound up the Institute and transferred its assets to the UNESCO without providing for the payment of Dr. Weiss’ claim. The French Conseil d’Etat considered that it had no jurisdiction, as an examination of these questions would imply an evaluation of acts of the French Government in its relations with international bodies or foreign states.393 Dr. Weiss found no other forum.

d.

Property of the organization

§1673. Upon the dissolution of a private corporation its property is distributed among the members or shareholders. By analogy, it could be submitted that the property of a liquidated international organization should be distributed among the members proportionally to their share of the contributions. On the other hand, international organizations could be regarded as separate persons under international law, fully capable of disposing of their property as they please. Practice is inconsistent. When the League of Nations was dissolved most of its property was transferred to the UN (a part to the International Labour Organization).394 The four former members

390. 391.

392. 393. 394.

See B. Knapp, Jurisprudence du tribunal administratif de l’organisation Internationale du Travail, 17 AFDI 433-434 (1971). UNAT judgment 144, UNJY 1971, at 155-156. See also: La succession des organisations internationales et l’indépendance des fonctionnaires internationaux, à propos d’une décision de la Commission de Recours du CIHEAM, 18 AFDI 413-421 (1972). Judgment of 25 February 1947, 30 ILO Official Bulletin No. 5, at 395; 18 ILR 458 (1951). Case quoted from 20 ILR 531 (1953). For the text of the agreement between the UN and the League of Nations, see Resolutions adopted by the GA during the second part of its first sessions, at 140-143, and 1 UNTS.

1063

Legal status

§1673

of the League of Nations which did not become members of the UN (Finland, Ireland, Portugal, Switzerland) were offered financial compensation395 while the other members were credited by the UN. Although this could be regarded as a sovereign disposal of property, it seems more akin to distribution among shareholders. In most other cases, however, international organizations have transferred their property to a successor organization.396 When the European Coal and Steel Community (ECSC) ceased to exist in 2002, ownership of the ECSC funds reverted to the member states. The member states decided to transfer these funds to the European Community (EC) and to create a common fund for research in the sectors related to the coal and steel industries.397 Assets and liabilities of the ECSC are managed by the European Commission and are used to finance research in these sectors.398 When the Council for Mutual Economic Assistance (CMEA) was dissolved the central issue with which the liquidation committee had to deal was the problem of ownership of the headquarters building in Moscow. In 1968 it was agreed that in the event of cessation of CMEA’s activities on the territory of the Soviet Union, CMEA had the right to alienate the CMEA buildings with the consent of the Government of the Soviet Union; in the absence of such consent these buildings would be acquired by the Government of the Soviet Union at a price to be determined by arrangement between CMEA and the Government of the Soviet Union. In June 1991 the latter informed CMEA that it did not consent to the alienation of the buildings.399 Some constitutions expressly provide that any surplus will be distributed among the members in proportion to all payments made by them. A deficit will be assessed to the members in proportion to their assessments in the last scale of contributions.400 A similar rule is provided for in the constitution of the International Oil Pollution Compensation Fund, but in this case any surplus is to be distributed among those who contributed to the Fund, irrespective of whether they are still members at the time of dissolution.401 The 1980 International Cocoa Agreement required the establishment by the Cocoa Council of rules which would govern the distribution of any balance remaining from

395. 396.

397. 398.

399. 400.

401.

Final Report on the Board of Liquidation, at 49-50. See also Myers, op. cit. note 228, at 91-92. See e.g. WHO Res. WHA 3.98 on the transfer of property of the International Office of Public Hygiene to the WHO, or the Protocol of 30 April 1946, on the dissolution of the International Institute of Agriculture. Another example is the GATT/WTO. It has been proposed to include in the transfer agreement between GATT, ICITO and WTO “the global transfer to the WTO of all assets and liabilities of ICITO/GATT other than staff contracts” (Preparatory Committee for the World Trade Organization, Doc. PC/BFA/2). Decision of the representatives of the governments of the member states, meeing within the Council, 27 February 2002, Preamble (OJ 2002, L 79/42). See the resolution of the Council and of the representatives of the governments of the member states, meeting within the Council, 21 June 1999 (OJ 1999, C 190/1); decision of the representatives of the governments of the member states, meeting within the Council, 27 February 2002 (OJ 2002, L 79/42). T. Schweisfurth, Council for Mutual Economic Assistance, in EPIL Vol. 1 (1992), at 843. European Biology Laboratory (Trb. 1973, No. 162), Art. 14; European Centre for MediumRange Weather Forecasts (Trb. 1974, No. 7), Art. 21; European Space Agency (Trb. 1975, No. 123), Art. 25. Arts. 43-44 (Trb. 1973, No. 101).

§1674

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the proceeds of sales of cocoa from the buffer stock and monies remaining in the buffer stock account after payment of the costs of liquidation and outstanding buffer stock loans. But the Agreement did not mention when the Council should establish such rules. If it were to fail to do so, could a successor agreement provide for such a distribution formula? The UN Office of Legal Affairs rightly answered that this is not possible, unless all the members of the Council of the 1980 Agreement agree to request the Council of a successor agreement to devise such a formula.402

§1674. Residual obligations are often, but not always, transferred with the residual property. The WHO accepted responsibilities of the International Office of Public Hygiene with its assets;403 the UNESCO accepted the resources and the responsibilities of the International Bureau of Education and of the International Relief Union.404 On the other hand, all obligations of the former Danube Commission to repay credits were cancelled by a supplementary protocol to the Convention regarding the Regime of Navigation on the Danube (18 August 1948) when a new commission was created and endowed with the property of its predecessor.405 On 18 January 1956 the Supreme Court of New York decided, in a case against the United Nations (Wencak v. UN), that the Agreement of 27 September 1948 whereby the UN undertook to assume certain functions and substantial funds connected with the liquidation of the United Nations Relief and Rehabilitation Administration did not constitute an assumption of liabilities upon succession to assets.406

§1675. Part of the property of the dissolving international organization may represent a claim for members to pay their arrears of contributions. Such claims can also be transferred to a successor organization. The WHO was assigned claims for arrears of contributions from the International Office of Public Hygiene. It succeeded partially in collecting the arrears.407 Generally, the collection of arrears of contributions to defunct organizations is difficult.

§1676. A successor organization can realize claims against individuals without serious problems. It is in a far better position than individuals seeking to realize claims against the dissolving organization, who face problems of legal personality and immunity of jurisdiction as well as those of succession.

402. 403. 404. 405. 406. 407.

UNJY 1986, at 304-305. WHO Resolutions WHA 1.84 and WHA 3.98. UNJY 1968, at 153-155. 33 UNTS 223. Annual Report of the UN Secretary-General 1955-56, GAOR, 11th Session, Suppl. 1 (A/ 3137), at 107. See e.g. Resolutions WHA6.32; WHA8.15; EB21.R59; EB23.R70; EB.25.R55; EB43.R40.

1065

Legal status

§1677

For a successor organization acting against an individual see the judgment of 27 March 1952 of the Civil Tribunal in Brussels;408 for an individual claiming from a defunct organization, see the Weiss case (above, §1672).409

§1677. Certain property of international organizations is unsuitable for distribution among the members, and will have to be donated to others. The archives of a dissolving organization are always transferred without financial compensation. They are of practical value only to a successor continuing its activities. Since continuation is of equal interest to the dissolving organization it will not charge its successor for the transfer of the archives. If there is no direct successor, the value of the archives will be mainly historical. It will be one of the final duties of the dissolving organization to find another organization willing to take charge of the archives. §1678. The donor of a gift to an international organization will not usually make special provisions in case of a possible liquidation of the organization. When substantial property has been donated, providing income to the organization, either of two procedures could be followed. (1) If the gift was to the dissolving organization as such, that organization should make full use of it and sell the property as part of its remaining assets, the proceeds of which will ultimately be distributed amongst the members. (2) If the gift was made to promote a particular purpose or programme, the property should be transferred to the most appropriate successor organization, free of charge. Only when the gifts have been made under certain conditions, as in the case of trust funds, will the same conditions apply to the successor.410 The former procedure is the most appropriate when an organization has been dissolved because it has completed its task. For other situations, the latter procedure has become a rule of customary law.411 By the protocol of 14 April 1947 the League of Nations transferred the Library Endowment Fund to the UN.412 The necessary steps were taken “to ensure that the object for which the said fund was designed and its characteristic features would be maintained”. In a similar way the International Press House Fund was transferred to the UN.413 The League of Nations transferred the Leon Bernard Fund and the Darling Foundation through the UN to the WHO (which had not come into operation when the League was liquidated).414 In none of these cases were the successor organization required to pay.

408. 409. 410. 411. 412. 413. 414.

19 ILR 490 (1952). 20 ILR 531 (1953). See for instance the agreement of 19 July 1946, between the League of Nations and the UN, Art. 3, 1 UNTS 112. Kiss, op. cit. note 248, at 491. 4 UNTS 450. 4 UNTS 443. 5 UNTS 389 and 395.

§1679

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§1679. Part of the property of the dissolving organization may be closely linked to activities or obligations transferred to a successor organization. That property will be transferred free of charge alongside the activity or obligation to the successor(s). With the dissolution of the OEEC, all property was transferred to the OECD, which also continued most of the work of the former organization. Four international organizations continued activities of the United Nations Relief and Rehabilitation Administration (UNRRA). In order to facilitate that continuation the UNRRA transferred large sums of money to them.415 The FAO received $600,000 for its continuing technical and advisory functions in eight states and $500,000 for agricultural rehabilitation services (such as the supply of machinery).416 The International Refugee Organization obtained $1.6 million for operations in the Far East and in the Western Hemisphere and $2 million for the supplementary feeding of children. The WHO received $4 million for continuing the Health Division of UNRRA. According to the agreement made with the UN, UNRRA was to transfer to the UN, at the termination of its liquidation period, “such personnel as may be required to complete work on the liquidation accounts, together with sufficient funds to meet all the costs involved”.417 The largest amount ($34.5 million) went to UNICEF, which had been established at the request of UNRRA. In this case, however, it can hardly be considered as a transfer of funds as a consequence of a transfer of functions. The reverse was true. For a variety of reasons UNRRA did not wish to return its residual funds to its members (many of the funds came from private sources). In August 1946, having helped to create UNICEF, it decided that the rehabilitation of children and adolescents was of primary importance and that all funds available after completion of its work would be used for that purpose.418

4.

Conclusion

§1680. We may conclude that, in general, succession is preferred to termination, and that whenever possible functions, rights and property will be transferred to another organization rather than to the member states. If compared to succession in domestic legal orders, it has indeed been shown that “the peculiarity about succession between international organizations is that it relates essentially to the transfer of functions, which are the jurisdiction, duties and activities of a public institution, rather than of private rights and obligations, which characterizes succession in municipal law”.419

415. 416. 417. 418.

419.

Woodbridge, op. cit. note 214, Vol. III, at 509-514. See also Woodbridge, op. cit. note 214, Vol. I, at 309-311. Woodbridge, op. cit. note 214, Vol. III, at 361; 27 UNTS 374. Res. 103 of the General Congress (Council); Woodbridge, op. cit. note 214, Vol. III, at 167. See also Agreement between the UNRRA and the UN of 27 September 1948, 27 UNTS 350-397, in particular at 354. Myers, op. cit. note 228, at 97-98.

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IV. Concluding observations §1681. In our analysis of international institutional law, this chapter has examined the legal status of international organizations. A survey has been provided of the rules and practice of the position of international organizations in international and in national law, and of the duration of the organization’s legal life. Some brief concluding reflections are offered here in an attempt better to understand some striking phenomena, such as the difficulties surrounding international legal personality and the dissolution of international organizations while their functions are continued. §1682. The notions of function and state sovereignty explain in part why the issue of international legal personality has been discussed so fiercely, why opposition to acceptance of the status of an international legal person for international organizations has now largely disappeared, and why this issue has again become important during the last decade for the EU and the OSCE. In the era of absolute state sovereignty the status of legal person in international law was reserved for states, which were not prepared to accept other international legal persons in their midst. At the time international organizations were seen as servile bodies for the administration and coordination of specific transfrontier state functions. States were wary of establishing sorcerer’s apprentices, which might, in the near or distant future, outgrow their creators. It is essentially for this reason that the UN Charter, for example, lacks a provision in which international legal personality is explicitly granted to the UN. While these reasons were understandable, they became increasingly obsolete and impracticable over time. In order to carry out their functions, international organizations were required to conclude agreements with states and, in some cases, had the power to adopt decisions binding on the member states. A principle whereby the legal existence of international organizations at the international level was not recognized was rendered obsolete by the requirements of modern times. This was recognized by the International Court of Justice in its Advisory Opinion in the Reparation for Injuries case, which amounted to a breakthrough for the status of international organizations in international law, but also corresponded closely to reality. In order to make this formal breakthrough acceptable for states, the Court hastened to add that its conclusion that the UN is a legal person did not amount to saying that its legal personality, rights and duties are the same as those of a state. It made clear that without the status of an international legal person the UN’s functions could not effectively be discharged. These functions therefore justified the granting of this status and, at the same time, delimited its scope. In this manner, the states’ sovereign fears were allayed and the organization was enabled to perform its functions. The cases of the EU and the OSCE demonstrate that the absence of international legal personality of international organizations is more than a child-

§1682

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hood disease in the development of international institutional law. While the ICJ in the Reparation case has offered a vaccine that has worked well for many international organizations, the issue resurfaced in the cases of the EU and the OCSE. However, the Reparation case has contributed to finding solutions in these cases. After agreement to explicitly bestow international legal personality upon the EU was blocked at the highest political level in 1997, practical needs and discussions amongst practitioners and academics culminated in the conclusion of treaties by the EU since 2001. A solution has not yet been found within the OSCE, but practical difficulties caused by the absence of international legal personality have increased up to a point where all participating states are convinced of the need for a solution; it is essentially only the US that still blocks agreement. §1682. The issues of accountability, responsibility and liablity of international organizations have been hotly debated during the last decade for at least two reasons. Firstly because of the prevailing more general climate that was characterized by increased attention for accountability issues, also in relation to states and individuals. International organizations cannot – and should not – isolate themselves from this more general climate. Secondly, in many cases international organizations have obtained extensive powers or have used powers more intensively than before. This has triggered an increased interest in questions concerning the control over and the accountability for the exercise of such powers. In most organizations it is first of all a matter for the member states to deal with these questions. Policy-making by international organizations is generally controlled by the member states.420 However, at the same time international organizations generally have their own legal personality, their independence from the member states, and hence it must also be possible to hold them responsible/liable for their own actions. Where this is not sufficiently guaranteed their future development will be affected as there is increased resistance to international organizations taking action without the possibility for those who experience the consequences to hold them accountable for such action. Such resistance appears for example from the occasional rejection by national courts of immunity claims of international organizations, from the 2001 report by the Ombudsman in Kosovo (discussed above, §1611) and from the reserve of NATO members ‘to flee into the organization’, and to hide behind NATO’s legal personality in the cases before the ICJ and the European Court of Human Rights. It is therefore timely that the ILC has started to address the subject of the responsibility of international organizations. Without proper solutions for responsibility and liability questions it will become increasingly difficult for international organizations to perform their functions.

420.

As has also been discussed in Chapter 5 (see e.g. §556, §700).

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§1683. The tin crisis put to the test the status of international organizations as international legal persons. Would the series of legal proceedings initiated by brokers and banks lead to the implosion of the Tin Council as a distinct legal entity? The end result has been that the Council has retained its independent status; the veil of the organization has remained unpierced. And the legal debate following the tin crisis appears to have yielded large consensus on the issue of liability of international organizations and a possible secondary liability of the member states. In case of default of an organization, there is an obligation for members to put the organization in funds to meet its liabilities, but no obligation exists for members to compensate creditors directly. Nevertheless, this crisis has clearly indicated that organizations such as the Tin Council, as independent international legal persons, are vulnerable and remain highly dependent on the member states. Furthermore, to the extent that the crisis has led to the more frequent inclusion of provisions limiting or excluding the liability of member states, the advantage of increased legal certainty has to be weighed against the weakened position of such organizations in commercial affairs. §1684. The status of international organizations in national law has been less controversial than in international law, for state sovereignty was less threatened. But here also the functions of international organizations are used as key indicators to determine their status more closely. Many constitutions provide that the organization is to enjoy the legal capacity necessary to exercise its functions. Other constitutions stipulate more specifically that the organization is to possess legal personality and have the capacity to contract, to acquire and dispose of movable and immovable property and to institute legal proceedings, but the scope of these capacities is usually also related to the organization’s functions. These functions are also the basis for granting privileges and immunities to international organizations and the standards by which their scope is usually determined. Of course the often broadly circumscribed functions of an international organization do not give ready-made answers to daily questions of privileges and immunities, or to the granting of waivers. But they offer at least the key to finding such answers. §1685. Finally, the notions of function and state sovereignty shed some light on issues concerning dissolution of and succession between international organizations. With regard to succession, we may call to mind Meyers’ conclusion that the peculiarity surrounding succession between international organizations is that it relates essentially to the transfer of functions, rather than of private rights and obligations which characterizes succession in municipal law. As far as the dissolution of international organizations is concerned, the predominant position of the member states in relation to ‘their’ organization is clear. No matter how independent the organization, if the member states consider it no longer useful, its last hour has come. Nevertheless it is remarkable how often part or even most of the organization’s functions are taken

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over by other organizations. States can remove the instrument, but in many cases not the functions involved. The forces of interdependence have proved in a number of cases to be stronger than the attributes of sovereignty.

Chapter 12

External relations

§1686. In the previous chapter, it was concluded that most international organizations are international legal persons, which means that they have the capacity to enter into international relations. This chapter analyzes the external relations of international organizations more closely. It is divided in two main parts. In the first part (Part I) we shall consider the partners with which external relations are maintained: states and international organizations. Special attention is paid to the issue of coordination between organizations (Section B.2.). In Part II we shall investigate the instruments used to conduct external relations. In demonstrating the similarity to the instruments employed by states, an argument will be adduced to support the view expressed in the previous chapter, that a number of rules applicable to states can also be applied to international organizations.

I.

Partners for external relations

A.

Relations with states

1.

Non-members

§1687. Most international organizations only maintain contact with their own members. The main exception is the European Community, which has developed an extensive web of relations with non-members through trade, association and other agreements (see below, §1779 ff.). Apart from the EC, only a very limited number of organizations have entered into relations with nonmembers. If they need to approach non-members, they can usually do so through their members.1 If non-members are sufficiently interested in the work of the organization, they can become members, partial members, or associate members (depending on the rules of the organization, see Chapter Two). There are cases, however, where this is not possible, but where some relationship is nevertheless necessary between an international organization and a non-

1.

For examples, see J. Gold, The FUND and non-Member States, Some Legal Effects, FUND Pamphlet Series No. 7 (1966).

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member. For example, a state may not qualify for any form of membership. Often, they may then become observers to meetings, which permits nonmembers to participate in the work of the organization (see above, §180-184). The practical importance of such observers varies. Observers from states which cannot become members for political reasons (such as the German Federal Republic in the UN until 1973) are of greater importance than observers from states which are too small for membership (such as Monaco in the UN before 1993 when it was admitted as a member). Non-member states may be affected by the activities of international organizations. Non-members of technical organizations such as UPU and ITU usually apply most of the rules of those organizations in the same way as members. They cannot afford to use basically different systems for their international mail or telecommunications. In such cases, the non-members are at a disadvantage by being unable to participate on an equal footing in the formulation of the rules. As far as possible, the organization should take account of the special problems encountered by non-members, to ensure the universal application of its rules. 2.

Members

§1688. Relations with members may be internal or external. Members form elements of the organization: their activities in that capacity are internal (see above, §66). They may also be counterparts to the organization, in which case the relation is external. An example of the latter is the relationship laid down in the agreements which many international organizations conclude with their members on technical assistance (see below, §1771). In its relationship with an international organization, member states are generally entitled to designate the points of contact for cooperation with the organization. In the case of the UN this is usually, but not exclusively, the Foreign Ministry.2 3.

Host states

§1689. There is a special external relationship between the organization and the host state, which usually is one of the members. Examples of non-members acting as hosts to international organizations are Austria, host state of OPECand the United Kingdom, host state of most commodity councils, including some of which it is not a member. In addition, Switzerland has long been one of the host states of the UN before it became a member in September 2002. Within the host state, the organization usually has special relations with the city in which it has its headquarters. Such relations are of particular importance for practical

2.

UNJY 1986, at 317-318.

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issues with which the organization is confronted: garbage and snow removal, as well as the supply of other public services such as public transport, drainage and fire protection.3 Relations with the host city usually exist at a practical level, while official relations are maintained through the Foreign Ministry of the host state. Only exceptionally contacts with the host city take place at an official level. An example is the invitation of mayor Giuliani of New York by the UN General Assembly in 2001. Mr. Giuliani addressed the Assembly on 1 October 2001, at the opening of the debate on terrorism following the terrorist attacks of 11 September.4

§1690. In many cases, rules governing the relations between the organization and its host state have been laid down in a headquarters agreement (see above, §469-477).5 Further rules have often been included in special agreements; for example, the UN has often concluded an agreement in the form of an exchange of letters to obtain permission from the host state to establish and operate telecommunications facilities on the territory of that state. The UN Secretariat takes the view that without such permission it does not have such a right.6 Even in the absence of such agreements,7 the organization will be under a general obligation to respect the law of the host state.8 The host state, on the other hand, is obliged to facilitate the work of the organization as much as possible, to respect the inviolability of its buildings and archives, and to grant the organization immunity from legal process and from taxation of its

3. 4.

5.

6. 7. 8.

See A.S. Muller, International Organizations and Their Host States – Aspects of Their Legal Relationship (1995), in particular at 142-145. See the New York Times, 2 October 2001, reporting that Giuliani was “the third New York mayor ever to address the General Assembly […]. The last was in 1952, when mayor Vincent R. Impellitteri spoke at the opening of the United Nations headquarters on the East River”. These agreements do not always carry the name “headquarters agreement”. Other names for the same phenomenon are “seat agreement” (e.g. Council of Europe and France) and “agreement concerning the legal status” (e.g. agreement concluded between the ILO and Switzerland). See further on the name and definition of these agreements: Muller, op. cit. note 3, in particular Chapters 1 and 2. The headquarters agreements of the organization of the UN family have been published in the UNTS (see cumulative indices), e.g. UN in 1 UNTS, at 153 (Switzerland), 11 UNTS, at 347 (USA), 314 UNTS, at 49 (Chile), 317 UNTS, at 101 (Ethiopia), IAEA in 339 UNTS, at 152. Many headquarters agreements or their most relevant articles have been published in UN Documents ST/LEG/SER B/10 (sales No. 60. V.2) and ST/LEG/SER.B/11 (sales No. 60.V.3). See also UN Documents A/CN.4/L.383 and Add. 1-3 (1985) and ST/LEG/17 (1987). See further M. Brandon, The Legal Status of the Premises of the United Nations, in: 28 BYIL 90-113 (1951); P. Cahier, Étude des Accords de Siège conclus entre les Organisations internationales et les États où elles résident (1959); J. Duffar, Contribution à l’Etude des Privilèges et Immunités des Organisations Internationales (1982); R. Zacklin, Diplomatic Relations: Status, Privileges and Immunities, in R.-J. Dupuy (ed.), A Handbook on International Organizations 179-198 (1988); J.-M. Dufour, De l’Exterritorialité à l’autonomie internationale: à propos des relations de l’Organisation Intergouvernementale avec l’Etat-hôte, in: Mélanges Michel Virally 243-256 (1991); P.H.F. Bekker, The Legal Position of Intergovernmental Organizations (1994); Muller, op. cit. note 3. See UNJY 1991, at 333-334. Examples are Benelux and the Danube Committee. For example, for this reason all armed security officers of the UN in New York need to obtain a New York City firearm license. See UNJY 1986, at 309-317.

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income and assets (see above, §1606-1612).9 It also seems beyond doubt that the host state will have to admit to its territory the representatives of the members that wish to attend meetings of the organization, and to grant at least certain privileges and immunities to them (see above, §327-331, and below, §1804). Several states which are hosts of regional committees or regional conferences in the Middle East, have, however, denied admission to delegates from Israel. This denial has impeded the work of the regional committee for the Mediterranean of the World Health Organization and, until 1973, even made the creation of a regional economic committee of the UN for the Middle East impossible.10 The obligation to admit representatives from members follows logically from the hospitality which the host state grants the organization which is composed of those members. The obligation to admit observers from nonmembers follows less directly from that hospitality. In most cases, an express agreement between the organization and the host state seems to be required as a legal basis for admission to the seat of the organization for individuals who do not form part of members’ delegations (see above, §332, and below, §1811). In 1988 Chairman Arafat of the Palestine Liberation Organization was invited to address the UN General Assembly during deliberations on the issue of Palestine. The US however refused to give a visa to Arafat. It claimed that Arafat represented a security threat and based its refusal on the national security clause of its Public Law 80-357 (containing the UN-US headquarters agreement).11 According to the UN Legal Counsel the refusal to grant a visa was a violation of the unrestricted right of access to the UN headquarters district for persons invited by the UN, as laid down in Sections 11-13 of the headquarters agreement.12 This agreement does not contain a security clause giving the unilateral right to the host country to prohibit UN invitees to enter US territory. The US was widely criticized for its violation of the headquarters agreement. In the end the only alternative for the General Assembly was to reconvene in Geneva.13 Host states may have to face all kinds of dilemmas when international organizations on their territory issue invitations. For example, a number of nationals of the Federal Republic of Yugoslavia were mentioned on the EU ‘black list’ of persons to whom EU

9.

10. 11. 12. 13.

The UN established a Committee on Relations with the Host Country (GA Res. 2819 (XXVI)). This Committee discusses, inter alia, the following topics: the question of security of missions and the safety of their personnel, entry visas issued by the host country, exemption from taxes, housing for diplomatic personnel and for Secretariat staff (see e.g. UN Doc. A/47/26; A/56/26). R. Goy, L’accès au siège des organisations internationales, 66 RGDIP 357-370 (1962). US Department of State, Statement on the visa application of Yasir Arafat, reprinted in 83 AJIL 253 (1989). See the statement by Legal Counsel Fleischhauer, UN Doc. A/C.6/43/7. GA Res. 43/49. See for a more detailed analysis of this case W.M. Reisman, The Arafat Visa Affair: Exceeding the Bounds of Host State Discretion, 83 AJIL 519-527 (1989); S. Sadiq Reza, International Agreements: United Nations Headquarters Agreement – Dispute over the United States’ Denial of a Visa to Yasir Arafat, 30 HILJ 536-548 (1989).

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members would not issue visas.14 Several of these persons (e.g. Mirjana Markovic, the wife of former President Milosevic who now resided in the UN detention unit in The Hague) applied for visas to the Netherlands’ authorities. To the extent that there were conflicting obligations for the Netherlands, the obligations under the headquarters agreement were allowed to prevail over those under EU law.

B.

Relations with other international organizations

1.

“Families” of international organizations

§1691. The term “family of international organizations” is used when mutual relations are stronger than the occasional exchange of information, a partly overlapping membership or an agreement to send observers to each others meetings.15 In a family of organizations, tasks are divided and each organization plays a role in the larger unit formed by the family. There must be some institutional links between the organizations, which may be common organs, and, in principle, (potential) uniformity of membership. a.

The “UN family”

§1692. The founders of the UN considered whether they should establish one central organization embracing all activities, or a political organization only, leaving specialized cooperation to separate and independent organizations. They finally decided on functional decentralization.16 The functions of the UN were to be limited, and other organizations were to remain, or become, responsible for specific fields of international cooperation. However the specialized organizations were to be brought into a relationship with the UN. These became the “specialized agencies”17 and thus, an interrelated system of international organizations was founded: the organizations of the “UN family” or “the UN system”.18

14. See OJ L 287/1 (2000); OJ L 57/3 (2001). 15. Cf. S. Bastid, Sur quelques problèmes juridiques de coordination dans la famille des Nations Unies, in Mélanges Reuter 75-101 (1981), who observes that the notion of UN family “peut évoquer suivant les circonstances le noeud de vipères [– nest of vipers –] ou la chaleur confiante [the confident warmth] du foyer” (at 75). 16. On the advantages of functional decentralization see D. Mitrany, A Working Peace System (1943). 17. UN Charter, Arts. 57 and 63. For a comparative study of the constitutions of the specialized agencies, see H.G. Schermers, De gespecialiseerde organisaties, hun bouw en inrichting (1957). See also J.-L. Mathieu, Les Institutions spécialisées des Nations Unies (1977); A.H. Zarb, Les institutions specialisées du système des Nations Unies et leurs membres (1980); D. Williams, The Specialized Agencies and the United Nations – The System in Crisis (1987). 18. J. Dagory, Les rapports entre les Institutions specialisées et l’ONU, 73 RGDIP 285-377 (1969); N.D. White, The United Nations System – Toward International Justice (2002).

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There were several reasons for keeping the specialized agencies separate from the UN itself: (1) It was not certain that the UN could launch itself successfully. As occurred in relation to the League of Nations, one or more important states might have remained aloof. Technical cooperation should not have been made dependent on the success of the UN. (2) Technical cooperation was to be isolated from general political cooperation. In one centralized organization, the political issues might have attracted disproportionate attention and financing and thereby hampered smooth cooperation in technical areas. (3) Not all members of the UN might have been willing to participate in every form of technical cooperation; certain non-members might be suitable participants in technical projects. By separating the organizations, membership could be allocated accordingly.19 (4) Technical cooperation was, and is, usually directed by the appropriate government departments. This promotes expert knowledge of the issues and a like-mindedness of the officials involved.20 The success of international cooperation would have been threatened if national experts were to be deprived of ultimate responsibility for these activities.21 §1693. It has been doubted whether this functional decentralization between the UN and the specialized agencies is still the best structure, now that the tasks of the organizations have greatly increased, particularly in the field of development assistance, in which one unified organization might be stronger and more effective.22 The ideal of keeping political discussions outside the specialized agencies has not fully been realized. Problems such as the representation of China and the South African apartheid policy have been widely discussed within the specialized agencies. Nevertheless, many of the arguments for keeping the organizations separate retain their validity. The separate development of each agency makes it very difficult to alter the 1945 decision by merging the organizations of the UN family into one organization. In 1973, the Economic and Social Council of the UN (ECOSOC) decided to review the agreements between the UN and the specialized agencies with a view to strengthening the coherence of the system.23 A report was prepared24 but none of the agreements have been amended. Since then many attempts have been made to improve coordination and promote unity within the UN family,

19. C. Wilfred Jenks, Coordination: a new problem of International Organization, 77 RdC 157-303 (1950 II), at 172-173. 20. See also C. Fred Bergsten, Interdependence and the Reform of international institutions, 30 International Organization (1976), at 362. 21. See A.H. Robertson, The Council of Europe 216 (2nd ed. 1961). 22. Jackson Report, UN Doc. DP/5, Vol. I, at iv, Vol. II, at 291-292, 298, 301. Cf. also P. Szasz, The Complexification of the United Nations System, 3 Max Planck UNYB 1-57 (1999). 23. ECOSOC Res. 1768 (LIV) V; ECOSOC Res. 1906 (LVII). 24. UN Doc. E/5524.

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but no serious initiatives have been taken to bring about a structural change of the present system of functional decentralization. For the International Court of Justice ‘functional decentralization’ was one of the two reasons why it did not consider the World Health Organization competent to request an advisory opinion from the Court on the question whether the use of nuclear weapons by a state be a breach of its obligations under international law. The Court took the view that the responsibilities of the World Health Organization “are necessarily restricted to the sphere of public ‘health’ and cannot encroach on the responsibilities of other parts of the United Nations system. And there is no doubt that questions concerning the use of force, the regulation of armaments and disarmament are within the competence of the United Nations and lie outside that of the specialized agencies”.25 §1694. The centralizing arguments desired from the need for well-coordinated development assistance find their counterbalance in the desire for autonomy and decentralization within the administrations of the organizations.26 Therefore, some younger organizations have queried whether it would be advantageous to become a specialized agency. For example, after the establishment of the World Intellectual Property Organization in 1967, a number of (developed) member states feared that, if the WIPO would become part of the UN family, this would induce more developing countries to become members. They might then form the overwhelming majority of the members, and would try to weaken the international protection of intellectual property. However, in the end, it was generally recognized that the advantages of the status of specialized agency were more important than this fear. Three such advantages were seen. First, WIPO’s objectives would receive worldwide recognition. Secondly, many developing countries were expected to join WIPO (only a few of these countries participated in WIPO’s predecessor). Thirdly, there would be no need to deal with the fixing of salaries, other working conditions and pensions of staff, etc., since salaries and pensions would automatically follow the so-called common system of the UN.27 The following organizations belong to the UN family as specialized agencies:28 International Labour Organization (ILO); Food and Agriculture Organization of the United

25. Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion requested by the WHO, ICJ Rep. 1996, at 81 (para. 27). On this opinion and the ‘functional decentralization’ argument as used by the Court, see N.D. White, The World Court, the WHO, and the UN System, in N.M. Blokker and H.G. Schermers (eds.), Proliferation of International Organizations – Legal Issues 85-109 (2001). 26. See e.g. YUN 1974, at 477. 27. A. Bogsch, Brief History of the First 25 Years of the World Intellectual Property Organization 18-19 (1992). 28. According to the UN Charter, Arts. 57, 63. In addition, the World Tourism Organization has requested to be transformed into a specialized agency (see UN Doc. E/2002/5; see for

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Nations (FAO); United Nations Educational, Scientific and Cultural Organization (UNESCO); World Health Organization (WHO); International Civil Aviation Organization (ICAO); International Maritime Organization (IMO); World Meteorological Organization (WMO); Universal Postal Union (UPU); International Telecommunications Union (ITU); International Monetary Fund (IMF); International Bank for Reconstruction and Development (IBRD); International Finance Corporation (IFC); International Development Association (IDA); World Intellectual Property Organization (WIPO); International Fund for Agricultural Development (IFAD); United Nations Industrial Development Organization (UNIDO). Apart from the UN and the specialized agencies, the UN family has other members: The International Atomic Energy Agency (IAEA) is closely related to the General Assembly of the UN. As it has made an agreement with the General Assembly and not with the ECOSOC, it does not, technically, fulfil the conditions for becoming a specialized agency.29 But, for all practical purposes, it is in a similar position. The World Tourism Organization entered into an agreement with the UN through negotiations with the ECOSOC, but, under this agreement, the status of a specialized agency was not granted.30 The General Agreement on Tariffs and Trade (GATT) was created in 1947 as a temporary arrangement, pending the creation of the International Trade Organization. Originally, the GATT had no organs of its own. It gradually developed into an international organization similar to a specialized agency, without ever obtaining such status.31 In 1994 the World Trade Organization was set up. Its constitution does not reflect any intention of making this organization a specialized agency of the UN. The same is true for other organizations such as the Organization for the Prohibition of Chemical Weapons (created in 1993),32 the International Seabed Authority (created in 1982, task substantially changed in 1994)33 and the International Criminal Court (created in 1998).34 This is different for the Common Fund for Commodities, the constitution of which stipulates that the organization may enter into negotiations with the UN to seek the status of a specialized agency,35 and for the IFAD (now a specialized agency), the constitution of which provides that the Fund shall enter into such negoti-

29.

30. 31.

32. 33. 34. 35.

the text of a draft Agreement between the United Nations and the World Tourism Organization, UN Doc. E/2003/60, Annex). G. Fischer, L’accord entre l’ONU et l’Agence internationale de l’Énergie atomique, 3 AFDI 375-383 (1957); D.W. Caufield, The IAEA and its Relationship to the UN (1959); W.H. Balekjian, Les rapports de l’Agence Internationale de l’Énergie Atomique avec les autres organisations internationales, 69 RGDIP 76-100 (1965). The agreement was approved by the General Assembly of the UN in Res. 32/156. See UN Doc. A/32/45, at 93-94. See also UNJY 1977, at 215-216. K.W. Dam, The GATT as an International Organization, 3 JWTL 374-389 (1969). See also W. Benedek, Die Rechtsordnung des GATT aus völkerrechtlicher Sicht (1990), in particular at 264-269; J.H. Jackson, Restructuring the GATT System (1990). While not a specialized agency, the OPCW concluded a cooperation agreement with the UN, see the Annex to GA Res. 55/283. While not a specialized agency, the International Seabed Authority entered into a relationship with the UN through the 1997 Relationship Agreement; see Annex to GA Res. 52/27. While the Court will not become a specialized agency, Art. 2 of its Statute provides for the conclusion of a relationship agreement with the UN. Agreement establishing the Common Fund for Commodities , Art. 29.1. See also the Fund’s 1993 annual report, at 41.

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ations.36 There is no common name or status for the above mentioned organizations that are not specialized agencies. In particular, there is no such status as ‘organization affiliated with the UN’, although that term may be used in practice.37

§1695. There are also minors in the UN family: institutions which operate more or less autonomously but have no independent international legal personality (see above, §38). Formally they are organs, but they enjoy enough independence to operate as separate bodies. They may even have their own membership. These institutions have often been established as organs of the General Assembly, as a form of political compromise. Some states wanted independent international organizations, others objected to anything more than an organ of the UN. Many feared that the latter group – whose cooperation was considered essential – would not ratify treaties constituting separate organizations. Thus, an “independent organ” proved to be an acceptable compromise.38 The following could be considered as examples of minors of the UN family: the United Nations Development Programme (UNDP); the United Nations Children’s Fund (UNICEF); the United Nations High Commissioner for Refugees (UNHCR); the United Nations Institute for Training and Research (UNITAR); the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA); the United Nations Conference on Trade and Development (UNCTAD); the United Nations Capital Development Fund (UNCDF); the International Narcotics Control Board; the World Food Programme (WFP, see below, §1716); the United Nations Environment Programme (UNEP) and the United Nations Fund for Population Activities (UNFPA). Except for the WFP, of which both the Food and Agriculture Organization and the UN are the responsible parents, all the institutions mentioned fall within the jurisdiction of the UN. The United Nations Industrial Development Organization (UNIDO) was set up as an independent organ of the General Assembly in 1966. Thirteen years later, it was decided to change UNIDO into a specialized agency. In April 1979, a diplomatic conference adopted a treaty containing the constitution of UNIDO as an independent international organization. This treaty entered into force in 1986. In December 1985, the Economic and Social Council of the UN and the UN General Assembly approved the agreement between the UN and UNIDO, in which the latter was recognized as a specialized agency within the UN system.39 The regional economic commissions of the UN also enjoy a large degree of autonomy within the UN family.

§1696. Most of the agreements between the UN and the specialized agencies are quite similar. The agencies agreed to submit to their decision-making

36. IFAD, Art. 8.1. 37. UNJY 1995, at 417-418. 38. See e.g. proceedings of the UN Conference on Trade and Development (Geneva), 23 March16 June 1964 (UN Doc. E/Conf. 46/141), Vol. I, at 233-234. See in general Szasz, op. cit. note 22. 39. ECOSOC Res. 1985/81; GA Res. 40/180. For the text of this agreement, see YUN 1985, at 593-597.

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organs all recommendations which the General Assembly or the Security Council addressed to them. In the case of decisions of the Security Council concerning the maintenance or restoration of international peace and security, they even agreed to render such assistance as the Security Council might request. They also agreed to the coordination of their activities to prevent duplication of administrative and technical services and recognized the desirability of a single unified international civil service. They also approved the full and prompt exchange of information and documents. In addition, most of these agreements authorize the specialized agencies to request advisory opinions from the International Court of Justice, which is of course a principal organ of one of the parties to the relationship agreement. In these authorizations questions relating to the relationship between the agency concerned and the United Nations or any specialized agency are excluded.40 Somewhat surprisingly, the existence of this provision in the agreement between the UN and the World Health Organization did not prevent the Court in its 1996 WHO Nuclear Weapons Advisory Opinion to take into account in its considerations the relationship between the two organizations within the UN system of functional decentralization (see above, §1693). The agencies agreed to consult with the UN on the preparation of their budgets and to conform as far as practicable to standard practices recommended by the UN.41 The agreements between the UN and most of the specialized agencies provided for consultation concerning appropriate arrangements for the inclusion of the budgets of the agencies within the general budget of the UN. The resulting consultations, however, led to the conclusion that the difficulties in merging the budgets were insuperable at that time.42 There was the constitutional problem for the agencies of transferring budget-making powers from their general congresses to the General Assembly. For the UN, the extra responsibilities would have necessitated enlargement of national delegations to the General Assembly to include the necessary specialist knowledge. The sessions of the General Assembly would probably have had to be lengthened, owing to the substantial increase in work. Furthermore, there was the problem of divergent membership. After this failure, efforts have sometimes

40. The same is done in the 2001 Agreement concerning the Relationship between the UN and the OPCW (see Annex to GA Res. 55/283), Art. VII.1, and in the proposed relationship agreement between the UN and the World Tourism Organization (UN Doc. E/2003/60), Art. 10. 41. For the texts of the agreements, see UN Doc. St/SG/1 (Sales No. 1951.X.1), 281 UNTS, at 369 and 338 UNTS, at 407 (for IAEA) or UN Doc. E/5524/Add. 4. For the agreement of IFAD, see UN Doc. A/32/45, at 86-88. For a short survey, see GAOR 21st session, Annexes item 80, at 75-77, and H. Chiu, The Capacity of International Organizations to Conclude Treaties, and the Special Legal Aspects of the Treaties so Concluded (1966), at 132-135. For the IAEA, see Balekjian, op. cit. note 29, at 83-85, 88-93. For references to the relationship with the UN in the constitutions of the specialized agencies, see Chiu, op. cit. above, at 124-127. 42. Jenks, op. cit. note 19, at 228-238 (para 108). See also UN Documents A/394/Rev.l; A/404; A/449; A/494; and A/497.

1081

External relations

§1697

been made to achieve better harmonization of budgetary policies.43 Indeed, a consolidated budget has largely been achieved in the United Nations Development Programme (UNDP), in which many operational activities of the specialized agencies are brought together. For some specialized agencies, the amount of UNDP funds channelled through the agency exceeds the amount of their regular budget.44 Some agreements include special provisions. The World Bank and the IMF are less closely related to the UN than the other agencies. Their agreements expressly provide that they shall be independent international organizations.45 Until its amendment in 1962, the agreement between the UN and UNESCO provided that the admission of non-UN members to UNESCO required the prior approval of the ECOSOC.46 According to the agreement between the UN and ICAO, the General Assembly of the UN has a right to veto ICAO membership applications from states which fought against the members of UN during the Second World War.47

§1697. Besides these relations with the UN, the specialized agencies maintain links between themselves. Many agreements have been concluded between specialized agencies to foster mutual contacts.48 For example, the World Meteorological Organization concluded working arrangements with eight other agencies;49 there are special cooperative arrangements between the World Bank and the IMF, between the IMF and the WTO,50 and between the WIPO and the WTO.51 Additionally, many agreements and arrangements govern collaboration between members of the UN family on specific projects.52

43. 44. 45. 46.

47.

48.

49. 50.

51. 52.

See e.g. GA Res. 2748 (XXV), para 5. Jackson Report (UN Doc. DP/5), Vol. II, at 14-15. In both agreements, Art. I, para. 2. Agreement between the UN and UNESCO (original text), Art. 2. On the amendment, see O. Lefranc, Les problèmes juridiques posés devant la XIIe session de la Conférence Générale de l’UNESCO, 8 AFDI 654-657 (1962). Agreement between the UN and ICAO, Art. 2, see also ICAO, Art. 93. The reference to “Members of the United Nations” in Art. 92 of the ICAO constitution is not a reference to the UN, as the UN did not yet exist at the date of signature of the ICAO constitution, but to the nations allied in the Second World War. See e.g. ILO and FAO, 18 UNTS, at 335; WHO and UNESCO, 44 UNTS, at 323; ILO and WHO, 19 UNTS, at 269, UN Doc. E/873; FAO and UNESCO, 43 UNTS, at 315, UN Doc. E/604; IAEA Doc. UNFCIRC/20 and Add. 1 for seven agreements between specialized agencies on the one hand and the IAEA on the other. Chiu, op. cit. note 41, at 135-136; Inter-Agency Agreements and Agreements between specialized agencies and other intergovernmental Organizations, UN Doc. ST/SG/3 (1953). See WMO Publication No. 60 (Basic Documents No. 3), Agreements and Working Arrangements with other International Organizations (1988), Chapter II. See D. Ahn, Linkages between International Financial and Trade Institutions – IMF, World Bank and WTO, 34 JWT 1-36 (August 2000); D.E. Siegel, Legal aspects of the IMF/WTO relationship: the Fund’s Articles of Agreement and the WTO Agreements, 96 AJIL 561-599 (2002). See for the text of the 1995 agreement between these organizations, UNJY 1995, at 356-359. See UN Doc. E/5524/Add 4, at 13-28. On the competence to make further agreements, see, e.g. UNIDO, Art. 19.

§1698

b.

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The European Union

§1698. The European Union forms an integrated union of international organizations. Unlike the UN family, this union was not established by mutual agreements, but originally by the three Communities (ECSC, EC and Euratom) with the same members and common organs. Two of the four principal organs (institutions) have been shared from the inception of the Communities (the European Parliament and the Court of Justice), the other two (the Council and the Commission) being made into common organs by the Merger Treaty.53 The Court of Auditors has been a common organ for the three Communities since its creation in 1975; the Treaty on European Union has upgraded this Court into the fifth institution of the Communities. The Economic and Social Committee is common to the European Community and Euratom;54 until its dissolution in 2002 the European Coal and Steel Community always had its own Consultative Committee.55 Other common organs are the Committee of the Regions56 and the European Investment Bank.57 Technical committees are separated by their nature, but several services, such as the information service, have been combined. The 1992 Treaty on European Union added two “pillars” to the existing pillar consisting of the three Communities: one containing provisions on a common foreign and security policy, the other concerning cooperation in the fields of justice and home affairs (now named “Provisions on police and judicial cooperation in criminal matters”).58 The Union is founded on the first pillar (the three Communities), and supplemented by the policies and forms of cooperation of the other two pillars.59 The Union can still be considered a family of organizations (see above, §27-28). Although the three pillars form part of the larger Union, the European Community and Euratom continue to exist as independent international organizations, based on separate treaties and with their own legal personality. In June/July 2003 the European Convention proposed in its Draft Treaty establishing a Constitution for Europe to change this structure and to make the Union more coherent by repealing the earlier treaties (including the EC and the EU Treaties) as from the date of entry into force of the Treaty establishing the Constitution.60

53. Treaty of 8 April 1965, which entered into force 1 July 1967 (OJ 152/2 of 3 July 1967). 54. EC, Arts. 257-262; Euratom, Arts. 165-170; Convention Relating to Certain Institutions Common to the European Communities (annexed to the EC and Euratom Treaties), Art. 5. 55. ECSC, Arts. 18-19. 56. EC, Arts. 263-265. 57. EC, Arts. 266-267. 58. Treaty of 7 February 1992 (OJ 1992, C 224), which entered into force 1 November 1993. 59. TEU, Art. 1. 60. Article IV-2 of the Draft Treaty, adopted by the European Convention on 13 June and 10 July 2003 (see Doc. CONV 850/03).

1083

c.

External relations

§1699

Inter-American organizations

§1699. The Charter of the Organization of American States (OAS) provides for relations between the OAS and specialized American organizations;61 these relations are defined by agreement. The specialized organizations enjoy the fullest technical autonomy, but they must take into account the recommendations of the OAS. The OAS has concluded agreements with the following six specialized organizations: Pan-American Health Organization; Inter-American Children’s Institute; Inter-American Commission of Women; Pan-American Institute of Geography and History; InterAmerican Indigenous Institute; Inter-American Institute for Cooperation on Agriculture.62

§1700. The Latin American Economic System (SELA, established in 1975) is a family in itself. The “Action Committees” which may be created by this organization are in fact independent international organizations, closely linked to SELA.63 They are flexible cooperation mechanisms which are dissolved once their objectives are fulfilled, or they may become permanent bodies of the system. As of 2003, there are no such Action Committees. However, two former Action Committees still function as cooperation mechanisms: the Latin American Technological Information Network and the Latin American Fisheries Development Organization.64 d.

Other families

§1701. There are, and have been other families of international organizations. Before the dissolution of the Soviet Union, there was the Council for Mutual Economic Assistance (CMEA) family in Eastern Europe, which embraced many smaller international organizations on individual technical subjects. Thus, it was possible to refer to the “specialized agencies of the CMEA”.65 In the socalled comprehensive programme of 1971, the members of the CMEA stipulated that agreements and protocols would be concluded between the CMEA and these organizations providing that the organizations would cooperate with the CMEA. In general, the CMEA was charged with coordination within the

61. OAS, Chapter XVIII (Arts. 124-130). 62. For brief descriptions, see Treaties and Alliances of the World, Keesing’s Publications Ltd. (1968), at 109; Zusammenschlüsse und Pakte der Welt, Siegler & Co. (1969), at 83. See also www.oas.org. 63. Website: www.sela.org or http://sela2.sela.org/WM2/WM10.ASP. 64. YIO 2003-2004, Vol. 1, at 1953. 65. R. Szawlowski, The International Organizations of the “Comecon Family”, (Osteuropa Recht No. 2, 1966).

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“CMEA family”.66 Before the centralization caused by the revision of 1962, the CMEA itself could be seen as a family, rather than as an organization.67 Besides the families mentioned above, there are some smaller families composed of only a few international organizations. Their relationship may be close such as that between the Organization for Economic Cooperation and Development (OECD) and the European Conference of Ministers of Transport. The latter organization was established by a separate treaty68 but is closely linked to OECD, which provides its staff and meets its expenses. A similar close relationship exists between the organizations of the World Bank Group:69 the World Bank, the International Finance Corporation (IFC), the International Development Association (IDA), the Multilateral Investment Guarantee Agency (MIGA), and the International Centre for Settlement of Investment Disputes (ICSID, see §653). IFC and IDA make use of the organs and staff of the Bank and their members must be members of the Bank.70 MIGA has a separate Board of Directors, but most of the members of this Board are also Executive Directors of the World Bank. The President of the World Bank is also ex officio the President of the boards of each affiliate.71 Seventeen specialized Arab organizations have close links with the League of Arab States.72 These include the Arab Labour Organization, the Council for Arab Economic Unity and the Organization of Arab Petroleum Exporting Countries. 2.

Coordination

a.

The need for coordination

§1702. In the work of international organizations, there is considerable risk of duplication, gaps or even conflicts. Coordination is therefore required at all levels. Within each organization, internal coordination is necessary to harmonize the work of the various organs. However, this form of coordination will not be discussed here as it does not concern the external relations of international organizations.

66. R. Szawlowski, The System of the International Organizations of the Communist Countries 104 (1976); A. Bloed, The External Relations of the Council for Mutual Economic Assistance 178-185 (1988); J.M. van Brabant, Economic Integration in Eastern Europe (1989), Chapter 8. 67. J. Caillot, Le CAEM, Aspects juridiques et formes de cooperation économique entre les pays socialistes 68-69 (1971). 68. Protocol Concerning the European Conference of Ministers of Transport, 17 October 1953 (184 UNTS, at 41; Peaslee, Vol. V, at 334-339). 69. See www.worldbank.org. 70. IFC, Art. II, Section 1, Art. IV; IDA, Art. II, Section 1, Art. VI. 71. IFC, Art. IV, Section 5(a); IDA, Art. VI, Section 5(a); MIGA, Art. 32(b). 72. B. Boutros-Ghali, La Ligue des États Arabes, 137 RdC (1972 II), at 45; M. Flory and P.-S. Agate (eds.), Le système regional arabe (1989); YIO 2003-2004, Vol. 1, at 1971.

1085

External relations

§1703

§1703. Practically all relations between international organizations concern coordination. There are hundreds of public international organizations (see above, §33), serving some 200 states. Each organization has its own functions and its own membership. It is inevitable that their powers, or even their operations, overlap. There are at least five reasons for such overlaps: (i) Several regional organizations have been established to undertake tasks also attributed to organizations of a universal character. (ii) Organizations in different regions do similar work. (iii) As not all states are members of all international organizations, there may sometimes be a need to perform activities within one organization which might otherwise fit better within another international organization. The absence of the Soviet Union from the FAO in the period 1949-1956 explains the UN’s decision to initiate studies on food and to participate in the World Food Programme. (iv) Some subjects are relevant to a number of different activities. Diseases contracted by farm labourers through radioactive waste, for example, are problems of health, radioactivity, agriculture and labour, and could therefore be studied by organizations in each of these fields. (v) Modern techniques may require cooperation between international organizations. Separate machinery for electronic data processing by different international organizations may be too expensive. One good computing centre for a group of organizations is more efficient.73 §1704. In many respects, international organizations operate in a similar way to the technical departments of national governments, but without the central authority to allocate tasks and settle conflicts of competence. After the First World War, there was an attempt to create such a central authority in the form of the League of Nations,74 but this organization never succeeded in supervising all the others.75 By contrast, the UN accepted a decentralized structure for its cooperation with the specialized agencies (see above, §1692).76 While a number of arguments pled in favour of such a decentralized structure, it was recognized from the outset that this structure would face problems of coordination.77 Article 58 of the UN Charter accordingly provides: “The orga-

73. See e.g. YUN 1973, at 868-869. 74. LoN, Art. 24. 75. V.-Y. Ghébali, Aux origines de l’Ecosoc: I’évolution des commissions et organisations techniques de la Société des Nations, 18 AFDI 469-511 (1972). 76. UN Charter, Arts. 57-59, 63. 77. Coordination as a separate subject has mostly been studied within the UN family, where coordination problems have always been large. See Coordination of Economic and Social Activities, UN Studies No. 2, Carnegie Endowment (1948); Jenks, op. cit. note 19; C. Wilfred Jenks, Coordination in international organization: an introductory survey, 28 BYIL 29-89 (1951); R.J. Dupuy, Le Droit des Relations entre les Organisations internationales, 100 RdC (1960 II), in particular at 562-584; R. Socini, Rapports et Conflits entre Organisations européennes (Aspects européens No. 4, 1960); W.R. Sharp, The United Nations Economic and Social Council (1969), in particular at 94-165; M. Elmandjra, The United Nations System, An

§1705

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nization shall make recommendations for the coordination of the policies and activities of the specialized agencies”. Furthermore, the agreements between the UN and the agencies contain a number of provisions on the coordination of their various activities. More detailed rules have subsequently been developed in the UN organs responsible for coordination (see below, §1726-1728). Problems of coordination also arise in all regions, where no organs have been specifically created for coordination. Most coordination is achieved on the national level (see below, §1739-1741) or in informal talks between governments. The problems of coordination between the organizations of the UN family on one hand, and regional organizations on the other, are different again. Although universal organizations will usually claim priority, they may refrain from, or postpone, taking action if the matter concerned is being discussed in a regional organization.78 b.

Forms of coordination

§1705. Duplication of work is avoided by coordination. This is called “negative coordination”,79 as it tries to limit the work of one or more organizations. Since duplication of work is not too difficult to discover, negative coordination is the easiest type of coordination to arrange. “Positive coordination” on the other hand, involves the harmonization of the policies of various organizations, in their own respective spheres, to achieve maximum results.80 It may lead to new activities, to fill gaps between the work of different organizations, or may lead to diminution of the activities pursued by some. An important task of positive coordination is to ensure uniformity in the use of definitions, statistical data, reporting, etc. Harmonization of the methods of presenting data is vital to their usefulness.

Analysis (1973), at 115-209; M. Hill, The United Nations System: coordinating its economic and social work, UNITAR (1978); Bastid, op. cit. note 15; A. Lewin, La coordination au sein des Nations Unies: mission impossible?, 29 AFDI 9-22 (1983). 78. See E. Jimenez de Arechaga, La coordination des systèmes de l’ONU et de l’Organisation des États américains pour le règlement pacifique des différends et la sécurité collective, 111 RdC 423-526 (1964 I); A.H. Robertson, The Relations Between the Council of Europe and the United Nations, UNITAR (1972); M. Virally, L’organisation mondiale 294-299 (1972); A. Moussa, Rapports entre les Nations Unies et la Ligue des États Arabes, 29 REDI 67-124 (1973); R.A. Akindele, The Organization of African Unity and the United Nations; a Study of the Problems of Universal-Regional Relationship in the Organization and Maintenance of International Peace and Security, 9 CYIL 30-58 (1971); B. Andemicael, OAU and the UN: Relations between the Organization of African Unity and the United Nations (1976); B. Andemicael, Regionalism and the United Nations (1979); C. Dominicé, Coordination between universal and regional organizations, in Blokker and Schermers, op. cit. note 25, at 65-84. 79. Socini, op. cit. note 77, at 45-48. See also the report of the ad hoc UN Working Group on Coordination, UN Doc. E/3518. 80. Socini, op. cit. note 77, at 48-50.

1087

External relations

§1706

Positive coordination may go so far that a common project replaces the schemes of individual organizations (“concerted action”).81 But while such common activity may produce the best results, it cannot always be realized. A concert needs a conductor. Among “independent” organizations it may be difficult to find one that can be accepted by the others as bearing primary responsibility. Financial coordination is difficult. The activities of all international organizations are restricted by their financial resources and these are usually provided by the member states. One form of coordination might be for the members to restrict the activities of one organization to make extra funds available for new activities of another organization. This requires an evaluation of the usefulness of the activities of various international organizations, usually operating in different fields, a comparison which often proves very difficult at the international level. Within the UN family, several efforts have been made to facilitate financial coordination. Budget cycles are synchronized, for programme-budgeting comparable presentations are strived after,82 but still, coordination of activities through the means provided remains difficult. Accordingly, national coordination is essential when comparing the costs of the various activities (see below, §1739-1741). c.

Coordination at international level

§1706. Coordination at the international level can be provided for in the constitutions of international organizations. It may also be regulated in agreements between international organizations. The agreement is by far the most commonly used instrument for providing coordination, particularly among organizations of a universal character (see below, §1770). Sometimes constitutions expressly provide for such agreements,83 but coordination is often achieved without legal provision where the civil servants of various secretariats cooperate informally. The prestige of the international civil service may help to prevent duplication and stimulate collaboration, even in the absence of any legal obligation to this effect.84 Rivalry between secretariats, on the other hand, may seriously impede coordination. Magee attributed the poor relations which existed between the Organization of African Unity and the UN Economic Commission for Africa to a bitter rivalry between the executive heads of the two organizations.85

81. Sharp gives some examples, op. cit. note 77, at 123-146. 82. See Report of the Group of Experts on the Structure of the United Nations System, UN Doc. E/AC.62/9, at 35-36, paras. 116-125. 83. See Chiu, op. cit. note 41, at 124-127 (specialized agencies), and Socini, op. cit. note 77, at 70-75 (European organizations). 84. Socini, op. cit. note 77, at 56. 85. J.S. Magee, ECA and the Paradox of African Cooperation, 580 Int. Conc. 40-64 (1970), at 32.

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(i) Priority for the acts of one organization §1707. Certain international organizations expressly claim priority for their own acts, in the event of a possible conflict of competence with other international organizations. The Charter of the UN requires the members to give priority to their obligations under the Charter over any duties arising from another treaty.86 Since practically all other international organizations are based upon treaties, this means that, in cases of conflict, the UN can claim precedence. Some other constitutions have expressly recognized this precedence.87 This does not, however, prevent organizations from acting in the field concerned. Although the OAS has recognized the priority of the obligations imposed upon its members under the UN Charter, it also obliges its members to submit disputes to OAS procedures before referring them to the Security Council of the UN.88 Both organizations are still searching for a mutually beneficial form of cooperation.89 In the late 1980s, both organizations have cooperated successfully in the regional peace process in Central America.90

§1708. The constitutions of several regional organizations provide for some degree of primacy of (acts of) the organization over (acts of) other organizations in the same region. Article 47 of the 1992 Treaty on European Union provides that, subject to the amendments of the three EC Treaties and the final provisions in this Treaty, “nothing in this Treaty shall affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them”. The constitution of the OAS refers to the existence of other inter-American (specialized) organizations. They “shall enjoy the fullest technical autonomy, but they shall take into account the recommendations of the [-OAS-] General Assembly and Councils”.91 This indicates an intention to give some priority to the acts of the OAS.

86. UN Charter, Art. 103. An exception to this rule is found in Art. 107 of the UN Charter. The priority rule laid down in Art. 103 was used by the International Court of Justice to reject the request for provisional measures by Libya in the Lockerbie Cases, ICJ Rep. 1992, at 3 and id., at 114. 87. E.g. OAS, Art. 131; CoE, Art. 1 (c); NATO, Art. 7; see Jenks in 28 BYIL 61-62 (1951). 88. OAS, Art. 24. See Jimenez de Arechaga, op. cit. note 78. For this question in the OAU, see J. Woronoff, Organizing African Unity 151-152 (1970). 89. On the relations between the OAS and the UN (especially on peace keeping), see R.St.J. Macdonald, The Developing Relationship between Superior and Subordinate Political Bodies at the International Level, 2 CL 22-54 (1964) and G. Kutzner, Die Organisation der Amerikanischen Staaten (OAS) 189-199 (1970). 90. For example, an International Commission for Verification and Follow-Up was created, consisting inter alia of the Secretaries-General of the OAS and the UN (or their representatives) and the foreign ministers of the Central American countries. See The Blue Helmets 389-401 (UN publication, 2nd ed. 1990); W.J. Durch (ed.), The evolution of UN peacekeeping (1993), at 439 ff. 91. OAS, Art. 126.

1089

External relations

§1709

When establishing the North Atlantic Treaty Organization (NATO), each party declared that none of its international engagements was in conflict with the NATO constitution and also that it undertook not to enter into any international engagement conflicting with that constitution.92 Consequently, NATO obligations can take priority over other international obligations among NATO members.

§1709. Establishment of the priority of the law of one organization over that of another by a constitutional rule of the superior organization will be effective when all members of the inferior organization are, simultaneously, members of the superior one. When this is not the case, the other members of the inferior organization may object to such primacy. Whenever possible, questions of priority can better be settled in the constitution of the inferior organization. Certain constitutions expressly do so. The clearest example was offered by the Balkan Alliance.93 The relevant treaties of this organization expressly provided that they did not affect, and could not be interpreted as affecting in any way, the rights and obligations of Greece and Turkey deriving from the North Atlantic Treaty of April 1949.94 In a similar way, the constitution of the European Community gives precedence to the European Coal and Steel Community, Euratom and Benelux.95

§1710. The priority of one organization’s acts over those of another may also be stipulated in agreements between international organizations. Thus, the specialized agencies agreed to cooperate in carrying out decisions of the Security Council concerning the maintenance or restoration of international peace and security.96 §1711. Coordination between international organizations will also be promoted when an organization models its law on that of another organization. It is, for example, time-consuming and difficult to draft good rules of procedure; many international organizations have therefore copied the rules of the General Assembly of the UN. UN laws are often used as a model for other organizations. This means that the UN has some moral obligation to draft its laws in such a way that they can be applied more broadly than the instant case might

92. NATO, Art. 8. 93. Treaties between Greece, Turkey and Yugoslavia of 28 February 1953; 7 November 1953, 9 August 1954 and 2 March 1955, Peaslee, 2nd ed, Vol. I, at 50-65; 167 UNTS, at 22; 211 UNTS, at 237; 225 UNTS, at 234. 94. Treaty of 28 February 1953, Art 8; Treaty of 9 August 1954, Art. 10. 95. EC, Arts. 305, 306. 96. See e.g. Agreement with the ILO, Art. 6. The Agreements with FAO, UNESCO, ICAO and WMO are similar. WHO agreed to render such assistance as the Security Council may request. The World Bank and the IMF will only have due regard for Security Council decisions. UPU, ITU and UNIDO agreed to render all possible assistance to the UN. WIPO agreed to conform to standard practices of the UN (WIPO Agreement, Art. 16). Cf. UNJY 1990, at 311-312 (legal opinion by the legal service of the UNIDO Secretariat; UNIDO has to comply with binding decisions of the UN Security Council).

§1712

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1090

require. Problems can easily be caused when other organizations follow rules which have been made under the specific circumstances of a special situation occurring in the UN. In 1972, for example, the UN decided that the maximum contribution (that of the US) would be lowered from 30 to 25 per cent of the budget, but that this should not lead to an increase in the contribution paid by any other state. The UN was able to execute this decision in its scale for the contributions for 1974, after the admission of the two German states as new members in 1973 (see above, §994). The additional German contributions enabled the UN to lower the US contribution without any transitional period and without increasing the contribution of any other member. In the WHO and UNESCO, the Federal Republic of Germany was already a member. When these organizations used the UN assessment of contributions for 1974 as a model for their own assessments, some members had to pay a higher percentage to allow the percentage for the US to be reduced, a situation which was not intended when the UN rules were drafted.97

(ii) Delimitation of competences §1712. The coordination between the activities of international organizations will be facilitated when the competences of each organization are clearly delimited.98 The more vague the delimitation is, the greater the risk of conflict with other organizations. In families of international organizations, tasks should be divided as efficiently as possible even where not all constitutions contain clear provisions according competence. In the UN family, political questions should be brought before the UN and not before the agencies, despite the fact that the latter may not formally be incompetent to decide on such questions. At its sixteenth session, the UPU general congress referred to Articles 57 and 63 of the UN Charter and to the Agreement between UPU and UN, and decided to exclude all specific political questions from its debate.99 Some UN organs have extended their tasks to fields of operation of the specialized agencies even in absence of any formal arrangement between the organizations. In the 1970s, the relationship between the UN’s regional commission for Asia and the Pacific (ESCAP) and the FAO deteriorated. Both ESCAP and the FAO claimed competence in the field of food and agriculture activities in Asia and the Pacific. Clashing personalities undoubtedly played an additional role. These problems were solved within the framework of the UN’s Committee for Programming and Coordination (CPC), the principal ECOSOC/General Assembly organ responsible for coordination questions

97. See statement by F.E.R. Rhodius in the Fifth Committee of the General Assembly of the UN on 10 Dec. 1974, Verslag over de Negenentwintigste Zitting van de Algemene Vergadering der Verenigde Naties, Publication No. 109 of the Netherlands’ Ministry of Foreign Affairs, at 543-544. 98. See in general M. Ruffert, Zuständigkeitsgrenzen internationaler Organisationen im institutionellen Rahmen der internationalen Gemeinschaft, 38 AVR 129-168 (2000). 99. UPU Res. C 4 (1969), UNJY 1969, at 119-120.

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(see below, §1727). During the 23rd session of the CPC (May 1983), the FAO Director General (Saouma) and the Executive Secretary of ESCAP (Kibria) presented a joint statement in which they further specified their respective competences and announced steps to facilitate the harmonization of their work programmes.100 In the Council of Europe, the Committee of Ministers adopted the rule that other organizations be consulted before new projects are undertaken. If the other organizations are unable or unwilling to respond, the Council of Europe can itself take up the question without the risk of overlapping.101 On several occasions, the Council of Europe has suspended activities where they overlapped with activities by, for example, the European Communities. Conversely, the Communities have also suspended activities in view of the work done by the Council of Europe.102

§1713. It is important for competences to be defined clearly when new international organizations are established. A limitation of tasks becomes more difficult when vested interests have developed. International organizations have rarely transferred important sectors of their field of operations to other international organizations.103 The European Conference of Ministers of Transport provides a good example of a situation in which competence was limited on establishment. Its constitution contains the provision that studies will not be undertaken by the organization itself whenever it is possible to obtain them from another appropriate international organization.104

§1714. In practice, it is often difficult to limit competences clearly, as many issues can be subsumed under different headings and, therefore, may belong to the competence of different organizations. In such cases, mutual cooperation between the organizations concerned is vital if duplication is to be avoided. A conflict arose between the UN and the World Bank on the question of financial aid to Portugal and South Africa. On 15 December 1965, the General Assembly invited the specialized agencies to take the steps necessary to deny technical and economic assistance to the government of South Africa.105 On 20 December 1965, it requested all states and international institutions, including the specialized agencies, to withhold assistance of any kind from the governments of Portugal and South Africa until they renounced their policies of colonial domination and racial discrimination.106 On 21 December 1965, it appealed to all the specialized agencies, in particular the World Bank

100. 101. 102.

103. 104. 105. 106.

See UN Doc. E/AC.51/1983/3 and Add. 1. A.H. Robertson, Relations between the Council of Europe and the United Nations, 18 Eur.Yb. 93 (1970). J.-P. Jacqué, Cohérence ou divergences entre organisations européennes, in: Société Française pour le Droit International, L’Europe dans les relations internationales, unité et diversité 65-108 (1982), at 90. See H. Wiebringhaus, A propos du transfert de compétences entre organisations internationales. Le cas du transfert de certaines activités de l’UEO au Conseil de l’Europe, 7 AFDI 537-550 (1961). CEMT, Art. 11 (Peaslee V, at 337); Socini, op. cit. note 77, at 90. GA Res. 2054 A(XX). GA Res. 2105 (XX).

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and the IMF, to refrain from granting Portugal any financial, economic or technical assistance as long as the government of Portugal continued its current policy.107 On 29 March 1966, the President of the World Bank made the following statement: “The Bank’s articles provide that the Bank and its officers shall not interfere in the political affairs of any member and that they shall not be influenced in their decisions by the political character of the member or members concerned. Only economic considerations are to be relevant to their decisions. Therefore, I propose to continue to treat requests for loans from these countries (Portugal and South Africa) in the same manner as applications from other members”.108 Subsequently the World Bank entered into a number of agreements granting loans to Portuguese and South African companies.109 It apparently considered these loans as economic and financial affairs, falling entirely within its competence and not as political support to the countries concerned, which fall within the competence of the UN. In December 1966, the General Assembly again appealed to the World Bank to refrain from granting assistance to Portugal and South Africa.110 In a memorandum by the Secretariat of the UN,111 it was considered “highly material” to note that, on 13 September 1951, without any relevant amendment of its constitution, the World Bank stated that it would pay due respect to recommendations of the General Assembly made pursuant to GA Resolution 377 (V) “Uniting for Peace”. This was regarded as constituting proof that its constitution did not prevent the implementation of GA resolutions. In the same memorandum, the UN Secretariat observed: “The international institutions created after the Second World War were intended to work in harmony in the maintenance of international peace and security and not in conflict. In the circumstances, it seems incongruous that, on the one hand the General Assembly of the United Nations has found that the policies of certain states threaten international peace and security and that they are guilty of practices constituting “a crime against humanity”, and on the other hand, the World Bank feels bound to grant loans to those states on the basis solely of economic considerations”.112 In a further resolution, the General Assembly recommended that the Bank withdraw the loans,113 to which the Bank replied that it had no power to do so.114 The Agreement between the UN and the World Bank provides no basis for an imputation of an obligation on the part of the latter to follow UN resolutions. It may, however, be regarded as strong evidence of the permissibility of the Bank’s ability to take the action requested by the UN autonomously. A general obligation to bring its policy into line with that of the UN could be derived from the general principles underlying the functionally decentralized structure of the UN family. This general

107. 108. 109. 110.

111. 112. 113. 114.

GA Res. 2107 (XX). UN Doc. A/6825, at 8, referring to Art. IV, Section 10 of the World Bank constitution. UN Doc. A/6825, at 7. GA Resolutions 2184 (XXI), paras. 9 and 10; 2189 (XXI), paras. 6 and 9: 2202 (XXI), paras. 1 and 6. See also GA Resolutions 2270 (XXII) and 2311 (XXII) para. 4; YUN 1967, at 629-633 and 724-725; UNJY 1967, at 108-132. UN Doc. A/6825. Id., at 19-20. GA Res. 2426 (XXIII). In 1976 the General Assembly addressed a similar resolution to the IMF, see GA Res. 31/6 H 8. Letter of 17 December 1968, UN Doc. A/7446, reproduced in 8 ILM 444 (1969), endorsed by the Executive Directors of the Bank, see 8 ILM 1339-1340 (1969).

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obligation could form a basis for the Bank to act in conformity with the wishes of the UN whenever it is permitted to do so.115 After this incident, the World Bank gave no further loans to Portugal or South Africa while their colonial and apartheid regimes remained in place. A similar conflict arose between the UN and the ICAO when the General Assembly urged the members of the UN to refuse landing and transport facilities to Portuguese aircraft.116 For the members of ICAO, the execution of this recommendation would have violated the ICAO convention (Chicago 1944). Accordingly, ICAO objected to the GA Resolution.117 The members of ICAO resolved the conflict by giving priority to the binding rule of ICAO over the recommendation of the General Assembly. In the early 1980s South Africa’s application for IMF credit led to heated discussions between the General Assembly and the Fund. Before this application, the General Assembly had already “regretted” that the World Bank and the IMF continued “to maintain links with the colonialist racist minority regime of South Africa ... and that neither has taken the necessary measures towards the full implementation of the relevant resolutions of the General Assembly”. More specifically, the Assembly deplored “the persistent collaboration between the International Monetary Fund and South Africa, in disregard of repeated resolutions to the contrary by the General Assembly”, and called upon the Fund “to put an end to such collaboration”.118 When South Africa applied to the IMF for a credit of 1000 million special drawing rights, the Assembly adopted Resolution 37/2 (21 October 1982). It requested the Fund to refrain from granting any credits or other assistance to South Africa; urged IMF members to take appropriate action; urged the Security Council to consider the matter, and it requested the Secretary-General to undertake urgent consultations with the Fund. On 27 October 1982, the Secretary-General addressed a telegram to the Managing Director of the IMF, transmitting the text of Resolution 37/2 and indicating his wish to consult personally with the Managing Director. These consultations took place, and Resolution 37/2 was circulated to the Fund’s Executive Board. Nevertheless, on 3 November 1982, the Board approved South Africa’s application for credit. In a letter dated 8 November, the Managing Director informed the Secretary-General about the situation. He stressed, inter alia, that “... as recognized by the agreement between the United Nations and the Fund, the Fund is, and is required to function as, an independent international organization in accordance with its Articles of Agreement”. Furthermore, he noted that the Executive Board had reached the conclusion that the South African application fully met the requirements of the Fund’s articles and the policies on the use of the Fund’s resources, and emphasized that the approval by the Board did not imply that “other policies of South Africa” were endorsed.119 Again, the outcome of this incident may be considered as the consequence of the decentralized structure of the UN family, with

115. 116. 117. 118.

119.

See S.A. Bleicher, UN v. IBRD, A Dilemma of Functionalism, 24 International Organization 31-47 (1970); I.F.I. Shihata, The World Bank in a Changing World 99-104 (1991). GA Res. 2107 (XX), para. 7(d). 5 ILM (1966), at 486-487. GA Res. 36/52, paras. 6 and 7. See UN Doc. A/37/177, containing information provided by the specialized agencies about their implementation of this and earlier General Assembly resolutions concerning South Africa. The shortest reply was given by the IMF: “General Assembly Resolution 36/52 has been brought to the attention of the Executive Board of IMF”. See UN Doc. A/37/607, at 2.

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opportunities for consultations between the constituent parts, but with hardly any power for the primus inter pares to enforce its views.

(iii) Common organs §1715. From their inception, the three European Communities have had the same parliamentary and judicial organs. Since 1 July 1967, the Commissions and the Councils were also combined.120 There can be no doubt that functioning through the same institutions guarantees the most effective coordination of activities. Within the UN family, the absence of central institutions has been qualified as one of its main weaknesses. A group of experts recommended in 1975 that there should be a single governing body responsible for reviewing the operational activities of the UN system as a whole and that a single “Operations Board” should replace the governing councils of the individual programmes.121 In 1977, the General Assembly endorsed this recommendation and decided that it should be gradually executed.122 In 1979, however, the Assembly returned to this matter and merely decided “to give consideration to the establishment” of one such board.123 Subsequently, this proposal for a single governing body has not been implemented. §1716. Coordination in specific fields can be realized by creating common organs in which all the organizations involved are represented. These organs may have an advisory capacity, or the organizations may even delegate powers to them. Indeed, some have been created at the level of the decision-making organs. One example of a common organ with relatively extensive powers is the World Food Programme, created by the UN and the FAO in a field in which both organizations were operational. Under this programme, which commenced operations on 1 January 1963, contributions of food, cash and services are used for relief in emergencies, to assist in pre-school and school feeding and to implement economic and social development projects. The administration of the programme is carried out under the guidance of the Executive Board, which comprises 36 states, members of either organization, of which 18 are elected by the Economic and Social Council of the UN and 18 by the FAO Council.124 Similar common organs or joint committees exist in other fields where two organizations cooperate, for example the Codex Alimentarius Commission of the FAO and the

120. 121. 122.

123. 124.

Merger Treaty of 8 April 1965. Group of Experts on the Structure of the United Nations System, UN Doc. E/AC.62/9, at 4, 42, paras. 17, 143-145. GA Res. 32/197, Annex, paras. 30, 35. It was agreed, however, that the United Nations Environment Programme, the United Nations Children’s Fund and the World Food Programme would be excluded from the single operations board. GA Res. 34/213. See www.wfp.org, and UN Handbook 2002, at 193-194.

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WHO,125 the International Trade Centre of the WTO and the UN (acting through UNCTAD),126 the Intergovernmental Panel on Climate Change set up by the WMO and UNEP,127 the Joint WHO/FAO/UNEP/UNCHS Panel of Experts on Environmental Management for Vector Control,128 and the Joint Ministerial Committee of the Boards of Governors of the World Bank and the IMF on the Transfer of Real Resources to Developing Countries.129 Many more examples could be given.130 The FAO and the Economic Commission for Africa of the UN (ECA) established a common division for agriculture within the Secretariat of the ECA. Magee attributes

125.

126.

127.

128.

129.

130.

Following recommendations of the 11th session of the FAO Conference, the 29th session of the WHO Executive Board, and a Joint FAO/WHO Conference on food standards held in 1962, the Codex Alimentarius Commission was established to implement the Joint FAO/WHO Food Standards Programme. The purpose of this programme is to protect the health of consumers and to ensure fair practices in food trade, inter alia by preparing food standards. The main operating expenses of the Commission and its subsidiary bodies are paid from the budget of the Joint FAO/WHO Food Standards Programme, which is administered by FAO on behalf of the two organizations. See the procedural manual of the Commission (12th ed. 2001). Website: www.codexalimentarius.net. See YUN 1974, at 467, 1044; P.P. Kanthan, The legal limitations of GATT and UNCTAD – Towards mutual cooperation, 15 IJIL 63-78 (1975); UN Handbook 2002, at 334-336; www.intracen.org. On the legal status of the Centre, see UNJY 1990, at 271-272. Created in 1988 by the WMO Executive Council and the UNEP Governing Council as a joint body of WMO and UNEP. The Panel has to assess the scientific, technical and socio-economic information relevant for the understanding of the risk of human-induced climate change. See www.ipcc.ch, and UN Handbook 2002, at 219. In 1978, the WHO and FAO concluded three Memoranda of Understanding governing WHO/FAO collaboration in Rural Water Supply and Agricultural Development, in Wastewater Use in Agriculture, Forestry and Aquaculture and in the Prevention and Control of Water-borne and Associated Diseases in Agricultural Water Development Activities, respectively. In 1980 the latter Memorandum of Understanding was extended to include UNEP. In order to provide the necessary expertise, bringing together the various disciplines relevant to their cooperation, in furtherance of this tripartite Memorandum, WHO, FAO and UNEP established, on 3 March 1981, a joint WHO/FAO/UNEP Panel of Experts on Environmental Management for Vector Control. In 1990, the UN Centre for Human Settlements (Habitat) joined the Panel. The objective of the Panel is to strengthen collaboration between the participating organizations, and to promote collaboration between them and other appropriate international and national agencies, in their programmes and projects relating to the development of natural resources, agriculture and human settlements, urban water management and health promotion, and in the use of environmental management techniques for the control of disease vectors and the protection of human health and the environment. (Information obtained from the Secretary of the Panel, Jan. 1993; the secretariat functions are carried out by the WHO.) See for further information www.who.org. Established by parallel resolutions of the two Boards of Governors in October 1974. See J. Gold, The Relationship Between the International Monetary Fund and the World Bank, in: 15 Creighton Law Review 499-521 (1981-1982, No. 2), at 508. See for an early example e.g. YUN 1947-48, at 554, for a common organ established by the FAO and the Economic Commission for Europe of the UN in 1948. At that time the Soviet Union objected to such joint committees. See for more recent examples Szasz, op. cit. note 22, in particular at 43-45; N. Blokker, Proliferation of International Organizations: an exploratory introduction, in Blokker and Schermers, op. cit. note 25, at 1-49.

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the eventual failure of this organ largely to obstruction by the regional bureau of the FAO, which wanted to keep its autonomy.131 By their mutual agreement of 1954, the Council of Europe and the Organization for European Economic Cooperation (OEEC) decided to institute within each organization a liaison committee for coordination with the other. After the replacement of the OEEC by the OECD, the liaison committees were continued under a new agreement. Pursuant to this agreement, the Council of Ministers of the OECD appoints a number of permanent representatives (since 1993: nine) of the member states to the OECD liaison committee; the committee of the Council of Europe is composed of representatives of the member states appointed by the Committee of Ministers, but may also be attended by representatives of the Parliamentary Assembly.132 Until 1997 the committees met regularly in joint sessions to elaborate propositions for the coordination of the activities of the organizations. In 2000 the OECD Council decided to abolish its liaison committee and to have exchanges with the Council of Europe on a more informal basis in areas of mutual interest (such as anti-bribery and anti-corruption activities).133 In addition, liaison organs exist linking the Secretariats of the two organizations.134 Finally, the Parliamentary Assembly of the Council of Europe acts as the parliamentary forum for the OECD, organizing a debate on the OECD activities every year as well as the annual presentation by the OECD Secretary-General of the report of activities of the organization.135 A number of common organs have been created to coordinate the activities of the League of Arab States and its agencies and specialized organizations. These organs have not however always been able to function satisfactorily.136

§1717. Organizations may also have common organs at secretariat level. The most important example of a common organ at secretariat level is the United Nations System’s Chief Executives Board for Coordination (CEB; formerly the Administrative Committee on Coordination (ACC)), composed of the Secretary-General of the UN (Chairman) and the executive heads of the specialized agencies, the International Atomic Energy Agency, the World Trade Organization and several UN funds and programmes such as UNDP, UNHCR and UNICEF.137 The CEB provides a point of

131. 132.

133. 134. 135. 136. 137.

Magee, op. cit. note 85, at 44-45. Arrangement between the CoE and the OECD (Res. (62) 4 of the CoE), published by the CoE in November 1962, paras. 2, 8, 9, 10. See also the OECD Publication “Bodies of the Organization for Economic Cooperation and Development 21-22 (1994). Information provided by the OECD Secretariat and by the Secretariat of the Council of Europe, November 2002. Arrangement between the CoE and the OECD, para. 29. Information provided by the OECD Secretariat and by the Secretariat of the Council of Europe, November 2002. M. Flory and T. Mahdjoub, La coordination entre les Organisations Arabes Spécialisées, in Flory and Agate, op. cit. note 72, at 107-131; see also YIO 2003-2004, Vol. 1, at 1970-1971. The ACC was based on ECOSOC Res. 13 (III), YUN 1946-47, at 546. See also YUN 1992, at 1219; UN Documents E/1993/81 and E/1994/19. On the ACC, see M. Hill in E. Luard (ed.), The Evolution of International Organizations 104-137 (1966); J. Tassin, Administrative Coordination in the United Nations Family, in C. de Cooker (ed.), International Administration, Chapter I.2 (1990). Following a review of the role and functioning of the ACC, ECOSOC decision 2001/321 changed the name of the ACC into CEB without changing

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contact for secretariats at senior executive level, which in itself promotes coordination. The CEB discusses items of common concern relating to the activities of the organizations as well as to their administration and finance. It is also concerned with system – or family – wide preparatory work, implementation and follow-up of major UN conferences and summits, including in particular the Millennium Summit. The CEB meets twice annually. The CEB is assisted by two high-level committees. The High Level Committee on Management (HLCM) is the principal UN inter-agency body for coordination within the UN system in the fields of administration and management, especially concerning issues relating to budget and finance, human resources, information and communication technology.138 The High Level Committee on Programmes (HLCP) is created for programme coordination in the UN system. It advises the CEB, inter alia, on issues of strategic planning, policy and programme development and implementation, and on matters that require priority attention, including responses to emerging issues and challenges facing the UN system.139 Both the HLCM and the HLCP meet twice annually; in addition, between sessions they undertake consultation and coordination by electronic and other means of communication. Another important common organ of the UN and the agencies is the International Civil Service Commission (see above, §506), which is financed and staffed by the UN but performs an independent task: to regulate and coordinate the conditions of service of the UN “common system” (the UN, most of the specialized agencies, and some other organizations).140 The UN Joint Staff Pension Fund administers the pensions of the staff of nineteen international organizations of the UN family.141

§1718. A number of organizations with their headquarters and main activities in Europe (the so-called (European) Coordinated Organizations) cooperate within the Coordinating Committee of Government Budget Experts to standardize the remuneration (and related emoluments) of their staff. Unlike the ACC, this committee is not solely composed of secretariat representatives, but also of government representatives. In practice, delegations from some ten European states, the US and Japan are regularly present. Apart from these government representatives, the Secretaries-General of the participating organizations also take part in the discussions. The Coordinating Committee meets

138. 139. 140.

141.

its mandate. At the same time, this change of name was accompanied by a number of measures to achieve greater focus on strategic policy issues and to increase flexibility, inter alia by making greater use of task managers and of information and communication technology. See UN Handbook 2002, at 148-150. Website: http://ceb.unsystem.org/. UN Handbook 2002, at 148-149; http://ceb.unsystem.org/hlcm. UN Handbook 2002, at 149-150; http://ceb.unsystem.org/hlcp. Established by GA Res. 3357 (XXIX). See D.J. Goossen, The International Civil Service Commission, in C. de Cooker (ed.), International Administration, Chapter II.1 (1990); A. Ali, The International Civil Service: The Idea and the Reality, in id., Chapter I.1; UN Handbook 2002, at 44-45. See UN Handbook 2002, at 49.

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twice a year and discusses matters such as staff rules, salaries and pension rights.142 Before the Merger Treaty of 1965, the Commissions of EEC and Euratom had common organs within their staffs, such as the legal service. §1719. The harmonization of the legal rules applicable to international civil servants has benefited from the fact that many international organizations share administrative tribunals. The Administrative Tribunal of the International Labour Organization, for example, also serves several other international organizations (see above, §643). In a few cases, international organizations may appoint members to the subsidiary organs of other organizations.143 Although these members do not represent the nominating organization, they may however be regarded as representatives of the interests which the nominating organization represents. While the organ does not become a common institution, the appointing organization is able to take some part in it. §1720. Some international organizations have common secretariats, which almost guarantees good coordination. It may be that a secretariat operates for two or more equal organizations, as is the case for the institutions of the European Communities, but more frequently, the secretariat of an existing organization is charged to act also as the secretariat of the new organization, for which the new organization will often pay. The work of the Secretariat of the International Development Association and of the International Finance Corporation is performed, for example, by the World Bank; the Secretariats of the European Conference of Ministers of Transport and of the International Energy Agency144 are provided by the OECD.

(iv) Joint sessions and meetings §1721. Poor coordination is often caused by lack of knowledge and understanding of the work of others. Personal contacts between the relevant individuals may therefore be a great assistance. These contacts may be promoted by holding joint sessions of different organs. This kind of cooperation is found in the joint sessions of the two liaison committees of the Council of Europe and the OECD (see above, §1716). Regular joint meetings have

142.

143. 144.

W. Fürst and H. Weber, Uniformity in Service Law and Judicial Remedies for Staff Members of the European Coordinated Organizations, in De Cooker, op. cit. note 137, Chapter V.1. See also A. Plantey, The International Civil Service 39-42 (1981). See for an early example: FAO and GATT in the Advisory Committee of the Trade and Development Board of UNCTAD, see UNJY 1965, at 227-228. OECD Council, Decision of 15 Nov. 1974, Art. 7 (14 ILM (1975), at 791).

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also taken place between representatives of the UN and OAU Secretariats.145 The convening of a joint session is not always as easy in practice as it may seem in theory. For example, while there have been numerous attempts to achieve more coordination between the Security Council and the Economic and Social Council,146 it proved impossible to have a joint session of these two principal organs of the UN in April 2001.

§1722. The procedural problems involved in creating a joint session can be avoided, while obtaining the same results, by holding separate sessions simultaneously in the same building.147 Agendas may thus be arranged to allow delegates to attend (as observers) meetings of the other organ and to meet at less formal occasions. The housing of different organizations in the same building, or even merely in the same town, will benefit personal contacts between staff members and thus facilitate coordination. This is one of the arguments in favour of centralizing the headquarters of international organizations (see above, §478-488). It has also been proposed that the representatives of different international organizations to a developing country be located in a common building. This centralization of offices would promote mutual relations and therefore encourage coordination.148 (v) Exchange of observers §1723. The presence of observers from one organization at sessions of another also promotes coordination between the organizations (see above, §185-187). For example, according to the 1987 exchange of letters between the Council of Europe and the European Community, the European Commission “will, if appropriate, invite representatives of the Council of Europe Secretariat to participate as observers in the work of its committees of experts and advisory groups for the consideration of points of mutual interest”.149

(vi) Reporting §1724. Certain organizations are obliged (usually by a mutual agreement) to report to others on their activities. This reporting gives each organization an opportunity to exert influence on others. The reporting organization can describe the fields in which it operates, while the recipient organization may

145. 146. 147. 148.

149.

E.g. GA Res. 48/25 and UN Doc. A/48/475/Add.1. See B. Simma (ed.), The Charter of the United Nations – A Commentary (2nd ed. 2002), at 1016-1019. For one example, see YUN 1967, at 896 (simultaneous meetings of the Fifth Air Navigation Conference of ICAO and the Commission for Aeronautical Meteorology of WMO). Jackson Report (UN Doc. DP/5), vol. II, at 415-416; G.J. Mangone, UN Administration of Social and Economic Programs (1966), at 229; UN Doc. A/47/419, at 37-39; GA Res. 47/199, para. 42. OJ 1987, L 273/36, para. 3.

§1725

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criticize the other when discussing its report.150 One important reason for reporting and discussing reports is to improve coordination between the organizations concerned. Their agreements with the UN oblige the specialized agencies to submit annual reports to the ECOSOC. Originally, the ECOSOC examined these reports and issued recommendations to stimulate the coordination of activities.151 As the ECOSOC was unable to study all reports in depth, it designated two or three organizations every year, the reports of which were studied in depth.152 However, in 1977, ECOSOC decided to discontinue the submission of “analytical summaries” of these reports.153 Reporting may also take place on an ad hoc basis. For example, by its Resolution 47/187 (1992), the UN General Assembly requested that the Secretary-General coordinate and strengthen the ability of the UN system to conduct analytical and policy advice activities regarding changes taking place in former socialist states (transition economies). In response to this resolution, the Secretary-General invited all the relevant UN bodies to report on their activities and plans for assistance to these countries, to indicate whether their action had been successful, and how improved coordination could facilitate the implementation of plans adopted by each agency.154 §1725. Several European organizations report to the Council of Europe (CoE) and in particular, to its parliamentary organ, the Parliamentary Assembly. In 1959, the EEC and Euratom, responsible for establishing appropriate forms of cooperation with the Council of Europe,155 entered into an agreement with the Council.156 In 1987, this relationship was further strengthened through an exchange of letters.157 In this exchange of letters, a distinction was drawn between, on the one hand, relations between the European Commission and the Committee of Ministers, and, on the other hand, the European Commission and the Secretary-General of the CoE. It was agreed, inter alia, that the annual report of the European Commission would

150. 151. 152. 153. 154. 155. 156.

157.

Socini, op. cit. note 77, at 84-87. ECOSOC Resolutions 1090 E (XXXIX) of 31st July 1965, 1172 (XLI) of 5 August 1966, 1277 (XLIII) of 4 August 1967, 1548 (XLIX) of 30 July 1970. See e.g. ECOSOC Resolutions 1728 (LIII) of 28 July 1972, para. A4; YUN 1973, at 583; YUN 1974, at 703-704; YUN 1975, at 703-704; YUN 1976, at 638. ECOSOC Res. 2098 (LXIII); YUN 1977, at 775. See UN Doc. A/48/317 for the replies from these UN bodies. EC, Art. 303; Euratom, Art. 200. Arrangement entre le Comité des Ministres du Conseil de Europe et la Commission de la Communauté Économique Européenne, 18 August 1959, Editie Schuurman & Jordens, Vol. 157, at 393-396 (the agreement was not published in OJ). OJ 1987, L 273/35. In 1993, the European Parliament adopted a resolution, in which it took the view that “present procedures governing cooperation between the European Parliament and the Parliamentary Assembly of the Council of Europe and between the Commission and the General Secretariat of the Council of Europe are unsatisfactory since they no longer meet the requirements of the political situation in Europe today”, and in which it considered that closer cooperation was necessary (OJ 1994, C 20/45).

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be presented to the Committee of Ministers of the CoE, which may address to the Commission any comments it may have on these reports, or on any other question of mutual interest. The European Commission was also to receive reports from the CoE. Reporting by the European Parliament to the Parliamentary Assembly of the CoE was already provided for by the Protocol on Relations with the Council of Europe, annexed to the constitution of the European Coal and Steel Community.158 There was a supplementary exchange of letters dated 5 November 1996. On 3 April 2001 the Council of Europe and the European Commission issued a Joint Declaration on cooperation and partnership to further intensify their dialogue. This Joint Declaration pays special attention to the joint programmes by the two parties with countries from Central and Eastern Europe. Such programmes are monitored and their implementation is evaluated in the annual so-called quadripartite meetings (composed of a representative of the CoE Committee of Ministers, the Secretary-General of the CoE, the EU Council and the European Commission).159 Other organizations which report to the Council of Europe are the OECD, the European Conference of Ministers of Transport, and the European Commission of the International Civil Aviation Organization.160

(vii) Organizations and organs responsible for coordination §1726. The UN is responsible for coordinating the policies and activities of the specialized agencies.161 This task, which is specified by the relationship agreements between the UN and the specialized agencies, has been allocated to the General Assembly and, more specifically, to the ECOSOC. Under the authority of the General Assembly, its Fifth (Budgetary) Committee and the Advisory Committee on Administrative and Budgetary Questions are active in the field of budgetary and administrative coordination. The ECOSOC and its Committee on Programme and Coordination devote much attention to the coordination of programmes. At first, ECOSOC mainly limited itself to negative coordination, but it gradually paid more attention to the programmes of the agencies and tried to prevent or correct not only duplication of work but also the initiation of unnecessary programmes.162 In 1952, the ECOSOC listed six major priority programmes, each subdivided into several further programmes. These programmes were to guide the UN and the specialized agencies when establishing their own programme priorities.163 Furthermore, since the 1960s, the agencies have been directed to accept priorities proclaimed in the UN Development

158. 159. 160. 161. 162. 163.

ECSC Protocol on Relations with the CoE, Art. 2. See e.g. the report of the 18th quadripartite meeting that took place in Strasbourg, 25 September 2002, CoE Doc. SG/Inf(2002)37 (www.coe.int/sg/e). Socini, op. cit. note 77, at 86-87. UN Charter, Art. 58. See e.g. ECOSOC Res. 324 (XI) of 9 August 1950; Sharp, op. cit. note 77, at 114-115. General Assembly OR, 7th Session, Suppl. No. 3 (A/2172, Report of the ECOSOC), at 88-89.

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Decades.164 Thus, the Strategy for the Fourth UN Development Decade “provides guidelines for further work on the evolution of policies and programmes and on seeking agreements for new actions”. In addition, this strategy “provides an initial framework” to “give the work of the international system greater coherence by closer inter-agency cooperation and coordination and by organizational measures that strengthen the contribution of the system to development”.165 Since 1992, the ECOSOC holds one substantive session of originally five but since 1996 four weeks to take place in July in alternate years in New York and Geneva (see above, §312). One part of this annual session, the so-called coordination segment, is fully devoted to the coordination of activities within the UN family in the economic, social and related fields.166 §1727. Under the ECOSOC and the General Assembly, the Committee for Programming and Coordination (CPC) is the main organ responsible for planning, programming and coordination.167 Originally, the CPC had eleven members. It was enlarged several times, and, since 1987, has had thirty-four members.168 The terms of reference of the CPC were amended in 1976, 1977 and 1986.169 The Committee reports to the ECOSOC and, since 1976, to the General Assembly on important aspects of coordination.170 Periodically, it makes detailed studies of selected sectors; in 1979, for example, of information systems.171

§1728. A large number of international organizations are active in the field of development. For many years, there was a tendency to charge the United Nations Development Programme (UNDP) with coordination of the activities of the UN and the specialized agencies and to make the UNDP Resident Representatives in the developing countries responsible for the coordination of aid granted to individual countries. In 1977, this led to a revaluation of the position of the Resident Representative, who was replaced by an officer with a wider task, the Resident Coordinator, entrusted, on behalf of the organizations of the UN family with overall responsibility for, and coordination of,

164. 165. 166. 167. 168. 169. 170.

171.

GA Res. 1710 (XVI) of 19 December 1961 and GA Res. 2411 (XXIII) of 17 December 1968. See also ECOSOC Res. 1367 (XLV) of 2 August 1968. GA Res. 45/199, Annex, paras. 104-105. GA Res. 45/264. See also UN Docs. A/47/534, A/48/639 and A/49/558 and GA Res. 48/162; UN Handbook 2002, at 93; www.un.org/esa/coordination/ecosoc. See Simma, op. cit. note 146, at 1009; www.un.org/esa/coordination/ecosoc/sub_ bodies.htm. GA decision 42/450. ECOSOC Res. 2008 (LX) and GA Res. 31/93; GA Res. 32/197; GA Res. 41/213. For the reports of the Committee for Programme and Coordination, see the supplements to the Official Records of the General Assembly (e.g. Suppl. No. 16 to the Official Records of the 57th Session (2002)); see also UNJY 1987, a 175-176. See UN Doc. A/34/38, Chapter IV, paras. 6-44.

1103

External relations

§1729

operational activities for development carried out at national level.172 The Resident Coordinator is, at the same time, Resident Representative of the UNDP (see below, §1822 ff.). A further UNDP coordination instrument is the UN Development Assistance Framework (UNDAF), introduced in 1997. This is defined as “the planning and programming mechanism that coordinates the United Nations response to the [challenges of development]”.173 According to the Millennium Declaration, adopted in 2000 by the General Assembly, the achievements of UNDAF “clearly demonstrate that agencies operating cooperatively can achieve far more than when they act alone”.174 Increasingly the World Bank also claims a role in this traditional UNDP niche. Early 1999 World Bank President Wolfensohn launched the idea to formulate for each developing country a Comprehensive Development Framework (CDF). This new instrument was tried out in a number of countries and it is now implemented. According to the World Bank, the CDF is “owned” by the receiving country that determines and directs its own development agenda, “with the Bank and the country’s other partners each defining their support in their respective business plans”.175 It was difficult not to reconsider this as a frontal attack on UNDP’s role in the area of coordination of UN assistance to developing countries; the resemblances between the two instruments UNDAF and CDF are striking.176 The question who coordinates the coordinators becomes increasingly urgent. §1729. However much work the ECOSOC and other UN organs have done in the field of coordination of programmes, and despite the guidance provided to the specialized agencies to prevent them from diverging excessively, several studies have concluded that little has been achieved. In 1970 the ECOSOC noted that the work done “has not yet given qualitatively new results as regards the substantial improvement of coordination and the increased efficiency of the international machinery of the United Nations system”.177 In 1985 it was observed that “the most obvious shortcoming, both for the outside observer and for those living and working within the system, is without any doubt the fragmentation of effort or the lack of a definition of priorities and of coordination. [...] The extreme decentralization of the system, deliberate at the outset and then aggravated by the establishment of dozens of new organs, has not been able to be made up by coordination imposed on agents who did not want to be coordinated”. All the attempts at coordination and planning “produced no results. This mass of efforts, changes in structure, work on methodology and recommendations, precise though they were and for-

172. 173. 174. 175. 176. 177.

GA Res. 32/197, para. 34; Simma, op. cit. note 146, at 973. Report of the Secretary-General on the work of the Organization (1999), UN Doc. A/54/1, at 17 (para. 128). GA Res. 55/2, Box 6 (following para. 188). See www.worldbank.org/cdf/overview.htm. See in more detail Blokker, op. cit. note 130. Quoted from ECOSOC Res. 1547 (XLIX) of 30 July 1970.

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mulated in an imperative way by the General Assembly, have in no way improved coordination”.178 §1730. Coordination of administrative and budgetary procedure is easier than coordination of programmes. Not without some success, the General Assembly suggested several measures for the further harmonization of the budgets of the specialized agencies and for the harmonization of contribution assessment for those specialized agencies which apply methods of assessment similar to those of the UN (see above, §979).179 Such recommendations which do not directly affect their operations, are usually accepted by the agencies. Thus, the assessment scales have gradually been approximated. §1731. The Council of Europe was originally considered to be the most suitable organization for coordinating the activities of European organizations180 since it may discuss, apart from defence,181 all problems of European cooperation. However, in practice its influence as a coordinating force is small, as a result of the success of the European Union and resistance by a number of organizations. Instead, coordination among European organizations is now mainly carried out through a clearer delimitation of competences of the organizations involved.182 (viii) Planning §1732. Long-term planning clarifies the work of one organization for all others. It will thus help coordination.

178.

179. 180.

181. 182.

See UN Doc. A/40/988 (JIU/REP/85/9), Some Reflections on Reform of the United Nations (prepared by Maurice Bertrand), at 5, 10-11 (1985). Another observer concluded in 1983 that “l’ampleur et la complexité du problème de la coordination ... expliquent qu’elle apparaisse à la fois comme une tâche de plus en plus indispensable mais aussi comme une mission presque impossible” (Lewin, op. cit. note 77, at 22); Simma, op. cit. note 146, at 975-976. See GA Resolutions 311 B(IV); 2190 A(XXI) and 2474 (XXIII). For standardization of nomenclature see e.g. UN Doc. A/6343, para. 59. See e.g. CoE Committee of Ministers, Doc. 238, paras. 16-20 in Annual Report of the CoE, 1954 (quoted by Socini, op. cit. note 77, at 150-151) or Doc. 1030 of 12 December 1959; F. Alting von Geusau, European Organizations and Foreign Relations of States 146-148 (1962). CoE, Art. 1(d). Jacqué, op. cit. note 102, at 69-79. Cf. also J.-L. Burban, Le Conseil de l’Europe (2nd ed. 1993) and H.-P. Furrer, La contribution du Conseil de l’Europe à la construction européenne, in: Société Française pour le Droit International, Les organisations internationales contemporaines, crise, mutation, développement 281-321 (1988); D. Simon, Le Conseil de l’Europe: matrice de la coopération paneuropéenne?, in J.-C. Gautron (ed.), Les relations Communauté européenne Europe de l’Est 683-695 (1991). In 1951, a special committee has been created to coordinate the activities of the Committee of Ministers and the Parliamentary Assembly (i.e. the work of the Council of Europe itself): the Comité mixte, composed of one representative of each member state and an equal number of members of the Parliamentary Assembly. On this committee, see Burban, id., at 45-46, and G. De Vel, Le Comité des Ministres du Conseil de l’Europe (1994), at 106-110.

1105

External relations

§1733

Since the early 1970s, the organizations of the UN family have paid increasing attention to planning. Their budgets have no longer been based on the instruments for which the money is used (see above, §931-937), but rather on programmes; programme planning has become one of the principal tasks of the ECOSOC and the UN Secretariat. By 1979, so many plans had been made that the Committee for Programme and Coordination noted, that “the present frequency of the planning exercise and the volume of the planning documents had overwhelmed everyone’s ability to review thoroughly the proposed medium-term plan”.183 The effect of planning is, of course, closely related to the possibilities of evaluation and adaptation. In principle, a six-year plan should be evaluated after its fourth year. Such an evaluation will usually lead to adaptation of the plan. It is, of course, questionable whether a six-year plan can actually be realized within six years. An adaptation may easily lead to an extension of the planning period. Many plans of a more continuous nature cannot be easily fitted into a six-year period anyway. Instead of a fixed horizon, a plan may then have a “rolling” horizon. Rolling horizons may be more realistic, but they hamper synchronized planning.184 The Administrative Committee on Coordination (see above, §1717) therefore recommended the adoption of a synchronized fixed-horizon six-year plan as standard for the UN family.185 The UN originally used six-year plans; at present the UN medium-term financial plan covers a period of four years (see above, §1103). (ix) Exchanges §1733. Some international organizations cooperate closely and exchange plans and information by consulting each other.186 Such mutual consultation, of course, promotes coordination. §1734. Agreements between international organizations always provide for an exchange of documentation. These exchanges are partly designed to complete libraries in which the documentation is catalogued. §1735. Documentation will also cover the fields in which both organizations are interested. That part of the documentation will be read by the relevant department of the other organization and will therefore fulfil a useful function

183. 184. 185. 186.

Report of the Committee on Programme and Coordination on the Work of its Nineteenth Session (UN Doc. A/34/38, Chapter II, para. 17). Id., paras. 29-30. Id., para. 19. On medium-term planning, see also GA Res. 31/93, YUN 1976, at 888-889. See e.g. on the cooperation between the UN and the Latin American Economic System, UN Doc. A/57/128; on the cooperation between the UN and the Organization on Security and Cooperation in Europe, UN Doc. A/57/217; on the cooperation between the UN and the League of Arab States, UN Doc. A/57/386. . Another example is the cooperation between the European Commission and the Council of Europe, the 1987 exchange of letters, OJ 1987, L 273/35.

§1736

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in coordinating activities. Mutual knowledge of activities is the first important step towards coordination. Many international organizations distribute documentation unilaterally, to publicize their work (see above, §444). This will not only stimulate coordination with other international organizations, but will also increase general understanding of the work which it undertakes. The UN sends its documentation to a large number of institutions, including many universities, as part of its public relations. In some cases, an organization keeps another informed for the purposes of gaining the latter’s support. Thus several international organizations (inter alia, ILO, WHO and UNESCO) send documentation to the Council of Europe to keep the Parliamentary Assembly of the Council of Europe informed of their achievements. In this way, they may increase parliamentary support for their conventions in states which are members of both organizations.187 §1736. An exchange of personnel between international organizations can greatly benefit coordination between them. A staff member brings knowledge of an organization’s activities, as well as personal contacts with responsible officers, from his former employment. An essential condition for the exchange of staff members is a high degree of uniformity in the working conditions of different international organizations. A common staff pensions fund, for example, facilitates the switch from one organization to another. Encouragement of the movement of personnel is one of the reasons for harmonizing working conditions in international organizations. Most of the agreements between the UN and the specialized agencies aim at the eventual development of a single unified international civil service,188 which would further facilitate exchanges of personnel. In practice, exchanges of personnel between international organizations do not occur frequently and a single unified international civil service remains a far-off possibility. This is regrettable, not only for the greater unity which could be created within the total body of the international civil service, but also for individual programmes. Over time, new needs are perceived which lead to new activities being undertaken by international organizations (such as development assistance in the 1950s, human environment in the 1960s and assistance to former socialist states (the so-called transition economies) in the 1990s). Many international organizations will take initiatives in such areas and will develop vested interests in them. When the situation becomes unmanageable, a new international organ may be created with responsibility for the subject. There is then a tendency to appoint new staff to the new organ, thus creating conflicting competences with the vested interests which have been developed elsewhere. Greater mobility of staff would enable the new organ to be staffed by those who have developed expertise on the subject within

187. 188.

See Robertson, op. cit. note 21, at 218-219. See e.g Agreement between the UN and UNESCO, Art. 13, para. 1.

1107

External relations

§1737

existing organizations. For the purposes of coordination,189 it may be equally important to extract skill from existing organizations as it is to collect it for newly established organs. §1737. Some secretariats send staff members as their representatives to other secretariats. Thus, at the UN headquarters, permanent delegations of the secretariats of certain specialized agencies have been established. Some regional organizations (e.g. the EU and the Organization of Islamic Conference ) also have sections or representations of their secretariats in New York. Such missions, mainly designed to defend the interests of their organizations at UN headquarters, also improve coordination. (x) Training §1738. Schooling can enable civil servants, of both the national administrations and of international organizations, to become more familiar with the work of the existing international organizations and with the means available for coordination. Some common training will also promote mutual understanding between international civil servants.190 A UN staff college, as proposed by the Secretary-General of the UN (see above, §499), may prove helpful in this respect. d.

Coordination at national level

§1739. Coordination begins at home:191 coordination at national level is at least as important as coordination at international level.192 International organizations alone are unable to prevent overlapping of work, for two reasons: (1) they are too jealous of their own competence, and (2) they are not masters of their own tasks: the member governments decide on their programmes. Coordination may thus be seriously impeded by attempts to maintain ministerial autonomy in member states; the activities of different organizations may only be expected to conform when the members conduct a consistent policy in all the organizations. The coordination of national policy towards international organizations is important if the activities of those organizations are to be harmonized. The UN has repeatedly advocated extensive national co-

189. 190. 191.

192.

Dupuy, op. cit. note 77, at 476. Cf. GA Res. 47/199, paras. 43-45. As was emphasized in a Dutch policy paper prepared by the Minister of Development Cooperation, De kwaliteit van de VN als kanaal voor ontwikkelingssamenwerking (September 1999, Second Chamber 1998-1999, Doc. 26714, no. 1), at 4. See also G. Cohen Jonathan, L’Etat face à la proliferation des organisations internationales, in: Société Française pour le Droit International, Les organisations internationales contemporaines (1988), at 177-203.

§1740

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ordination.193 For example, in 1992 the General Assembly has recommended that developing countries formulate, with the assistance of and in cooperation with the UN, “country strategy notes”, on the basis of their priorities and plans, and in order to, inter alia, “ensure the effective integration of assistance provided by the United Nations system into the development process of countries”.194 This is necessary, not only to prevent overlapping or to guarantee some degree of consistency in the individual programmes, but also to ensure that newly created organs fulfil the functions for which they have been created. The developing states have promoted the establishment of many new organs, over which they have quickly lost control. This may have caused the secretariats of these organs to develop interests and rivalries which were not intended.195 National coordination, particularly in large states, is far from easy; national departments are usually jealous of their autonomy with respect to the policy relating to ‘their’ international organizations;196 coordinating organs are often unable to sufficiently assess the merits of the work of technical organizations to decide on priorities. §1740. A consistent national policy can be ensured in several ways. (1) National delegates attending highly technical organizations may be selected from a single office. Often, the same individuals will represent states in various organizations. Coordination problems between, for example, the European Conference of Postal and Telecommunications Administrations (CEPT)197 and the Universal Postal Union, or between the European Nuclear Energy Agency and Euratom, are largely avoided by sending the same experts to both organizations. They are thus aware of the other organization’s activities and are able to prevent duplication of work. Some constitutions explicitly require198 or recommend199 sending the same persons to different organs. (2) When the fields of operation of international organizations are more diverse, special coordinating organs may be needed. The Ministry of Foreign Affairs usually functions as the coordinating body for national policies in respect of international organizations.200 This ministry

193. 194. 195. 196. 197.

198. 199. 200.

See e.g. GA Res. 125 (II) of 20 November 1947, YUN 1947-48, at 111-112 and 113-114, or ECOSOC Doc. E/4844 (1970); GA Res. 44/211, para. 2; GA Res. 47/199, paras. 7-11. GA Res. 47/199, para. 9. Magee, op. cit. note 85, at 62. R.F. Hopkins, The international role of “domestic” bureaucracy, 30 International Organization 405-432 (1976). On the creation of the CEPT, see A.H. Robertson, The European Conference of Postal and Telecommunication Administrations, 7 Eur. Yb. 100-111 (1959). For the text of the agreement creating CEPT and for its Rules of Procedure, see 7 Eur. Yb. 639-659 (1959). For the activities of CEPT see also further volumes of the Eur. Yb. WEU, Art. 9. ECSC Protocol on Relations with the Council of Europe, Art. 1, which is now obsolete. Cohen Jonathan, op. cit. note 192, at 198-201.

1109

External relations

§1740

will ensure, at least in questions of general policy, that national delegates adopt the same standpoint in different organizations. In technical matters however, it may be more difficult for other departments to follow the instructions of the Ministry of Foreign Affairs. Departmental Ministers occasionally advocate policies in particular international organizations which are in direct conflict with their government’s policies in other organizations.201 To prevent such clashes, several states discuss questions relating to international organizations in interdepartmental committees in which all the departments concerned are represented.202 As a rule, delegations to international organizations receive instructions from their governments. An efficient national procedure for drafting and approving such instructions will promote uniformity in national policies. In many states, instructions must be approved by the head of state or government. (3) Sometimes policies in different organizations are channelled through a single office. This may be a bureau of the Ministry of Foreign Affairs which has sole responsibility for correspondence with international organizations; it may also be a national mission abroad (such as a permanent mission in Geneva, which maintains contact with a number of international organizations with their seat in that city).203 Neither the bureau which acts as intermediary between the state and various international organizations, nor the permanent missions usually decide on questions of policy. They may, however, bring inconsistencies in national policies to the attention of the organs concerned and thus initiate measures of coordination. If there is a central bureau in the Ministry of Foreign Affairs, it will usually participate in interdepartmental committees and in the drafting of instructions. It may also discuss instructions bilaterally with the department concerned. Its involvement in many international organizations will give it expert knowledge which adds weight to its observations. Members of permanent missions frequently participate in national delegations to different organizations. They are thus able to advise the delegations, or even the meetings, about standpoints taken in other organizations and about activities initiated elsewhere. In a few cases, especially within the European Union, permanent missions play an even more significant role in the decisionmaking process.204 There the permanent representatives of the member states have a dual role. On the one hand, they participate in the national decisionmaking on matters relating to the Union. On the other, they are members of

201. 202. 203.

204.

Jackson Report (UN Doc. DP/ 5), vol. I, at V. See also J. Kaufmann, United Nations Decision Making 64 (1980). Coordination at the National Level, Report of the Secretary-General of the UN, Doc. E/ 4844, at 4-5 (discussed by the ECOSOC at its 1720th meeting on 28 July 1970). On the role of the Permanent Missions in Geneva as coordinators, see M. Virally, P. Gerbet and J. Salmon, Les Missions Permanentes auprès des Organisations Internationales 242-246 (1971). See also Cohen Jonathan, op. cit. note 192, at 201-203. See Virally, Gerbet and Salmon, op. cit. note 203, at 613-717; J.W. de Zwaan, The Permanent Representatives Committee: its role in European Union decision-making (1995).

§1741

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the Committee of Permanent Representatives (COREPER), which has to prepare the work of the Council. Because of this dual role, COREPER is in the position to oversee the entire range of activities of the Union, a task which has become even more important following the entry into force of the 1992 Treaty on European Union, which has introduced new fields of cooperation. A distinction has been drawn between “horizontal” and “vertical” coordination by COREPER. Horizontal coordination refers to the coordination of the work of the Council, in its various different compositions. Vertical coordination concerns the management of the activities performed by the various hierarchical levels of the Council’s organization (working groups and other bodies).205 §1741. In these cases, members coordinate national policies towards international organizations in their capacity as elements of the organizations (see above, §66). In their capacity as counterparts of the organizations (see above, §66), they may also coordinate. A state receiving aid from several international organizations should help to harmonize the relevant aid activities as much as possible. Certain developing countries have special organs for coordinating the activities of organizations which grant aid. Coordination in the receiving state of the activities of aid-granting organizations can be stimulated and strengthened by the Resident Coordinators, or the Resident Representatives, of the United Nations Development Programme (see above, §1728). The government of the country concerned has exclusive responsibility for formulating its national development plan, priorities and objectives. It should however strive to adopt a development plan in which aid from different organizations is well harmonized. It should be assisted by the Resident Representative, acting as the leader of a team in which the representatives of other international organizations may also participate.206

II.

Instruments of external relations

§1742. In the second part of this chapter, we shall discuss several instruments used by international organizations in their external relations. These instruments do not all have the same character. Thus, international agreements and diplomatic missions are both used as instruments for fostering external relations, while the issuing of passports, the use of flags and the registration of ships are, rather, instruments which international persons use to exercise their external powers. The other instruments mentioned below have aspects of both.

205. 206.

De Zwaan, op. cit. note 204. GA Res. 2688 (XXV), Annex paras. 5-10 and 63.

1111

A.

External relations

§1743

Agreements207

§1743. The 1969 Vienna Convention on the Law of Treaties only covered treaties concluded between states. As international organizations became parties to treaties increasingly frequently, the need was felt to prepare another convention, which was concluded in 1986: the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (Vienna II). This convention has not yet entered into force.208 Its rules are almost similar to those of the 1969 Convention (Vienna I). 1.

The notion “agreement”

§1744. In its report of its 14th session, the International Law Commission mentioned sixteen different names for treaties.209 Of these, the term “conven-

207.

208.

209.

K. Zemanek, Das Vertragsrecht der internationalen Organisationen (1957); J.W. Schneider, Treaty-making power of International Organizations (1959); B. Kasme, La capacité de l’ONU de conclure des Traités (1960); G. Weissberg, The International Status of the United Nations (1961, Chapter III); R. Higgins, The Development of International Law through the Political Organs of the UN (1963); Chiu, op. cit. note 41; Dupuy, op. cit. note 77, in particular at 480-527; P.F. Smets and P. Mertens, Le “Treaty-making Power” de l’UNESCO, 70 RGDIP 916-960 (1966); P. Reuter, Reports to the International Law Commission, Yb ILC 1972 (II), at 171-191; Yb ILC 1973, at 75-94; Yb ILC 1974 II (Part One), at 135-152, Yb ILC 1975 II, at 25-44; Yb ILC 1976 II (Part One), at 137-146; Yb ILC 1977 II (Part One), at 119-135; J.P. Dobbert, Evolution of the Treaty-making capacity of international organizations, in: The Law and the Sea, Essays in Memory of Jean Carroz 22-42 (1987). Text published in UN Doc. A/CONF.129/15. As of August 2003, 26 states (and 11 international organizations) had ratified Vienna II. According to Art. 85.1, it will enter into force on the 30th day following the date of deposit of the 35th instrument of ratification or accession by states (not: international organizations!). See on Vienna II: G. Limburg, The United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, 33 NILR 195-203 (1986); G.E. do Nascimento e Silva, The 1986 Vienna Convention and the Treaty-Making Power of International Organizations, 29 GYIL 68-85 (1986); Dobbert, op. cit. note 207; G. Gaja, A ‘New’ Vienna Convention on Treaties between States and International Organizations or between International Organizations: A Critical Commentary, 58 BYIL 1987, at 253-269; P. Reuter, La conférence de Vienne sur les traités des organisations internationales et la securité des engagements conventionnels, in: F. Capotorti et al. (eds.), Du droit international au droit de l’intégration, Liber Amicorum Pierre Pescatore (1987), at 545-564; W. Riphagen, The Second Round of Treaty Law, in: id., at 565-581; Ph. Manin, The European Communities and the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 24 CMLRev. 457-481 (1987); K. Zemanek, The United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations: The unrecorded history of its “general agreement”, in K.-H. Böckstiegel et al., Law of Nations, Law of International Organizations, World’s Economic Law, Liber amicorum honouring Ignaz Seidl-Hohenveldern 665-679 (1988); F. Morgenstern, The Convention on the Law of Treaties between States and International Organizations or between International Organizations, in Y. Dinstein (ed.), International Law at a Time of Perplexity, Essays in Honour of Shabtai Rosenne 435-447 (1989); G.E. do Nascimento e Silva, The 1969 and the 1986 Conventions on the Law of Treaties: A Comparison, in: id., at 461-487. GAOR 17th Session, Suppl. No. 9 (A/5209), at 5.

§1745

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tion” is used in our study to refer to a particular type of treaty, namely those drafted by international organizations (see above, §1262). From the remaining names, we use the term “agreement” to cover treaties concluded by international organizations, either with states or with other international organizations. The majority of treaties made by international organizations actually bear the name “agreement”,210 which may justify the use of this term. On the other hand, many treaties between states and arrangements with private parties have also been called “agreements”, which shows that the word has a wider, vaguer meaning in practice. Throughout the present study, the notion “agreement” is used in the restrictive sense of indicating treaties concluded by international organizations, unless the context clearly shows that another concept is intended.211 §1745. As a type of treaty, an agreement is made under international law. This distinguishes it from arrangements enjoying lesser binding force212 as well as from any contracts international organizations may conclude under the national law of a state. The distinction is not however sharp. Agreements (such as the headquarters agreements with host states) may refer to national law for the execution of certain provisions; contracts (such as a contract for the lease of buildings) may finally lead to the settlement of conflicts under international law.213 Whether a particular instrument should be classified as an “agreement” or as a “contract under national law” will also depend on the context and on the purpose for which the instrument is intended. It is generally assumed that only subjects of international law have treatymaking capacity. However, the subjects of an arrangement need not be the

210.

211.

212.

213.

Chiu, op. cit. note 41, at 50. For other names, see Schneider, op. cit. note 207, at 41-42. See also J. King Gamble Jr., Multilateral Treaties: The Significance of the Name of the Instrument, 10 Calif. W. Int’ I.L.J. (1980), at 1-24. Examples are: commodity agreements which are open to the European Community, the International High Frequency Broadcasting Agreement of 1949, which is open to the UN (in its capacity of having a telecommunications service of its own), the five treaties to which the UN may adhere on behalf of trust territories which it administers, and the seven treaties to which the UN may adhere on behalf of any territory it administers (see Yb ILC 1974 II, Part Two, at 14-17). Vienna II does not reserve a particular term for treaties to which an international organization is a party, nor did the International Law Commission in its preparatory work for Vienna II. The general term “treaty” is used for two reasons: (1) to be consistent with the 1969 Vienna Convention on the Law of Treaties, and (2) because the Vienna Conference used this term in the resolution on which the ILC study was founded, see Yb ILC 1974 II, Part One, at 137-138. In UN Doc. E/1567 (ECOSOC Official Records, Annex 10th Session, Agenda Item 23, at 15) the Legal Department of the UN concluded that the term “arrangements” in Art. 64 of the UN Charter did not refer to formal agreements. On the question of definition, see also A. Broches, International Legal Aspects of the Operations of the World Bank, 98 RdC (1959 III), at 316-373, in particular at 340-342 and C. Osakwe, The Concept and Form of Treaties Concluded by International Organizations, in Agreements of International Organizations and the Vienna Convention on the Law of Treaties, edited by K. Zemanek, Supplementum I to ÖZoR (1971), at 165-193.

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sole factor determining its character. The purpose and substance of the arrangement must also be taken into account. In some cases, agreements are concluded with entities which are not recognized as subjects of international law.214 The UN, for example, concluded agreements with the authorities of Katanga, concerning defence zones in that province of Zaire215 and a cease-fire.216 The agreements were intended to (and could only) be governed by rules of international law. Perhaps such entities should be accepted as de facto subjects of international law for the particular matter in respect of which agreements are concluded with them. Otherwise the agreements should be recognized as international agreements by reason of their contents and purpose – notwithstanding their participants – or the rules of international law should be applied by analogy. §1746. “Internal agreements”, concluded between different organs of the same organization, are to be excluded from the notion “agreement”, since they are not governed by international law but by the internal rules of the organization. An example are the interinstitutional agreements concluded within the European Union, between the European Parliament, the Commission and/or the Council (see also above, §1202).217 Agreements with member states on the functioning of the organization, such as an agreement to send a delegation to a particular organ or to pay the contribution in a particular way, should be regarded as internal agreements. They are governed by the internal law of the organization. In some cases, however, members are willing to accept additional obligations towards the organization which are not part of the law of the organization, or organizations may accept extra duties towards a member (for example the duty to render development assistance). In such situations, a separate legal instrument will be required to impose such obligations on the parties. For that purpose, agreements can be concluded under international law. It may not always be clear when such an additional agreement is required. Many obligations can also be accepted under the existing law of the organization. Pledges to pay voluntary contributions towards special activities of the organization create – when accepted – an agreement between the organization and the pledging member (see above, §1037-1038). This agreement is usually regarded as an internal agreement, solely governed by the internal law of the organization. The same kind of arrangement could be envisaged, however, in the form of a formal agreement between the organization and the member

214. 215. 216. 217.

A.J.P. Tammes, Internationaal Publiekrecht 95-96 (2nd ed. 1973). UN Doc. S/4557, para. 79; SCOR 15th year, Suppl. for October, November and December 1960, at 25-26; Higgins, op. cit. note 207, at 249, 267. UN Doc. S/4940, Add. 7, para. 6; SCOR 16th year, Suppl. for July, August and September 1961, at 119-120. See M. Gauweiler, Die rechtliche Qualifikation interorganschaftlicher Absprachen im Europarecht (1988); J. Monar, Interinstitutional agreements: the phenomenon and its new dynamics after Maastricht, 31 CMLRev. 693-719 (1994).

§1747

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willing to contribute. Whether such an agreement is concluded depends on the parties’ desire to reinforce the arrangement by giving it legal force under international law. §1747. Like treaties between states, agreements between international organizations may be concluded in various forms. Chiu distinguishes four groups:218 formal agreements, exchanges of notes, disjunctive exchanges of notes (consisting of a direct offer, accepted subsequently and separately by the other parties),219 and parallel resolutions. Oral agreements may be a fifth group.220 As in the case of treaties between states, the form does not in itself affect the legal force of the agreement. In principle, informal agreements will be legally binding in the same way as formal ones.221 However, the informal way of concluding an agreement often indicates an intention of the parties to exclude legal obligations or to allow unilateral withdrawal. When such an intention is apparent, the informal agreements have less legal force than the formal ones. On several occasions, the International Court of Justice has confirmed that what is decisive in creating a legal obligation is not the form eventually chosen, but the intentions of the parties. In the Aegean Sea Continental Shelf Case, the Court qualified a joint communiqué issued to the press as an international agreement.222 In the Quatar Bahrain border dispute, the Court concluded that the minutes of a meeting of the Cooperation Council of Arab States of the Gulf created rights and obligations in international law for the parties, and constituted an international agreement.223 2.

Competence to conclude agreements

a.

The treaty-making capacity of international organizations

§1748. There can be no doubt that international organizations generally have the capacity to enter into agreements.224 This capacity has been amply confirmed in practice. Many agreements of international organizations have been

218.

219. 220.

221. 222. 223. 224.

Chiu, op. cit. note 41, at 51-63. For a more detailed classification, see K. Karunatilleke, Essai d’une classification des accords conclus par les Organisations internationales entre elles ou avec des États, 75 RGDIP 17-36 (1971). Definition by D.P. Myers, The Names and Scope of Treaties, 51 AJIL 591-592 (1957). Higgins, op. cit. note 207, at 254. The Vienna Conventions of 1969 and 1986 do not apply to international agreements not in written form, but explicitly state that this does not affect their legal force (Art. 3 of both Conventions). See Karunatilleke, op. cit. note 218. ICJ Rep. 1978, at 39. ICJ Rep. 1994, at 112. Chiu, op. cit. note 41, at 34, 46, 184, 211. See also ILC, First Report on the Law of Treaties, Yb ILC 1962 II, at 30; D.D. Smith, The Conclusion of International Agreements by International Organizations: A Functional Analysis Applied to the Agreements of the World Meteorological Organization, 2 LULJ 27-68 (1971). On the treaty-making power of the European Communities, see below, note 208.

1115

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§1749

published in the UN Treaty Series,225 or elsewhere.226 The International Court of Justice has accepted the treaty-making capacity of at least certain international organizations.227 In its Preamble the Vienna II Convention notes “that international organizations possess the capacity to conclude treaties which is necessary for the exercise of their functions and the fulfilment of their purposes”. Article 6 of this Convention stipulates that “the capacity of an international organization to conclude treaties is governed by the rules of that organization”. This implies that there can be organizations without the power to conclude agreements.228 Furthermore, as these relevant rules not only include the constitution of the organization, but also any subsequent practice,229 this leaves sufficient scope for any international organization to conclude the agreements which it considers necessary, even without express authorization in its constitution. The existence of some treaty-making power does not however mean that any international organization may conclude any agreement. The treaty-making capacity of international organizations is not the same for each organization, but is related to their competences; an organization may only conclude agreements in those areas in which it is competent to act.230 In this respect, international organizations differ fundamentally from states. The absolute sovereignty of states may be an outdated concept, and fields certainly exist in which particular states are not competent to conclude treaties, but, as a rule, the power of a state to conclude treaties in any field may be presumed. This presumption does not however exist for international organizations. Their competence must be demonstrated in each individual case (see above, §209 ff.). §1749. Sometimes, the competence of international organizations to conclude particular agreements can be based on express provisions in their constitutions.231

225.

226.

227.

228.

229. 230. 231.

See O. Schachter, Book Review, 54 AJIL 201 (1960); UNTS Consultative indices. For references and subject matter see tables published by G. Hartmann, The Capacity of International Organizations to Conclude Treaties, in: Zemanek, op. cit. note 213, at 155-158. Many organizations issue publications with agreements concluded by them or make them available from their website. E.g. the ILO (www.ilo.org), the IMO (www.imo.org) and the Council of Europe (www.coe.fr). Chiu, op. cit. note 41, at 39, 44; ICJ Rep. 1949, at 178-179; ICJ Rep. 1950, at 140. Chiu’s submission that the PCIJ recognized the treaty-making capacity of international organizations (id., at 35-36) is less convincing than his conclusion as to the ICJ. Riphagen, op. cit. note 208, at 572. On the interpretation of Art. 6 and the quoted preambular paragraph, see in particular Zemanek (who was President of the 1986 UN Conference which adopted Vienna II), op. cit. note 208, at 670-673, and F. Seyersted, TreatyMaking Capacity of Intergovernmental Organizations: Article 6 of the International Law Commission’s Draft Articles on the Law of Treaties Between States and International Organizations or Between International Organizations, in: 34 ÖZöRV 261-267 (1983). See Yb ILC 1974 II, Part One, at 148. Yb ILC 1974 II, Part One, at 146. See also Chiu, op. cit. note 41, at 112, 122, 154, 160, 169 and 178; Schneider, op. cit. note 207, Chapter IV, at 69-76; P. Pescatore, Les relations extérieures des Communautés européennes,

§1749

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Agreements with member states are provided for in Article 43 of the UN Charter on armed forces, assistance and facilities to be made available to the Security Council. Such agreements have however never been made. Articles 75, 77, 79, 83 and 85 of the Charter require agreements to regulate the trusteeship system. Although not expressly required, most trusteeship agreements have been made with members. It has been disputed whether the UN is a party to the trusteeship agreements.232 The constitution of the IAEA provides for agreements with members willing to make special fissionable materials available.233 The constitution of the Council of Europe expressly anticipates an agreement with one member (France) on the headquarters of the organization;234 The same is true for the International Criminal Court.235 The constitution of the World Bank provides for agreements with members on loans and guarantees.236 In that case, it is beyond doubt that the Bank is a party to the agreements. The character of the agreement may be somewhat different to the previous examples, however, since it resembles a commercial contract.237 Agreements with non-member states are envisaged in the constitution of the European Community, which provides inter alia for trade agreements and association agreements.238 The EFTA constitution provides for associations with other states or with

232.

233. 234. 235. 236. 237.

238.

103 RdC (1961 II), at 56; D.M. McRae, Cooperation agreements and the Law Relating to Agreements Concluded by International Organizations, in Zemanek, op. cit. note 213, at 7-13. Several constitutional articles provide for agreements e.g. FAO, Arts. 12, 13, 15; UNESCO, Arts. 10, 11; WHO, Arts. 54, 69, 70, 72; ICAO, Arts. 64, 66; IAEA, Arts. IX, XIF, XII, XIV, XV, XVI. See Chiu, op. cit. note 41, at 163-167. Taking account of the facts that all trusteeship agreements have been expressly approved by an organ of the UN, that they attribute rights and obligations to the UN and that some of them expressly provide that they will only enter into force after approval by the General Assembly (8 UNTS, at 149 (Cameroon); 8 UNTS, at 179 (Togoland)) or the Security Council (8 UNTS, at 199 (Pacific Islands)), it seems justifiable to consider the UN as a party. IAEA, Art. IXA. CoE, Art. 40(b). The agreement was concluded on 2 September 1949 (Treaty Series of the CoE, No. 3). Statute of the ICC, Art. 3.2. Arts. 3 and 4. For examples see J. Gold, The Fund Agreement in the Courts (1962), at 11, note 26. For other agreements with members, see, e.g., ESRO agreement in Trb. 1975, 26; OAPEC, Art. 5. EC, Arts. 133, 310, 300. See E.-U. Petersmann, Auswärtige Gewalt, Völkesrechtspraxis und Völkerrechtbindungen der Europäischen Wirtschaftsgemeinschaft, 35 ZaöRV 213-281 (1975); R. Kovar, La participation des Communautés européennes aux conventions multilatérales, 21 AFDI 903-923 (1975); J.-P. Jacqué, La participation de la Communauté économique européenne aux organisations internationales universelles, 21 AFDI 924-948 (1975); H. Krück, Völkerrechtliche Verträge im Recht der Europäischen Gemeinschaften (1977); A. Bleckmann, Die Kompetenz der Europäischen Gemeinschaften zum Abschluss völkerrechtliche Verträge, 12 EuR 109-121 (1977); R. Geiger, Aussenbeziehungen der Europäischen Gemeinschaft und auswärtige Gewalt der Mitgliedstaaten, 37 ZaöRV 640-667 (1977); M.A. Dauses, Die Beteiligung der Europäischen Gemeinschaften an multilateralen Völkerrechtsübereinkommen, 14 EuR 138-170 (1979); C. Flaesch-Mougin, Les accords externes de la CEE, essay d’une typologie (1979); C.W.A. Timmermans and E.L.M. Völker (eds.), Division of powers between the European Communities and their Member States in the field of external relations (1981); C.D. Ehlermann, The scope of Article 113 of the EEC Treaty, in: Etudes de droit des Communautés européennes, Mélanges offerts à P.-H. Teitgen 145-169 (1984); J.F. Buhl, The European

1117

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§1750

international organizations.239 The OECD constitution provides for agreements with states which may participate in the work of the organization.240 Euratom and OECD may conclude agreements on all subjects within the limits of their competence.241 The Caribbean Community may negotiate agreements with members, non-members and other international organizations.242 Agreements with other international organizations are provided for in several constitutions.243 Both universal and regional organizations have concluded many agreements with other international organizations.244 One special category comprises the agreements by which the UN granted the status of specialized agency to a number of other organizations of a universal character.245 Succession agreements are another category (see above, §1639).246 The vast majority of agreements between international organizations are bilateral, while a few are multilateral.247 Some international organizations have even concluded agreements with organs of other international organizations.248

§1750. Other constitutions do not contain specific provisions on this matter. In practice, this seems to be of no great importance for the question of whether

239. 240. 241. 242. 243.

244.

245. 246. 247.

248.

Community’s Participation in International Treaties, World Order Studies Program Occasional Paper No. 13, Center of International Studies, Princeton University (1985); J. Groux and P. Manin, The European Communities in the International Order (1985), at 101-139; J.H.J. Bourgeois, The Common Commercial Policy – Scope and Nature of the Powers, in E.L.M. Völker (ed.), Protectionism and the European Community 1-16 (2nd ed. 1987); P. Gilsdorf, Portée et délimitation des compétences communautaires en matière de politique commerciale, RMC No. 326 (1989), at 195-207; J.H.J. Bourgeois, in Von der Groeben et al., Kommentar zum EWG-Vertrag 3161-3240 (1991); M. Maresceau (ed.), The European Community’s Commercial Policy after 1992: The Legal Dimension (1993); C. FlaeschMougin, Le Traité de Maastricht et les compétences externes de la Communauté européenne: à la recherche d’une politique externe de l’union, in 29 CDE 351-398 (1993);I. MacLeod, I.D. Hendry, and S. Hyett, The External Relations of the European Communities (1996); D. McGoldrick, International Relations Law of the European Union (1997); A. Dashwood and Chr. Hillion, The General Law of E.C. External Relations (2000). EFTA, Art. 41 (2). OECD, Art. 12(c). Euratom, Art. 101; OECD, Art. 5(c). A similar general authorization existed in the constitution of the International Refugee Organization (Art. 2, para. 2(e)). Caricom, Art. 70. See e.g. FAO, Art. 13; UNESCO, Arts. 10, 11 (1); WHO, Art. 70; ICAO, Art. 65; UNIDO, Art. 19; EC, Art. 300; OECD, Art 12(b); EFTA, Art. 36; OAS, Art. 112(h); ICC Statute, Art. 2. On the basis of the UNTS Schachter estimated the number of agreements between international organizations concluded between 1946 and 1960 at two hundred, op. cit. note 225, at 201. Up to 1983, more than 2000 treaties to which international organizations were parties, had been published in the UNTS; K. Zemanek, International Organizations, Treaty-Making Power, in EPIL. Vol. 2 (1995), at 1343-1346. See also the tables by Hartmann, op. cit. note 225, at 155-158. UN Charter, Art. 63. See above, §1692-1693. UNESCO, Art. 11(2); WHO, Art. 72; WMO, Art. 26(c). E.g. Regulations for the UN Joint Staff Pension Fund, established by GA Res. 248 (III) and subsequently adhered to by other international organizations, see e.g. 480 UNTS, at 484 (IAEA). On the agreement between the Asian Coconut Community and the UN Economic Commissions for Asia and the Far East, see UNJY 1970, at 179-180.

§1751

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the organization may conclude agreements. Even without constitutional authorization many international organizations have concluded agreements the legality of which has not been disputed. The treaty-making capacity of an international organization also rests on the decisions and rules of its competent organs249 and on the development of international institutional law. This development may explain why organizations which did not conclude any agreements before the Second World War, and the constitutions of which contain no special provision, have entered into agreements since 1945.250 The evolution of the competences of the EC explains why the Community has acceded to an increasing number of conventions of, for example, the Council of Europe251 and the UN.252 By decision of the competent organ, an international organization may accept powers, rights and obligations attributed to it by a treaty other than the constitution of the organization: for example, the Non-Proliferation Treaty which assigned tasks to the IAEA.253 Most international organizations have concluded headquarters agreements without constitutional authorization. The UN Charter empowers the organization to conclude agreements with the specialized agencies, but does not provide for agreements to be concluded with other international organizations. Nevertheless, agreements have been signed with the IAEA and with the OPCW, which do not qualify as specialized agencies.254 The Charter provides for certain other types of agreements, but only a small fraction of the agreements concluded by the UN fall within the categories authorized in the Charter.255 The relationship agreements between the UN and the specialized agencies are very similar, despite wide variations in the constitutional provisions of the specialized agencies concerning their association with the UN.256

§1751. In the absence of express provisions, it may be difficult to establish which agreements an international organization is entitled to conclude. On the one hand, the right to conclude agreements relating to its headquarters and to the privileges and immunities of its staff can probably be seen as inherent to any public international organization (see below, §1770); on the other hand, international organizations, as yet, do not participate on an equal footing with states in wide, multilateral, law-making treaties, such as the

249. 250. 251. 252. 253. 254. 255. 256.

Vienna II, Art. 6; Chiu, op. cit. note 41, at 21, 184. E.g. de International Office of Public Hygiene which concluded an agreement with the WHO in 1948, see Chiu, op. cit. note 41, at 18. See R. Brillat, La participation de la Communauté européenne aux conventions du Conseil de l’Europe, in: 37 AFDI 819-832 (1991). E.g. the 1992 UN Convention on Biological Diversity; see OJ 1993, L 309/1. Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968, Art. 3, Trb. 1968, 126. On such “trilateral” treaties, see also Yb ILC 1974 II, Part One, at 138. IAEA: GA Res. 1145 (XII); OPCW: GA Res. 55/283. F. Seyersted, International Personality of Intergovernmental Organizations, in 4 IJIL 9 (1964); see also Kasme, op. cit. note 207, at 56-59. See Jenks, op. cit. note 19, at 187-195.

1119

External relations

§1752

Vienna conventions on the law of treaties and on diplomatic and consular law (see below, §1773-1775). Between the extremes of the agreements on the functioning of the organization on the one hand and the global law-making treaties on the other, there is a large body of agreements and treaties which may be concluded by some international organizations, but not by others. The competence to conclude agreements will normally depend on the competence to make binding rules of law. Organizations which cannot make binding rules even in their own field of competence – and most international organizations cannot do so – are incompetent to make binding agreements in those fields with others. §1752. The competence of international organizations to conclude agreements is related to the competence of their members to do so. Both may be competent simultaneously. An example is the case of a copyright convention to which an international organization accedes solely to protect its own publications.257 It then acts for specific interests of the organization which are not at the same time covered by any legal provisions of the members. This competence is not problematic. Usually, however, the interests protected by an international organization will be interests of the members as well. When a customs union makes an agreement with third states on the import of specific commodities, this agreement will affect the imports of its members. §1753. With respect to the making of agreements, as well as to the remaining competence of the members, the most developed legal rules are those of the European Community (EC).258 Originally, this Community had been expressly empowered to conclude agreements with third countries on commercial policy,259 and to conclude association agreements with third states or international organizations.260 In the Single European Act (1986) and in the Treaty on European Union (1992), such explicit competence in external relations has been attributed in other areas as well: monetary policy (Article 111), research and technological development (Article 170), environment (Article 174.4), and development cooperation (Article 181).261 According to the Court of Justice of the Communities, the explicit enumeration of treaty-making powers in the EC treaty is not exhaustive. Such powers may also be implied by other treaty provisions and by measures adopted by the organization. In 1971, the Court held:

257.

258. 259. 260. 261.

See P. Reuter, Fourth report on the question of treaties concluded between States and international organizations, or between two or more international organizations, Yb ILC 1975 II, at 37. For literature, see above, note 208. EC, original Art. 111(2) (now repealed); 133(3). EC, Art. 310. See Flaesch-Mougin, op. cit. note 238 [1993].

§1754

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“Article 210 [- now 281 -] provides that “the Community shall have legal personality”. This provision, placed at the head of Part Six of the Treaty, devoted to “General and Final Provisions”, means that in its external relations the Community enjoys the capacity to enter into international commitments over the whole field of objectives defined in Part One of the Treaty, which Part Six supplements. To determine in a particular case the Community’s authority to enter into international agreements, regard must be had to the whole scheme of the Treaty no less than to its substantive provisions. Such authority arises not only from an express conferment by the Treaty [...] but may equally flow from other provisions of the Treaty and from measures adopted, within the framework of those provisions, by the Community institutions. [...] With regard to the implementation of the provisions of the Treaty the system of internal Community measures may not therefore be separated from that of external relations”.262

§1754. The position adopted by the Court of Justice seems the best possible. The internal and the external powers of international organizations can no more be separated than those of states.263 Where an authority has obtained exclusive power to regulate certain subjects internally, it is unacceptable that some other authority should be entitled to undertake obligations externally with respect to those subjects. The situation leading to the ERTA Case before the Court of Justice clearly illustrates the problem. Under the EC Treaty, the Community was competent to make binding rules on driving and rest periods of drivers of road transport vehicles. Under the auspices of the Economic Commission for Europe of the UN, a European Road Transport Agreement (ERTA) was negotiated, which covered the same matters. The Commission claimed, and the Court upheld, that the Community enjoyed the capacity to participate in this agreement. According to the Court, this does not necessarily imply that the members are not competent to participate in the negotiations as well. The members lose their competence only when the EC constitution has expressly attributed it to the Community or when the Community has actually exercised its competence and has made rules on the subject.264 §1755. The legal principles developed by the Court of Justice of the European Communities can be applied to all international organizations: they are competent to conclude agreements with other international organizations, as well as with states, in those fields in which they are entitled to make rules internally which bind their members. In foro interno, in foro externo. If they have an exclusive right to make such rules, then the members will no longer be competent to regulate those matters themselves, nor to make treaties in that field.

262.

263. 264.

ERTA case (22/70), ECR 1971, at 274; Kramer case (3, 4, 6/76), ECR 1976, at 1308 (emphasis added). See also Opinion 1/76 ECR 755 (1977). The explicit attribution of treaty-making powers in some specific fields in the Treaty on European Union does not “affect the principles resulting from the judgment handed down by the Court of Justice in the ERTA Case” (Declaration No. 10 annexed to the Treaty on European Union). See also J. Groux, Le parallélisme des compétences internes et externes de la Communauté économique européenne, 14 CDE (1978), at 3 ff. Kramer case (3, 4, 6/76), ECR 1976, at 1310. Cf. also Opinion 2/91, CMLR 800 (1993).

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§1756

This means that a customs union which has an exclusive right to set the outer tariff of the union will also be entitled to negotiate about this tariff with others; its members, which are no longer competent to make rules about tariffs, will not be competent to make treaties concerning tariffs. By transferring powers to an international organization, states accept that the organization may exercise these powers on their behalf; agreements made by international organizations within the scope of the powers attributed to them will be binding on the members, as well as on the organization. There seems to be no need for express adherence to the agreement by the member states as well.265 b.

Mixed agreements

§1756. Often, a treaty or agreement covers a field which partly belongs to the competence of an international organization and partly to that of its member states. In these situations, “mixed agreements” are used: agreements with a third party to which an international organization and its members are parties, each in respect of its own competence.266 The European Communities frequently use mixed agreements,267 usually when the substance of an agreement falls partly within the competence of the member states, and, mainly in the past where not all other treaty partners were willing to accept the EC as a treaty partner.268 Provisions of the agreement which might be outside the competence of the organization, (and, in the early years, legal relations with states which did not recognize the EC) will then be covered by the same agreement as a treaty between states. In an interpretative declaration to the 1961 association agreement between the EEC and Greece, the parties declared that the expression “Contracting Parties” in the

265.

266.

267. 268.

See P. Reuter, Sixth report on the question of treaties concluded between states and international organizations or between two or more international organizations, Yb ILC 1977 II, Part One, at 128-133. On mixed agreements, see also H.J. Glaesner, Gemischte Verträge der EG, in: R. Bieber and D. Nickel (eds.), Europa der zweiten Generation, Gedächtnisschrift für Christoph Sasse, Band I (1981); D. O’Keeffe and H.G. Schermers (eds.), Mixed Agreements (1983); Buhl, op. cit. note 238; M.J.F.M. Dolmans, Problems of Mixed Agreements (1985); K.D. Stein, Der gemischte Vertrag im Recht der Außenbeziehungen der Europäischen Wirtschaftsgemeinschaft (1986); J.H.J. Bourgeois, J.-L. Dewost, M.-A. Gaiffe (eds.), La Communauté européenne et les accords mixtes. Quelles perspectives? (1997); MacLeod, Hendry, and Hyett, op. cit. note 238, at 142-164; J. Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001). On the definition of mixed agreements, see in particular H.G. Schermers, in O’Keeffe and Schermers (eds.), op. cit. above, at 23-26. See Heliskoski, op. cit. note 266, at 249-280, for a list of the 154 mixed agreements of the EC concluded between 1958 and 2000. Examples of the former case are several association agreements, an example of the latter is offered by the Food Aid Convention 1971 (UN Doc. TD/Conference (1955), Annex E; ILO and EEC, OJ 167/52, 521/59, 473/61; UNESCO WHEAT. 5/7, at 39-54.

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agreement meant, on the one hand, Greece and, on the other, the Community and the member states, or the Community alone, or the member states alone, depending on the content of the provision concerned. In certain cases, such as Articles 10, 55 and 56 of the Association agreement, it may mean the member states during the transitional period and the Community thereafter. Likewise, Article 2 of the Agreement establishing the European Economic Area, concluded in 1992 between the EEC, the ECSC, their member states, and the EFTA members, provides that “the term “Contracting Parties” means, concerning the Community and the EC member states, the Community and the EC member states, or the Community, or the EC member states. The meaning to be attributed to this expression in each case is to be deduced from the relevant provisions of this agreement and from the respective competences of the Community and the EC member states as they follow from the Treaty establishing the European Economic Community and the Treaty establishing the European Coal and Steel Community”. In other cases, more specific formulae have been adopted. For example, Annex IX (Article 2) to the 1982 UN Convention on the Law of the Sea provides that “an international organization may sign this Convention if a majority of its member states are signatories of this convention. At the time of signature an international organization shall make a declaration specifying the matters governed by this convention in respect of which competence has been transferred to that organization by its member states which are signatories, and the nature and extent of that competence”.269 Practice on the conclusion of mixed agreements is not very consistent, as it depends on the contents of the agreements.270 For example, the association agreements with Greece (1961), Turkey (1963), and the African, Caribbean and Pacific Countries (the Lomé agreements of 1975, 1979, 1984 and 1989), were concluded by the EC and its members, while the association agreements with Tunisia (1969), Morocco (1969), Malta (1970) and Cyprus (1972), were concluded by the E(E)C only. Some trade agreements were concluded by the E(E)C and its members.271 Most other trade agreements were, on the Community side, concluded by the E(E)C only.272

269.

270.

271.

272.

See on the Community and the UN Law of the Sea Convention (1982), K.R. Simmonds, The Community’s Participation in the Law of the Sea Convention, in D. O’Keeffe and H.G. Schermers (eds.), Essays in European Law and Integration 179-195 (1982); K.R. Simmonds, The UN Convention on the Law of the Sea 1982 and the Community’s Mixed Agreements Practice, in D. O’Keeffe and H.G. Schermers, op. cit. note 266, at 199-206; Heliskoski, op. cit. note 266, at 125-142. See also the answers by the Commission to questions by a member of the European Parliament, OJ 1985, C 255/3; OJ 1986, C 81/27; and OJ 1987, C 31/4. On 1 April 1998 the Community adhered to the Law of the Sea Convention (OJ 1998, L 179). See for more examples of mixed agreements and the clauses concerning participation by the EC and the member states, J.J. Feenstra, A Survey of the Mixed Agreements and their Participation Clauses, in O’Keeffe and Schermers (eds.), op. cit. note 266, at 207-248. E.g. most agreements concluded between the E(E)C and its members with Mediterranean countries; for example, the agreements concluded with the Maghreb countries (Algeria, Morocco and Tunisia: OJ 1978, L 263, L 264, and L 265) and those concluded with the Machreq countries (Egypt, Lebanon, Jordan and Syria: OJ 1978, L 266, L 267, L 268, and L 269). E.g. agreements concluded by the EEC under Art. XXVIII GATT; see for example OJ 1968, L 258/9 (Australia) and OJ 1968, L 131/18 (US). Another example is the 1973 Arrangement regarding International Trade in Textiles (Multi-Fibre Arrangement), see 930 UNTS, at 166. The Community alone (i.e.: not the member states) was a party to this arrangement;

1123

External relations

§1757

§1757. In theory, it might not seem too complicated to decide when the substance of an agreement falls within the competence of the Communities in its entirety, and when the member states are partially competent. In practice however, this distinction is difficult to draw. Competences are not always clearly attributed to the Communities, and even where the Communities’ exclusive competence is beyond doubt, the member states sometimes resent their exclusion.273 (And member states are indeed excluded. In some opinions the Court has clearly stated that the existence of exclusive competence for the Community excludes any competence on the part of the member states which is concurrent with that of the Community, in the Community sphere and in the international sphere.274) Moreover, even where there is a clear demarcation of competences between the Community and the member states at the time of concluding a mixed agreement, it is possible that the division of competences may change in the course of time.275 The EC Court was asked whether a number of agreements covered subjects for which the Communities were exclusively competent. To answer such questions, the agreement in question “must be assessed having regard to its essential objective rather than in terms of individual clauses of an altogether subsidiary or ancillary nature”.276 How difficult it is to decide whether there is exclusive competence for the Communities or whether there is a partial competence for the Communities and the member states, might be illustrated by comparing two opinions delivered by the Court which, inter alia, dealt with matters of finance covered by agreements. In 1975 the EC Commission requested the Court to give its opinion pursuant to Article 228 EEC [- now Article 300 ] on the compatibility with the EEC Treaty of a draft “Understanding on a Local Cost Standard” drawn up under the auspices of the OECD, and more particularly on the question whether the Community had the power to conclude that Understanding and, if so, whether that power was exclusive. This Understanding covered measures concerning credits for the financing of local costs linked to export operations. The Court concluded, first, that the Community was competent in this area and, secondly, that the Community’s competence was exclusive. In particular, the Court argued that “it is of little importance that the obligations and financial burdens inherent in the execution of the agreement envisaged are borne directly by the member states”.277 However, in 1979, the Court delivered an opinion in which it decided that, if the buffer stock of the envisaged international rubber agreement was to be financed by the member states (and not by the Community), the Community’s competence would not be

273. 274. 275.

276. 277.

France attempted – in vain – to achieve that this arrangement was considered a mixed agreement. O’Keeffe and Schermers op. cit. note 266, at ix. Opinion 1/75, ECR 1975, at 1364; Opinion 2/91, ECR 1993, at I-1076, 1077. Ruling 1/78, ECR 1978, at 2151 (para. 35). See also Heliskoski, op. cit. note 266, at 48-52, who also rightly observes (at 50) that the relationship between the external competence of the Community and the external competence of the member states “is a matter of great political sensitivity”. Opinion 1/78, ECR 1979, at 2917. Opinion 1/75, ECR 1975, at 1364.

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exclusive, and the rubber agreement should therefore be considered a mixed agreement. In this case, the Court argued that “the financing of the buffer stock constitutes an essential feature of the scheme for regulating the market which it is proposed to set up”.278 In another case, the Court was asked to examine whether ILO Convention 170, concerning safety in the use of chemicals at work, came within the Community’s sphere of competence, and, if so, whether such competence was exclusive. The Court had no difficulty in concluding that the EC was competent, in the light of Article 118a [- now Article 138 -] and the Directives adopted by the Council pursuant to it.279 But the Court established that this competence was not exclusive, mainly because rules adopted pursuant to Article 118a lay down minimum requirements, and leave the member states free to adopt more stringent measures or apply the relevant ILO provisions for that purpose.280 In such cases of mixed competence, “it is important to ensure that there is a close association between the institutions of the Community and the member states both in the process of negotiation and conclusion and in the fulfilment of the obligations entered into. This duty of cooperation [...] results from the requirement of unity in the international representation of the Community. In this case, cooperation between the Community and the member states is all the more necessary in view of the fact that the former cannot, as international law stands at present, itself conclude an ILO convention and must do so through the medium of the member states.281 Furthermore, the Court was requested to deliver an opinion on the participation by the Community and the member states in the newly established World Trade Organization. It drew the conclusion that the WTO constitution did not only cover areas in which the Community was exclusively competent. The EC has exclusive competence in the field of trade in goods, and only in the area of trade in services as far as cross-border services are concerned which do not involve any travel of people (but, for example, by electronic means). As to all other trade in services, there is mixed competence.282

§1758. For the other partners, a mixed agreement offers an acceptable solution to at least one problem: the need to take a decision on competence. In a mixed agreement, the organization and its members are bound, each to the extent of their own competence. How these competences are to be divided can remain an internal question between the organization and its members. Sometimes the agreement in question requires that the organization, in its instrument of ratification, declares the extent of its competence.283

278. 279.

280. 281. 282. 283.

Opinion 1/78, ECR 1979, at 2918. See also Opinion 1/94, ECR 1994, at I-5267, para. 21. Opinion 2/91, ECR 1993, at I-1078. On this Opinion, see N. Emiliou, Towards a clearer demarcation line? The division of external relations power between the Community and the member states, in 19 ELRev. 76-86 (1994). The observations of the International Labour Office concerning the request for an opinion submitted to the EC Court are reproduced in UNJY 1991, at 340-346. Opinion 2/91, ECR 1993, at I-1079. Id., paras. 36-37. See also Opinion 1/94 ECR 1994, at I-5267. Opinion 1/94, ECR 1994, at I-5267. E.g. the 1992 UN Convention on Biological Diversity, Art. 34.3. See OJ 1993, L 309/19 (Declaration by the EEC, indicating the Community competence in the area of this convention).

1125

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§1759. Other problems will arise when an international organization becomes a party to a mixed agreement while some of its members stay outside it.284 This may obstruct the position of the other parties to the agreement. Let us assume, for example, that a supranational fisheries organization adheres to the convention on the law of the sea, but that its members abstain from doing so. This may then mean that the convention’s rules on fisheries will apply to all inhabitants of the states as members of the organization, but that the rules on policing the seas or on pollution will not apply, as they fall outside the competence of the organization. Such partial adherence to a treaty need not be objectionable. Many treaties permit states to become parties to some chapters without adhering to others. However, in many other cases treaties do not permit such partial adherence; they will, for example, only grant advantages in the field of fishing to those states which also accept the burden of police and pollution control. §1760. Treaties which permit neither partial adherence, nor reservations excluding parts of the treaty, only permit parties which accept all provisions to adhere. States or international organizations which are unwilling or unable to do so have to remain excluded. When, added together, their competences fully cover the field of the treaty, the organization and its members can collectively adhere, which makes the agreement a mixed agreement. If one or more members refuse to do so, adherence, both of the international organization and of its other members, seems impossible, as none of them has the power to meet all the obligations of the treaty. This impossibility need not occur, however. In any treaty, particular problems facing one or more parties may be overcome by means of reservations. When the other treaty partners accept that the treaty will only operate in relation to those members of the organization which are also parties to the treaty, and that it will only partly apply in the other members, then there can be no reason to prohibit such limited adherence. In the “Memorandum of Understanding between the US, Euratom, Belgium, the Federal Republic of Germany, Ireland, Italy, Luxembourg and the Netherlands in the field of nuclear science and technology information”,285 the US accepted that it would receive information about the research carried out by Euratom itself and some of its members, whilst providing information to Euratom which would be beneficial to all members of that organization, including those which did not participate in the agreement.286 An incomplete mixed agreement may also be concluded with another international organization; see, for example, the agreement concluded by Euratom and seven of its

284. 285. 286.

Cf. also Dolmans, op. cit. note 266, at 63-70. The possibility of such partial adherence is mentioned in Art. 102 Euratom. Memorandum of 19 Sept. 1974, Trb. 1974, 238; Trb. 1975, 93. For other agreements to which the Communities and only some of their members are parties, see Dauses, op. cit. note 238, at 140.

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members (at the time all members with the exception of France and the UK) on the one hand and the IAEA on the other.287 The Convention on International Liability for Damage caused by Space Objects applies to intergovernmental organizations which have declared their acceptance of the rights and obligations of the Convention, but only if a majority of the members of the organization are parties to the Convention.288 Acceptance by the organization does, however, only affect the space objects of the organization itself. The Convention does not aim to cover international organizations which coordinate space activities performed by their members.

§1761. After an international organization and all of its members have acceded to a mixed agreement, new members may be admitted to the organization. In principle, such members are bound by the agreements previously made by the organization (see below, §1788), but without their express agreement, they cannot be bound to those parts of the mixed agreement which are outside the competence of the organization. It would seem reasonable to require new members to adhere to the mixed agreements of the organization as a condition of membership. This is what happened in the 2003 Act concerning the accession of ten new member states to the European Union.289 But when a new member does not become a party to the mixed agreement, the other parties to it may object to the advantages of the agreement being extended to the new member. The organization may therefore have to withdraw from the mixed agreement if it is impossible to prevent the new member from obtaining the advantages of the agreement, through the participation of the organization without the approval of the other parties to the mixed agreement. §1762. Mixed agreements cause special problems when they are, at the same time, constitutions of new international organizations.290 Many modern treaties create organs for making further rules or for supervising their execution. How should participating international organizations be represented in such organs? If for example, in the near or distant future, the European Union were to adhere to the European Convention on Human Rights (see above, §1576), would it then be entitled to have an ‘EU judge’ as a member of the European Court of Human Rights? Logically this seems difficult to accept. With the Union alone involved, it would be entitled to only one judge; with the domestic laws of the 15 member states at stake, there would be 15 judges. A balance should be reached between these two extremes, and not one leading to 16 judges. In practice, the best solution would probably be to have 16 judges, but with limited competence: one may vote only on EU matters, 15 only on

287. 288. 289. 290.

Agreement of 3 April 1973, Trb. 1973, 97; Trb. 1974, 30; UNJY 1976, at 123. See also above, §1420. Convention of 29 March 1972 on international liability for damage caused by space objects, Art. 22, 10 ILM 970 (1971). Art. 5.2 of this Act of Accession. Cf. Dolmans, op. cit. note 266, at 86-92.

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External relations

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matters concerning the 15 individual member states. It is obvious that such a division of competences will often be difficult to make.291 c.

The competent organ292

§1763. Questions as to which organ of the organization is competent to conclude an agreement will only arise when it has been accepted that the organization may enter into the agreement. In several cases where a need for agreements has existed (and presumably also the right to conclude them), not every member has considered the organization competent. To avoid an impasse being reached, the conclusion of the agreement has then been entrusted to the collective membership of the organization. The diversity of opinion is clearly illustrated by the agreements on privileges and immunities of international organizations.293 Sometimes, such agreements have been concluded between an organ of the organization and the members (for example, the Convention on the Privileges and Immunities of the League of Arab States, approved by the Council on 10 May 1953), while on other occasions the agreements have been concluded as multilateral treaties between member states, without an official act of the organization (for example, the Agreements on the Privileges and Immunities of the Council of Europe294). In other cases again, the organization has officially approved the agreement, which had been concluded between the members (for example, in case of the General Convention on Privileges and Immunities of the UN).295 In case of the Agreement on the Privileges and Immunities of the International Criminal Court, the Agreement was negotiated by the ICC PrepCom and was adopted in 2002 by the Assembly of States Parties (not by the Court itself). Subsequently it was opened for signature by all states.296 Notwithstanding this diversity, the scope of all such agreements is the same. They all stipulate that a certain status for the organization and its personnel is to be guaranteed by the members. In essence, the agreements create bilateral legal relationships between the organizations and their members. There is little reason for fundamental procedural distinctions.

291. 292.

293. 294. 295.

296.

See also Dauses, op. cit. note 238, at 157-170. See T.I.H. Detter, The Organs of International Organizations exercising their Treaty-Making Power, 38 BYIL 421-444 (1962); Higgins, op. cit. note 207, at 249-253; Chiu, op. cit. note 41, at 84-97 ; H. Neuhold, Organs Competent to conclude Treaties for International Organizations and the Internal Procedure Leading to the Decision to Be Bound by a Treaty and Negotiation and Conclusion of Treaties by International Organizations, in: Zemanek, op. cit. note 213, at 195-227; McRae, op. cit. note 231, at 18-26, 30-32. See Chiu, op. cit. note 41, at 142-152. 250 UNTS, at 14. 1 UNTS, at 115. The UN considers itself as a party to the agreement, see ICJ Pleadings, Oral Agreements, Documents 1949, Reparation for Injuries Suffered in the service of the UN, at 71. See Doc. ICC-ASP/1/3, at 215.

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§1764. As the collective membership can act on behalf of the organization (see above, §162-165), the fact that agreements have been made by the members, rather than by a specific organ does not mean that the organization is not a party to the agreement. To determine whether or not it is a party, the contents of the agreement and its purpose should be taken into consideration. An agreement concerning the seat, the status or the immunities of the organization can only be made on its behalf. It expires when the organization is dissolved, and it does not change when one or more states, other than the host state, fail to ratify it or withdraw from it. It regulates the relations between the organization and one or more states. The fact that none of the organs may have actively participated in its conclusion may be relevant when determining how organs of the organization can invoke the agreement, but it does not influence the position of the organization as a party. Since the members of the organization may not only act in their capacity as sovereign states, but also in their capacity as elements of the organization, the conclusion of agreements by the collective membership may lead to questions as to the position of the organization if the capacity in which the member states have acted is not clear. The conclusion of agreements by an organ of the organization is therefore to be preferred. §1765. The competence of international organizations to conclude agreements through their own organs is widely accepted (see above, §1748-1755). There is no generally accepted opinion, however, as to which of the organs is competent.297 The capacity to conclude agreements in a specific field forms part of the power to regulate that field. The supreme organ in the field concerned will therefore be competent to conclude agreements. This will usually be the general congress. In his report to the International Law Commission of the UN, Brierly proposed that “in the absence of provision in its constitution to the contrary, the capacity of an international organization to make treaties is deemed to reside in its plenary organ”.298

The general congress is not always competent, however. Some organizations assign specific tasks to the exclusive competence of other organs, in which case the latter will be competent to conclude agreements within the scope of their tasks. E.g., the UN Security Council on matters of peace and security, UNICEF and the UNDP in their fields, and the boards of IMO, ICAO and IAEA on several matters specifically attributed to them.

297. 298.

Higgins, op. cit. note 207, at 249-253; Chiu, op. cit. note 41, at 84-97; Neuhold, op. cit. note 292, at 216-227. Draft Convention on the Law of Treaties, Art. 4, para. 3, Yearbook of the ILC 1950 II, at 223.

1129

External relations

§1766

§1766. In practice, some powers have been delegated to the Secretary-General, albeit often subject to the restriction that he should report to the general congress, and that the general congress may subsequently overrule him.299 Sometimes express, subsequent approval is needed (see below, §1791-1793). The actual competence of the Secretaries-General to regulate administrative affairs has induced them to conclude agreements on purely administrative matters – such as exchanges of documents, use of conference halls by other organizations or common rules for the staff – on their own initiative and without the prior approval of the general congress.300 The Secretary-General of the UN has concluded several agreements on his own, such as the “Interim arrangements on privileges and immunities of the UN, concluded between the Secretary-General of the UN and the Swiss Federal Council”,301 the “Agreement between the Secretary-General of the UN and the Government of Canada relating to the 1948 campaign for the UN appeal for children”,302 or the administrative arrangement with the ILO Director-General on laissez-passer, of June-July 1950.303 As chairman of the Technical Assistance Board, he even concluded agreements on behalf of international organizations other than the UN.304 He was expressly authorized by the General Assembly305 to conclude the headquarters agreement with the US. The Director of Common Services for the International Criminal Court was authorized by the first Assembly of States Parties to perform the functions and responsibilities of the Registrar (who was appointed, in accordance with the ICC Statute, only almost a year following the entry into force of the Statute).306 On that basis he concluded an interim headquarters agreement with the Netherlands in 2002.307 In 1981 the question was brought before the UN Office of Legal Affairs whether a formal agreement of cooperation can be concluded between the UN Secretariat and an international organization. The Office concluded that in previous cases of such formal agreements, almost always a negative reply had been given. “As a matter of general policy it was usually decided not to conclude such formal agreements without express authorization from the General Assembly or other competent deliberative organs”. One exception is an agreement on cooperation between the Secretariats of the Economic Commission for Africa and the OAU. As a rule, such arrangements on cooperation are not concluded as formal agreements (except when there is a specific authorization), but as informal (non legally binding) “memoranda of understanding”. For example, a memorandum of understanding has served as the basis for cooperation between the Secretariats of the UN and the League of Arab States.308

299. 300. 301. 302. 303. 304. 305. 306. 307. 308.

For authorizations in favour of the Secretary-General or another agent, see Detter, op. cit. note 292, at 427-437. In some cases secretariats have concluded agreements on other than administrative matters, see Detter, op. cit. note 292, at 425. 1 UNTS, at 163 ff. 47 UNTS, at 168 ff. 68 UNTS, at 213 ff. See also 43 UNTS, at 329 and Kasme, op. cit. note 207, at 190-194. See e.g. 76 UNTS, at 120. GA Res. 22 B(I). Decision ICC-ASP/1/Decision 2 (see Doc. ICC-ASP/1/3, at 355). Published in Trb. 2002, 211. UNJY 1981, at 149.

§1767

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§1767. Taking account of the actual distribution of competence, the conclusion of administrative agreements by the Secretary-General seems justifiable. But the supervisory power of the general congress cannot be affected. The general congress can, therefore, terminate any agreement concluded by the SecretaryGeneral without its approval. The competence of the organ, supreme in the matter concerned, to conclude agreements, will generally not prevent delegation of the power to sign agreements to other organs of the organization (see below, §1789). §1768. For the EC, agreements are negotiated by the Commission in accordance with mandates issued by the Council. The Commission is usually assisted by a special intergovernmental committee appointed by the Council.309 Since the mandates of the Council may leave little room for negotiation, the Commission may have to consult the Council during the negotiations, in order to have its mandate amended. The final conclusion of agreements is a power which belongs to the Council,310 as a rule after it has consulted the European Parliament. In four specific cases, the Parliament not only has to be consulted, but also has to give its assent: association agreements (Article 310 EC), other agreements establishing a specific institutional framework by organizing cooperation procedures, agreements with important budgetary implications for the Community, and agreements entailing amendment of an act adopted under the co-decision procedure of Article 251 EC.311 On 23 September 1991, an anti-trust agreement was signed between the European Commission and the US. The Commission also intended to conclude this agreement, even though the power to conclude agreements is conferred upon the Council. In 1994, the EC Court declared the act through which the Commission intended to conclude the agreement void, arguing that, although the Commission has, at the internal level, the power to take individual decisions for the application of competition rules, this internal competence is not such that it may modify the division of power between the Community institutions in respect of the conclusion of international agreements as set out in Article 300 of the EC Treaty.312

3.

The subject matter of agreements313

§1769. International organizations are not competent to make agreements in every field. Below, we will discuss some important subjects about which agreements are made.

309.

310. 311. 312. 313.

EC Art. 300. See B.R. Bot, Negotiating Community Agreements: Procedure and Practice, 7 CMLRev. 286-310 (1970); MacLeod, Hendry, and Hyett, op. cit. note 238, at 80ff, on the internal procedures of the Communities for the conclusion of agreements. On the EC organs, competent in external relations for which no express provision is made in the EC Treaty, see Case 22/70, ERTA, ECR 1971, at 279-282. Art. 300 EC. Art. 300.3 EC. Case C 327/91, France v. Commission, ECR 1994, at I-3678 (para. 41). See also Karunatilleke, op. cit. note 218, at 37-76.

1131

a.

External relations

§1770

Agreements on the status of the organization and on relations with others314

§1770. All international organizations enjoy the competence to conclude agreements on their status. These may relate to the organization’s position within the host state (headquarters agreements, see above, §1689-1690) or within a state where a conference is being held,315 or they may concern the privileges and immunities of the organization and its staff (see above, §1606-1609).316 All international organizations also have an inherent right to enter into agreements with other international organizations on their mutual relations and on the coordination of their activities (see above, §1706-1738).317 These agreements may also concern the transfer of functions (succession agreements).318 The competence to conclude agreements on their status has not been clearly established for all international organizations. No organ of the organization may be empowered to enter into such agreements. However, the absence of a competent organ does not prevent the organization from using its power, since the collective membership can always represent the organization (see above, §162-165). b.

Agreements on assistance to members

§1771. International organizations are established to assist the members collectively in performing particular functions. Many international organizations assist developing members individually. For that purpose, most universal organizations make agreements with their developing members on the granting of aid.319 The UNDP uses a standard basic agreement, which was adopted in 1973.320 Besides the provisions on aid, this agreement also stipulates the privileges and immunities which UNDP missions are to enjoy in the state concerned and special facilities for its staff.321 It also stipulates that the UNDP may maintain a permanent mission in the country.322 The member state remains

314. 315. 316. 317.

318. 319.

320. 321. 322.

See McRae, op. cit. note 231, at 1-55. For examples of such agreements, see UNJY, e.g. UNJY 1974, at 16-26 and 32; UNJY 1976, at 28-47 and 55; UNJY 1996, at 11,31, 39 and 79. Chiu, op. cit. note 41, at 140-141; Repertory of Practice of United Nations Organs, Vol. V, at 327-331. Seyersted in 4 IJIL (1964), at 5, 19-23. 38, 39. See also R.J. Dupuy, L’application des règles de droit international général des traités aux accords conclus par les organisations internationales, Report to the Institute of International Law (1972), at 101. See above, §1639. For lists, see UNJY and cumulative indices UNTS. For the texts of standard agreements of the UNDP and of UNICEF, see UN Doc. E/AC.51/GR/21 (Sales No. E69-I.23), at 67-75. See also J.M. van Wouw, Formal Aspects of Technical Assistance Agreements Concluded by the UN Family of Organizations, in: Zemanek, op. cit. note 213, at 105-126. UN Doc. UNDP/ADM/LEG/34. The text is reproduced in the UNDP Basic Documents Manual, Chapter II. See also UNJY 1990, at 24-26. Id., Art. IX. See also UNJY 1973, at 24-26; UNJY 1990, at 24-26. UNDP/ADM/LEG/34, Art. II, para. 4 (a).

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responsible for the projects.323 It is to furnish the UNDP with such relevant documentation as the latter may request.324 The Standard UNDP Basic Agreement also provides that the receiving government must contribute local services, land, buildings and equipment available or produced within the country.325 Any dispute is to be settled by arbitration.326 c.

Agreements concerning the organization’s field of operation

§1772. Many international organizations make agreements as part of their task, both with members and with non-members. An international organization may need the cooperation of non-members. The Intergovernmental Committee for European Migration (since 1987: the International Organization for Migration) for example, had the task of promoting the settlement of European refugees in other continents. It could do so only by making agreements with non-member states willing to receive refugees.327 Many international organizations collect data. If such data are also required from non-members, agreements may have to be concluded for that purpose. An early example of this kind of agreement is that of January 1934 between the League of Nations and the USA, on the registration of treaties.328 As further examples of agreements with members and non-members, the Loan and Guarantee Agreements of the World Bank may be mentioned,329 as may the forestry agreements of the FAO,330 the trade and other agreements (bilateral and multilateral) of the EC,331 the agreements between the World Trade Organization and its members or potential members,332 and the association agreements of the EC (see below, §17801782). The UN has concluded several trusteeship agreements under Article 85 of the

323. 324. 325. 326. 327. 328. 329.

330. 331.

332.

Id., Art. III. Id., Art. IV. Id., Arts. V-VI. Id., Art. XII. ICEM, Art. 1, para. 3. See also Pescatore, op. cit. note 231, at 56. Chiu, op. cit. note 41, at 12, mentions this as the sole LoN agreement with a non-member. Chiu, op. cit. note 41, at 177-183; Broches in 98 RdC (1959 III), at 316-408. Other formal agreements are used by the World Bank, see L. Nurick, Certain Aspects of the Law and Practice of the International Bank for Reconstruction and Development, in: S.M. Schwebel (ed.), The Effectiveness of International Decisions (1971), at 104; J.W. Head, Evolution of the governing law for loan agreements of the World Bank and other multilateral development banks, 90 AJIL 214-234 (1996). J.P. Dobbert, Decisions of International Organizations, Effectiveness in Member States, Some Aspects of the Law and Practice of FAO, in: Schwebel, op. cit. note 329, at 222. Hundreds of such agreements have been concluded. See the Directory of Community legislation in force, published twice a year by the European Communities and also available from www.europa.eu.int/eur-lex/en/lif (Chapter 11 of this Directory covers external relations). GATT, Arts. XXVIII, XXXIII; WTO, Art. XII.

1133

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§1773

Charter.333 It has also entered into agreements with host states on the status of military forces or observers sent under its auspices (see above, §1496 ff., and below, §1833).334 Euratom has concluded agreements on cooperation and exchange of information with several states;335 the IAEA signed agreements on the supply of fissionable materials,336 research337 and inspection (see above, §1418).

d.

Law-making agreements

§1773. With some notable exceptions,338 international organizations have not participated in general law-making treaties. This may have to change in the future. Organizations using military forces may have to become parties to treaties on the law of war; organizations operating a radio station or operating ships or aircraft may have to be parties to treaties on telecommunications or navigation. International organizations may wish to adhere to universal or regional conventions on human rights. The problems which may then arise were demonstrated in the UN Sugar Conference of 1968, where the representative of the EEC stated that the EEC could only sign a resulting agreement as a single entity,339 while, on the other hand, the delegate of the USSR had made it clear that only states could be parties to the convention. The Soviet delegate argued that admission of the EEC would be contrary to the fundamental principles of the UN Charter. It would be an anomaly that important states, such as the German Democratic Republic (DDR), could not participate in the convention (to which only the members of the UN and the specialized agencies were invited) while an entity, which was not even a state, would be permitted to do so. Since participation of the EEC in the 1968 Sugar Agreement was considered of the greatest importance, the Eastern European objections were overruled and the agreement accordingly provides that:

333.

334.

335. 336. 337. 338.

339.

For the texts, see YUN 1946-47, at 188 ff.; see also Chiu, op. cit. note 41, at 159-168. For the termination of Trusteeship agreements, see G. Marston, Termination of Trusteeship, 18 ICLQ 1-40 (1969). For example, with Egypt (260 UNTS, at 61), Lebanon (303 UNTS, at 273), the Congo (Zaire; 414 UNTS, at 229), and Cyprus (492 UNTS, at 57; UNJY 1964, at 40-50). On the agreement with the Congo, see J.J.A. Salmon, L’accord ONU-Congo (Léopoldville) du 27 november 1961 (with text), 68 RGDIP 60-109 (1964). These agreements are published in the OJ of the Communities. On 11 May 1959 agreements were signed between the IAEA, the USSR, the US and the UK (IAEA Press Release PR 59/37; INFCIRC/5, at 3-9). See e.g. 374 UNTS, at 133-145 (Master Contract between IAEA and US). The participation of 18 international organizations (in particular: the UN, IAEA, the World Bank and the EC) in the 1986 Vienna Conference on the Law of Treaties between States and International Organizations or between International Organizations (see Zemanek, op. cit. note 208, at 667). Under the rules of procedure of this conference, these organizations had the right to speak, to submit proposals, and to form part of the consensus, but no right to vote. UN Doc. TD/SUGAR.7/EX/SR. 11 to 27, at 68; see also below, §1841 (EEC’s participation in the Sugar Conference).

§1774

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“Any reference in the Agreement to a “Government invited to the United Nations Sugar Conference 1968” shall be construed as including a reference to the European Economic Community (hereinafter referred to as the EEC). Accordingly any reference in the Agreement to “signature of the Agreement” or to the “deposit of an instrument of ratification, acceptance, approval or accession” by a Government shall, in the case of the EEC, be construed as including signature on behalf of the EEC by its competent authority and the deposit of the instrument required by the institutional procedures of the EEC to be deposited for the conclusion of an international agreement”.340

When ratifying the Agreement, the USSR officially declared that its possible participation together with the EEC would not imply its recognition of the EEC. Similar declarations were not however made by Hungary and Poland, which also ratified the Agreement.341 After the Sugar Conference (1968), the Community participated in many other commodity agreements (see above, §81) and was gradually accepted as a treaty partner. §1774. Adherence of international organizations to purely legislative texts should be easy. Legislative texts are made to be applied. Thus, the more institutions which formally commit themselves to apply them, the better for the legislation. The rules on the treatment of prisoners of war would only be strengthened if the UN were to adhere to them on behalf of their forces; the protection of human rights would only benefit from as many international organizations as possible adhering to the UN Covenants on Human Rights, or to the regional Human Rights Conventions. In practice, however, no international organizations have adhered to such treaties. International law does not permit international organizations to participate in a way equal to governments of states. The Office of Legal Affairs of the United Nations has always maintained “that the United Nations is not substantively in a position to become a party to the 1949 Conventions, (on warfare) which contain many obligations that can only be discharged by the exercise of juridical and administrative powers which the Organization does not possess, such as the authority to exercise criminal jurisdiction over members of the Forces, or administrative competence relating to the territorial sovereignty. Thus the United Nations is unable to fulfil obligations which for their execution require the exercise of powers not granted to the Organization, and therefore cannot accede to the Conventions”.342 The European Commission takes the view that the Community could adhere to the European Convention on Human Rights and that this would promote the protection

340.

341.

342.

International Sugar Agreement 1968, Art. 2, para. 26. Text published in UN Doc. TD/ SUGAR.7/12 (Sales number E69.II.D.6). Compare the Food Aid Convention 1971 (UN Doc. TD/WHEAT.5/7, at 39-54) in which the EEC is mentioned as a party. Multilateral Treaties in respect of which the Secretary-General performs depositary functions, List of Signatures, Ratifications, Accessions, etc. as at 31 December 1969 (UN Doc. ST/LEG/SER.D/3), at 338-339. Memorandum of the UN Office of Legal Affairs of 15 June 1972, UNJY 1972, at 153.

1135

External relations

§1775

of human rights in Europe.343 This view was however not shared by the EC Court (see further above, §1576).344

§1775. Some general economic treaties do permit the European Communities to participate (see above, §81), but only rarely is express provision made for such participation.345 Usually, admission is open to “international organizations and Communities which are competent to exert powers in the field of the treaties”,346 or to the EC “or any intergovernmental organization having comparable responsibilities in respect of the negotiation, conclusion and application of international agreements, in particular commodity agreements”.347 e.

Establishment of new international organizations

§1776. It has already been observed (above, §81 ff.) that international organizations may be members of other international organizations. May they also establish new public international organizations themselves? Just as the creation of legal persons by other legal persons has met some resistance in national legal systems, the establishment of public international organizations by other public international organizations meets opposition. It is argued that the structure of international relations would become too complex if the personality which international organizations derive from states could be passed on to new entities. As in national law, such a transferral of legal personality requires recognition. Once international organizations have been accepted as subjects of international law, they should be permitted to fulfil all functions authorized by their constitution, provided that they do not violate peremptory norms of

343.

344. 345. 346. 347.

On a possible adherence of the European Communities to the European Convention on Human Rights, see Memorandum of the Commission of 4 April 1979, Bulletin of the European Communities, Supplement 2/79; H.G. Schermers, The European Communities under the European Convention on Human Rights, LIEI 1978/1, at 1-8. On 19 November 1990, a renewed proposal was submitted by the Commission to the Council, see Doc. SEC(90) 2087 def., and EC Bull. No. 10 (1990), at 76, and No. 11 (1990), at 72. See also J.P. Jacqué, The Convention and the European Communities, in: R.St.J. MacDonald, F. Matscher, H. Petzold (eds.), The European System for the Protection of Human Rights 889-907 (1993); R.A. Lawson, Confusion and Conflict? Diverging Interpretations of the European Commission on Human Rights in Strasbourg and Luxembourg, in: R. Lawson and M. de Blois (eds.), The Dynamics of the Protection of Human Rights in Europe, Essays in Honour of Henry G. Schermers, Vol. III (1994), at 219-252; H.G. Schermers, The European Communities Bound by Fundamental Human Rights, in 27 CMLRev. 249-258 (1990). Opinion 2/94, ECR 1996, at I-1759. E.g. the 1992 International Sugar Agreement, Art. 5. See Dauses, op. cit. note 238, at 152-157. See also A.W. Koers, Participation of the European Economic Community in a New Law of the Sea Convention, 73 AJIL 426-443 (1979). E.g. the 2001 International Coffee Agreement (Art. 4(3)); see for an almost similar text (excluding the word “comparable”), the 2001 International Cocoa Agreement (Art. 4.1).

§1777

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international law. There is no apparent reason why their right to participate in the establishment of new international organizations should be withheld. §1777. Some examples can be found of international organizations participating in the establishment of new international organizations (see above, §81 ff.). In 1961, the UN and the FAO established the World Food Programme, which commenced operations on 1 January 1963. The agreement between the UN and the FAO was not a formally signed text. It was instead concluded in parallel resolutions of the general congresses of those organizations.348 The World Food Programme does not possess independent legal personality, but enjoys some autonomy. Its Executive Director acts by virtue of a delegation of authority from the Secretary-General of the UN and the Director-General of the FAO. He heads a joint administrative unit of both organizations. The Programme is operated in accordance with General Regulations and directives issued by an Executive Board, to which each organization nominates half of the 36 members. The World Food Programme is financed through a trust fund established under the Financial Regulations of FAO. General administrative and financial services are provided by FAO on the basis of reimbursement.349

§1778. The EC Court has established that the European Community’s competences in the field of external relations includes the power to create new international organizations, to give the organs of such organizations appropriate powers of decision, and to define, “in a manner appropriate to the objectives pursued, the nature, elaboration, implementation and effects of the provisions to be adopted within such a framework”.350 The Court has specified that if the EC is a party to an international agreement “which provides for its own system of courts, including a court with jurisdiction to settle disputes between the contracting parties to the agreement, and, as a result, to interpret its provisions, the decisions of that court will be binding on the Community institutions, including the Court of Justice. Those decisions will also be binding in the event that the Court of Justice is called upon to rule, by way of preliminary ruling or in a direct action, on the interpretation of the international agreement, in so far as that agreement is an integral part of the Community legal order. An international agreement providing for such a system of courts is in principle compatible with Community law. The Community’s competence in the field of inter-

348.

349.

350.

GA Resolutions 1496 (XV) of 27 October 1960, 1714 (XVI) of 19 December 1961, 2095 (XX) of 20 December 1965, and Resolutions of the Conference of FAO at its 11th and 13th Session (1961 and 1965). UN Doc. E/4043 (Report of the World Food Programme by the Executive Director), ECOSOC, Official Records, 39th Session, Annexes Agenda item 19, paras. 61-67; YIO 20032004, Vol. 1, at 2674-2675; GA Res. 50/8; UN Handbook 2002, at 193-194; www.wfp.org. Opinion 1/76, ECR 1977, at 755-756. See on the legal status, within the EC legal order, of the decisions taken by organs of such organizations B. Martenczuk, Decisions of bodies established by international agreements and the Community legal order, in V. Kronenberger (ed.), The European Union and the International Legal Order 141-163 (2001).

1137

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national relations and its capacity to conclude international agreements necessarily entails the power to submit to the decisions of a court which is created or designated by such an agreement as regards the interpretation and application of its provisions”.351

§1779. In 1992, the European Economic Area (EEA) was established through a mixed agreement between the EEC, the ECSC, the EC member states and the EFTA members.352 The EEA is an association, which aims “to promote a continuous and balanced strengthening of trade and economic relations between the contracting parties with equal conditions of competition, and the respect of the same rules, with a view to creating a homogeneous European Economic Area”.353 While the EEA Agreement provides for extensive cooperation between the contracting parties, it is of a fundamentally different nature from the European Communities. As was concluded by the EC Court, “the EEA is to be established on the basis of an international treaty which, essentially, merely creates rights and obligations as between the contracting parties and provides for no transfer of sovereign rights to the intergovernmental institutions which it sets up. In contrast, the EEC Treaty, albeit concluded in the form of an international agreement, none the less constitutes the constitutional charter of a Community based on the rule of law. As the Court of Justice has consistently held, the Community treaties established a new legal order for the benefit of which the states have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only member states but also their nationals (see, in particular, the judgment in Case 26/62, Van Gend en Loos, ECR 1963, at 1). The essential characteristics of the Community legal order which has thus been established are in particular its primacy over the law of the member states and the direct effect of a whole series of provisions which are applicable to their nationals and to the member states themselves”.354

The EEA institutional structure is indeed fundamentally different from that of the Communities. The EEA Council is the general congress of the organization, composed of members of the EC Council and the EC Commission, and one member of the government of each of the participating EFTA states. As a rule, it is to be convened twice a year.355 The EEA Joint Committee is the board of the organization, consisting of representatives of the contracting

351. 352.

353. 354. 355.

Opinion 1/91, ECR 1991, at I-6106. Published in CMLR 921 (1992). This Area started to function on 1 January 1994. Switzerland decided not to become a member, following the negative result of a referendum. See on the Area: S. Norberg, The Agreement on a European Economic Area, 29 CMLRev. 1171-1198 (1992); A. Toledano Laredo, The EEA Agreement: An Overall View, 29 CMLRev. 1199-1213 (1992); C. Reymond, Institutions, Decision-Making Procedure and Settlement of Disputes in the European Economic Area, 30 CMLRev. 449-480 (1993). Some information concerning the EEA is available on the EFTA website: www.efta.int. EEA, Art. 1.1. Opinion 1/91, ECR 1991, at I-6102. EEA, Arts. 89-91.

§1780

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parties. It meets, in principle, at least once a month.356 In addition, an EEA Joint Parliamentary Committee has been established, composed of an equal number of members of the European Parliament and members of parliaments of the EFTA states.357 This parliamentary organ’s powers are of an advisory nature, and thus significantly more limited than those of the European Parliament. An EEA Consultative Committee has also been created, composed of equal numbers of members of the Economic and Social Committee of the Community and members of the EFTA Consultative Committee.358 Originally, the draft EEA Agreement provided for the creation of an EEA Court. However, the EC Court – asked to deliver an opinion on the compatibility with the EEC Treaty of this earlier draft, pursuant to Article 300(1) EC – concluded that the proposed system for judicial supervision was incompatible with the EEC Treaty, because it was considered liable to undermine the autonomy of the Community legal order.359 A new draft was negotiated, which no longer contemplated the creation of an EEA Court, and proposed instead that an EFTA Court be established by separate agreement between the EFTA states. The EC Court was asked to deliver a second opinion, and concluded that the autonomy of the Community legal order was no longer adversely affected.360 §1780. The European Community has concluded association agreements with many non-member states.361 One example is formed by the so-called Europe agreements, which are mixed agreements concluded with Central and Eastern European states.362 These agreements actually create new international organizations, of which the EC is one of the members. As with the EEA agreement, their purposes are more limited than those of the EC. Several of them create nothing more than a free trade association. The organizations established by the association agreements have their own organs, of which one is a general congress, usually called “the Council”. This council is composed, on the one hand, of the members of the Council of the European Union and of members of the Commission and, on the other hand, members of the government of

356. 357. 358. 359. 360. 361.

362.

EEA, Arts. 92-94. EEA, Art. 95. EEA, Art. 96. Opinion 1/91, ECR 1991, at I-6104-6107. Opinion 1/92, ECR 1992, at I-2821. See on the two EEA opinions by the EC Court, the annotation by H.G. Schermers, 29 CMLRev. 991-1009 (1992). See A. Weber in H. von der Groeben et al. (Hrsgb.), Kommentar zum EU-/EG-Vertrag (5th ed., 1997), at 5/718-5/768 (with references to further literature); MacLeod, Hendry, and Hyett, op. cit. note 238, at 367-385. For example, with Hungary and Poland, published in OJ 1993, L 347 and L 348. See on the Europe agreements M. Maresceau, Les accords européens: analyse générale, RMC No. 369 (1993), at 507-515; D. Kennedy and D.E. Webb, The Limits of Integration: Eastern Europe and the European Communities, 30 CMLRev. 1095-1117 (1993).

1139

External relations

§1781

the partner(s) in the association agreement.363 There may also be a junior congress, such as the Committee of Ambassadors under the Lomé Agreements and the subsequent Cotonou Agreement,364 and there is often also a parliamentary organ.365 §1781. A distinction is often drawn between three types of association agreements concluded by the EC and the member states.366 The first type are the “future membership” association agreements, concluded with non-member states which are considered to be potential members, for example, the agreement with Turkey. The more recently concluded association agreements with Central and Eastern European states also refer in their preambles to the possibility of future membership. The second group is the “free trade” association agreements. The objective of these agreements is to create a customs union, for example, the agreements with Malta and Cyprus. A third type are the “development” association agreements. These agreements are one of the instruments of the Community’s policy for development cooperation. The most important examples of this type of agreement is the Lomé Convention and the subsequent Cotonou Agreement. The cooperation agreements of the EC also create new organs with the power to take binding decisions. In 1976, the League of Arab States and the Organization of African Unity created a system of mutual cooperation, with separate organs, which bears all the characteristics of a new international organization.367

§1782. Institutionally, the full participation of international organizations in other international organizations need not pose any insurmountable problems. The European Community could operate as a full member of economic organizations in the same way as any state, if it were admitted as a full member and if the EC member states were not also members. Problems only arise where an international organization becomes a partial member (not being competent to operate in all fields of the organization), or where its members participate as well (see above, §1756-1761, on mixed agreements).

363. 364.

365. 366. 367.

E.g. Lomé IV (published in OJ 1991, L 229), Art. 30; Cotonou Agreement (published in OJ 2000, L 317/3), Art. 15.1. Lomé IV, Arts. 31, 346-347; Art. 16 of the 2000 Cotonou Agreement (the Partnership Agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its member states, of the other part). Lomé IV, Arts. 32 and 350-351; Cotonou Agreement, Art. 17. See for example Weber, op. cit. note 361. B. Boutros-Ghali, 23 AFDI 175-186 (1977); YIO 2003-2004, Vol. 1, at 1970 and 2403.

§1783

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4.

The legal force of agreements

a.

Legal character

1140

§1783. As in the case of treaties between states, the legal character of agreements may vary greatly. Headquarters agreements have a contractual character, creating rights and obligations for both parties. The legal character of many agreements on technical assistance or on mutual cooperation is less clear, either because they may be terminated unilaterally at short notice,368 or as a consequence of their substance. Agreements instructing an international organization “to consider...” or to “include upon the agenda of one of its organs...”,369 are more declarations of policy than legal obligations. They nevertheless establish international rules of behaviour.370 To qualify as formal agreements, legal instruments should fulfil certain minimum requirements. The parties must have intended their arrangements to be governed by international law.371 Standby arrangements between the IMF and its members are an example. In these agreements IMF resources are – under certain conditions – made available to members experiencing balance-of-payments problems. Standby arrangements are not concluded as international agreements.372 Another example is the Founding Act on Mutual Relations Cooperation and Security between NATO and the Russian Federation, signed in Paris, 27 May 1997. The Russian Federation proposed to conclude this instrument as a legally binding agreement, and to register it with the UN Secretariat in accordance with Article 102 of the UN Charter. This proposal was rejected by the NATO members who did not want to create a legal relationship with the Russian Federation. This Founding Act was therefore concluded as a political instrument, containing political commitments by the parties, and no obligations under international law.

All arrangements governed by rules of a national legal order or of the internal legal order of the organization (such as the arrangement to participate in some restricted organ) are of a basically different character and should, for that reason, be distinguished from agreements in the strict sense.

368. 369. 370. 371. 372.

Chiu, op. cit. note 41, at 136. Id., at 138. C. Parry, The Treaty-making Power of the United Nations, 26 BYIL 139 (1949). Chiu, op. cit. note 41, at 195; J. Fawcett, The Legal Character of International Agreements, 30 BYIL 387-388 (1953). See J. Gold, The Legal Character of the Fund’s Stand-By Arrangements and why it matters, IMF Pamphlet Series No. 35 (1980); W. Meng, Conditionality of IMF and World Bank Loans: Tutelage over Sovereign States?, in Verfassung und Recht in Übersee 263-277 (1988), in particular at 268.

1141

b.

External relations

§1784

Validity

§1784. Under the law of treaties, a state may not rely on the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties. Exception to this rule is permitted only when the violation was manifest and concerned a fundamentally important rule of its internal law.373 Likewise, the Vienna II Convention provides that an international organization may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of the rules of the organization regarding competence to conclude treaties as invalidating its consent, unless that violation was manifest and concerned a rule of fundamental importance.374 According to the Vienna Conventions, a violation is manifest if it would be objectively evident to any state or any international organization conducting itself in the matter in accordance with normal practice of states and, where appropriate, of international organizations and in good faith.375 Members of the organization may be presumed to know the powers of the organization, or at least to be able to obtain an expert opinion on the matter, with the result that for these states a violation will usually be manifest. Even for non-members, a violation of the law of an international organization may be more apparent than a violation of the internal law of a state, since most laws of international organizations can easily be consulted and are comparatively simple. In contrast to the situation where it is concluding a treaty with another state, a state may not assume that an international organization is competent to conclude any agreement. It can be presumed to know that the competence of every international organization is limited to some particular field and that that competence cannot be implicitly amended by any organ of the organization. Good faith requires it to seek the necessary information. In its general conditions applicable to loan and guarantee agreements, the World Bank provides that the parties to a loan agreement may invoke neither a violation of the law of any state nor a violation of the constitution of the Bank in asserting a claim that any provision of the loan agreement is invalid or unenforceable.376 It may be questioned whether such a provision can validly be made. Can priority be given to an agreement over the constitution? Normally this question should be answered in the negative. An organization entering into an agreement which violates its constitution would act ultra vires. In the case of the Bank, however, a presumption of validity may

373. 374. 375. 376.

Vienna I and II, Art. 46.1; see also Neuhold, op. cit. note 292, at 254-267. Vienna II, Art. 46.2. See also Groux and Manin, op. cit. note 238, at 123-125. Vienna I, Art. 46.2; Vienna II, Art. 46.3. General conditions applicable to loan and guarantee agreements (January 1, 1985 (as amended, 1999), Art. X, Section 10.01; available on www.worldbank.org/legal/). See Broches in 98 RdC (1959 III), at 297-409, in particular at 362-370. See also Chiu, op. cit. note 41, at 182-183.

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be made, as the organ competent to interpret its constitution (the Executive Directors) must approve all loan agreements. Approval of the agreement implies the interpretation that the constitution has not been violated.

§1785. Not only should the agreement fall within the competence of the organization but it should also be made by the competent organ of the organization. No supreme organ enjoys presumed competence in the context of international organizations, a situation which contrasts sharply with states. In each case, the institutional law of the organization must be consulted, although usually the general congress will be the supreme organ. The Secretary-General can be deemed competent to enter into an the agreement only where he is supported by a resolution of the supreme organ of the organization or where he acts in a field which has been delegated to him. The competence of an organ to conclude agreements on behalf of the organization may be unclear to the other party acting in good faith. In that case, the agreement may be valid despite having been concluded by an incompetent organ. If it cannot be executed, the organization will be liable. “Both national and international law contemplate cases in which the body corporate or politic may be bound, as to third parties, by an ultra vires act of an agent”.377 §1786. Agreements may not violate peremptory norms of international law (ius cogens);378 they are without any legal effect if consent has been procured by the coercion of a representative or by the threat or use of force against the other party;379 and the other party may invoke error, fraud or corruption to invalidate the agreement.380 The supreme organ of an international organization (usually the general congress) can virtually always revoke an agreement concluded on behalf of the organization which has been made invalidly. The organization should be responsible for any damage caused to the other party, if the violation is not manifest. If the breach is apparent, the supreme organ should be entitled to consider the agreement as void ab initio and thus ignore it entirely. There is no judicial organ available to settle a possible dispute on the question of whether or not a violation of the law of the organization is manifest. For that reason, the organization should negotiate with the state concerned, rather than unilaterally declare the agreement void. This negotiation may lead to arbitration, if no solution can be found.

377. 378. 379. 380.

ICJ Rep. 1962, at 168, quoted by Chiu, op. cit. note 41, at 97, whose conclusion (drawn before the conclusion of the Vienna Convention on the Law of Treaties) is different. Arts. 53, 64 of the two Vienna Conventions. Id., Arts. 51, 52. Id., Arts. 48-50.

1143

c.

External relations

§1787

Binding force

§1787. Agreements will be binding on the organization as soon as they have entered into force. Do they also bind the members of the organization individually? The constitution of the European Community expressly states that agreements concluded by the EC “shall be binding on the institutions of the Community and on member states”.381 This seems a most appropriate provision. Where states have transferred powers to an international organization, they ought to be bound by the agreements which the organization concludes within the scope of those powers. Apart from the transfer of powers, the obligation of loyalty to the organization offers another ground for accepting such a provision, even where not expressly incorporated in the constitution. Since the organization will be internationally liable for any violation of the agreement by one of its members, any other solution would conflict with the obligations of membership (see above, §156). Were members free to violate agreements concluded by the organization, an unacceptable degree of uncertainty would be created for third parties. §1788. As a rule, agreements also bind members which have acceded to the organization after the conclusion of the agreement. When entering an international organization, states accept the law of that organization as it stands at their date of entry, which includes engagements undertaken in agreements with others. Conversely, the other parties to an agreement will normally have to accept that its scope may widen when new members are admitted to the organization, in the same way as they have to accept that the scope of treaties with states may widen when those states acquire new territory. An exception to this rule should be made when the admission of new members causes a fundamental change to the scope of the agreement. Then, re-negotiation of the agreement will be necessary. After the admission of the United Kingdom, Denmark and Ireland to the EEC, the Community re-negotiated its trade agreements with other states. Protocols were added to these agreements to regulate the altered situation.382

5.

The conclusion, entry into force and termination of agreements383

a.

Negotiation and signature

§1789. The FAO laid down detailed “Guiding Lines” for the conclusion of agreements between the organization and states. These principles contain provisions concerning both the form and procedure and the provisions to be

381. 382. 383.

EC, Art. 300.7. See V. Haak, Zur Übernahme der von der EWG geschlossenen Völkerrechtliche Verträge durch die beitretenden Staaten, 6 EuR 119-129 (1971). See also McRae, op. cit. note 231, at 26-34; Neuhold, op. cit. note 292, at 228-252.

§1789

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included in each agreement.384 Most other organizations have few, or no, rules in this field. It is often the Secretary-General, or his representative, who actually undertakes the negotiation, usually on the basis of a resolution of the competent organ.385 Sometimes special negotiation committees are appointed, composed of representatives of members of the organization,386 or existing commissions are charged with the negotiations.387 Negotiations for other agreements are conducted by the secretariat of the organization.388 If credentials are needed, they should be issued by the organ competent for the subject-matter involved (see above, §1763-1768). When the general congress has, by resolution, empowered the Secretary-General to sign an agreement on behalf of the organization, the texts of such resolutions may be used as credentials.389 Again, what is law for states, is also law for international organizations: if the credentials have been made subject to a specific restriction, failure to observe that restriction may not be invoked as invalidating the consent expressed by the representative unless the restriction was notified to the negotiating states and negotiating organizations prior to his expressing such consent.390 In practice, there is little need for formal credentials. The powers of negotiators are evident either from the resolution initiating the negotiations or from the general powers derived from the constitution. Often both parties to the agreement have members in common and this provides an additional safeguard against unauthorized negotiations. Most agreements can be revoked easily, which diminishes the need to guard against unauthor-

384. 385.

386.

387. 388.

389. 390.

See FAO Basic Texts (2000), Volume II, Section N (also available on www.fao.org/legal; J.P. Dobbert, op. cit. note 207, at 222. Chiu, op. cit. note 41, at 90, 148-149. For the text of a resolution empowering the SecretaryGeneral to sign, see, for example, the FAO resolutions of September 1946 approving the agreement with the UN and authorizing the Director-General of FAO to sign it on behalf of the organization, see also Chiu, op. cit. note 41, at 103. The Secretary-General of the UN signed the agreement with the OAU of 15 November 1965, 548 UNTS, at 322. See e.g. the UN Committee on Negotiation with Specialized Agencies, YUN 1946-47, at 543; 3 UN Rep. of Practice, at 326 ff. and the authorization to the UN Headquarters Agreement, GA Res. 22B(I). See also Chiu, op. cit. note 41, at 129. See also Art. 300.1 EC, providing that the Commission shall conduct negotiations in consultation with special committees appointed by the Council to assist it in this task and within the framework of such directives as the Council may issue to it. E.g. the case of the UN negotiations with the IAEA, GA Res. 1115 (XI), authorizing the Advisory Committee on the Peaceful Uses of Atomic Energy to negotiate. E.g. the agreements of the Bank on loans and guarantees and most agreements on the status of the Secretariat. Mr. de Seynes, Under Secretary-General of the UN signed important agreements on behalf of the organization, such as the agreement of August 1960 for financial assistance to Congo and the agreement with Ethiopia (317 UNTS, at 101) on the headquarters of the Economic Committee for Africa, see Higgins, op. cit. note 207, at 253. At its sixth session the general congress of FAO authorized the DirectorGeneral to prepare headquarters agreements for the regional offices of the organization. See also J. Gold, Voting and Decisions in the International Monetary Fund (1972), at 172173, 177, 183. Zemanek, op. cit. note 207, at 70. Art. 47 of the two Vienna Conventions.

1145

External relations

§1790

ized signatures. UN officials have sometimes concluded agreements on behalf of the organization without the express authorization of the relevant competent organ. Members which consider such authorization necessary have subsequently disputed the validity of the agreements. The Soviet Union objected to the agreements concluded with the authorities of Katanga by members of the Secretariat on behalf of the UN.391 The members of the Secretariat had acted on the basis of a general authorization of the Security Council “to take the necessary steps”.392

§1790. Disputes about the competence of negotiators cannot be prevented by requiring formal credentials. When the Secretary-General considers that an agreement falls within the powers of the secretariat, he may issue credentials without resolving the question whether special authorization by a superior organ would be required. A requirement that formal credentials for all agreements should be issued by the general congress of the organization – as the supreme organ – would be most impractical and virtually unworkable in organizations where the general congress rarely convenes. b.

Ratification

§1791. In many states, treaties must be approved by the parliament before they can enter into force. To allow for this, the negotiating governments sign the treaty subject to ratification. They only ratify after the requisite parliamentary approval has been obtained. The treaty enters into force upon the exchange of ratifications. Sometimes international organizations do virtually the same and sign an agreement, subject to approval by one of their organs (usually by the general congress).393 Sometimes even the term “ratification” is used.394 Formal exchange of ratifications is usually omitted.395 The agreement enters into force with the last approval.396

391. 392. 393.

394. 395.

396.

See UN Documents S/4962 and S/5009 (SCOR, 16th Year, Suppl. for Oct., Nov. and Dec. 1961), at 61 and 171. SC Resolutions 143 and 146 (1960). See for example the headquarters agreement of the International Criminal Court. This agreement is “to be approved by the Assembly of States Parties and thereafter concluded by the President of the Court on its behalf”(Art. 3.2 ICC Statute). Schneider, op. cit. note 207, at 54, note 19. But not always, the EC deposits an authorized text of the notification of the approval by the Council, see e.g. Second Lomé Agreement, Art. 182. The headquarters agreement between the UN and the US only came into force upon an exchange of notes between the Secretary-General of the UN and the Secretary of State of the US, which followed some time after approval by both parties, see Chiu, op. cit. note 41, at 268. See Chiu, op. cit. note 41, at 104-105.

§1792

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Thus, the agreements between the UN and the specialized agencies were signed or initialled by the heads of the negotiating delegations when the texts had been agreed upon. They entered into force when they had been approved by the General Assembly397 and by the general congress of the agency concerned.398 The agreements of the World Bank are not signed before they have been approved by the Executive Directors.399 Signatures thus play a different role, not only verifying the text but also marking the final approval of one party.

§1792. Most agreements made by international organizations do not require the subsequent approval of a particular organ. Usually the conclusion of an agreement is reported to the general congress, which may “note the conclusion of the agreement with approval”, or merely accept it by approving without objection the annual report in which the agreement is mentioned.400 §1793. Within the EC, the Commission usually conducts the negotiations for an agreement, on the basis of an authorization by the Council. Agreements are concluded by the Council, as a rule after consulting the European Parliament. In some specific cases (e.g. the conclusion of association agreements), the Council must obtain the assent of the Parliament.401 c.

Entry into force

§1794. The entry into force of agreements mainly depends on their contents. Agreements with other international organizations on mutual representation, exchange of documents etc., and agreements with states on (technical) assistance usually enter into force immediately upon signature or, if they require the approval of particular organs, immediately upon the granting of that approval. When approval by superior organs is required, it may be decisive. The agreement between the UN and the FAO had been approved by both general congresses on 14 December 1946. It entered into force on that date despite only being signed seven weeks later.402 The loan and guarantee agreements of the World Bank, on the other hand, enter into force only after signature, which itself follows approval by the board (the Executive Directors), and after the conditions of effectiveness of the agreements have been fulfilled.403 In some of its peace-keeping operations, the UN concluded “status of forces” agreements with states to which contingents were sent before the first troops arrived. The agreements then entered into force upon arrival of the first forces.

397. 398. 399. 400. 401. 402. 403.

GA Res. 50 (I) of 14 December 1946. Some constitutions require approval by the general congress, see e.g. WHO, Arts. 69-70. Broches in 98 RdC (1959 III), at 385; Chiu, op. cit. note 41, at 179-180. Higgins, op. cit. note 207, at 264. EC, Art. 300.1-3. Chiu, op. cit. note 41, at 103; 1 UNTS, at 210, 212. Chiu, op. cit. note 41, at 180.

1147

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§1795

This required a speedy procedure, devoid of such time-consuming elements as requirements for parliamentary approval.404 Only in exceptional cases must the entry into force await an official exchange of ratifications. d.

Reservations

§1795. States and international organizations may make reservations to treaties, unless they are prohibited or incompatible with the object and purpose of the treaty in question.405 International organizations rarely make reservations to multilateral agreements. A clear case in which reservations are permitted is found in Section 33 of the Convention on the Privileges and Immunities of the Specialized Agencies, which allows each agency to participate in the convention subject to modification.406 Some agencies have made use of this provision.407 International organizations have sometimes accepted bilateral agreements subject to reservations or subject to a suspensive condition.408 An example of the latter is to be found in the agreement between the UN and the ICAO. The General Assembly of the UN made its approval of the agreement contingent on ICAO’s compliance with its recommendation that the Franco Government of Spain be debarred from membership.409 e.

Registration410

§1796. After their entry into force treaties between states must be transmitted to the Secretariat of the UN for registration.411 The UN Charter imposes the same obligation in relation to “every international agreement entered into by any member of the UN”.412 This expression has never been defined, however.

404.

405. 406. 407. 408. 409. 410. 411. 412.

Chiu, op. cit. note 41, at 269; R.C.R. Siekmann, National Contingents in United Nations Peace-Keeping Forces (1991), at 8, 120-125; M. Bothe and T. Dörschel, The UN Peacekeeping Experience, in D. Fleck (ed.), The Handbook of The Law of Visiting Forces 487-506 (2001), at 493 ff. See for the text of the Model Status-of-Forces Agreement for Peace-Keeping Operations, UN Doc. A/45/594. Art. 19 of the two Vienna Conventions. See also UN Doc. A/34/10, at 384, Art. 19bis. 33 UNTS, at 282. Chiu, op. cit. note 41, at 107. Schneider, op. cit. note 207, at 56-57. YUN 1946-47, at 545. On the competence of international organizations to receive treaties for registration and to publish them, see below, §1868-1869. Art. 80 of Vienna I, Art. 81 of Vienna II. See on the registration practice of the UN, the UN Treaty Handbook (prepared by the Treaty Section of the Office of Legal Affairs, 2001). UN Charter, Art. 102.

§1797

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1148

Agreements to which the UN is a party are registered ex officio by the UN.413 Agreements entered into by a specialized agency are at least filed and recorded when forwarded to the UN.414 Most specialized agencies (such as the World Bank and ICAO) register most of their agreements. Hundreds of agreements between international organizations and states have been registered and published in the UN Treaty Series.415 Many others have not, but likewise, many treaties between states have not been registered.416 Agreements between states and certain governmental or semi-governmental agencies, such as the Institute of Inter-American Affairs and the Export-Import Bank were considered by the UN as not being subject to registration.417 Thus, the UN declined to register an agreement between the Netherlands and the International Patents Institute.418

§1797. According to express statements of the UN, secretariat registration does not imply a judgment on the nature of the instrument.419 Therefore, the registration of agreements does not decide their status under international law. However, registration may be regarded as prima facie evidence of the international character of the agreement.420 §1798. In practice, no sanction is imposed for non-registration of agreements. Paragraph 2 of Article 102 of the UN Charter is of little practical importance for international organizations, since they cannot invoke their agreements before UN organs.421

413.

414. 415.

416. 417. 418. 419. 420. 421.

Regulations to give effect to Art. 102 of the Charter of the UN, GA Resolutions 97 (I), 364 B (IV), 482 (V), 33/141 A, and 52/153. See UN Rep. of Practice, Vol. V, at 283-292, Art. 4; UN Treaty Handbook, op. cit. note 411, at 27. The regulations have also been published in 76 UNTS. On the filing and recording of treaties, see below, §1869. UNTS Cumulative Indices. See also Chiu, op. cit. note 41, at 38. For surveys of the treaties published between 1 Jan. 1946 and 31 Dec. 1965, see Hartmann, op. cit. note 225, at 154160. See also Simma op. cit. note 146, at 1277-1292. R.B. Lillich, The Obligation to Register Treaties and International Agreements with the United Nations, 65 AJIL 771-773 (1971). UN Repertory of Practice, Vol. V, at 295, para. 31(c). Schneider, op. cit. note 207, at 58, note 24. UN Repertory of Practice, Suppl. No. 1, Vol. II, at 400; UN Treaty Handbook, op. cit. note 411, at 25. See also UNJY 1976, at 208-209. Broches in 98 RdC (1959 III), at 354. Chiu, op. cit. note 41, at 110.

1149

f.

External relations

§1799

Termination

§1799. Agreements may be concluded for a specific period of time422 or they may provide for denunciation423 in the same way as treaties between states. In many agreements, no provision is made for termination. In that case, the general rules of the law on treaties may apply. They provide that treaties which contain no provision regarding their termination, and which do not provide for denunciation or withdrawal, are not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty.424 Condition (b) will be fulfilled more often in relation to agreements concluded by organizations than in treaties between states. It is generally understood that agreements for mutual representation and cooperation may be denounced unilaterally. Since there are practically no remedies against unilateral withdrawal, there is a tendency to accept its legality, even where it might be disputed. One of the important agreements of the UN was the agreement with Egypt, of 8 February 1957, on the stationing of the UN Emergency Force on Egyptian territory.425 The UN troops were withdrawn when the Egyptian president unilaterally revoked the agreement (see above, §1496). The Secretary-General of the UN apparently considered enforcement of the agreement impossible. A trusteeship agreement for a non-strategic area is terminated pursuant to a resolution of the General Assembly of the UN, adopted in anticipation of the actual granting of independence of the territory concerned.426

§1800. The two Vienna Conventions mention a fundamental change of circumstances as a possible ground for termination.427 A fundamental change of circumstances may be, for example, an important change in the membership of the organization. The admission of important states to the European Union may fundamentally change the effect of EC trade agreements; the loss of membership of the UN may be sufficiently fundamental to justify the termination of the Convention on Privileges and Immunities of the UN.

422.

423. 424. 425. 426. 427.

See e.g. the Trusteeship Agreement for the territory of Somaliland, Art. 24, 118 UNTS, at 274 and the agreements of the UN regarding arrangements for specific meetings in particular states, such as the Agreement with Nigeria of 7 February 1967, 590 UNTS, at 26-33. See e.g. the agreements between UNESCO and ILO (Art. 10), FAO (Art. 10) and IAEA (Art. XII). Art. 56 of the two Vienna Conventions. 260 UNTS, at 62-89. UNJY 1974, at 182. Art. 62 of both Conventions.

§1801

Chapter 12

B.

Diplomatic relations

1.

The notion “diplomatic relations”

1150

§1801. The functions of diplomatic missions, exchanged between states, are inter alia, (a) representing the sending state in the receiving state; (b) protecting the interests of the sending state and of its nationals in the receiving state, within the limits permitted by international law; (c) negotiating with the government of the receiving state; (d) ascertaining, by all lawful means, conditions and developments in the receiving state, and reporting on them to the government of the sending state; (e) promoting friendly relations between the sending state and the receiving state, and developing their economic, cultural and scientific relations.428 Several of these functions cannot be carried out by international organizations. “Diplomatic” relations of international organizations are necessarily of a different character from inter-state diplomatic relations. The interests of international organizations are limited to a specific field of operation; their powers differ from those of states. When discussing the diplomatic relations of international organizations, account must be taken of this difference. We use a concept comparable with, but not identical to, a notion existing in international relations between states. We shall consider whether international organizations can send and receive temporary or permanent missions for the purposes of protecting and promoting their interests, for negotiating with governments, ascertaining conditions and developments, promoting friendly relations and for similar mutually beneficial functions. §1802. Diplomatic relations between states may be “active” or “passive”. In sending diplomats abroad, a state exercises its right of active legation, while a state receiving foreign diplomats makes use of a passive right of legation. The difference is not fundamental. The active legation of one state is passive for the other. However, in the relations between a state and an international organization, the difference is more important. Passive legation of an international organization means that representations of states are established at the headquarters of the organization, in the territory of the host state. Active legation of an international organization requires that missions of the organization be established abroad. The problems in the one case differ from those in the other.

428.

Vienna Convention on Diplomatic Relations (1961), Art. 3, para. 1.

1151

2.

External relations

§1803

Passive legation429

§1803. May international organizations receive diplomatic missions from states? The fact that they do not have territory in which to receive them is no obstacle. The Holy See has long received diplomatic missions established on Italian territory. The territory of the Holy See itself is too small and is unsuitable for accommodating foreign diplomats. Many diplomatic missions to small states have their seats in neighbouring states, where a single mission is accredited to more than one government. In the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character, the principle has been recognized that member states may send permanent missions to international organizations if the rules of the organizations so permit.430 This is apparently a right which the member states can exercise unilaterally. If no other provision has been made in the law of the organization concerned or in its agreements with the host state, the member state will require the consent of neither the organization nor the host state. §1804. The institution of permanent delegations to an international organization dates from the League of Nations. Several governments established permanent delegations in Geneva during the first year of the League.431 Others instructed their diplomatic representation in Berne or Paris, or their consuls in Geneva, to act as liaison officers. Initially, the Secretary-General of the League objected to the creation of permanent missions, fearing that they would form a barrier between the League and its members and that they would be used to exert undue pressure upon the Secretariat of the League. However, they proved to be valuable and similar missions were created in New York when the UN was established in that city.432 As the Security Council is continuously in session, it has been found necessary for the members of that organ to establish permanent missions. In December 1948, the practice had evolved of establishing permanent missions of the members of the organization at the seat of the UN. At its third session, the General Assembly recommended that permanent representatives to the UN should be issued with credentials by the head of state, the head of the government or the Minister of Foreign Affairs and should

429.

430. 431.

432.

See also A. El-Erian, Representation of states to international organizations (some legal problems), in Festschrift für Rudolf Bindschedler 479-490 (1980); Groux and Manin, op. cit. note 238, at 29-33; F. Morgenstern, Legal Problems of International Organizations 11-13 (1986); L. Dembinski, The Modern Law of Diplomacy – External missions of states and international organizations (1988). Vienna Convention 1975, Art. 5. UN Doc. A/AC.18/SC.4/4 (May 1948), para. 2. For a detailed survey of permanent missions to the League of Nations, see Virally, Gerbet, Salmon, op. cit. note 203, at 25-122. On permanent representatives, see also E. Hambro, Permanent representatives to international organizations, 30 YbWA 30-41 (1976). R.F. Pedersen, National Representation in the United Nations, 15 International Organization 256-266 (1961).

§1805

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1152

be transmitted to the Secretary-General of the UN.433 Since then, the institution of permanent missions has been generally accepted. The 1975 Vienna Convention presents rules on their establishment and functioning.434 The UN Office of Legal Affairs has indicated that in UN practice, “it has become customary for a mission to be headed by a permanent representative who is officially designated in this capacity by a sending state. Accordingly, in case of his absence, a chargé d’affaires or an acting head of mission is usually appointed in due course”.435 This Office has advised that a Foreign Minister may not be designated as permanent representative to the UN, as permanent representatives are required to reside continuously in New York, while the functions of a Foreign Minister require his permanent presence in the capital of his state.436 The accreditation of a permanent representative to the UN Secretary-General in New York does not extend to the UN offices in Geneva, unless this is expressly stated in the credentials. This is for practical reasons: permanent representatives in Geneva are accorded special privileges and immunities by the Swiss authorities, to which they are not entitled in New York.437 The Secretary-General may delegate this competence to accept the credentials of permanent representatives and, in fact, has done so on a permanent basis in Geneva and Vienna, where the executive heads of the respective UN offices accept the such credentials.438 Apart from the permanent missions to the UN in New York, Geneva and Vienna, similar missions exist in many of the other cities which accommodate international organizations. The most important examples are the missions in Strasbourg (accredited to the Council of Europe), in Paris (accredited to the UNESCO or to the OECD), in Brussels (accredited to the European Communities439 or to the NATO), and in Washington (accredited to the OAS). In other cities (such as Addis Ababa) diplomatic missions maintain relations with the headquarters of international organizations (such as the African Union).

§1805. Non-member states, liberation movements and partial members may also have permanent missions. For non-member states this has been expressly

433. 434.

435. 436. 437. 438. 439.

GA Res. 257 (IIl) of 3 December 1948. For a standard form of credentials, see Yb ILC 1967 II, at 168. On the credentials, see also UNJY 1977, at 191-192. Vienna Convention 1975, UN Doc. A/CONF.67/16, Arts. 5-41. As of August 2003, 30 states were party to this convention. According to Art. 89.1, this Convention shall enter into force on the 30th day following the date of deposit of the 35th instrument of ratification or accession. On this convention, see A. El Erian, La Conférence et la Convention sur la représentation des États dans leurs relations avec les Organisations internationales: Analyse générale, 21 AFDI 445-470 (1975); J.G. Fennessy, The 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character, 70 AJIL 62-72 (1976); J.C.A. Staehelin, Die Wiener Konferenz über die Vertretung der Staaten in ihren Beziehungen zu internationalen Organisationen, 31 SJIR 52-70 (1975). For the text of the Convention, see UNJY 1975, at 87-114; 69 AJIL 730-759 (1975). UNJY 1987, at 218. See UNJY 1992, at 490-491. See UNJY 1979, at 168-169. See also El-Erian, op. cit. note 429, at 484-486. See UNJY 1986, at 272. On the Permanent Representatives with the European Union, see E. Noël, The Committee of Permanent Representatives, 5 JCMS 219-251 (1966); see also above, §393; Virally, Gerbet, Salmon, op. cit. note 203; De Zwaan, op. cit. note 204.

1153

External relations

§1805

provided in the 1975 Vienna Convention.440 An example of a permanent mission of a partial member was offered by (former) Yugoslavia, which, until its dissolution, had a permanent mission to the OECD. The Palestine Liberation Organization and the South West Africa People’s Organization have, or used to have permanent missions to the UN in New York. In the universal organizations, the missions from non-member states are called “permanent observer missions”,441 in the European Communities “diplomatic representatives”. Their positions are quite different. The permanent observers in the UN participate in many activities of the organization, though without the right to vote (see above, §180). The International Law Commission of the UN made a study of this kind of permanent observer mission in its 1970 report.442 The diplomatic representatives at the European Communities do not have access to meetings of the Community organs. They act in the same way as diplomatic missions to states. The large amount of external trade and, increasingly, the role of the European Union in general, are of such great interest to other states that they need diplomatic representation with the organization.443 In New York, the Holy See is currently the only non-member state which maintains a permanent observer mission at the UN headquarters.444

As of July 2002, 169 non-member states had accredited diplomatic missions to the European Communities. In addition, a number of territories, organizations and other bodies had their own representations (bureaux de liaison) with the European Commission (for example Hong Kong, Macao, EFTA, the UN, the ILO, the World Bank, the International Committee of the Red Cross, and the League of Arab States).445 Although these missions and bureaux de liaison are formally related to the EC or the European Commission, in practice they now usually call themselves missions and bureaux de liaison to the European Union.446

440. 441. 442. 443.

444. 445. 446.

Vienna Convention 1975, Arts. 5, 7. Id., Art. 1 (8). See UNJY 1987, at 220-221. GAOR 25th session, Suppl. No. 10 (A/8010/Rev.1). W.H. Balekjian, Der Rechtsstatut permanenter Missionen von Nichtmitgliedstaaten bei internationalen Organisationen, 27 ÖZöR 67-83 (1976). On the diplomatic representation with the EC, see C.A. Ehrhardt, Das diplomatische Korps bei der EWG in Brussel, 13 Aussenpolitik 659-667 (1962), and in 18 Aussenpolitik 339-349 (1967). C. Reichling, Le Droit de légation des Communautés Européennes, Cours 1964, Université Internationale des sciences comparées, Luxembourg, at 47-61. See also Virally, Gerbet, Salmon, op. cit. note 203, at 718-830. Permanent Missions to the UN, publication of the UN Secretariat (updated weekly). See Corps Diplomatique accrédité auprès des Communautés européennes et représentations auprès de la Commission, a publication of the European Commission (July 2002). Id.; see also MacLeod, Hendry, and Hyett, op. cit. note 238, at 213-214, and R.A. Wessel, De Europese Unie in de internationale rechtsorde, Preadvies voor de Nederlandse Vereniging voor Internationaal Recht (2001), at 66-70.

§1806

Chapter 12

1154

§1806. International organizations may also maintain permanent missions to other international organizations. As these missions do not represent states, their character differs somewhat from that of other missions, but they belong to the same category. Their functions are also of a public nature and they may often claim privileges and immunities under some special international agreement.447 Several international organizations, such as the OAS, the Council of Europe and the European Communities have observer missions at the UN. The European Commission has a permanent mission to the WTO and the UN in Geneva, IAEA and UNIDO in Vienna, the OECD in Paris, and the UN in New York.448

§1807. In principle, the same permanent mission may be accredited to a number of international organizations, or to one or more states and international organizations at the same time.449 In the 1975 Vienna Convention it was also expressly accepted that two or more states accredit the same person as head of mission to the same international organization.450 §1808. Usually the procedure for accrediting permanent observers of nonmembers is the same as that for accrediting permanent representatives of members (see above, §1804). Credentials are presented to the secretariat. The secretariat must then decide whether or not to accept the observers. The Secretary-General of the UN declared that he would do so when the country in question had been recognized by a majority of the UN members. Members are sometimes consulted in advance.451 In the European Communities, credentials are submitted in a more formal manner, in duplicate, one to the President of the Council and one to the President of the Commission.452 §1809. Permanent missions are beneficial to the organizations concerned. Since they cooperate continuously, the mutual confidence between permanent representatives tends to be greater than that of delegations sent periodically from the member states. When permanent representatives know each other,

447. 448. 449. 450. 451. 452.

For the privileges and immunities of the permanent observer mission of the CMEA in New York, see UNJY 1975, at 157. See MacLeod, Hendry, and Hyett, op. cit. note 238, at 221. On the relationship between the EC and the UN, see P. Brückner, The EC and the United Nations, 1/2 EJIL 174-192 (1990). Especially small states have always done so. This has been confirmed in the Vienna Convention of 1975, Art. 8(1). Id., Art. 8(3). A. Glenn Mower Jr., Observer Countries: Quasi Members of the United Nations, 20 International Organization (1966), at 273, 275. Answer to question No. 78 (1966), OJ 4049/66; Groux and Manin, op. cit. note 238, at 33; MacLeod, Hendry, and Hyett, op. cit. note 238, at 213-214; Corps Diplomatique accrédité auprès des Communautés européennes et représentations auprès de la Commission, a publication of the European Commission (July 2002), at 10 (para. 13).

1155

External relations

§1810

they can collaborate more quickly and informally. The presence of representatives on the spot facilitates rapid decision-making. For example, when the General Assembly of the UN wanted the calendar of meetings of the UN Conference on Trade and Development to be changed, it was able to invite the Trade and Development Board (in which non-members of the UN participate), to hold a special session within two weeks.453 The short notice period did not cause problems for most members of the Board, as they could be represented by their delegations to the General Assembly. Switzerland and (at that time) the Federal Republic of Germany were not members of the UN, however. For these two countries, meeting at such short notice would have been impossible, had they not maintained permanent observer missions in New York.

§1810. Permanent missions of members, and permanent observer missions of non-members, greatly resemble diplomatic missions to states. Both are composed of diplomats, and both perform very similar functions, such as keeping the sending state informed about developments, explaining and defending the interests of the sending state and functioning as a liaison with the sending state.454 Both have diplomatic rank and functions, not only with respect to the organization but also between themselves. Many bilateral and multilateral arrangements between states have been negotiated by their permanent missions in New York. Permanent missions and embassies are often combined. One mission may simultaneously serve as both diplomatic mission to a state and permanent mission to an organization. One mission may also serve several organizations (as for example in Geneva). §1811. Host states grant privileges and immunities to all permanent missions very similar to those granted to diplomats.455 Their legal obligation to do so is often incorporated in a headquarters agreement456 or in general conventions on privileges and immunities.457 A general obligation to this effect has

453. 454. 455.

456. 457.

See GA Res. 2177 (XXI) and Doc. A/6567 (Report of the Second Committee), GAOR 21st Session. Agenda item 37, Annexes, at 6. On the tasks of permanent missions, see Virally, Gerbet, Salmon, op. cit. note 203, at 225270. For a survey of the privileges and immunities granted by the US to representatives to the UN and of practical problems which have arisen, see D.M. Hunsaker, 6 CJTL 305-343 (1967) and L. Gross, Immunities and Privileges of Delegations to the United Nations, 16 International Organization 483-520 (1962). See on the scope of privileges and immunities of such missions, UNJY 1982, at 205-207. See on privileges and immunities accorded to observers of international organizations, UNJY 1982, at 207-209. On the status, privileges and immunities of the PLO observer mission in New York, see UNJY 1979, at 169-170. See e.g. Art. V, Section 15 of the 1947 US-UN Headquarters Agreement; see also UNJY 1987, at 224-225. Such as the 1946 UN General Convention. On the basis of this Convention host states are obliged, inter alia, to respect the inviolability of missions accredited to the UN. See e.g. UNJY 1992, at 491-492.

§1812

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1156

been incorporated in the 1975 Vienna Convention,458 which has not yet entered into force. The most important host states raised many objections to the Convention459 and will probably not ratify it. As yet, host states are not always obliged to grant privileges and immunities to permanent missions. Particularly as regards non-members, they do so merely as a gesture of courtesy, although they have sometimes withheld them.460 §1812. Nevertheless, the relationship between the organization and the permanent mission of a member differs in several important respects from diplomatic relations between states. First, the relationship is tripartite in all matters concerning the status of the mission. That status involves the host state as much as the sending state and the organization. In particular, issues on privileges and immunities may be different for this reason.461 One difference is that the consent of the host state is not normally required for the acceptance of an individual as a member of a mission. Under the UN Headquarters Agreement, diplomatic privileges and immunities are automatically conferred by a member state designating a person as a member of the diplomatic staff of its permanent mission.462 States are understandably reluctant to grant privileges and immunities to their own nationals serving in foreign missions to international organizations (compare above, §253). When the US refused to grant privileges and immunities to nationals of a third state serving in a mission to the UN, citing Washington practice, the UN Secretariat objected. The Secretariat accepted that the US Government could impose conditions concerning the nationality of diplomatic personnel accredited to it, since it would have to deal with those diplomats. The US could not claim an interest, however, in the nationality of personnel collaborating only with the UN and with other missions of members.463 The expulsion of a member of a mission accredited to an international organization not only affects the two states involved, as in the case of a diplomatic persona non grata but also the relations between the organization and one of its members.464

458. 459. 460. 461.

462.

463. 464.

Vienna Convention 1975, Arts. 20-37. See records of the United Nations Conference on the Representation of States in their Relations with International Organizations, A/Conf. 67. See 1953 ILR, at 380 and Yb ILC 1967 II, at 142-143. For an extensive study by the UN Secretariat of the privileges and immunities of missions and representatives to the UN and the specialized agencies, see UN Doc. A/CN.4/L.118, Yb ILC 1967 II, at 170-191 (UN) and 196-207 (Agencies). UN Headquarters Agreement, Art. 5; Convention on the Privileges and Immunities of the UN; Art. 4. See also UNJY 224-229 (1976). See UNJY 1982, at 204-205, on the scope of the expression “accredited staff of permanent missions” (a narrow definition is given: diplomatic staff, as distinct from administrative, technical and service staff). Yb ILC 1967 II, at 175. For the case of the expulsion of Mr. Nacvalac – counsellor of the Czechoslovak Mission to the UN – see Gross in 16 International Organization 512-514 (1962).

1157

External relations

§1813

§1813. Secondly, the relationship between the organization and the permanent mission may be closer than diplomatic relations between states. Though a mission may act on behalf of a member in its capacity as counterpart to the organization (for example, during negotiations on technical assistance to be provided by the organization), it will generally act on behalf of the member as an element of the organization (for example, when it sends representatives to organs of the organization). When acting in the latter capacity, the mission does not operate in the external relations of the organization, but rather functions within its structure. Permanent missions may actually resemble organs of the organization. In the European Communities, the permanent representatives of the members are assembled in a committee which performs a function within the scope of the organization.465 There, the members so obviously act as elements of the organization that their representation as counterparts to the organization is overshadowed. Their close relationship with the organization to which they are accredited emphasizes the difference between permanent missions and diplomatic missions from states. §1814. Thirdly, the task of a permanent mission differs in several respects from that of diplomatic missions to states. An important function of the permanent mission, which is difficult to compare with any of the diplomatic mission’s functions, is the coordination of national representation in the various organs of the organization. The permanent mission serves as a centre for all national activities with respect to the organization (see above, §1740). §1815. Fourthly, certain special aspects of diplomatic relations differ in the case of permanent missions and international organizations. For example, the rules of precedence which have been elaborated for diplomats are inadequate for the purposes of international organizations. In the UN, there are meetings not only between diplomats but also between heads of state, government and delegation, as well as presidents of UN organs. The UN Secretariat has elaborated a system for precedence, more detailed than, and sometimes different from, the system existing for diplomats.466 For diplomats, precedence is based on the date of appointment to the capital concerned, whilst the UN system is based on the seating arrangement in the General Assembly. This seating arrangement is in the alphabetical order of the names of the members (in the English language), beginning with a member which is chosen annually by drawing lots.

465. 466.

Art. 207.1 EC. See UN Doc. A/CN.4/L.129, Yb ILC 1968 II, at 163-164.

§1816

Chapter 12

3.

Active legation467

a.

The right of active legation

1158

§1816. May international organizations send diplomatic missions to states? It is beyond doubt that they do not need nationals of their own for such missions. The Vienna Convention on Diplomatic Relations recognizes the possibility of diplomats not possessing the nationality of the sending state.468 The sending state only requires the special authorization of the receiving state for the appointment of the latter’s nationals to its diplomatic mission.469 In November 1960, the European Parliament adopted a resolution declaring that, in its view, the European Communities enjoy the right of active and passive legation by virtue of their international legal personality.470 A similar argument was presented with respect to the League of Nations during the early 1920s.471 Others have claimed, vice versa, that the European Communities, and certain other organizations, have international legal personality, inter alia, on the ground that they send and receive diplomatic representations.472 As was mentioned above (§1562-1571), legal personality is not an absolute concept from which rights and obligations can be derived. Rather the rights and obligations must be studied to decide whether legal personality is enjoyed by any given international organization. The reasoning of the European Parliament should therefore be rejected.473 §1817. Diplomatic relations are at least bilateral. At the conference in Vienna at which the Vienna Convention on Diplomatic Relations was drafted, the delegation from Czechoslovakia proposed the addition of an article stating that every state should possess the right of legation, which includes the right to send and receive diplomatic agents.474 The proposal obtained insufficient support and was subsequently withdrawn.475 Most delegations considered

467.

468. 469. 470. 471.

472. 473. 474. 475.

Much of the information needed for this section has been obtained from embassies, for which we would like to express our gratitude. See also Groux and Manin, op. cit. note 238, at 34-36; Morgenstern, op. cit. note 429, at 10-11. Vienna Convention on Diplomatic Relations, Arts. 6 and 7 and the words ”in principle” in Art. 8.1. Id., Art. 8.2. Res. of 19 November 1960, OJ 1496/60. W. Schucking und H. Wehberg, Die Satzung des Völkerbundes Kommentiert (3rd ed.), at 101-103. See also M. Hardy, The Diplomatic Activities of International Organisations: the UN and the European Communities Contrasted, 5 RBDI 45 (1969). See e.g. Seyersted, in 4 IJIL 12-14 (1964). Pescatore, op. cit. note 231, at 190, and Hardy, op. cit. note 471, at 48, reach the same conclusion. UN Doc. A/Conf.20/C.1/L7 of 6 March 1961. UN Doc. A/Conf.20/C.1/SR.7, at 9. Summary Record of the Seventh Meeting of the Committee of the Whole (9 March 1961, morning session).

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that states can only establish diplomatic relations by mutual consent. The same will be true for active legation of an international organization. To send diplomatic missions, an organization needs (1) the approval of the receiving state and (2) a decision of an organ of the organization competent to establish missions. Other states may be affected indirectly when representatives of international organizations are incorporated in the local corps diplomatique. This, however, is unusual. The most important group of representatives of the UN (the Resident Representatives and, after 1977, the Resident Coordinators) have a status of their own, ranking below the diplomatic corps. One exception however is Monrovia, where the UN Resident Representative has always ranked below ambassadors and envoys, but above chargés d’affaires.

§1818. The second condition is more likely to cause problems of a practical nature. No constitution expressly empowers an international organization to send diplomatic missions to states. The right to do so must be derived from the general powers and the tasks of the organization. The need for active legation is not often apparent. Since the right of passive legation is generally recognized, states can channel all necessary diplomatic relations through permanent or temporary missions at the seat of the organization. Since the members generally exercise their right of accrediting missions to the most important organizations, the latter can communicate with their members through those missions. §1819. In practice, active diplomatic relations by international organizations are rare, the European Union being an exceptional case. The European Commission has a large number of representations to non-members (see below, §1836).476 Several organizations have established permanent missions in individual member states or in groups of members. It may be tempting to identify such missions with diplomatic missions between states. There are similarities, but there are also differences. The extent to which missions of international organizations may be assimilated to the diplomatic missions of states will largely depend on the tasks attributed to the missions of the organizations. b.

Permanent missions to members

(i) Missions for development §1820. Around 1950, technical assistance gradually became one of the major fields of operation for several international organizations. Since technical

476.

See L.J. Brinkhorst, Permanent Missions of the EC in Third Countries, in LIEI 23-33 (1984/1); cf. also B.R. Bot, Cooperation between the diplomatic missions of the ten in third countries and international organizations, in LIEI 149-169 (1984/1).

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assistance programmes must be executed and also largely planned, within the developing states concerned, the aid-giving organizations found it necessary to send an officer to the region both to assist the governments in planning and coordinating, and to supervise the execution of projects. In 1950, the UN appointed a representative of the Secretary-General to Haiti to help the Haitian government define its needs with sufficient precision to enable the Secretariat of the UN and the specialized agencies to respond with the services of properly qualified technicians.477 In the same year, the Secretary-General of the UN, in consultation with the ILO and the FAO, appointed a joint representative to Pakistan.478 By May 1952, there were fifteen representatives for the Technical Assistance Board in the field.479 When the task of the Technical Assistance Board had been taken over by the UNDP, Resident Representatives were appointed to developing states. These representatives looked after the interests of all UNDP projects in the state concerned. In June 1974, the UNDP employed 115 Resident Representatives each supported by his own staff.480 Ten of them were employed at regional offices or sub-offices and performed the functions of the Resident Representatives for two or more countries in a region.481 §1821. The rapid growth of representation of the UN and the specialized agencies in developing states led to a badly coordinated, rather chaotic situation. Each representation proposed and defended projects for its own organization, paying little or no attention to projects operated through other organizations. Relations between different projects were overlooked; priorities between them were not properly considered. In 1970, the UN discussed a report by Sir Robert Jackson on the question of relations between the Resident Representative of the UN and the country representatives of the specialized agencies: “It is obviously imperative to find an urgent solution to this problem which bedevils relations between the various components of the UN development system and confuses and irritates governments, thus constituting an effective brake on capacity by reducing efficiency and distracting attention from the job in hand through unproductive squabbles about jurisdictions and protocol”.482

477.

478. 479. 480. 481. 482.

The intention of the Secretariat was announced in UN Doc. E/1576, para. 38 (ECOSOC Official Records 10th Session, item 9). See also Mangone, op. cit. note 148, at 161: J.A. Stoll, Le Statut juridique du représentant-résident du Bureau de l’assistance technique des Nations Unies dans l’État où il est accrédité, 10 AFDI 514-536 (1964). Mangone, op. cit. note 148, at 162. Id., at 163. UN Doc. E/5524/Add.3, at 25. For staff expansion, see also Mangone, op. cit. note 148, at 187, 195, and UN Doc. DP/L.228, Annex 5, at 13. UN Doc. E/5524/Add.3, at 17-25. UN Doc. DP/5, Vol. II, at 310, para. 84, to be quoted as ”Jackson Report.” See also ECOSOC Res. 851(XXXII) of 4 August 1961.

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§1822. Since then, the UN has tried to improve the situation.483 In 1975, a group of experts recommended that there should be greater coherence in policy and operations at the country level. For that purpose, it was proposed that the Resident Representative should represent the whole UN family within a country in the economic sphere. He should have ultimate authority for all aspects of the UNDP at the country level and he should be the central coordinating authority on their behalf for the other development assistance programmes of the UN system.484 In 1977, the General Assembly of the UN adopted the recommendations of this group of experts485 and decided to create the new function of Resident Coordinator, superior to that of Resident Representative and covering not only the interests of the UNDP but those of all organizations of the UN family.486 The creation of such a new post should increase the authority of the highest representative of the UN system. The creation of a new rank would also enable the UN to select the best of the existing Resident Representatives for the higher post and to nominate qualified people from outside the existing staff whenever that would be more appropriate. In 1989 and 1992, the position of the Resident Coordinator was strengthened, when the General Assembly, inter alia, recommended that the contribution of the UN system to the “country strategy note” (see above, §1739) should be formulated under the leadership of the Resident Coordinator.487 Additionally, the Assembly requested the UN Secretary-General (who appoints these officials) to widen the pool of qualified development officials eligible for appointment. Not only UNDP resident representatives should be eligible for these posts, but also members of the UN Population Fund, UNICEF, the World Food Programme, and IFAD.488 While UNDP activities were originally mainly in the field of development and development cooperation, more recently UNDP has also increasingly become involved in crisis and post-conflict situations. One study has indicated that there is a substantial lack of coordination in this area, although there is at the same time a true proliferation of coordination devices. An important contribution to coordination in this area UNDP can make is by effectively using the Resident Coordinator system.489

483. 484. 485. 486. 487. 488. 489.

See e.g. GA Res. 2688(XXV), paras. 62, 63. A New United Nations Structure for Global Economic Cooperation, UN Doc. E/AC.62.9, para. 155. GA Res. 32/197. For the tasks of the Resident Coordinator, see UN Doc. E/1979/34/Add. 1 /Rev. 1, Annex. GA Res. 47/199; see also GA Res. 44/211, para. 15. GA Res. 47/199. See also UN Doc. A/47/419, paras. 27, 95-115. See the report prepared by Jonathan Moore for the UNDP/Emergency Response Division, ‘Independent Study of UN Coordination Mechanisms in Crisis and Post-Conflict Situations’ (31 October 2000), at 4-5.

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§1823. Apart from its Resident Representatives (for UNDP) and Resident Coordinators (for the UN system as a whole), who perform an important function within developing states, the UNDP also has liaison facilities in some developed states.490 Although the UNDP representatives also act for other UN programmes, such as the World Food Programme, UNCTAD and UNIDO, several other UN institutions have offices of their own in different cities. The larger specialized agencies (ILO, FAO, UNESCO, WHO, World Bank) employ their own representatives in the field. These regional representatives,491 often serve several member states simultaneously.492 The regional missions of the specialized agencies may be quite large. The UNDP employs some 130 country offices with Resident Representatives.493 The World Bank has some 100 field offices.494 The bulk of the developing countries have an average of between 5 and 10 UN organizations present. In others, there are up to 15 or more organizations (sometimes including regional centres) while in a few only one organization is present.495 Additionally, there are also some missions of international organizations which do not belong to the UN family. Thus, the European Commission has special “delegates” to the ACP developing states parties to the Cotonou Agreement.

§1824. The powers of missions of international organizations vary. Originally, the functions and powers of the Resident Representatives of the UN were modest. The funds of the Expanded Programme of Technical Assistance (originating from voluntary contributions of states) were in practice distributed between the specialized agencies for assistance to be given by them. UN officials had little influence on the way these funds were used. National authorities would contact the agencies concerned directly.496 After the establishment of the Special Fund,497 the role of the Resident Representatives gradually became more important, since the Special Fund financed projects autonomously and the Resident Representative acted as the link between the government concerned and the Special Fund. Furthermore, the distribution of the funds from the Expanded Programme to the agencies was gradually replaced by distribution to countries, and therefore priorities had to be decided within each country,498 a task in which the Resident Representative played an important role.

490. 491. 492. 493. 494. 495. 496. 497. 498.

For example in Brussels (EU liaison office), Tokyo and Washington. We use no capitals in order to distinguish from the Regional Representative of UNDP. Jackson Report II, at 288 and Table opposite, at 458. YIO 2003-2004, Vol. I, at 2463-2466; www.undp.org. See for details www.worldbank.org. UN Doc. A/47/419, at 33. Mangone, op. cit. note 148, at 167. GA Res. 1219 (XVII) of 14 December 1957. Mangone, op. cit. note 148, at 180-188, 192; ECOSOC Res. 542 (XVIII) B, para. 1(a), 29 July 1954; Jackson Report II, at 9; Stoll in 10 AFDI 526-527 (1964).

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The functions of the regional representatives of the specialized agencies are limited to the technical field in which the agencies operate. Their role differs in each of the specialized agencies. Particularly the role of the World Bank and its representatives has become more important in many developing countries since the 1980s. §1825. The role of Resident Representatives/Coordinators and of other missions for development differs considerably from that of diplomatic or consular missions between states. First of all, the relationship between the UN or a specialized agency and one of its members differs from that between two sovereign states. Although, in the case of development, representatives are sent to a member which does not act in its capacity as an element of the organization but as a counterpart, that member is still not completely alien to the organization. Secondly, the activities of an international organization – and therefore those of its representatives – are restricted to the particular fields in which the organization operates. This is not only the field of development. Making use of its offices in the field, the UN has also nominated several of its Resident Representatives/Coordinators as directors of UN Information centres499 and it sometimes uses the Resident Representatives/Coordinators for other missions to the member concerned. Thirdly, the work in that restricted field is different. Diplomats are generally responsible for maintaining good relations between governments. The task of the Resident Representative/Coordinator, though limited to one field, is wider. He acts in his field. He participates in government planning and in supervising the implementation of plans. If diplomats are the eyes and the ears of their governments abroad, Resident Representatives/Coordinators are the hands of the organization, doing a particular job. §1826. As a result of these differences, comparison with diplomatic or consular missions should be made with some reservation. Viewed from their position under international law, however, some basic similarity can be discerned: missions representing one international entity within another, and enjoying a special protected position. Like diplomatic missions, they promote relations between the governments of the receiving states and the headquarters of the organization. They send reports on developments in the receiving states to their headquarters; they take steps to urge the governments of the receiving states to pay their pledges to the UNDP or to fulfil other obligations.500 A Resident Coordinator is often regarded as the “UN man”,501 the “team leader for UN system activities”,502 and may be considered the “head of a

499. 500. 501. 502.

Mangone, op. cit. note 148, at 193. Id., at 225. Id., at 227. UN Doc. A/47/419, at 32.

§1827

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mission” by host governments.503 Before Resident Representatives/Coordinators are nominated, the government of the state of assignment is consulted in much the same way as it is on the agrément for diplomats. The period spent in securing clearances varies from a few weeks to four months or more, while the percentage of candidates rejected is comparatively high.504 §1827. On arrival at their posts Resident Representatives/Coordinators, like ambassadors, often submit their credentials. However, and here unlike ambassadors, they usually present these to the Ministry concerned and not to the head of state of the receiving state.505 This affects the position and prestige of the Resident Representative/Coordinator within that country.506 The status of Resident Representatives/Coordinators, and that of some other representatives, such as the director of the UN Relief and Works Agency for Palestine (UNRWA),507 is similar to that of diplomats. They enjoy privileges and immunities, usually on the basis of the Convention on Privileges and Immunities of the UN,508 but sometimes under a special agreement.509 In many capitals they have CD number-plates on their cars. Their names are usually added to the foot of the diplomatic lists published by the Ministries of Foreign Affairs.510 As a rule, they are invited to official receptions given for the diplomatic corps by the host state and by the heads of diplomatic missions. In some respects in fact, Resident Representatives/Coordinators receive more privileges than diplomats. The receiving state usually provides an office with equipment and supplies secretarial or clerical help.511 §1828. It is normally the task of the consul to protect the interests of the nationals of the sending state. Resident Representatives/Coordinators may be compared to consuls, in so far as they take care of the interests of experts sent by the organization. Some of the early Resident Representatives indicated that they spent nearly all their time in their first year sending written reports to headquarters and making administrative arrangements for experts, such

503. 504. 505.

506. 507. 508. 509. 510.

511.

Id., at 188. Jackson Report II, at 352, 365. Berthoud in 4 JWTL 161 (1970). The UN Resident Representative in Kenya presented credentials to the President. This is exceptional, however. For possible reasons why states follow different procedures, see Stoll, op. cit. note 477, at 531. Stoll, op. cit. note 477, at 533-535. E.H. Buehrig, The UN and the Palestinian Refugees 84 (1971). Convention of 13 February 1946, 1 UNTS, at 16 ff. E.g. in Indonesia until it became a party to the said Convention in 1972. The Ethiopian Government entered into several agreements with international organizations according to which the names of the representatives of the organizations are incorporated in the diplomatic list for Addis Ababa (see e.g. Art. 6, para. g of the 1964 agreement with the ILO and Art. 2, para. 1g of the 1966 Agreement with the UN High Commissioner for Refugees). In Monrovia the Resident Representative of UNDP takes precedence immediately below ambassadors and above Chargés d’Affaires. Berthoud, op. cit. note 505, at 162.

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as meeting them at the airport, helping them through customs, reserving rooms, changing money into local currency, supplying information and transport, introducing them to local officials, briefing them on arrival, arranging for clerical aid, and so forth.512 (ii) Missions for other purposes §1829. In 2002 the UN had 77 information centres (UNICs), services (UNIS) and offices (UNOs) in member and non-member states; these are field offices of the Department of Public Information of the UN.513 Their task is restricted to distributing information about the UN. They neither promote nor protect the interests of the organization within the receiving state, nor do they represent it. Although the information offices enjoy privileges and immunities, their powers are so limited that they can hardly be compared with diplomatic missions. International organizations have occasionally established missions to members for purposes other than development or information. Such missions have a temporary character and perform one specific task. They should therefore be discussed below (special missions, see below, §1832-1833). As the borderline between temporary and permanent missions is vague, as is that between specific and general tasks, a special mission to a member may acquire a position in which it is regarded as the UN representation and where it actually performs a task similar to that of a permanent diplomatic mission. In the Middle East, for example, there have been UN representatives – primarily to observe truces – for many years. In September 1958, the Secretary-General of the UN assigned a special representative to Jordan to observe the application of General Assembly Resolution 1237 (ES-III), calling upon all members not to interfere in each other’s internal affairs. This representative remained there for a long period and carried out a wide variety of tasks. §1830. Although such missions may share some features with diplomatic missions of states, the similarity is limited. All organs of an international organization operating within a state will, to a certain extent, represent the organization in that state. The physical presence of an official organ creates a form of representation which, in mutual relations between states, would readily be regarded as diplomatic. The different functions of such special organs, on the other hand, distinguish them from diplomatic missions.

512. 513.

Mangone, op. cit. note 148, at 166, 201, 224. See www.un.org/aroundworld/unics. In 1946 the General Assembly established the Department of Public Information that was requested to open branch offices to distribute information on the work of the UN (GA Res. 13(I)).

§1831

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(iii) National committees §1831. Several international organizations have created “national committees” which in a way act as the representatives of the organization, protecting and promoting its interests within the member states. The roles of such national committees vary. In the UNESCO, National Commissions basically act in an advisory capacity towards their respective delegations to the general congress and towards their governments.514 They may, however, be used to promote the interests of the organization in the state concerned. One example of this is the provision which requires that reports of the organization on the action taken by member states pursuant to convention or recommendation will also be transmitted directly to the National Committees.515 This provision is apparently based on the hope that National Commissions will use their influence to correct any possible inadequacy or failure in such action. In the FAO, National Committees may only be used as an instrument for coordinating the participation of the member in different activities of the organization, with the specific concurrence of the government concerned and under the conditions determined by that government.516 In most other cases, national committees are also completely controlled by the governments concerned. In the WMO, the directors of the meteorological services of the members form the normal channel of communication between the organization and the members. They are to maintain contact with the competent authorities of their own countries on matters concerning the work of the organization.517 In many respects, these directors fulfil the diplomatic role of liaison between the organization and the members. Although national committees and meteorological directors perform a task for the benefit of the organization, the interests of which they may defend, they cannot be compared with diplomatic missions. They neither act under the authority of the organization nor do they enjoy privileges or immunities. Additionally, they are not recognized as the official representation of the organization. c.

Special missions to members

§1832. International organizations occasionally send conciliatory or other missions to member states. These missions may fulfil a number of different functions. Some are sent at the request of two or more states to help settle

514. 515.

516. 517.

UNESCO, Art. 7. UNESCO, Rules of Procedure concerning Recommendations to Member States and International Conventions covered by the terms of Article IV, paragraph 4, of the Constitution, Art. 19. FAO, General Rules of the Organization, Rule 38. WMO, General Regulations, Regulation 6.

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a dispute between them, in which case the organization itself will not be involved. Other missions perform a conciliatory or a supervisory function for the organization itself (see above, Chapter Nine). Only the latter situation involves the external relations of the organization. One example of such a mission is that sent by the OAS to the Dominican Republic in April 1965 (see above, §1488), the initiative for which had been taken by the organization, which had discussed the Dominican crisis at its Council meeting.518 Another example is the advisory mission of six heads of state sent to Nigeria by the OAU during the conflict with Biafra. This mission was appointed by the supreme organ of the OAU, not invited by the parties. Only after its appointment, on 14 September 1967, did the Nigerian government announce its willingness to meet the mission.519 A further example is the UN’s Special Commission, created by Security Council Resolution 687 (1991) to inspect and verify the destruction of Iraq’s chemical and biological weapon, development and support systems as well its ballistic missiles with a range greater than 150 kilometres. In addition, this Commission had to develop a plan for the ongoing monitoring of the state of Iraqi armament.520 In 1999 the Special Commission was succeeded by the UN Monitoring, Verification and Inspection Commission (UNMOVIC).521 Since December 1998 Iraq refused to cooperate with these commissions. Only in 2002 UNMOVIC could start inspections following the adoption of Security Council Resolution 1441. This resolution gave an extensive mandate to UNMOVIC and to the IAEA and recalled that Iraq would face “serious consequences” in case it did not fully comply with its obligations under this and previous resolutions. UNMOVIC and IAEA carried out their tasks and reported to the Security Council. In March 2003 the US together with the UK and Australia took military action; after a few weeks of fighting the Saddam Hussein regime was defeated.522

Special missions of international organizations are often sent to developing states. For example, the UNDP uses special missions for programming, project formulation or evaluation purposes.523 Special missions are sent to members to request more financial support, to collect information or to consider the future policy of the organization. Specialized agencies also send out special missions for specific purposes. In 1976, for example, the International Scheme for the Coordination of Dairy Development and the International Meat Development Scheme of the FAO sent missions to seven members to explore the development requirements of dairy-livestock.524 The role of such missions is so similar to that of a state’s special mission to another state that it may be submitted that the same rules should be applied to them. With

518. 519. 520. 521. 522. 523. 524.

Keesing’s Contemporary Archives, June 26-July 3, 1965, at 20813. Id., Sept. 30-Oct. 7, 1967, at 22281. See also at 22670 and 22991. See N.D. White, Keeping the Peace 86-87 (1993). SC Res. 1284. See for a description of events from the adoption of Res. 1441 to the end of the fighting in April 2003, 97 AJIL 419-432 (2003). Cf. Jackson Report (DP/5), Vol. II, at 288. YUN 1976, at 955.

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minor alterations, the UN Convention on Special Missions could be applied to special missions sent by international organizations.

Usually special missions are sent by one organization, but it has also happened that two organizations reach agreement on sending one common mission. This facilitates coordination of the relevant work of the organizations concerned. An example is the ‘tri-parliamentary mission’ to Albania in January 1998 by members of the European Parliament, the Parliamentary Assembly of the Council of Europe, and the OSCE Parliamentary Assembly.525 Another example is the 1998 mission by Felipe Gonzalez as the Personal Representative of the Chairman in Office of the OSCE for the Federal Republic of Yugoslavia. In March 1998 it was decided that Mr. Gonzalez would also act on behalf of the European Union.526 §1833. One type of UN special mission has a very broad scope: the missions sent to members to perform national government tasks; civil as well as police functions. The UN has sent a number of such missions to assist members. For example, the UN Operation in the Congo (ONUC), which was established by Security Council Resolution 143 (1960).527 This mission, composed of civil as well as military personnel, was sent to the Congo to render civil and military assistance to the local government, until the latter’s own forces were able to perform this task. The ONUC was a UN organ helping to enforce Congolese law in the Congo.528 It initiated an operation by which the UN and the specialized agencies performed many government functions on behalf of the Congolese government during the period when that government could not properly act for itself. A further example is the United Nations Force in Cyprus, which was formed in 1964, pursuant to Resolution 186 of the Security Council.529 It was sent to Cyprus to help the government keep the peace on the island.530

525. 526. 527.

528. 529. 530.

The objective of this mission was to promote progress in the elaboration of the Albanian constitution. See CoE Doc. 7978, Add. IV. See Europe No. 7185, at 2. See Publications No. 68 and 71 of the Netherlands Ministry of Foreign Affairs; G. Martelli, Experiment in World Government, An Account of the UN Operations in the Congo 19601964 (1966); P.-H. Gendebien, L’intervention des Nations Unies au Congo 1960-1964 (1967); R. Simmonds, Legal Problems Arising from the United Nations Military Operations in the Congo (1968); M. Struelens, The United Nations in the Congo – or O.N.U.C. – and International Politics (1976); G. Abi-Saab, The United Nations Operation in the Congo, 1960-1964 (1978); R. Higgins, United Nations Peacekeeping: Documents and Commentary, Vol. 3: Africa 1946-1967 (1980); W.J. Durch, The Evolution of UN Peacekeeping 315-352 (1993). For the agreement between the UN and Congo, see 414 UNTS, at 229. See YUN 1964, at 165; UN Doc. S/5575. For the agreement between the UN and Cyprus, see 492 UNTS, at 57 or UNJY 1964, at 40-50. On UNFICYP, see Publication No. 81 of the Netherlands Ministry of Foreign Affairs; S.G. Xydis, Cyprus: Conflict and Conciliation 1954-1958 (1967); J.A. Stegenga, The United Nations Force in Cyprus (1968); M. Harbottle, The Impartial Soldier (1970); J. Ballard, L’opération des Nations Unies à Chypre, 80 RGDIP 130-162 (1976); W.J. Durch (ed.), op. cit.

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Another early example is the UN Temporary Executive Authority, created to supervise the transition from Western New Guinea from Dutch colonial rule to Indonesian administration (1962-1963).531 More recently, the UN Security Council has created a number of peace-keeping operations which can be considered as UN missions sent to assist member states in carrying out a large number of government tasks. The UN Transition Assistance Group was formally created by Resolution 435 (1978), but became operational only in 1989. Its task was to assist and monitor the transition of Namibia from a territory occupied by South Africa to an independent state. The elections were supervised and the operation was widely considered successful.532 A comparable operation was the UN Transition Assistance Authority in Cambodia (UNTAC) which had a very complex mandate. Its task was, inter alia, to verify the withdrawal of all foreign forces (in particular, those from Vietnam), to monitor the cessation of outside military assistance, and to supervise the elections. UNTAC’s broad task was reflected in its composition: 16,000 military personnel, 3,500 police monitors and over 1,500 civilian administrators. The civilian administrators were to exercise direct control over the existing institutions in Cambodia to ensure strict neutrality; the police monitors were to control the local police to ensure that law and order were maintained effectively and impartially.533 Other examples of comprehensive UN operations which were, wholly or partly, created to assist governments, are the UN Protection Force in former Yugoslavia and the UN Operation in Somalia, both created in 1992. These two operations have exercised a large number of government functions, in particular in the case of Somalia, where there was in fact no government at all (see above, §1504, §1509). Further examples are the UN Mission in Bosnia and Herzegovina, the UN Interim Administration Mission in Kosovo, the UN Mission of Support in East Timor, and the UN Mission in Sierra Leone.534

d.

Missions to non-members

§1834. Usually, it will be more difficult for international organizations to establish missions to non-member states than to one of its own member states. In 1982, for example, the Direction du droit international public of the Swiss Federal Department of Foreign Affairs was asked to give an opinion on the question whether a regional organization had a right of legation in relation to a non-member state. It took the view that the answer depended on the express or implied powers of the organization in question, concluding that there was nothing express in the constitution of the organization, but that its aims and purposes required some activity on the territory of non-member states; therefore, an active right of legation could not be denied. The agreement of the host state was required, and it was advised that a grant of rights

531. 532. 533.

534.

note 527, at 219-236. See Durch (ed.), op. cit. note 527, at 285-298. Id., at 353-375. White, op. cit. note 520, at 250-251. See also M.W. Doyle and N. Suntharalingam, The UN in Cambodia: Lessons for Complex Peacekeeping, in: International Peacekeeping Vol. I, No. 2 (summer 1994). See for details www.un.org/Depts/dpko.

§1835

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in Switzerland called for parliamentary approval, because they represented “new obligations”.535

§1835. The Vienna Convention on Diplomatic Relations permits two or more states to accredit the same individual as head of a mission to another state, unless the receiving state objects.536 This article allows the members of closely integrated international organizations, such as the now defunct East African Common Market and the European Communities to use a common embassy abroad which could then be seen as a mission of the organization. The East African Common Market had a common economic representation with the European Communities in Brussels. No other such embassies have been established. The staff of the embassies of the members of the EC in several capitals meet periodically to consider questions of common concern. They report on such meetings to the EC in Brussels.537

§1836. The European Union does not formally have the power to establish and maintain its own representation in non-member states, although it is one of the stated objectives of the Union “to assert its identity on the international scene”.538 In practice the external identity of the Union is implemented through the Presidency539 (the EU member state presiding over the Council of the Union) and the European Commission.540 The European Commission has offices in more than 130 non-member states.541 The appointment of delegations in non-member states is done by the Commission. In practice the Council has a role in both the decision to establish a delegation and the appointment of the Heads of Commission delegations (who generally have the rank of ambassador).542 Originally the Commission sought accreditation at the level of the Ministry of Foreign Affairs. Since 1989 however it seeks accreditation at the level of Head of State. If this is not possible (e.g. for constitutional reasons) in the receiving state, accreditation is done at the level of Head of Government. This change reflects the more important position Commission delegations have occupied over the years. These Commission delegations are closer to embassies than any other mission of an international organization.543 Their tasks are not limited to one par-

535. 536. 537. 538. 539. 540. 541.

542. 543.

See Morgenstern, op. cit. note 429, at 10-11. Vienna Convention on Diplomatic Relations (1961), Art. 6. Hardy, op. cit. note 471, at 56-57. TEU, Art. 2. TEU, Art. 18. According to Art. 18.4 TEU, the Commission “shall be fully associated” in the common foreign and security policy tasks of the Presidency. See www. Europa.eu.int/comm/external_relations/delegations. Although these delegations are formally part of the European Commission, in practice they serve the wider EU interests. MacLeod, Hendry, and Hyett, op. cit. note 238, at 216-217. See Reichling, op. cit. note 443.

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ticular function (as in the case of the Resident Representatives/Coordinators of the UN) but cover almost the entire field in which the EU operates.544 Commission delegations increasingly cooperate with missions of the member states in non-member states. Article 20 of the Treaty on European Union provides: “The diplomatic and consular missions of the member states and the Commission delegations in third countries and international conferences, and their representations to international organizations, shall cooperate in ensuring that the common positions and joint actions adopted by the Council are complied with and implemented”. This obligation only relates to the Common Foreign and Security Policy of the EU. However, in practice also more in general, outside this Second Pillar of the Union, cooperation in third states between missions of the member states and Commission delegations has become closer over the years. This is symbolized in Nigeria: in 2001 the construction began of a joint embassy compound in Abuja, the new capital of Nigeria, benefiting from the need for all existing missions of the member states and the Commission delegation to move from Lagos (the old capital) to Abuja. Within this compound the missions will maintain separate premises, but will also share a number of common facilities, such as the visa section.545 Delegations of the Commission are charged to deal with the interests of the European Union, not with those of the individual member states. There are no common European Union embassies. Still, some development in that direction can be found in Articles 17 and 20 EC which provide that nationals of member states of the Union are at the same time citizens of the Union and that the embassies of all other member states will protect their interests in case their own state has no diplomatic or consular representation in a particular third country. By a law (introduced before Congress on 28 September 1971), the delegation of the EC Commission to the US was granted diplomatic status and all connected privileges and immunities.546 Before British entry to the Communities, the EC had a mission in London. The head of that mission had ambassadorial status and his staff enjoyed diplomatic privileges and immunities – though to a lesser extent than diplomats547 – and used CD number-plates. Nevertheless the head of the mission ranked below the diplomatic corps and did not participate in its meetings. The mission was mentioned at the end of the London Diplomatic List, together with the personnel of international secretariats established in London (such as the Secretariats of the Commonwealth and of the Western European Union). The head of the mission was accredited to the British Government and not – like foreign ambassadors – to the Court of St. James.

544.

545. 546. 547.

See www.europa.eu.int/comm/external_relations/delegations/intro/role.htm. Inter alia, these delegations are required to present, explain and implement EU policy, and they have to analyze and report on the policies and developments of the countries to which they are accredited. See www.europa.eu.int/comm/external_relations/delegations/intro/ms.htm. 14 Europa van Morgen (March 1972), at 104. European Coal and Steel Community Act of 27 July 1955.

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§1837. International organizations also send special missions to non-members. In 1954, the UN sent its Secretary-General to Peking to seek – in the name of the organization – the release of members of the US forces under UN command who had been captured.548 The talks were relatively successful, despite the fact that the Chinese authorities rejected the authority of the relevant General Assembly Resolution.549 (Although China was a UN member, the Chinese rights of membership were not exercised by the government in Peking at that time.) §1838. The European Communities have appointed several special missions to negotiate trade and association agreements. These missions are usually composed of Commission representatives and either representatives of or observers from the member states.550 §1839. Missions to members generally operate under the authority of the Secretary-General, who is himself answerable to other organs of the organization. As missions to non-members often have more political implications than missions to members, the supreme organs of the organization wish to be more directly involved. When the Secretary-General of the UN was sent to the People’s Republic of China, it was on the instruction of the General Assembly. e.

Missions to other international organizations

§1840. An international organization may send a special mission to another international organization, usually to act as observer at a meeting of its general congress. Some organizations maintain permanent offices at the headquarters of other international organizations.551 The status of such missions and offices will depend on the headquarters agreement of the receiving organization, but they will generally enjoy the privileges and immunities which are provided for observers. Missions and offices which act under the authority of the sending organization play a role in the external relations of the organization comparable to that played by diplomatic missions of states. Apart from such observer missions at secretariat level, an international organization may act as a separate unit within another international organization, as the EC did (through the European Commission) within the GATT (before it became a member

548. 549. 550. 551.

GA Res. 906 (IX). Hardy, op. cit. note 471, at 51; YUN 1955, at 54-55. See Art. 300 EC; C. Tomuschat in Von der Groeben et al., op. cit. note 361, at 5/474 ff.; MacLeod, Hendry, and Hyett, op. cit. note 238, at 85 ff. See e.g. Permanent Missions to the UN, publication of the UN Secretariat (updated weekly). Liaison offices at the UN in New York are maintained, inter alia, by the ILO, FAO, UNESCO, WHO, World Bank, IMF, and IAEA. The European Commission has a permanent mission to the WTO and the UN in Geneva, to IAEA and UNIDO in Vienna, to the OECD in Paris, and to the UN in New York.

1173

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§1841

of the World Trade Organization). This form of representation in other organizations can be considered a first step towards one organization obtaining membership of another, as in the case of EC membership of the FAO and the World Trade Organization (see above, §81-84). Another example of an organization operating with a certain autonomy within another organization is the European Union acting within the UN General Assembly. According to Article 19 TEU, EU member states “shall coordinate their action in international organizations and at international conferences”. Over the years the EU has become increasingly successful in coordinating the positions of the EU member states within the General Assembly. On the basis of a quantitative study the conclusion has been drawn that the EU has now become one of the Assembly’s key actors.552 It is true that the result of extensive EU coordination almost by definition has a compromise character and may of course lack focus. At the same time however, it has been observed that “precisely the compromise nature of many EU positions provides a certain attraction for a number of other UN member states, who consider them as a result of the EU’s internal coordination process to be more balanced and therefore better suited to seeking consensus within the General Assembly”.553 The expected enlargement of the EU will complicate EU coordination, but, to the extent that a common EU position can be agreed upon, such a common position may carry even greater weight. The nature of EU coordination within the UN Security Council is different from that within the General Assembly, since only two EU member states, France and the United Kingdom, are permanent members of the Security Council. It is an EU obligation for these member states to, “in the execution of their functions, ensure the defence of the positions and the interests of the Union, without prejudice to their responsibilities under the provisions of the United Nations Charter”. It is an EU obligation for all EU member states that are members of the Security Council (i.e. also for EU members that have been elected as non-permanent members of the Council) to cooperate and keep the other EU members fully informed.554 EU coordination concerning the work of the Security Council has gradually become a reality since the end of the 1990s. Some examples can be found of international organizations nominating members of subsidiary organs of other organizations (see above, §1716). These members do not represent the nominating organization, but give it some influence in the organ concerned.

f.

Delegations to international conferences

§1841. International organizations are frequently represented at international conferences by delegates with the status of observers to the conference. These delegates take part in the organization’s external relations by representing it and speaking on its behalf.555

552.

553. 554. 555.

J. Wouters, The European Union as an actor within the United Nations General Assembly, in Kronenberger, op. cit. note 350, at 375-404. See also J.-P. Cot, La Communauté européenne, l’Union européenne et l’Organisation des Nations Unies, in Boutros Boutros-Ghali, Amicorum Discipulorumque Liber – Peace, Development, Democracy (1998), at 327-346. Wouters, op. cit. note 552, at 404. TEU, Art. 19.2. For organizations participating in organs of other organizations as observers, see above, §185-187.

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An international organization rarely participates in an international conference on the same basis as national delegates. In 1968, the EEC participated in the UN Sugar Conference.556 Some (Eastern European) delegations objected, but the Conference adopted a French proposal that “pending clarification of the legal issues involved, the members of EEC should be provisionally authorized to use a common spokesman to express the collective position of EEC on matters relating to sugar, it being understood that the right to vote in the Conference might be exercised only individually by the states members of EEC and that EEC itself would have no vote”.557 In a note on the participation of the EEC in the UN Sugar Conference, the Secretary-General of UNCTAD subsequently observed: “The 1968 Sugar Conference is faced with the problem as to the scope of the EEC participation in its work. The extent of the participation which the Conference may afford to the EEC has to be decided within the framework of the Charter of the United Nations, which envisages the United Nations as an organization of states, and of the principles of UNCTAD’s constituent instrument, General Assembly Resolution 1955 (XIX), which in certain circumstances contemplates the participation without vote of bodies other than member states in UNCTAD deliberations. The particular case of the EEC presents the following novel and, for the time being, unique constitutional features which it may be in the interest of a commodity conference to recognize in order to further its purposes. The EEC, which has single legal personality, functions through four institutions, one of them being the Commission. Under Article 228 [- now Article 300 -] of the Treaty of Rome, the Commission is the institution afforded the exclusive right and power to negotiate certain agreements between EEC and other states. The six individual states members of the Community are obliged to recognize the exclusive right of the Commission to negotiate an agreement such as is contemplated by the 1968 Sugar Conference. To enable the six member states of the EEC who are required to follow a common agriculture policy to comply with their obligations under the Treaty, and to facilitate their participation in a conference in which negotiations of a commercial nature seem to be an important element, a recognition of the fact that member states of the EEC are bound by the Treaty to present a common EEC view on matters relating to sugar through representatives of one of its institutions, namely the Commission, may commend itself to the Conference. If so, such recognition could be achieved if the representative of the EEC were given a position, somewhat different from that of a mere observer but less than that of a state having full rights of participation, which would enable him to take part in negotiations. The Conference could invite the EEC to participate in the Conference without vote, and permit the representative of its Commission to act as spokesman for the EEC on matters relating to sugar. Such an arrangement would not limit in any way the functions of the member states of the EEC participating in the Conference. I believe this procedure could be employed in a commodity conference without infringing the United Nations requirements outlined

556. 557.

For the EEC as a party to the Sugar Convention, see also above, §1773. United Nations Sugar Conference 1968, Summary of Proceedings, UN Doc. TD/SUGAR.7/ 12, at 44 (Records of 27 April 1968).

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in paragraph (e) above while at the same time satisfying the Community’s institutional arrangements”.558

Representatives of the European Commission participated actively in the discussions on behalf of the Community.559 The delegates of the member states only spoke on issues not connected with sugar (such as the representation of the EEC,560 the officers of the conference,561 the German Democratic Republic).562 The EEC was one of the thirteen members of the Working Party on Special Arrangements.563 In a statement, the representative of the EEC made it clear that the EEC had to participate as a single entity in the negotiations for the International Sugar Agreement, and to sign it if the case should arise.564 The International Sugar Agreement 1968, which was drafted by the Conference, provided for EEC participation in the Agreement.565 Subsequently, the E(E)C has participated in many other conferences,566 including those in which commodity agreements were negotiated.567 A point of controversy has been whether the Community was exclusively competent to conclude commodity agreements, or whether such competence was shared with the member states. A compromise was reached in an unpublished Council decision of 30 March 1981 (the so-called PROBA-20 formula). This PROBA-20 formula comprises four elements: 1. Commodity agreements are signed and concluded by the Community and the member states.

558.

559.

560. 561. 562. 563. 564. 565. 566.

567.

UN Documents TD/SUGAR.7/4, at 3-4 and TD/SUGAR.7/4/Corr. 1. For a survey of the objections of the USSR, see Doc. TD/SUGAR.7/EX/SR. 11-27, at 52-54. The note of the Secretariat is also published in UNJY 1968, at 201-202. See also R.G. Sybesma-Knol, who rightly observes that “the opinion has often been cited as the basis for all future instances of participation of the Community in the work of the United Nations” (at 324). In particular Mr. von Verschuer, director at the Directorate General for Agriculture of the EC Commission and Mr. Jacquot, official at the same Directorate-General. See e.g. UN Documents TD/SUGAR.7/12, at 49; TD/SUGAR.7/EX/SR. 1-10 (Executive Committee), at 17, 20, 21; id., SR. 11-27, at 18, 29, 38, 43, 45, 67, 83, 87, 89, 90, 94, 110. UN Doc. TD/SUGAR.7/12, at 44. Id., at 23. Id., at 38. TD/SUGAR.7/EX/SR. 1-10, at 18. TD/SUGAR.7/EX/SR. 11-27, at 68. International Sugar Agreement 1968, Art. 2, para. 26 (see above, §1773). See in general on the Community’s access to, and participation in, the work of international organizations and conferences, Groux and Manin, op. cit. note 238, at 41-54. See on the participation by the Community in negotiations on ILO conventions, Opinion 2/91, ECR 1993, at I-1061, in which reference is made to a decision by the EC Council of 22 December 1986, governing such participation in cases where there is an exclusive Community competence. See e.g. United Nations Tin Conference 1970, UN Doc. TD/TIN.4/7/Rev. 1, at 30; UN Wheat Conference 1971, UN Doc. TD/WHEAT.5/Inf. 1, at 29; 1992 UN Cocoa Conference, UN Doc. TD/COCOA.8/INF.1-5. See R. Barents, The European Communities and Commodity Organizations, 1 LIEI 77-93 (1984); J. Tillotson, International Commodity Agreements and the European Community: Questions of Competence and Will, 23 JWT 109-125 (December 1989).

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2. Negotiations and participation take place through a common delegation, operating on the basis of a common position “normally” expressed by the Commission. 3. Voting rights are attributed to individual member states but are cast in conformity with the common position and according to the methods and procedures laid down in the agreements. 4. Existing practices as regards representation and participation in bodies of limited composition (Councils, Executive Committees, etc.) are continued.568 §1842. Delegations and missions of international organizations are usually appointed by the Secretary-General and composed of staff members of the secretariat. In some cases, however, governmental organs of the organization send the representatives of the organization “abroad”. The ECOSOC appointed the chairman of the Economic and Employment Commission to take part in the deliberations of a meeting convened by the FAO to consider proposals for the establishment of a World Food Board. The ILO has been represented at the UN General Assembly by members of its board (Governing Body). The ITU and the UPU have sent officials from one of their members.569 C.

Recognition of other subjects of international law

§1843. Operating under international law, international organizations meet other – and also alleged – international persons. In deciding their policy with regard to the latter, international organizations can choose whether they wish to recognize states or other international organizations as subjects of international law. They also may recognize governments as lawfully representing states. Recognition is implied when a state (or an organization) is admitted as a member, when an agreement is entered into with a state (or an organization), or when they are invited to a session or a conference. Depending on the status of the organization, recognition may be of greater or lesser significance to the state (or organization) concerned. Recognition of a state or a government by the UN will be more important to that state or government than its acceptance by any other organization or state.570 Dugard even takes the view that “the international community has delegated the authority to recognize decolonized entities as states to the United Nations”.571 This is perhaps a bridge too far. Raic has convincingly questioned the legal underpinning of this conclusion, arguing that “[t]here is no such thing as ‘collective recognition’ if this term is used to describe (near) universal recognition. […] … although recognition

568. 569. 570. 571.

See Tillotson, op. cit. note 567, at 119; MacLeod, Hendry, and Hyett, op. cit. note 238, at 185. UN Repertory of Practice, Vol. 3, at 549. Cf. J. Dugard, Recognition and the United Nations (1987), at 51, 73. Id., at 73 and 78-80.

1177

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may be granted (implicitly) by several states at the same time, this must be distinguished from collective recognition proper”.572

Nevertheless, it is true that in this respect, the organizations of the UN system play a pivotal role. Recognition by the UN means that a state (or its government) will be invited to important international conferences, allowed to accede to numerous international treaties, become a member of several international organizations and to send observers to others. In view of the importance of recognition, international organizations do not usually permit their lower organs to take action entailing the recognition of non-members.573 §1844. Recognition by an international organization does not imply recognition by the members of the organization (Israel has been admitted to the UN without having been recognized at the time by the Arab states);574 nor need the government which represents the state be recognized by all members as the lawful government (prior to 1971, many members of the UN did not recognize the nationalist government of China when it represented China in the UN). Recognition of an international person by one international organization may have an effect on other international organizations, not only within the same family of organizations – such as the UN and the specialized agencies – but also on other independent organizations. The UN for example, officially agreed to recognize liberation movements when they had been recognized by the Organization of African Unity (see above, §182-186).575 1.

Recognition of states576

§1845. The UN has recognized many states by admitting them as members.577 In the case of the Byelorussian and the Ukrainian SSR (see above, §75), recognition by the UN was not preceded by recognition by any state. Since becoming members of the UN, both Soviet Republics were accepted, long before the

572. 573.

574. 575. 576.

577.

D. Raic, Statehood and the Law of Self-Determination 47 (2002). See also M.N. Shaw, International Law 313 (4th ed. 1997). See e.g. the legal opinion of the Secretariat of the UN of 16 October 1968 denying the competence of a sub-commission of the ECOSOC to invite states which are not members of the UN, UNJY 1968, at 204-205. See also UNJY 1968, at 205-206. YUN 1948-49, at 395-405. See e.g. YUN 1974, at 487. See H.M. Blix, Contemporary Aspects of Recognition, 130 RdC (1970 II), at 652-677; L.L. Kato, Recognition in International Law: Some Thoughts on Traditional Theory, Attitudes of and Practice by African States, 10 IJIL 299-323 (1970); Dugard, op. cit. note 570; Raic, op. cit. note 572, at 39-48. See R. Cohen, The Concept of Statehood in United Nations Practice, 109 Univ. of Pennsylvania Law Rev. 1127-1161 (1960-1961). For the view that admission means recognition, see K. Nagy, The admission of non-recognized States into international organizations, Questions of International Law 129-145 (1970).

§1846

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dissolution of the Soviet Union, as members of other organizations (such as the ILO, UPU and the IAEA), as participants in conferences and as parties to treaties (such as the Vienna Convention on Diplomatic Relations and both UN Covenants on Human Rights). §1846. Acceptance as a member does not however necessarily imply recognition as a state. Some international organizations admit non-autonomous territories as members (see above, §76). The ITU objected when one of these non-autonomous members (Rhodesia) wanted to continue its membership as an independent state. It thus affirmed its intention not to recognize a new state. The UN has recognized some states by admitting them as parties to the Statute of the International Court of Justice, to which only states can adhere,578 while other states have been accepted as members of regional economic commissions (see above, §169) and others again as parties to conventions concluded under auspices of the UN. The latter category, in particular, has given rise to considerable discussion (see above, §1301). §1847. For many law-making conventions, it is desirable that as many states as possible adhere. Allowing non-members to adhere would, however, be a form of recognition by the organization. It would result in relations between the organization and the non-member, concerning the depositary functions of the organization and the participation of the non-member in possible revisions of the convention. International organizations limit such relationships by admitting only certain non-members as parties to conventions, or by channelling the relations through one or more of their members (see above, §1301). Even in the latter case, there is a de facto recognition. The drafting of the Nuclear Test Ban Treaty in a specific form, to allow the German Democratic Republic and certain other states to become parties, at least meant that the UN recognized the existence of these states. In other cases, some form of de facto recognition may also be inferred from an invitation to participate in discussions concerning a dispute.579 Because of this practical effect, many members of the UN, in particular the Western states, have for many years objected to invitations issued to “all states”. Only after their recognition of the German Democratic Republic and the Peoples Republic of Korea were these objections dropped. Since then, several conventions which originally used the Vienna Formula (see above, §1301) have been extended to all states.580 At the moment, invitations to “all states” create no problems, as there is currently little controversy over the

578. 579.

580.

UN Charter, Art. 93.2. Indonesia was invited to participate in the work of the Security Council concerning the hostilities between the Netherlands and Indonesia before the latter state became independent. See Cohen, op. cit. note 577, at 1164-1168. See e.g. GA Res. 3233 (XXIX), YUN 1974, at 865, concerning the Vienna Convention on the Law of Treaties.

1179

External relations

§1848

question of which entities constitute states.581 Instead, the invitation to all states is seen as restrictive, as it excludes liberation movements. §1848. Examples of states recognized by international organizations are Guinea Bissau and Namibia. The UN General Assembly recognized Guinea Bissau by an express resolution in 1973.582 Namibia was admitted as a member to, inter alia, the ILO, FAO, UNESCO and WHO after several recommendations of the General Assembly to the specialized agencies, pleading for its admission.583 Namibia participated as a state in the Third UN Conference on the Law of the Sea.

§1849. Express non-recognition by an international organization is rare, but possible. One example is the non-recognition of Transkei by the UN. The General Assembly declared that state to be illegal and asked all UN members to refuse it any form of recognition,584 a resolution which was endorsed by the Security Council.585 Another example is the proclamation of the establishment of the Turkish Republic of Northern Cyprus in 1983. This unilateral declaration of independence was generally rejected, not only by states but also by a number of international organizations (the E(E)C, the Council of Europe, the UN).586 §1850. In regional organizations, the acceptance of a state as a member means that the state is recognized as belonging to the region. Thus, the admittance of Turkey to the Council of Europe reinforced the politically important submission that it belonged to Europe. It facilitated, for example, the election of Turkey to seats in UN organs which were attributed to the European region. Recognition of a state is a voluntary act. When the organization cannot decide on recognition, it may abstain from establishing any relations with that “state”. In 1991 the member states of the EC adopted the Declaration on the Guidelines on the Recognition of New States in Eastern Europe and the Soviet

581. 582. 583.

584. 585. 586.

For interpretation of the ”all states formula”, see UNJY 1974, at 157-159, and UNJY 1976, at 186-187. GA Res. 3061 (XXVIII). See on this resolution 19 AFDI 628 (1973). See e.g. GA Res. 31/149, para. 3. On the participation of Namibia in international conferences and organizations, see also the Reports of the UN Council for Namibia, e.g. UN Doc. A/33/24, at 30-39. GA Res. 31/6A. On this resolution, see G. Fischer, La non-recognition du Transkei, 22 AFDI 63-76 (1976). See also Dugard, op. cit. note 570, at 98-108; Raic, op. cit. note 572, at 134-141. Resolutions 402 (1976) and 407 (1977). Dugard, op. cit. note 570, at 108-111; Groux and Manin, op. cit. note 238, at 26-27; Raic, op. cit. note 572, at 122-127. SC Resolutions 541 (1983) and 550 (1984).

§1851

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Union.587 This Declaration contains a number of requirements for recognition, such as: respect for the UN Charter; rights of the ethnic and national groups and minorities must be guaranteed; respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement. In addition, the Declaration emphasizes that “the Community and its member states will not recognize entities which are the result of aggression”. 2.

Recognition of governments

§1851. Recognition of a government, unlike recognition of a state, may prove unavoidable. Whenever an international organization enters into relations with a state (for example, by admitting it as a member), it must cooperate with its government: it must receive its delegations and correspondence. Where two governments claim to represent the member, the organization must choose one of them. The question of recognition of governments is rarely treated as a separate question of external policy. The organizations merely wait until the credentials of disputed governments are filed for a meeting. The question of recognition is then discussed in a credentials committee and, on the basis of that committee’s report, in the organ concerned (see above, §256-263). The most important case of recognition which did not arise as a question of credentials was the recognition of the government of Poland by the ICAO.588 The Polish government in London had ratified the ICAO constitution in 1945. The government in Warsaw did not recognize this ratification and refused to pay the resulting contributions. When it decided to apply for ICAO membership in 1948, the organization could not accept the application, since Poland was already a member. Polish delegates were admitted but their voting rights were suspended because their contributions were in arrears. It was 1957 before a settlement was reached. Poland paid a fraction of the amount owed and its voting rights were restored. The recognition of the Socialist Republic of Vietnam as a member of the IMF was also mainly a question of recognition of a government. The Republic of Vietnam entered the IMF in 1956. The Fund recognized the Provisional Revolutionary Government of South Vietnam in 1975 and the Socialist Republic of Vietnam in 1976, thus extending the membership to the entire territory of Vietnam. The Fund’s desire for continuity may have been a reason for preferring recognition to admission of the Socialist Republic of Vietnam as a new member.589

587.

588.

589.

31 ILM 1485-1487 (1992). See Raic, op. cit. note 572, at 165-167. Shaw has correctly indicated that this constituted “a coordinated stand with regard to criteria for recognition by the Community and its member states rather than collective recognition as such” (op. cit. note 572, at 313, footnote 86). T. Buergenthal, Law-Making in the International Civil Aviation Organization 46-48 (1969); W. Morawiecki, Some Particular Aspects of Poland’s Membership in International Organizations, (UN, ICAO, GATT), 2 PYIL 11-16 (1968/69). On Vietnam in the IMF, see J. Gold, A Second Report on some Recent Legal Developments in the International Monetary Fund, World Association of Lawyers 48-53 (1977).

1181

3.

External relations

§1852

Recognition of territorial sovereignty

§1852. In October 1966, the General Assembly of the UN terminated South Africa’s mandate over South West Africa (Namibia).590 It no longer recognized South African sovereignty in the territory. This decision had some legal effects. It enabled the General Assembly to establish a UN Council for South West Africa (Namibia),591 to rename the territory,592 and to decide that the UN could issue passports to Namibians (see below, §1866). It also formed the legal basis for decisions of other international organizations. Without the General Assembly resolution, the ITU would not have resolved “that the government of South Africa no longer has the right to represent the territory of South-West Africa within the Union”.593 In other cases, the UN Security Council has expressly “non-recognized” territorial acquisitions, such as East Jerusalem and the Golan Heights by Israel.594 4.

The competent organ

§1853. The external relations of international organizations are relatively underdeveloped. It is rare for specific organs to be made responsible for international relations, and set procedures have seldom been provided for this purpose.595 External relations are either not anticipated at all, or provision is made only in limited areas, such as relations with other organizations. Usually, the constitutions of international organizations contain no rules concerning which organ is competent to perform acts of recognition. If an unrecognized state is to be admitted as a member, the decision has to be made by the organ competent to admit members, but lower organs may be faced with questions of recognition whenever they invite states to send information or to participate in a conference. It is expected that other organs will follow the decision of the general congress, but no legal obligation compels them to do so. The General Assembly of the UN has recognized the representation of a member as a problem separate from that of credentials. It considered itself to be the most appropriate organ to settle such matters affecting the functioning of the organization, and recommended that the other organs of the UN and the specialized agencies take account of its relevant decisions.596 The General Assembly declared that its attitude would not, of itself, affect the direct relations of individual members

590. 591. 592. 593. 594. 595. 596.

GA Res. 2145 (XXI). GA Res. 2248 (S-V), GA Res. 2372 (XXII), para. 1. See also L. Lucchini, La Namibie, une construction des Nations Unies, 15 AFDI 355-374 (1969). GA Res. 2372 (XXII), para. 4(c). ITU Council Res. No. 619 (1967); UNJY 1967, at 906. Dugard, op. cit. note 570, at 111-115. A noteworthy exception is the EU. GA Res. 396 (V).

§1854

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with the state concerned. Nevertheless, it is clear that the decision of the General Assembly will have a great political impact on the position of two competing governments. It may radically affect the attitude of many individual states, and justifiably so: a decision by the world’s main political forum as to which government lawfully represents a state should be of the greatest significance. Thus, the UN General Assembly tries to promote uniform policy by assuming powers in the field of external relations despite the silence of the UN Charter on the matter. The resolutions of the General Assembly requesting that the specialized agencies admit Namibia as a full member (see above, §1848) demonstrate the same viewpoint. In practice, the position taken by the General Assembly carries great weight. When, in 1971, the General Assembly had recognized the communist government as the lawful government of China, the other organs of the UN and the specialized agencies rapidly followed. It may be doubted whether the General Assembly, by itself, is the most appropriate organ to take this kind of decision. In the related questions of admission and expulsion, the Charter requires the prior approval of the Security Council.597

§1854. However useful it may be to strive for one consistent policy to be applied by all organs of the same international organization, a uniform policy for all international organizations may not be necessary. A government which does not represent the population of a state may well control technical services, and may therefore be acceptable as the member’s representative in technical organizations, such as the ITU or the WMO. It therefore seems acceptable, in this respect, to allow each international organization to conduct its own external relations. 5.

“Passive” recognition

§1855. Like diplomatic relations, recognition has an active and a passive side. It is not customary for international organizations to be officially recognized by other subjects of law before they are accepted as participants in international relations, but states sometimes indicate that they are unwilling to grant to international organizations the position in international law which the organizations claim. When, for example, the EEC claimed vast treaty-making powers, the SU and several other Eastern European states indicated that they refused to recognize that the EEC possessed such powers. They accordingly made reservations to multilateral treaties in which the EEC participated.598 States sometimes have two governments which both claim to be the only lawful representative of the country (see above, §256 ff.). Other states as well

597. 598.

M.S. McDougal and R.M. Goodman, Chinese Participation in the United Nations: the Legal Imperatives of a Negotiated Solution, 60 AJIL 721 (1966). See above, §1773; Groux and Manin, op. cit. note 238, at 19-26.

1183

External relations

§1856

as international organizations, must then recognize one or the other government as legitimate (see above, §1851). A similar situation occurred when, in 1979, the League of Arab States decided to move its headquarters from Cairo to Tunis. Egypt did not recognize the legality of this decision and maintained the Secretariat in Cairo. Others were required to recognize either the Cairo Secretariat or the Tunis Secretariat as the lawful Secretariat of the League.599 D.

Judicial actions and responsibility under public law

1.

Competence to bring and receive international claims600

§1856. It has already been observed (§1613-1616) that international organizations are liable under private law for acts for which they are responsible in the same way as any other legal person. May they also bring claims under international law? “Competence to bring an international claim is, for those possessing it, the capacity to resort to the customary methods recognized by international law for the establishment, the presentation and the settlement of claims. Among these methods may be mentioned protest, request for an enquiry, negotiation, and request for submission to an arbitral tribunal or court...”.601 In its advisory opinion of 11 April 1949 (Reparation for Injuries Suffered in the Service of the UN), in which the International Court of Justice gave the above quoted definition, the Court held, unanimously, that the UN had the capacity to bring an international claim against the responsible government with a view to obtaining the reparation due in respect of the damage it had suffered. The Court also held, by 11 votes to 4, that the UN might claim in respect of damage caused to its agents, or to persons entitled through them.602 The Court based its decision on the capacity to bring claims against members on the need for this capacity and on the implied powers of the organization (see above, §232 ff.). The capacity was necessary because it would be impossible for the organization to obtain reparation unless it were able to bring an international claim.603 The organization also needed to be able to protect

599. 600.

601. 602. 603.

NRC Handelsblad, 4 May 1979, at 1. C. Eagleton, International Organization and the Law of Responsibility, 76 RdC (1950 I), at 319-325; M. Hardy, Claims by International Organizations in Respect of Injuries to their Agents, 37 BYIL 516-526 (1961); K. Ginther, Die völkerrechtliche Verantwortlichkeit internationaler Organisationen gegenüber Drittstaaten (1969); J.P. Langier, Contribution à la théorie générale de la responsabilité des organisations internationales (Thèse Aix, 1973); B. Amrallah, The International Responsibility of the United Nations for Activities carried out by UN Peace-Keeping Forces, 32 REDI 57-82 (1976); M. Hartwig, Die Haftung der Mitgliedstaaten für Internationale Organisationen (1993); M. Hirsch, The Responsibility under International Law of International Organizations towards Third Parties: Some Basic Principles (thesis Hebrew University, 1994). ICJ Rep. 1949, at 177. Id., at 187. Id., at 180.

§1857

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its agents as a condition for the performance of its functions. To ensure the independence of the agent, and consequently the independent action of the organization itself, the Court considered it essential that, in performing his duties, the agent did not have to rely on any protection other than that of the organization.604 The Court’s reasoning is applicable to all international organizations, universal as well as regional. If the power to bring claims is not expressly excluded by the constitution, it may be submitted that all public international organizations can bring claims against their members. §1857. The International Court of Justice also considered the question of whether the UN could bring claims against non-members. For the same reasons as in the case of members, it considered that the answer had to be in the affirmative, unless the non-members were justified in raising the objection that the organization lacked the capacity to bring an international claim.605 This objection will not be possible in relation to an organization representing the majority of the states forming the international community. The Court’s reasoning can be applied to other international organizations when their objective international personality can be established. Objective international personality, in the sense intended by the Court, may not exist for regional organizations wanting to bring claims against nonmember states. This does not exclude such claims, but means that the international personality of the organization must have been recognized in some form by the state concerned. This may have occurred through any act of that state. Thus, the EC or the EU could bring claims against all states which have accredited diplomatic missions to the Communities or to the Union, or which have entered into agreements with the EC or the EU. Before Israel became a member of the UN, two international claims were brought by the UN against Israel (Bernadotte and Sérot). Both were paid in full by the Israeli government. The government of Jordan fully satisfied a UN claim on behalf of a military observer. When the United Arab Republic admitted responsibility for the death of a Canadian member of the UN Emergency Force, it paid reparation to the Canadian government. The UN brought several other claims against the United Arab Republic and Jordan.606

§1858. Claims against international organizations may also arise. In answering such claims, the organization also acts under international law.607 As in the case of international claims against states, claims against international organizations can be brought as international claims only when the domestic remedies

604. 605. 606. 607.

Id., at 183. Id., at 184-185. Yearbook of the ILC 1967 II, at 218-219. See also YUN 1967, at 161. See J.-P. Ritter, La Protection diplomatique à l’égard d’une organisation internationale, 8 AFDI 427-456 (1962).

1185

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have been exhausted. Exhaustion of the “domestic” remedies of an international organization will normally mean that a claim must have been brought before the competent organ of the organization.608 An example of the potential liability of an international organization may be found in the Convention on International Liability for Damage Caused by Space Objects. Under that convention, international organizations, and their members, are jointly and severally liable for damage caused by the space activities of the organization, but a claim must first be lodged with the organization.609 The UN operation in the Congo (ONUC) caused considerable injury to individual citizens. About 1,400 Belgian nationals submitted claims to the UN, 581 of which were accepted. The UN paid the lump sum of one and a half million US dollars to Belgium in final settlement of the claims. The Belgian government assumed full responsibility for the distribution of this amount to the individual claimants.610 Claims, arising out of ONUC operations, presented to the UN by other states on behalf of their nationals, were settled on a broadly similar basis.611

2.

The possibility to bring international claims to court

§1859. Some international organizations have their own courts, which may be competent to hear claims against member states (see above, Chapter Five). In most cases, however, no such courts are available. Only states may be parties before the International Court of Justice.612 It has been argued that this need not exclude organizations of states, since the provision was merely designed (in 1919) to exclude individuals.613 The argument is not persuasive, however, as the drafters of the Statute in fact considered international organiza-

608. 609.

610. 611.

612. 613.

See A.A. Cançado Trindade, Exhaustion of Local Remedies and the Law of International Organizations, 57 RDI 81-123 (1979). Convention on International Liability for Damage Caused by Space Objects, GA Res. 2777 (XXVI), Art. 22, para. 3. For discussions on the possibility of international organizations participating in this convention, see G.F. FitzGerald, The Participation of International Organizations in the Proposed International Agreement on Liability for Damage Caused by Objects Launched into Outer Space, 3 CYIL 265-280 (1965). See also O. Deleau, La Convention sur la responsabilité internationale pour les dommages causés par les objets spatiaux, 17 AFDI 876-888 (1971); Z. Galicki, Liability of International Organizations for Space Activities, 5 PYIL (19721973), at 199-207. Yearbook of the ILC 1967 II, at 219-220; J.J.A. Salmon, Les accords Spaak-U Thant du 20 février 1965, 11 AFDI 468-497 (1965). See also Ginther, op. cit. note 600, at 163-171. For the texts of agreements concluded, see 535 UNTS 191 (Belgium); 564 UNTS 193 (Switzerland); 565 UNTS 3 (Greece); 585 UNTS 147 (Luxembourg), 588 UNTS 197 (Italy). See also for a general survey UNJY 1975, at 153-155, and for claims against UN Forces: F. Seyersted, United Nations Forces, Some Legal Problems, 37 BYIL 420-423 (1961); for Italian claims, see UNJY 1967, at 77-78. ICJ Statute, Art. 34. Para. 3 of this article obliges the Court to keep public international organizations informed of cases concerning their constitutions or conventions. For references, see F. Seyersted, Settlement of Internal Disputes of Intergovernmental Organizations by Internal and External Courts, 24 ZaöRV 97 (1964).

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tions, but decided to omit them.614 To date, no international organization has even attempted to bring a case before the International Court. The competence of the UN and most specialized agencies to request advisory opinions (see above, §1367-1373) may provide them with access to the Court, but only leads to a binding decision where the parties have committed themselves in advance to abide by the opinion (see above, §1369). Although it is difficult to bring claims against members before an international court, it is practically impossible to bring cases against non-members before such a court, unless provision has been made by mutual agreement.615 Arbitration seems to be the only practicable form of judicial settlement of claims between international organizations and states.616 In a report on reparation for injuries, the UN Secretary-General proposed rules of procedure for such arbitration.617 E.

Convening international conferences

§1860. International relations are increasingly conducted through international conferences. The growth of the number of states, and the interdependence between various groups of nations, encourages the replacement of bilateral relations with multilateral relations. Convening international conferences, originally a prerogative of states, has been taken over almost entirely by international organizations. The facilities which they are able to provide, by virtue of their international staff and buildings, make them more suitable for this purpose than national governments. In most fields, specific organizations are available which can cover the administrative side of conferences. The General Assembly of the UN has discussed and adopted several important conventions (see above, §1272). For more important codifications, however, it has preferred to convene special conferences. The main reason for this is the time required to draft conventions. The drafts for the International Covenants on Human Rights were presented to the General Assembly in July 1954,618 but it was December 1966 before it had completed its discussion. Another reason for convening special conferences is that the delegations to the General Assembly must be competent in a very wide field. Members can send experts to special conferences and these experts can devote their undivided attention to the matter in hand. A third advantage of the special conference is the possibility to obtain the cooperation of non-member states.

614. 615.

616.

617. 618.

Id. In the Reparation for Injuries Case (ICJ Rep. 1949, at 174 ff.), the merits of the claim were not judged by the Court. The advisory opinion only concerned the question whether the UN could bring the claim. See C. Dominicé, Le règlement juridictionnel du contentieux externe des organisations internationales, in: Le droit international au service de la paix, de la justice et du développement, Mélanges Michel Virally 225-238 (1991). See UNJY 1974, at 142-143. ECOSOC Res. 545 (XVIII)B.

1187

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The most important law-making conferences convened by the UN have been: (1) the UN Conference on the Law of the Sea (24 February-27 April 1958), held in Geneva, which adopted four conventions on the law of the sea;619 (2) the UN Conference on Diplomatic Intercourse and Immunities (2 March-14 April 1961), held in Vienna, which adopted the Vienna Convention on Diplomatic Relations; (3) the UN Conference on Consular Relations (4 March-22 April 1963), held in Vienna, which adopted the Vienna Convention on Consular Relations; (4) the UN Conference on the Law of Treaties (26 March-24 May 1968 and 9 April-21 May 1969), held in Vienna, which adopted the Vienna Convention on the Law of Treaties; (5) the UN Conference on the Representation of States in Their Relations with International Organizations (4 February-14 March 1975), held in Vienna, which adopted the Vienna Convention on the Representation of States in Their Relations with International Organizations of a Universal Character; (6) the UN Conference on Succession of States in Respect of Treaties (4 April-6 May 1977 and 21 July-23 August 1978), held in Vienna, which adopted the Vienna Convention on Succession of States in Respect of Treaties; (7) the UN Conference on the Establishment of the UNIDO as a specialized agency, held in New York (20 February-10 March 1978) and Geneva (19 March-8 April 1979), which adopted the constitution of the United Nations Industrial Development Organization; (8) the Third UN Conference on the Law of the Sea (UNCLOS), which has had many sessions, in Caracas, New York and Geneva, in order to draft a new Law of the Sea (1973-1982); (9) the UN Conference on the Law of Treaties between States and International Organizations or between International Organizations, which adopted the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986). (10) the UN Conference on Environment and Development, which was held in Rio de Janeiro from 3 to 14 June 1992, which adopted, inter alia, a Declaration on Environment and Development, Agenda 21, the UN Framework Convention on Climate Change, and the Convention on Biological Diversity. (11) the United Nations diplomatic conference of plenipotentiaries on the establishment of an international criminal court, which was held in Rome from 15 June to 17 July 1998 and adopted the Rome Statute of the International Criminal Court.

Most commodity conferences are also convened and organized by the UN. When conferences are convened periodically on the same general subject,620 they develop the character of a special organ of the organization.

619. 620.

A second conference on the law of the sea to establish the breadth of the territorial sea (Geneva, 1960) failed. The CoE, for example, periodically organizes conferences of Ministers of Justice and of Ministers of Education (see above, §244, §397).

§1861

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§1861. The financial involvement of the organization varies. Most UN conferences are financed by the UN,621 in other cases host countries pay the estimated additional costs involved in holding a conference away from UN headquarters,622 for others voluntary contributions are requested,623 or they are financed through a special programme.624 §1862. It has already been observed that international organizations may sometimes be parties to international law-making agreements (see §1773-1775). In that situation they participate in drafting the texts of such agreements. However, even where they cannot become parties to the treaties involved, international organizations often participate in conferences where treaties are drafted. They may then exert considerable influence on the contents of such treaties.625 F.

Issuing passports

§1863. Some international organizations issue a laissez-passer to their staff, an official document stating that the bearer is a staff member of the organization and, at least, requesting that the authorities concerned extend to him all facilities required in the course of his official duty.626 Members of the League of Nations Secretariat were issued with an identification card which they had to present to their governments together with the Secretary-General’s request for obtaining a diplomatic passport. This system proved unsatisfactory because the issuing of the passport depended upon the governments in question.627 Thus, the 1946 Convention on the Privileges and Immunities of the UN provides that “the United Nations may issue United Nations laissez-passer to its officials”, and that “these laissez-passer shall be recognized and accepted as valid travel documents by the authorities of members”.628

621. 622. 623. 624.

625. 626. 627. 628.

See e.g. GA Res. 3511 (XXX), para. 4 on the UN Conference on Desertification (Nairobi, 1977). E.g. the 1992 UN Conference on Environment and Development. See UN Doc. ST/AI/342 (in particular the model conference agreement in the annex). See GA Res. 3456 (XXX), para. 2 for the UN Conference on Territorial Asylum, (Geneva 1977). The General Assembly of the UN urged the United Nations Environment Programme to provide financial support for the UN Water Conference, see GA Res. 3513 (XXX), para. 5. See, for example, P. Alston, The United Nations’ Specialized Agencies and Implementation of the International Covenant on Economic, Social and Cultural Rights, 18 CJTL 79-118 (1979). On travel documents of international organizations, see D.C. Turack, The Passport in International Law 155-205 (1972). See UNJY 1986, at 296-297 (para. 2). Art. VII, Section 24.

1189

External relations

§1864

The most important laissez-passer is that of the UN, which is also used by the specialized agencies and by the International Criminal Court.629 The states party to one of the conventions on the privileges and immunities of the UN and the specialized agencies, have undertaken that the UN laissez-passer shall be recognized and accepted as a valid travel document.630 Host states may undertake the same obligation in their headquarters agreement,631 or in a special agreement.632 Several regional organizations also issue travel documents.633 The importance of the laissez-passer in some European regional organizations is far less than in the case of the UN, mainly because there is less need for it. With the gradual abolition of controls at the internal borders, travelling between the member states of the European Union has become so easy that a laissezpasser serves virtually no purpose,634 and problems are rare.635 §1864. Although states have recognized the laissez-passer as a valid travel document, in several countries the authorities have also demanded the production of a national passport before permitting entry. One specialized agency has protested against this practice.636 All states have issued visas for laissezpasser holders free of charge. Several states, mainly in Africa, have exempted them from visa requirements altogether.637 In many cases, the UN laissezpasser, has proved to be a useful document; in other cases, however, use of the national passport has been more convenient.638

629.

630.

631.

632. 633. 634. 635.

636. 637. 638.

According to agreements based on the Convention on the Privileges and Immunities of the UN (1 UNTS, at 15 and 90 UNTS, at 327), Art. 7, Section 28, see Yb ILC (1967 II), at 319 (para. 157). On the issuance of UN laissez-passer to officials of specialized agencies, see UNJY 1975, at 181-183. Convention on the Privileges and Immunities of the UN, Art. 7, Section 24; Convention on the Privileges and Immunities of the Specialized Agencies (33 UNTS, at 261), Art. 8, Section 27; Agreement on the Privileges and Immunities of the International Criminal Court, Art. 29 (Doc. ICC-ASP/1/3, at 215). See e.g. Headquarters Agreement Italy-IFAD, Art. 16, by which the Italian Government ”shall recognize and accept the UN laissez-passer issued to officials (of the IFAD) as a valid travel document equivalent to a passport and shall ensure that the appropriate Italian authorities are duly informed thereof,” see IFAD Doc. GCI/L14. See e.g. the agreement between Romania and the UNESCO on the European Centre of Higher Education, Art. 8, UNJY 1972, at 40. D.C. Turack, International Regional Organizations and their Travel Documents, 6 CYIL 164-187 (1968); Turack, op. cit. note 626, at 179-196. Protocol on the Privileges and Immunities of the European Communities, Art. 7. See for the latest model of the laissez-passer of the European Union OJ 1994, L 142/1. E.g. in October 1992 Jacques Delors, then President of the European Commission, was detained for ten minutes by Belgian customs officers. The Commission complained to the Belgian government about this incident. See NRC Handelsblad, 29 October 1992. Yearbook of the ILC 1967 II, at 319, para. 158. Id., at 293, para. 374. Id., at 319, para. 158.

§1865

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§1865. As with passports, there are two types of laissez-passer. Apart from the common, blue one issued to most staff members, the Secretary-General of the UN, the Directors-General of the Agencies and the highest ranking staff members receive a red-backed laissez-passer. The second type of laissez-passer, does not normally denote that the bearer is entitled to diplomatic status, but merely indicates his special position, with the intention that he may be accorded the commensurate courtesies.639 Although a laissez-passer is not the same as a passport,640 they share certain important features. In both cases, the issuing authorities acknowledge the right of the bearer to return. In the case of international organizations, the right of return to the headquarters of the organization is derived from the headquarters agreement.641 For both a passport and a laissez-passer the receiving state must decide whether or not to allow entry. In one respect, the legal position of the holder of a UN laissez-passer is stronger than that of the holder of a national passport: the conventions on privileges and immunities of the UN and the specialized agencies oblige the states parties to accept it as a valid travel document. §1866. The UN issued passports to Papuans when it exercised executive functions in West Irian (West New Guinea), between 21 September 1962 and 31 March 1963. Several states have accepted these passports as valid travel documents.642 Since December 1970, until the independence of Namibia in 1990, UN representatives have issued travel and identity documents to Namibians living abroad,643 which have been recognized by many governments. Some of them did so subject to the condition that the documents accord the bearer the right to return to another country, as they granted no right of return to Namibia. In several agreements with states where travel and identity documents were issued, the UN Council for Namibia stipulated such a right of return.644 G.

Depositary of treaties

§1867. The official text of a treaty, with its signatures and ratifications, used to be deposited with one of the states party to it. However this depositary

639. 640.

641. 642. 643.

644.

Id., at 294, para. 382. As appears, for example, from the fact that the inclusion of nationality or place of birth in the UN laissez-passer was considered not consistent with the objectives of the laissezpasser, in view of the strictly international status of UN officials. See UNJY 1986, at 296-297. J.F. Engers, The United Nations Travel and Identity Documents for Namibians, 65 AJIL 573 (1971). Id., at 573. Id., at 574-578; GAOR 26th Session, Suppl. No. 24 (A/8424), paras. 26-40. On the power to issue such documents, see also UNJY 1967, at 309-311. For the texts of the agreements with some African states which have recognized the documents, see Yb ILC 1974 II, Part Two, at 27-32. See Yb ILC 1974 II, Part Two, at 27-32.

1191

External relations

§1868

function has gradually been taken over in respect of a great many treaties by international organizations. Because of their regular communication with the member states, and their specialized administration, international organizations may be better able to perform this task than states. The depositary function is not purely administrative. Depositaries must take, at least preliminarily, decisions on such questions as which states may adhere and which reservations are to be permitted (see above, §457-458, §1301, §1310). The depositary task of international organizations is performed by their secretariat (see above, §457). H.

Registration of treaties

§1868. To make treaties more accessible to other states which might be affected, and to counteract secret diplomacy (considered as a cause of instability in international relations),645 the League of Nations started to register treaties, a task subsequently taken over by the UN and for some particular, technical subjects, also by some other international organizations (see above, §458). The registration of treaties had to be effected either by the depositary state or by any other state party to the treaty. Gradually however, registration has been taken over by international organizations. The UN, at first, only accepted registration by the UN itself or by a specialized agency.646 Subsequently, however, a practice has developed whereby the UN Secretariat has accepted multilateral treaties submitted for registration by an international organization, other than a specialized agency, where that organization in its capacity as depositary of a treaty, was authorized by the contracting parties, either in the treaty itself or in some other appropriate form, to effect the registration. The acceptability of this procedure has been based on the view that such authorization allows the secretariat to treat the submission of a treaty by an international organization as being tantamount to registration by the states parties themselves.647 §1869. Registration of treaties may be an administrative act that could be performed equally well by individuals. In the UN, however, the registration of treaties has legal effects under international law. The members of the UN are obliged to register their treaties with the Secretariat of the UN and only treaties so registered may be invoked before UN organs.648 The Secretariat of the UN registers only those treaties which are covered by the obligation of the UN Charter, which means those treaties to which at least one member of the UN is a party. Other treaties and agreements of

645. 646. 647. 648.

UN Treaty Handbook, op. cit. note 411, at 24. Art. 4 of the Regulation to give effect to Art. 102 of the UN Charter adopted by GA Res. 97 (I) as modified by GA Resolutions 364 B (IV) and 482 (V). See UNJY 1970, at 185-186. UN Charter, Art. 102.

§1870

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international organizations (see above, §1797-1798) may be filed and recorded with the UN Secretariat which has approximately the same effect as registration, with the exception that Article 102 of the UN Charter cannot be applied.649 The Secretariat of the UN carefully studies the status of a given instrument and does not accept registration unless convinced that the instrument could possibly have an international status. However, registration does not have any declaratory effect vis-à-vis the international character of a given instrument. “Registration does not imply a judgment by the Secretariat of the UN on the nature of the instrument, the status of a party, or any similar question. It is the understanding of the Secretariat that its action does not confer on the instrument the status of a treaty, or an international agreement, if it does not already have that status and does not confer on a party a status which it would not otherwise have”.650

I.

Registration of ships and aircraft

§1870. The registration of ships and aircraft is normally the responsibility of states.651 International law also permits international organizations to perform this function,652 although registration by an international organization cannot be exclusive. Since the law applicable to the ship and its crew on the high seas depends on registration, national registration will be necessary in addition to registration with an international organization as long as international organizations have no complete autonomous legal system.653 Early in 1955, the UN arranged for ten fishing vessels to be sailed from Hong Kong to Pusan under UN flag and registration. Because of the UN ownership, British and Korean registrations were unavailable and national registration elsewhere was deemed inappropriate.654 Several vessels of the First United Nations Emergency Force flew the UN flag. Usually they remained on a national registry, but, in at least one case, the ship only carried a UN “sea letter”.655 The vessels of the UN Suez Canal Clearance Operation, though flying the UN flag, were all registered in a state.656 The same applies to vessels owned by the UN or

649. 650. 651. 652.

653. 654. 655. 656.

See UNJY 1971, at 222-223. Quoted from UN Doc. ST/LEG/SER.A/105, UN Repertory of Practice, Suppl. No. 1, Vol. II, at 400. See also UNJY 1976, at 208-209; UN Treaty Handbook, op. cit. note 411, at 25. UN Convention on the Law of the Sea (1982), Art. 91.1; ICAO, Arts. 17-20. UN Convention on the Law of the Sea (1982), Art. 93; Resolution of the Council of ICAO, UNJY 1967, at 264-267. On the registration of ships by international organizations, see H. Meyers, The Nationality of Ships 323-351 (1967). See D.P. O’Connell, International Law 100-101 (2nd ed. 1970). UN Doc. A/Conf.13/c.2./L.87, Use of the United Nations flag on vessels: note by the Secretariat, UN Conference on the Law of the Sea, Official Records, Vol. IV, at 138. Id., at 139. Id., at 139-140.

1193

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§1871

by a specialized agency, and temporarily transferred to a state receiving technical assistance in fishing.657 All such units may display the UN flag, in addition to a national flag, provided that the conditions of the UN Flag Code are respected.658

§1871. According to the ICAO constitution (Article 77), the member states are entitled to constitute “joint air transport operating organizations or international operating agencies”. This affords some ground for assuming that international organizations composed of members of ICAO are entitled to register aircraft. Nevertheless, registration of aircraft by international organizations has not generally been accepted.659 In 1960, a Panel of Experts rejected both international and joint registration of aircraft of the Pan-Arab Airline which was to be established by the members of the League of Arab States.660 In 1961, a subcommittee of the Legal Committee of the ICAO Council took a more positive view on joint international registration, at the request of the Union Africaine et Malgache de Coopération Économique, which intended to create Air Afrique.661 Further discussions have not led to a definite conclusion.662 J.

Flag, seal and emblem

§1872. Many international organizations have adopted their own flag, seal and emblem. For example, the UN has adopted rules in this area since 1947, the Council of Europe since 1955, and the European Communities/European Union since 1986; below, we will briefly pay attention to these rules. Under such rules, the member states are usually requested to prevent the use of flag, seal and emblem of the organization by unauthorized persons.663 Many states have adopted special laws for this purpose,664 while others rely on the Paris Convention on the Protection of Industrial Property, or request the organiza-

657. 658. 659. 660. 661. 662.

663.

664.

UNJY 1971, at 186. UNJY 1963, at 180-181; UNJY 1971, at 186. K. Venkatramiah, Does the Chicago Convention Permit Joint or International Registration of Aircraft?, 11 IJIL 435-458 (1971). PE-77/Report. See 27 Journal of Air Law and Commerce 295 (1960) and 33 Journal of Air Law and Commerce 299 (1967). Venkatramiah, op. cit. note 659. See also G.F. FitzGerald, Nationality and Registration of Aircraft by International Operating Agencies and Article 77 of the Convention on International Civil Aviation, 1944, 5 CYIL 193-216 (1967); Bin Cheng, EC Aviation Policy: an International Law Perspective, paper presented to the 1992 Annual Conference of the European Air Law Association; P.M.J. Mendes de Leon, Cabotage in Air Transport Regulation (1992), at 128134. E.g. GA Res. 92(1) (1946), recommending that the member states should take such legislative or other appropriate measures to prevent the use of the emblem, the official seal and the name of the UN without authorization by the Secretary-General. See, for example, the Indian Schedule to the Emblems and Names (prevention of improper use), Act 1950.

§1873

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tions to register their symbols under procedures prescribed by their national legislation.665 §1873. Detailed rules on the use of the UN flag have been made in the UN Flag Code.666 This code permits any unit acting on behalf of the UN, such as any Committee or Commission (e.g. a UN peace-keeping operation), to use the UN flag.667 This flag is flown from all buildings occupied by the UN or by a specialized agency and it may be used by non-UN bodies or persons to demonstrate support for the UN.668 It may also be used by disaster relief units, even if their legal status is separate from that of the UN, where they are brought into such a relationship with the UN that they can be said to be “acting on behalf of the United Nations”.669 Ships may fly the UN flag, in addition to the flag of the state of their registration, if they are used by the UN (see above, §1870) and subject to the condition that the UN flag is not subordinated to any other flag.670 The UN flag may not, therefore, be used as a “houseflag”, which is the flag of the shipping company operating the vessel.671 In practice, the UN flag has been used by vessels participating in a number of peace-keeping operations.672 In such operations, vessels employed by the UN were authorized to fly the UN flag sometimes alone, sometimes together with the flag of the country of registration, both in the case of vessels chartered by the UN and contributed by participating states. The vessels in question were authorized to fly the UN flag alone generally only in exceptional cases and where journeys of short length and duration were involved.673 The flags of the country of registration and of the UN, showed on vessels, serve different purposes. The flag of the

665.

666. 667. 668. 669. 670.

671. 672.

673.

The emblem and name of the UN are registered and protected under Art. 6 ter of the Paris Convention, in all countries parties to that treaty. The same is true for the flag of the Council of Europe, which has been registered since 1979. At the same time the Committee of Ministers of the Council of Europe has recommended the member states to take the necessary measures to give the Council of Europe flag the same protection as their national flag. See R. Bieber, Die Flagge der EG, in W. Fiedler and G. Ress (eds.), Verfassungsrecht und Völkerrecht, Gedächtnisschrift W.K. Geck 59-77 (1989), at 65. For the text of the UN Flag Code and Flag Regulations, see UN Doc. ST/SGB/132. See also Yb ILC 1967 II, at 236-238. UN Flag Code, Art. 4 (2). UN Flag Code, Arts. 4 (1), 4 (3) and 5. See also UNJY 1973, at 173. UNJY 1971, at 188. UN Flag Code, Art. 3. In addition, Section II 1(d) of the Flag Regulations stipulates that “[o]n no account may any flag displayed with the United Nations Flag be displayed on a higher level than the United Nations Flag and on no account may any flag so displayed with the United Nations Flag be larger than the United Nations Flag”. See UNJY 1990, at 252-254. UNJY 1971, at 186. Such as ONUC (Congo), UNIFIL and UNTAG (Namibia). See e.g. Section 15 of the UNTAG status agreement (concluded between the UN and the host country), quoted in UNJY 1990, at 252-253. UNJY 1990, at 253 (para. 3).

1195

External relations

§1873

country of registration indicates the ship’s nationality; thus, it identifies the law and jurisdiction applicable to events taking place aboard the ship, including criminal jurisdiction. On the other hand, the flag of the UN identifies vessels which are performing certain functions on behalf or in the service of the organization, and shows that their special status entitles them to the privileges and immunities accorded to the UN.674 The use of the UN emblem on stationery is permitted for all UN bodies, but not for non-UN bodies to which the UN provides assistance and in the establishment of which it has helped.675 The use of the name and emblem of the UN for commercial purposes is forbidden,676 as this could create the impression of UN endorsement or sponsorship of those products, or of an official connection between the firm and the UN,677 and the UN could be held responsible.678 It has also been advised against in the case of the preparation by a publishing firm of a “United Nations Atlas of the World”, which in four colours would highlight boundary delimitations which would make some maps difficult to approve, e.g. maps including Kashmir.679 The use of the UN’s name and emblem was, however, considered appropriate for the University for Peace, which is closely linked with the UN.680 In cases of unauthorized use of the UN flag or emblem, the organization may write directly to the persons involved, to inform them of the legal restrictions on the use of the UN name and emblem, and to request them to cease such unauthorized use.681 As a rule, a reminder of the relevant rules and of the purpose they serve has been sufficient to resolve any questionable situation, without the need to litigate these issues.682 An exceptional case in which it proved necessary for the UN to litigate, took place in 1984. A corporation under the name “Miss United Nations Pageantry” was the organizer of actual or proposed beauty pageants and related fashion shows in various parts of the world. The apparent plan was to have contestants selected in various areas of the world come to a single location for a beauty pageant and contest to be held at Bangkok, to select the recipient of the title of Miss United Nations. The UN sued the corporation before a US court, claiming that use of its name threatened to cause public confusion and harm its world-wide reputation. It sought, and received a permanent injunction prohibiting the defendant from using the UN’s name in any commercial venture and to cease using the UN’s name as part of their corporate name.683

674. 675. 676. 677. 678. 679. 680. 681. 682. 683.

Id., para. 4. UNJY 1973, at 138. See GA Res. 92(I)(1946). See UNJY 1991, at 277-280. See UNJY 1987, at 170-171. See UNJY 1995, at 424-426. UNJY 1983, at 211. UNJY 1983, at 212. See also UNJY 1981, at 154-155. For an example, see UNJY 1976, at 176-177. UNJY 1986, at 273. UNJY 1984, at 213-215.

§1874

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§1874. Discussions took place within the Council of Europe from 1950 to choose an emblem for the Council. In 1955 the Assembly recommended to the Committee of Ministers “(a) to adopt as Council of Europe emblem the azure flag bearing a circle of twelve stars [...] (b) to instruct the Secretary-General to enter into negotiations with the other European institutions in order to ensure that the emblems adopted by them shall bear a close resemblance to that adopted by the Council of Europe”.684 The same year, the Committee of Ministers adopted Decision (55)32. In this decision, the Committee agreed to the first element of the recommendation of the Assembly (concerning the adoption of the proposed emblem for the Council of Europe), but was silent on the second element. In 1959, the Secretary-General of the Council of Europe proposed that the European Parliament, the Council and the Commission of the European Communities adopt more or less the same flag (possibly with some small changes) for the Communities.685 The European Parliament responded to this proposal in 1983. It resolved that “the European flag consisting of a circle of twelve gold stars on a blue field adopted by the Parliamentary Assembly of the Council of Europe in 1955 should become the flag of Europe”, and instructed its president “to ensure that the governments of the member states of the Community decree that all European institutions fly this flag”.686 In 1986, each of the four Community institutions at the time (Council, Parliament, Commission and Court) decided to display the Community flag and emblem as requested in the final report of the ad hoc Committee on a People’s Europe (Adonnino Committee).687 Thus, no single decision has been taken for the use of a new flag and emblem by the Communities and, more recently, the Union. Instead, the individual institutions decided to use, with permission, the flag of the Council of Europe. In 2003 the European Convention proposed in its draft Treaty establishing a Constitution for Europe to accept this flag as one of the symbols of the Union.688

684. 685. 686. 687.

688.

Recommendation 88 (1955). See Bieber, op. cit. note 665, at 64-65. Bieber, op. cit. note 665, at 65. OJ 1983, C 128/19. It was also decided that the “Ode to Joy” from the fourth movement of Beethoven’s Ninth Symphony will be played at European events as the Community anthem. See Bull. EC 4-1986, at 50-52 (with a detailed description of the flag). The Community flag was used, e.g. to mark the 30th anniversary of the Treaty of Rome (1987). To this end, for promotional purposes, the new flag was raised on the Mont Blanc, the North Pole and the “K2” in the Himalayas (OJ 1987, C 331/19-20). See further on the Community flag Bieber, op. cit. note 665. Art. IV-1 of this draft Treaty.

1197

III.

External relations

§1875

Concluding observations

§1875. In the previous chapter, it was demonstrated why the issue of international legal personality has been discussed so fiercely, and why the opposition to acceptance of the status of an international legal person for international organizations has now largely disappeared. The denial of the legal existence of international organizations at the international level was rendered out of date by the requirements of modern times. It was gradually recognized that, to carry out their functions, it was indispensable that most international organizations have the status of an international legal person. At the same time, it has always been generally accepted that being an international legal person does not mean that international organizations have become similar to states, as far as their personality, rights and duties are concerned. On the basis of this chapter on external relations, the latter issue can now be studied more closely. §1876. In many respects, international organizations remain fundamentally different from states. States are reluctant to elevate the rights of international organizations to include “attributes of state sovereignty”, even where this might seem tenable. Thus, international organizations may generally not adhere to the principal law-making treaties, human rights treaties, and the Vienna conventions on diplomatic and consular relations. Another example is the Vienna II Convention which will enter into force on the 30th day following the date of deposit of the 35th instrument of ratification or accession by states (and not international organizations, a number of which had participated actively in the drafting process). And the practice of mixed agreements within the EC has demonstrated that, even where on a strict or more extensive interpretation of Community competences in external relations the Community was exclusively competent to act, the member states insisted on becoming parties, alongside the EC.689 §1877. International organizations have no territory of their own and consequently must operate from the territory of a state, usually one of its members. Thus, an important component of the external relations of international organizations which has no equivalent in the external relations of states concerns the relations between the organization and its host. Rules agreed between these two parties are a substitute for the international organization’s lack of territory and aim to ensure that the former can function independently. Nevertheless,

689.

See P.J.G. Kapteyn and P. VerLoren van Themaat, Introduction to the Law of the European Communities 1263 (3rd ed. 1998, edited by L.W. Gormley); A. Rosas, Mixed Union – Mixed Agreements, in M. Koskenniemi (ed.), International Law Aspects of the European Union 125-148 (1998), at 147; . Lenaerts and P. van Nuffel, Constitutional Law of the European Union 648-649 (1999). In this context Heliskoski refers to “artificial mixed agreements” (op. cit. note 266, at 242-243).

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conflicts may arise where the interests of the organization clash with those of the host state. In 1988, for instance, Yasser Arafat was invited to address the UN, but was unable to do so in New York because the US refused to grant an entry visa. Such incidents will continue to occur from time to time, as long as the territory used by the organization remains the territory of the host state. §1878. Another area of external relations where organizations are in a fundamentally different position to states is the field of coordination. As has been indicated in this chapter (§1703), most relations between international organizations concern coordination. Each organization has its own tasks and membership, which often overlap with those of other organizations. The coordination of activities is therefore extremely important to avoid duplication of work, to harmonize policies and fill gaps. However, at the same time, the coordination of activities remains an intractable problem. For example, if the UN General Assembly recommends that no organization of the UN family give financial or other assistance to a member state in which serious violations of human rights take place, these organizations may well act differently and provide the assistance requested, because the criteria set by these organizations are met. There is no master organization with the central authority to accommodate such different positions. If this situation is compared to the situation within states, it is obvious that comparable differences of view might exist between, for example, the Ministries of Foreign and Economic Affairs. While the former might be opposed to the export of submarines to Taiwan (in order not to offend China), the Ministry of Economic Affairs might support such exports (in view of the beneficial employment and income effects). Within a state, a structure has usually been designed to cope with such conflicts. At the government level, a final decision is taken which will be a compromise or will favour one view. The absence of a central authority at the international level precludes such solutions. Consequently, this kind of coordination between organizations is complicated. In this sense, mechanisms for the coordination of activities are a substitute for the lack of central authority. This is not to say that no problems of coordination arise at the national level. On the contrary, this chapter has demonstrated that international organizations are frequently confronted with the inconsistency of their members’ policies. We only submit that, in view of the structure of international law, the problem of coordination is even more serious at the international level. In practice, the functioning of permanent representatives has proved helpful in dealing with this problem, in international organizations in general, and within the European Union (COREPER) in particular. §1879. Notwithstanding these differences between the external relations of international organizations and those of states, this chapter has also disclosed the existence of a number of similarities.

1199

External relations

§1875

Our survey of the instruments used by international organizations to conduct external relations reveals that these instruments are similar to those employed by states. From very important, basic instruments such as agreements and diplomatic relations, to more symbolic instruments such as flags, the obvious general differences between states and international organizations have not led to significant differences in the tools utilized to maintain external relations. §1880. For example, the rules of the 1986 Vienna II Convention are almost identical to those of the 1969 Vienna I Convention. The same rules apply to states and international organizations, in such important areas of international law as the conclusion of treaties, reservations, the entry into force, observance, application and interpretation of treaties, their amendment and termination. Thus, it is justified to conclude that Vienna II “almost completely assimilates international organizations to states”.690 §1881. Likewise, just like states, international organizations may maintain diplomatic relations with states and with other international organizations, although the substance of these relations will usually be different. The rights of passive and active legation, long reserved to inter-state relations, have now been attributed to a number of international organizations. Originally, EC participation in international conferences on an equal footing with states, was difficult for many states to accept, in particular for the (then) socialist countries. The situation has now changed and fully-fledged participation by the EU in international conferences has become a matter of course. §1882. In view of these developments, it is not surprising that international organizations also use the symbols traditionally reserved to states, in the conduct of their external relations. A number of organizations have their own flags, and have introduced rules for their use, which sometimes explicitly put international organizations in the same position as states. For example, ships may fly the UN flag in addition to the flag of the state of their registration, if these ships are used by the UN and where the UN flag is not subordinated to any other flag. However using the same symbols does not mean that international organizations and states are in the same position. There is always the danger that flags give a distorted picture of reality. On the one hand, as symbols, flags embody values and lofty ideals which are expressed in the objectives of these organizations. At the same time, however, paying tribute to such symbols may become a substitute for taking concrete action to pursue the organization’s objectives.691

690. 691.

Riphagen, op. cit. note 208, at 568. Cf. Bieber, op. cit. note 665, at 59-60.

§1878

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§1883. Therefore the conclusion may be drawn that, while it is now widely accepted that most international organizations are international legal persons, they are still fundamentally different from states. The conduct of external relations by international organizations is quite a different matter than the conduct of external relations by states. Of course, the differences are more significant for some (small) organizations than for others (such as the EU). Likewise, the differences are more significant for some states than for others. Thus there is more scope for the US and India to have their own foreign policy than for Luxembourg and Lesotho. But differences remain. At the same time, however, the present chapter has left no doubt that there is very little significant difference between the apparatus utilized by a state for the conduct of its external relations and that used by an international organization.

Concluding remarks

I.

Introduction

§1884. Following the preceding more or less detailed examination of international institutional law, this study will conclude with some general observations. Inevitably, these observations will not be detailed and are of a somewhat abstract character. They will elaborate upon the concluding remarks to be found at the end of each chapter and it is hoped enable us to gain a better, overall understanding of the subject matter of this study. By its nature, the study has described and analyzed the details of international institutional law and consequently the “wood” of the law can become lost in the “trees” of detail. It is hoped that this chapter will redress the balance somewhat by focussing on what appear to be the essentials of international institutional law. A first essential of international institutional law is the relationship between (member) states and the international organization. This versatile relationship is as important as it is difficult to understand in all its dimensions. A second essential concerns the diversity of rules of individual organizations in such areas as membership, institutional structure, decision-making and financing. At the same time, however, a number of basic problems have to be addressed and resolved by each international organization. The solutions found on issues such as legal personality, privileges and immunities and scope of powers reveal such a degree of similarity as to justify the observation that there is unity within diversity, the third essential. Finally, and most generally, this unity seems to have wider implications, beyond the law of international organizations. It appears to entail a gradual, long-term structural change in international law, from decentralized, horizontal law to increasingly centralized, verticallystructured law. Once again, we shall employ the notions of function and state sovereignty as tools for the analysis of these four essentials of international institutional law.

§1885

II.

Concluding remarks

1202

The relationship between (member) states and international organizations

§1885. Formally it is states which decide whether to establish an international organization, and to a large extent they also determine the fate of their creation. If states prefer not to cooperate with respect to certain state functions, or if they prefer to cooperate by concluding a treaty with no institutional structure, no international organization is created. If they have established an organization but no longer consider it useful, the organization may be dissolved or become inactive. This formal situation obtains today as it did in the past when the doctrine of absolute state sovereignty held all in its sway. For example, in the 1970s it was decided that the Conference on Security and Cooperation in Europe should be structured not as an international organization, but as a looser form of international cooperation. States thus strive to remain the masters of their own creation. They provide ‘their’ organization with powers and with the financial and other means to enable it to realize its objectives. Organizations have not (yet?) become institutional versions of Goethe’s sorcerer’s apprentice, having completely outgrown the control of the member states. Notwithstanding majority voting, own resources, an autonomous legal order and other characteristics, this holds true even for the European Union, whose member states remain Herren der Verträge (“Masters of the Treaties”), as has been confirmed by the developments following the signing of the Maastricht Treaty on European Union. §1886. Although this is the formal situation, two factors substantially mitigate this dominant position of (member) states. First there is a legal factor. The organization’s dependence on its members does not mean that these members are free to do anything, anytime, within the organization. On the contrary, member states are obliged to carry out their obligations towards the organization and the other members in good faith. This has often given rise to misgivings and misunderstandings, in particular in political organs. One example is the belief that members are free to withhold (part of) their contribution to the regular budget of an organization if they do not share the majority view on expenditure for specific items. Another is evident in the proposal tabled in 1982 by a significant number of members of the International Telecommunication Union to suspend Israel from the exercise of the rights and privileges of membership, despite the absence in the ITU’s constitution of a provision providing for the expulsion of members (see above, §1467). Such assumed freedom was rightly rejected by the International Court of Justice in 1948: “The political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for its judgment. To ascertain whether an organ has freedom of choice for its decisions, reference must be made to the terms of

1203

Concluding remarks

§1887

its constitution”.1 A final example is the judgment of the Administrative Tribunal of the International Labour Organization in the Bustani Case (see above, §544). In this judgment, the Tribunal ruled that the plenary organ of the Organization for the Prohibition of Chemical Weapons – the organ that had appointed Bustani as the Director-General of the organization – could not “terminate that appointment in its unfettered discretion”.2 Members of the organization have to respect key principles such as the independence of international civil servants and due process.3 The key to understanding such erroneously assumed freedom is the distinction which must be drawn between states in their role as sovereign states, as the counterparts of the organization, and states in their role as members, the constituent parts of organs of an organization which has its own legal personality. In non-plenary organs, in which a limited number of members represent the interests of the membership as a whole, this distinction can clearly be discerned, in particular when these members have “constituencies” (e.g. IMF, World Bank and the regional development banks). However, in plenary organs this dédoublement fonctionnel is easier to forget (see above, §66, §919).4 §1887. Secondly, alongside this important legal factor there is a factual element, which is of formidable, and at times irresistible, influence. This is the hitherto unprecedented current state of interdependence of states, which forces them to create organizations and prevents them from dissolving them once they are considered inconvenient or irrelevant. International organizations have become indispensable as a consequence of this generally high degree of interdependence. Withdrawal from or dissolution of international organizations are therefore far from commonplace. This explains, for example, why most of the functions of organizations which are dissolved are usually transferred to other organizations. It is not the lack of necessity for a general political organization which explains the dissolution of the League of Nations. The United Nations took over almost all of its functions. This continuity of functions, which is so characteristic of the succession of international organizations, was well expressed in Robert Cecil’s 1946 “funeral” speech for the League of Nations: “The League is dead, long live the United Nations”.5

1. 2. 3. 4.

5.

ICJ, Conditions of Admission of a State to Membership in the United Nations, Advisory Opinion, ICJ Rep. 1948, at 64. ILOAT Judgment 2232 (Bustani), para. 16. Id. Judge Lachs alluded to this dédoublement fonctionnel in the following way, in his separate opinion in the ICJ Advisory Opinion of 20 December 1980 (Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, ICJ Rep. 1980, at 110): “It is a truism that an intergovernmental organization, as a new subject of international law created by states, acquires a special status vis-à-vis those states. While it remains under their control, inasmuch as it both represents and is subject to their collective will, its decisions may, and frequently do, conflict with the will of its individual members”. F.P. Walters, A History of the League of Nations 815 (1952).

§1888

Concluding remarks

1204

This factual state of interdependence of states is, to a considerable extent, much more powerful than the idea of state sovereignty. It is the major force behind the obsolescence of the concept of absolute state sovereignty and has imposed on states the remarkable paradox that, to remain sovereign, they must cooperate, inter alia through international organizations. This also demonstrates that international organizations are not the end of the story, ends in themselves, but vehicles for inescapable cooperation between states. Hammarskjold alluded to this in 1956: “The principles of the Charter are, by far, greater than the organization in which they are embodied, and the aims which they are to safeguard, are holier than the policies of any single nation or people”.6 For this reason, it should have come as no surprise that meteorological cooperation between South Africa and the World Meteorological Organization continued on a technical level (“business as usual”) after the suspension of the rights and privileges of South Africa’s membership in 1975. Similarly, while states originally decided that the Conference on Security and Cooperation in Europe should be structured not as an international organization, in practice this Conference has become a full-fledged organization (OSCE). For the same reason, recommendations can be effective even without any legally binding effects. And while member states might not formally have adhered to a convention, they may well have to apply its rules because practice leaves them no choice (e.g. UPU conventions). Despite state sovereignty, in the condition of interdependence there is often no alternative for states but to cooperate, for the organization to perform its functions. §1888. As a result of these two factors, the state has become less supreme and a number of international organizations have become more prominent in international relations. Legally, partly the cause, partly the effect of this has been the general acceptance of international legal personality of international organizations, the similarity of instruments used by them and by states to conduct external relations (e.g. agreements, diplomatic relations), the attribution of more powers to them, the further development of their institutional structure and the gradual acceptance in some cases of the possibility of adopting binding external decisions by a majority of the member states. At the same time, this increasingly prominent position of a number of organizations and the concomitant decrease in control by the member states has led to the need for internal checks and balances within organizations. For example, before 1970 the income of the European Communities consisted mainly of contributions paid by the member states, under the democratic control of their parliaments. When the Communities acquired their own, independent financial resources, budgetary powers had to be granted to the European Parliament in order to avoid the creation of a democratic gap. Another example is the issue of judicial control over decisions taken by an

6.

SCOR 31 October 1956, 751st meeting, at 1. See also the 2003 Annual Report of the UN Secretary-General on the work of the organization, UN Doc. A/58/1, at 2.

1205

Concluding remarks

§1889

international organization, which was discussed by the founders of a number of organizations. Apart from the European Union, however, such control barely exists within international organizations. The renewed resolve of the Security Council, which can be traced from 1987, as well as the Lockerbie and Second Crime of Genocide Orders of the International Court of Justice, have provided fresh incentives for discussion of the potential of judicial review.7 However, it would be misleading to suggest that these developments are taking place in all or most international organizations. In fact the opposite is true, and by far the largest number of organizations still follow the “traditional” model. Whereas the “more developed” organizations have an independent international secretariat, other organizations are served by the civil servants of one of the member states. Until 1970 the United International Bureau for the Protection of Intellectual Property – the predecessor of the World Intellectual Property Organization, composed mostly of Swiss nationals – was under the “high supervision” of the Swiss government. The Association of South East Asian Nations originally had a national secretariat in each of its member states. Thus, organizations modelled on traditional patterns coexist with organizations with a more developed structure. The role of the member states in the former is much stronger than that in the latter, which have been endowed with structures which allow them to operate more independently.

III.

Diversity of rules of international institutional law

§1889. How can the diversity of rules dealing with the same institutional problems be explained? More basically, why do states sometimes decide to create an international organization? Why do attempts sometimes fail (International Trade Organization (1948), European Defence Community), or why, in other cases, do states agree to cooperate expressly outside such an institutional structure (Schengen and, until 1990, the Conference on Security and Cooperation in Europe)? But also, as far as the more detailed rules of international institutional law are concerned, why do rules on issues such as the quorum or proxy differ? Why do most host states require the staff of international organizations to pay real estate taxes, and why are judges of the International Court of Justice not required to pay such taxes for their official residences? Why do only some headquarters agreements include national security reservations? §1890. In general terms, it seems that two distinct categories of explanation can be identified. First, a number of reasons can be subsumed under the

7.

Lockerbie Cases (request for provisional measures by Libya), ICJ Rep. 1992, at 3 and id., at 114; Crime of Genocide Case (second request for provisional measures by Bosnia and Herzegovina), ICJ Rep. 1993, at 325.

§1891

Concluding remarks

1206

heading of the notion of state sovereignty. Secondly, the common denominator of numerous others is the notion of function. §1891. A number of differences between rules of international organizations concerning the same institutional subject matter can be explained by the notion of state sovereignty. But this notion also explains, more basically, why some organizations exist and others do not. States sometimes prefer to create no international organization at all. Whatever reason lies behind this preference, the simple decision of states not to establish an organization, as such, is sufficient. Additionally, international organizations generally come into being through the entry into force of a treaty enshrining their constitution. Such treaties usually enter into force on deposit of a certain number of ratifications by the states which have negotiated and drafted them. Until this number has been reached, the intended organization can not come into being. Sometimes, if a powerful state which is expected to play a crucial role in the organization does not ratify, other states may also decide to withhold ratification (e.g. the Havana Charter (1948) containing the constitution of the International Trade Organization). Only if these hurdles have been cleared, if governments have agreed to create an organization and there is sufficient domestic support for ratification, will a new organization come into being. §1892. Similarly, state sovereignty explains why rules of international institutional law vary widely on less “existential”, and more detailed issues such as withdrawal or expulsion of member states, decision-making, sanctions, privileges and immunities. Since most organizations are composed of different combinations of member states, the influence of individual states, power relations between the member states, and the majority and minorities within the organizations diverge. The positions of France or the United Kingdom in the European Union are different from their positions in the United Nations. Whereas it was unacceptable to them to become members of the UN without having the power of veto in the Security Council, this was not so in relation to the Council of the European Union, in which they can be outvoted. While it was possible to give the European Communities a supranational structure (because the member states agreed to such a structure), this was not possible in the former Council for Mutual Economic Assistance (in which state sovereignty was considered sacrosanct), and neither in most other regional organizations. §1893. On the other hand, the notion of function is the common denominator of a number of reasons for differences in the institutional rules of individual organizations. The field of activity of a large number of organizations is of such nature that institutional differences are pre-determined. For example, the tripartite composition of its policy-making organs, characteristic of the International Labour Organization, is explained by the organization’s tasks. This also explains why the Executive Council of the World Meteorological

1207

Concluding remarks

§1894

Organization is composed of persons who are designated as directors of the meteorological or hydrometeorological services of the member states. Another example is decision-making in some international commodity councils, which reflects the opposing interests of importing and exporting parties. In these councils, a thousand votes are allotted to the importing members collectively and a thousand votes to the exporting members; within these two groups, votes are distributed primarily according to interests of the member concerned. The different functions of IMF and the World Trade Organization (before 1995, the GATT) explain why only the former disposes of “financial” sanctions (the power to declare a member ineligible to use its general resources). A final example is the contracting out procedure for binding states to conventions. This procedure was introduced in, for example, the Inter-governmental Maritime Consultative Organization (IMCO, the predecessor of IMO), when the normal procedure (usually acceptance by two-thirds of the parties) proved to be too slow to enable the organization to keep pace with rapid change in shipping.

IV.

Unity of rules of international institutional law

§1894. Why is it that many of the institutional rules of international organizations are similar? For not only does almost every international organization have rules on the same institutional subjects such as membership, institutional structure, decision-making, financing and legal personality, but the content of these rules is in a number of cases similar. As in the previous section, reasons for this can be classified within two categories. The first contains those which all relate to the notion of state sovereignty, the second consists of those in which the notion of function plays the central role. §1895. Many of the institutional rules of international organizations are similar in part because all organizations are established as frameworks for cooperation between sovereign states. The principle of sovereign equality of states is reflected in many institutional rules. Almost all organizations have at least a plenary organ composed usually of representatives of the governments of the member states. For the purpose of decision-making in this plenary organ all member states usually have one vote. The principle of sovereign equality also explains why all members of the Security Council, large or small, act as President of this organ for periods of two months, and why all member states of the European Union, large or small, hold the office of President of the Council for terms of six months. Where organizations have an international secretariat, it is often accepted that this secretariat should be composed to some extent of nationals of all the member states (equitable geographical distribution). Although international courts are composed of independent individuals, not acting as the representatives of member states, it is generally accepted that the states party to a dispute before an international court are entitled to have

§1896

Concluding remarks

1208

one of their nationals among the judges. Thus, there is usually one judge for each member state in regional courts. As this is impossible for the International Court of Justice, states litigating before it may choose a person to sit as a judge ad hoc, if none of the judges is one of its nationals. It is clear that state sovereignty figures predominantly in the area of powers of international organizations. While on the one hand the inevitability of cooperation has been recognized if the state is to retain control over domestic affairs, on the other hand the exclusive authority over the exercise of a particular state function is surrendered for a shared control. The need for cooperation is sometimes accepted quite readily, but in other cases its necessity and wisdom are questioned and may be subject to much (inter)national discussion and debate. Churchill’s exclamation concerning the provisions on non-self governing territories which were to be included in the UN Charter is telling. He ‘would never consent to the fumbling fingers of 40 or 50 governments prying into the life of the British empire’.8 §1896. The notion of function reflects the reference point, the “route-indicator” of all international organizations. It represents the core around which states have agreed to cooperate and forms the anchor for establishing the institutional structure of an international organization and for formulating and applying its institutional rules. For example, how should non-plenary organs be composed? If there are no objective points of reference, the free political market will determine the end result, and the most powerful states are likely to constitute the membership of the non-plenary organs of any international organization of which they are members. In practice, however, so long as state sovereignty continues to play a role, objective factors – derived from the field of operation of a given organization – are often used as criteria for the distribution of seats in such organs (members of chief industrial importance (ILO), states of chief importance in air transport (ICAO), states with the largest interest in providing international shipping services (IMO)). Likewise, the function of an international organization also influences the composition of other organs. Further, it provides the foundation for, and delimits the scope of the privileges and immunities granted to, international organizations and their civil servants. Most fundamentally, it determines to a greater or lesser extent those powers which are to be attributed to international organizations. This holds true for powers attributed to organizations by their constitutions, as well as for powers granted to organs created subsequently. For example, UN peacekeeping forces have in most cases been authorized to use force only in cases of self-defence, which has been defined in relation to the tasks of these troops: “self-defence would include resistance to attempts by forceful means to prevent it [the force] from discharging its duties under the mandate of the

8.

P.R. Baehr and L. Gordenker, The United Nations, Reality and Ideal 120 (1984).

1209

Concluding remarks

§1897

Security Council”.9 In addition, the UN Mission of Support in East Timor (UNMISET) has been authorized under Chapter VII of the UN Charter “to take the necessary actions […] to fulfil its mandate”.10 In all these cases the particular function of the organizations provides answers to institutional questions. §1897. Moreover, the notion of function has determined the development of the institutional structure of international organizations. In particular, it has determined, in the subsequent stages of this development, that organs should be created which are immune from the direct control of all the member states: non-plenary policy-making organs, in which only some of the member states are represented, and independent international secretariats. Furthermore, where important powers have been attributed to international organizations, parliamentary and judicial organs have been established to supply the necessary checks and balances. While the institutional structure and development of each organization is unique, to the extent that it is not pre-determined by binding rules with which states must comply when setting up an international organization, this development represents in some measure an acquis institutionnel, an institutional achievement or status quo which has been accepted and is used and developed further. This explains why institutional developments take place not entirely in isolation, within individual organizations. For example, in its first preliminary rulings the Andean Court of Justice held that Andean community law takes precedence over national law, and cited the judgment of the EC Court in Costa v. ENEL. The further development of the acquis institutionnel works mostly, but not necessarily exclusively, towards “more supranationalism” and “less sovereignty”. In 1945, for example, Jenks took the view that “the battle to substitute majority decision for the requirement of unanimity in international organization has now been largely won”.11 Subsequent practice has however demonstrated that this conclusion was premature. Sooner or later, most organizations empowered to take majority decisions had recourse to consensus as primary method of decision-making.

V.

Towards more centralized international law?

§1898. It has sometimes been emphasized that it would be wrong to assume that to be effective, international law should increasingly resemble national

9.

UN Doc. S/11052/Rev.1, §4(d) (with respect to UNEF II). Cf. more recently SC Res. 836, para. 9 (with respect to UNPROFOR). 10. SC Res. 1410, para. 6. 11. C. Wilfred Jenks, Some Constitutional Problems of International Organizations, 22 BYIL 34 (1945).

§1899

Concluding remarks

1210

legal orders, and should develop from a horizontally to a vertically structured law.12 Nevertheless, this is precisely the development which can be observed in international organizations in the course of the 20th century. The phenomenon of dédoublement fonctionnel is losing ground: for its functioning, international law is gradually becoming less dependent upon state organs (functioning not only as state bodies but also as organs of the international community).13 Conventions concluded within the framework of international organizations are no longer by definition the “sole property of ratifying states”, particularly when they give the organization a legal interest in the performance of obligations.14 While the traditional right of auto-interpretation of international law by states continues to exist, mechanisms have been developed within international organizations to obtain authoritative interpretation of rules of the organization, to avoid diverging interpretation and to promote uniform application of those rules. The importance of such mechanisms is underlined by the success of the preliminary rulings procedure used in the European Union. Thus control over the functioning of international organizations by ‘their’ member states is becoming less all-encompassing and international organizations are becoming correspondingly more independent. Nevertheless, this is a long-term process. §1899. It was emphasized earlier that the general lack of coherence of international law is compensated to some extent by the functioning of international organizations, which provides international law with a more vertical character. In this context, a key role is played by the concept of the legal order of an international organization. The existence of a certain degree of hierarchy between legal rules is inherent in this concept. This hierarchy is as common to international organizations as it is exceptional in international law in general. The basis of the legal order of an international organization is its constitution, which represents the pinnacle of the organization’s hierarchy of legal rules. Although such a hierarchy is also characteristic of municipal legal orders, there is a fundamental difference. The notion of state sovereignty explains why the (written or unwritten) constitution provides the foundation for all state activities, and why the scope of constitutions of international organizations is not so wide. Constitutions of international organizations are partial and functional, because they are limited to the area of operation of the organization

12. Cf. R.A. Falk, The Interplay of Westphalia and Charter Conceptions of International Legal Order, in R.A. Falk and C.E. Black, The Future of the International Legal Order, Vol. I (1969), at 42; M. Virally, Préface, in G. Malinverni, Le règlement des différends dans les organisations internationales économiques (1974), at 4; P.E. Corbett, Law and Society in the Relations of States 10 (1951). 13. Cf. G. Scelle, Manuel de Droit International Public (1948), at 21 ff. See also A. Cassese, Remarks on Scelle’s Theory of “Role Splitting” (dédoublement fonctionnel) in International Law, in 1/2 EJIL 210-231 (1990). 14. F. Morgenstern, Legal Problems of International Organizations 116-118 (1986).

1211

Concluding remarks

§1900

and to those states which participate in it. Consequently, while states have one constitution, at the international level there are as many as there are international organizations. As a result, the problem of coordination is even more serious at the international level than within national legal orders. There is no master organization with the central authority to accommodate conflicting actions or policies of international organizations. Nevertheless, notwithstanding these differences between the constitutions of states and those of international organizations, the latter have to some extent produced a hierarchy between legal rules which is characteristic of national legal orders, but which, until recently, was largely nonexistent in international law. §1900. This process of “verticalization” – international organizations imbuing international law with a more vertical character – can be perceived in particular in relation to the supervisory tasks of international organizations, which have even been considered as their raison d’être.15 After all, supervision implies the existence of some higher authority. Of course, this is fundamentally at odds with the notion of sovereignty, which in its traditional meaning embodied that highest authority itself (suprema potestas). While the notion of sovereignty, in its traditional, absolute sense, already entails certain reservations towards entering into international obligations, states have shown much greater reserve to agreeing to international supervision beyond their control. Apparently the basic principle of pacta sunt servanda is less threatening than the idea that compliance with this principle is supervised. And states seem even more reserved in relation to the issue of enforcement. Nevertheless, it is fascinating to observe the impressive body of supervision procedures and enforcement mechanisms which has grown up within international organizations. In Chapter Ten, some of the developments in this area were analyzed – in particular, the practice of the Security Council and the introduction of new routes for enforcement in the European Union and the IMF, as well as for supervision in the context of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. These developments demonstrate that states perceive the need to create and tolerate such inroads into state sovereignty, which imply a slow but gradual and fundamental change taking international law in a more vertical direction, largely through international organizations. To this extent, Corbett’s final thesis that “the future of international law is one with the future of international organization”, has proved to be correct.16 §1901. Notwithstanding these observations, we should avoid making the mistake of concluding that further reform of the structures for international

15. I. Seidl-Hohenveldern, Failure of Controls in the Sixth International Tin Agreement, in N. Blokker and S. Muller (eds.), Towards More Effective Supervision by International Organizations, Essays in Honour of Henry G. Schermers, Vol. I (1994), at 255. 16. Corbett, op. cit. note 12, at 12.

§1901

Concluding remarks

1212

cooperation along these lines, a mere continuation of this process of “verticalization”, will guarantee a better future and provide solutions for the problems of today and tomorrow which the current structure of international cooperation is incapable of generating. Too often international organizations have been the scapegoat for the failure of states and peoples to cooperate. Behind these structures lies the reality of a lack of social cohesion.17 The feeling of solidarity among the citizens of a state, their idea of belonging to a certain unit, which is characteristic of most states, is less strong at regional level, and much, much weaker at global level.18 It is towards this lack of social cohesion that one must turn to understand the true causes of the current inadequate structure for international cooperation. The notion of state sovereignty has been stripped of its absolute character for many years now. But its importance should not be underestimated, for sovereignty is persistent. The reason that state sovereignty still plays an important role is not because it is just an outdated concept which we cannot get rid of, but primarily because there is no real desire to do so. Sovereignty is no abstract notion of the past which refuses to fade away. Has it not been the goal of the struggles for independence by what are now called developing countries? And, more recently, was the battle for statehood by former Soviet republics and by mini-states such as Andorra, Monaco and San Marino a quest for nothing more than an anachronism?19 Sovereignty is no abstract remnant of the past for which there is no basis in the modern world community. Rather it has been compared to the “visible part of the iceberg”.20 Below the water line it protects a sense of unity and solidarity among the people living within the territory of a state. At times these peoples appreciate the need to cooperate, and at times there is a reappraisal of national values, and feelings of nationalism may even prevail.21 This is true at both the global and regional level. When the European Union was established, at the same time the principle of subsidiarity was given a prominent position in the structure of this new stage of European integration. Earlier, Article 2.7 (the prohibition for the UN to intervene in matters which are essentially within the domestic jurisdiction of any state) had to be included in the UN Charter, mainly in response to the powers attributed to the new organization in the social and economic field.

17. Cf. C. de Visscher, Theory and Reality in Public International Law 88-100 (1957; translation of the original French edition); Corbett, op. cit. note 12, at 12. 18. Cf. C. Tomuschat, Solidarität in Europa, in F. Capotorti et al. (eds.), Du droit international au droit de l’intégration, Liber Amicorum Pierre Pescatore (1987), at 729-757. 19. As was stated by the UN Secretary-General in his 1992 Agenda for Peace, this “reconfirms the importance and indispensability of the sovereign state as the fundamental entity of the international community” (UN Doc. A/47/277 and S/24111, at 3). 20. M. Bedjaoui, Introduction – On the efficacy of the international organizations: some variations on an inexhaustible theme, in Blokker and Muller (eds.), op. cit. note 15, at 11. 21. Cf. J. Stone, Problems confronting sociological enquiries concerning international law, in: 89 RdC (1956 I), in particular at 93-114.

1213

Concluding remarks

§1902

§1902. In this long-term process, international organizations can be seen to be both stabilizers and stimulators. They function as stabilizing frameworks for international cooperation which are difficult to neglect altogether, even when states tend to regard international obligations or international cooperation in general as a stumbling block. They function as stimulators because they have been placed in a position in which they can make visible the profits of cooperation as well as the costs of non-cooperation. International institutional law lays down basic as well as more detailed rules for international organizations to allow them to perform these functions.

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Annex

Selected bibliography on individual international organizations

In this annex reference is made to literature on a number of international organizations and to their websites, to assist those readers who want a further introduction to specific organizations. In addition, Section I lists a number of general works which are important for the study of the law of international organizations. In view of the wealth of literature on several organizations we have mainly included the most recent and comprehensive works. Some preference has been given to works in the English language.

I.

General

A.J.P. Tammes, Hoofdstukken van Internationale Organisatie (1951). C. Wilfred Jenks, The Proper Law of International Organizations (1962). Inis L. Claude, Swords into Plowshares The Problems and Progress of International Organization (4th ed. 1971). D.W. Bowett, The Law of International Institutions (4th ed. 1982). P.J.G. Kapteyn, R.H. Lauwaars, P.H. Kooijmans, H.G. Schermers, & M. Van Leeuwen Boomkamp (eds.), International organization and integration (2nd rev. ed. 1984; Suppl. to the 2nd rev. ed., 1995). Heribert F. Köck, Grundzüge des Rechtes der internationalen Organisationen (1986). Paul Taylor & A.J.R. Groom (eds.), International institutions at work (1988). Société Française pour le Droit International, Les Organisations Internationales Contemporaines Crise, Mutation, Développement (1988). Jean Charpentier, Institutions internationales (1989). Claude-Albert Colliard, Institutions des relations internationales (1990). Ernst B. Haas, When knowledge is power: three models of change in international organizations (1990). Rolf J. Langhammer, Regional integration among developing countries: opportunities, obstacles and options (1990). Baer, George W., International organizations: 1918-1945; a guide to research and research materials (rev. ed. 1991). Marcel A. van Meerhaeghe, International economic institutions (6th ed. 1992). Frederic L. Kirgis, International Organizations in their Legal Settings (2nd ed. 1993). Peter H.F. Bekker, The Legal Position of Intergovernmental Organizations (1994). Niels Blokker and Sam Muller, Towards More Effective Supervision by International Organizations. Essays in Honour of Henry G. Schermers, Vol. I (1994).

Annex

1216

Deirdre Curtin and Ton Heukels, Institutional Dynamics of European Integration Essays in Honour of Henry G. Schermers, Vol. II (1994). Rick Lawson and Matthijs de Blois, The Dynamics of the Protection of Human Rights in Europe, Essays in Honour of Henry G. Schermers, Vol. III (1994). A.S. Muller, International Organizations and their Host States Aspects of their Legal Relationship (1995). Daniel Dormoy, Droit des organisations internationales (1995). C.F. Amerasinghe, Principles of the Institutional Law of International Organizations (1996). Nigel White, The Law of International Organizations (1996). René-Jean Dupuy (ed.), Manuel sur les organisations internationales/A handbook on international organizations (2nd ed. 1998). Manuel Diez de Velasco, Las Organizaciones Internacionales (11th ed. 1999). August Reinisch, International Organizations before National Courts (2000). Clive Archer, International organizations (3rd ed. 2001). Philippe Sands and Pierre Klein, Bowett’s Law of International Institutions (5th ed. 2001). Ignaz Seidl-Hohenveldern & Gerhard Loibl, Das Recht der Internationalen Organisationen, einschließlich der Supranationalen Gemeinschaften (7. überarbeitete Auflage, 2001). Jean-Marc Coicaud and Veijo Heiskanen (eds.), The Legitimacy of International Organizations (2001). Niels M. Blokker & Henry G. Schermers (eds.), Proliferation of International Organizations – Legal Issues (2001). Jan Klabbers, An Introduction to International Institutional Law (2002). Alvin Leroy Bennett and James K. Oliver, International organizations: principles and issues (7th ed. 2002). Karel Wellens, Remedies against International Organizations (2002).

II.

United Nations (www.un.org)

A.

The Organization in General

1.

Structure and functioning

Yearbook of the United Nations (a UN publication; detailed annual survey of all activities of the UN and its related agencies, with references to official documents). Basic Facts about the United Nations (2000). United Nations Handbook (published annually by the New Zealand Ministry of Foreign Affairs and Trade). Maurice Bertrand, The Third Generation World Organization (1989). Charles Chaumont, L’Organisation des Nations Unies (1990). Daniel Frei, Die Organisation der Vereinten Nationen (UNO): eine Einführung in 15 Vorlesungen (1990). Edmund J. Osmanczyk, (ed.), The encyclopedia of the United Nations and international relations (2nd ed. 1990). Rüdiger Wolfrum (ed.), Handbuch Vereinte Nationen (1991). Adam Roberts and Benedict Kingsbury, United Nations, Divided World The UN’s Roles in International Relations (2nd. ed. 1993). Nigel D. White, The United Nations System – Toward International Justice (2002).

1217

2.

Selected bibliography on individual international organizations

History

United Nations Conference on International Organization, 14 volumes (the UNCIO Documents) containing all documents of the San Francisco conference where the UN Charter was drafted. Ruth B. Russell and Jeannette E. Muther, A History of the United Nations (1958). Asha Hans, The United Nations: a saga of fourty years (1987). Gilbert Murray, From the League to UN (1988). 3.

Legal aspects

United Nations Juridical Yearbook (documentary materials of a legal character concerning the UN and related intergovernmental organizations). Hans Kelsen, The Law of the United Nations (1951). Leland M. Goodrich, Edvard Hambro and Anne Patricia Simons, Charter of the United Nations, Commentary and Documents (3rd ed. 1969). Michel Virally, L’Organisation Mondiale (1972). Jean Pierre Cot & Alain Pellet (eds.), La Charte des Nations Unies: commentaire article par article (2nd ed. 1991). Oscar Schachter and Christopher C. Joyner (eds.), United Nations Legal Order (1995). Benedetto Conforti, The Law and Practice of the United Nations (1996). Bruno Simma (ed.), The Charter of the United Nations: a commentary (2nd ed. 2002). B.

Principal organs

1.

General Assembly (www.un.org/ga)

F.A. Vallat, The Competence of the United Nations General Assembly, 97 RdC (1959 II), at 203-292. Sidney D. Bailey, The General Assembly of the United Nations A Study of Procedure and Practice (1960). Arieh Elan, The General Assembly can it be salvaged? (1984). Jean-François Flauss & Philippe Singer, La vérification des pouvoirs à l’Assemblée Générale des Nations Unies, 31 AFDI 620-652 (1985). Brian W. Tomlin, Measurement validation: lessons from the use and misuse of UN General Assembly roll-call votes, 39 International Organization 189-206 (1985). Arto Kosonen, The United Nations General Assembly and the authority to establish UN forces: an interpretative analysis of the Charter, the theories of implied and inherent powers and the Uniting for Peace Resolution (1986). M.J. Peterson, The General Assembly in World Politics (1986). Blanche Finley, The structure of the United Nations General Assembly (2nd ed. 1990). Blaine Sloan, UN General Assembly resolutions in our changing world (1991). Louis B. Sohn, Enhancing the role of the General Assembly of the United Nations in crystallizing international law, in Jerzy Makarczyk (ed.), Theory of international law at the threshold of the 21st century (1996). Soo Yeon Kim and Bruce Russett, The new politics of voting alignments in the United Nations General Assembly, 50 International Organization 629-652 (1996). Eric Suy, The role of the United Nations General Assembly, in Hazel Fox (ed.), The changing constitution of the United Nations (1997).

Annex

1218

Marie-Claude Smouts, The General Assembly: grandeur and decadence, in: The United Nations at the millennium (2000). Inger Österdahl, The continued relevance of collective security under the UN: the Security Council, regional organizations and the General Assembly, The Finnish yearbook of international law (2002). 2.

Security Council (www.un.org/Docs/sc)

Karel C. Wellens (ed.), Resolutions and statements of the United Nations Security Council (1946-1989); a thematic guide, 2nd ed. (1993). Nichol Davidson (ed.), Paths to peace: the UN Security Council and its presidency (1981). Istvan Pogany, The role of the President of the UN Security Council, 31 ICLQ 231-245 (1982). Davidson Nicol, Margaret Croke & Babatunde Adeniran, The United Nations Security Council towards greater effectiveness: a report on the proceedings of a UNITAR seminar and subsequent discussions involving former presidents of the SC, senior international officials and scholars 1977-1980 (1982). Marie-Claude Smouts, Réflexions sur les méthodes de travail de Conseil de sécurité, 28 AFDI 601-612 (1982). Loie Feuerie, Informal consultation: a mechanism in Security Council decision-making, 18 N.Y.U.J. Int’l & Pol. 267-308 (1985). Theodoor J. Elsen, Litispendence between the International Court of Justice and the Security Council (1986). Renata Sonnenfeld, Resolutions of the United Nations Security Council (1987). Reflections on the role, functions and procedures of the Security Council of the United Nations, 206 RdC 289-395 (1987). David D. Caron, The legitimacy of the collective authority of the Security Council, 87 AJIL 552-588 (1993). Ingo Winkelmann, Bringing the Security Council into a new era: recent developments in the discussion on the reform of the Security Council, 1 Max Planck UNYB 35-90 (1997). Dapo Akande, The International Court of Justice and the Security Council: is there room for judicial control of decisions of the political organs of the United Nations?, 46 ICLQ 309343 (1997). Sydney D. Bailey and S. Daws, The Procedure of the UN Security Council (3rd ed. 1998). Bardo Fassbender, UN Security Council Reform and the Right of Veto – A Constitutional Perspective (1998). Michael C. Wood, The interpretation of Security Council resolutions, 2 Max Planck UNYB 73-95 (1998). Susan Lamb, Legal limits to United Nations Security Council powers, in Guy S. Goodwin-Gill and Stefan Talmon (eds.) The reality of international law: essays in honour of Ian Brownlie (1999). Gabriël H. Oosthuizen, Playing the devil’s advocate: the United Nations Security Council is unbound by law, 12 LJIL 549-563 (1999). David M. Malone, The Security Council in the 1990s: inconsistent, improvisational, indispensable?, in Ramesh Thakur and Edward Newman (eds.), New millennium, new perspectives: the United Nations, security, and governance (2000). Juergen Dedring, The Security Council, in The United Nations at the millennium (2000). Princeton N. Lyman, Saving the UN Security Council: a challenge for the United States, 4 Max Planck UNYB 127-146 (2000).

1219

Selected bibliography on individual international organizations

Vera Gowlland-Debbas, The functions of the United Nations Security Council in the international legal system, in Michael Byers (ed.), The role of law in international politics (2000). Marc Perrin de Brichambaut, The role of the United Nations Security Council in the international legal system, in Michael Byers (ed.), The role of law in international politics (2000). Inocencio Arias, Humanitarian intervention: could the Security Council kill the United Nations? 23 Fordham International Law Journal 1005-1027 (2000). John Quigley, The United Nations Security Council: Promethean protector or helpless hostage?, 35 Tex. Int’l L.J. 129-172 (2000). Nicolas Angelet, International law limits to the Security Council, in Vera Gowlland-Debbas (ed.) United Nations sanctions and international law (2001). Jochen Abr. Frowein, Issues of legitimacy around the United Nations Security Council, in Jochen Abr. Frowein et al. (Hrsg.), Verhandeln für den Frieden (2003). Celso Amorim, Effectiveness and legitimacy of the United Nations Security Council: a tribute to Tono Eitel, in Jochen Abr. Frowein et al. (Hrsg.), Verhandeln für den Frieden (2003). 3.

Economic and Social Council (ECOSOC) (www.un.org/esa/coordination/ecosoc)

Walter Sharp, The United Nations Economic and Social Council (1969). J.P. Renninger, ECOSOC: Options for Reform (UNITAR, 1981). Johan Kaufmann, The Economic and Social Council and the New International Economic Order, in David P. Forsyth (ed.), The United Nations in the World Political Economy 54-66 (1989). Paul Taylor, Managing the economic and social activities of the United Nations system: developing the role of Ecosoc, in The United Nations at the millennium (2000). 4.

Trusteeship Council (www.un.org/documents/tc.htm)

R.N. Chowdhuri, International Mandates and Trusteeship System, A comparative study (1955). Raymond Goy, Le dernier territoire sous tutelle: les Îles du Pacifique, 34 AFDI 454-474 (1988). Lizabeth A. McKibben, The Political Relationship Between the United States and Pacific Islands Entities: The Path to Self-Government in the Northern Mariana Islands, Palau, and Guam, 31 HILJ 257-293 (1990). A.J.R. Groom, The Trusteeship Council: a succesful demise, in The United Nations at the millennium (2000). 5.

International Court of Justice (ICJ) (www.icj-cij.org)

Yearbook of the International Court of Justice (annual survey of the organization, functioning, publications and work of the Court and biographies of the judges). Shabtai Rosenne, Procedure in the International Court: a commentary on the 1978 Rules of the International Court of Justice (1983). Theodoor J. Elsen, Litispendence between the International Court of Justice and the Security Council (1986). Gerald Fitzmaurice, The law and procedure of the International Court of Justice (1986). E. Jiménez de Aréchaga, The work and jurisprudence of the International Court of Justice, 58 BYIL 1-38 (1987).

Annex

1220

Lori Fisler Damrosch, The International Court of Justice at a crossroads (1987). Shabtai Rosenne, The World Court: what it is and how it works (1989). Taslim O. Elias, United Nations Charter and the World Court (1989). Nagendra Singh, The role and record of the International Court of Justice [1946 to 1988; in celebration of the 40th anniversary] (1989). Hugh Thirlway, The law and procedure of the International Court of Justice: 1960-1989, 60 BYIL 1-157 (1989), 61 BYIL 1-133 (1990), 62 BYIL 1-77 (1991), 63 BYIL 1-97 (1992), 64 BYIL 1-54 (1993), 65 BYIL 1-102 (1995), 66 BYIL 1-96 (1996), 67 BYIL 1-73 (1997), 69 BYIL 1-83 (1999), 70 BYIL 1-63 (2000), 71 BYIL 71-180 (2001), 72 BYIL 37-181 (2002). Edward McWhinney, Judicial settlement of international disputes: jurisdiction, justiciability and judicial law-making in the contemporary international court (1991). Renata Szafarz, The Compulsory Jurisdiction of the International Court of Justice (1993). Shabtai Rosenne, The contribution of the International Court of Justice to the United Nations, 35 IJIL 67-76 (1995). Robert Jennings, New problems at the International Court of Justice, in Manuel RamaMontaldo (ed.) El derecho internacional en un mundo en transformacion (vol. 2, 1995). Thomas J. Bodie, Politics and the emergence of an activist International Court of Justice (1995). Mohammed Bedjaoui, The International Court of Justice in its heyday (1996). Arthur Eyffinger, The International Court of Justice, 1946-1996 (1996). D.W. Bowett, The British Institute of International and Comparative Law, The International Court of Justice: efficiency of procedures and working methods: report of the Study Group established by the British Institute of International and Comparative Law as a contribution to the UN Decade of international law (1996). Vaughan Lowe (ed.), Fifty years of the International Court of Justice: essays in honour of Sir Robert Jennings (1996). Connie Peck, Increasing the effectiveness of the International Court of Justice: proceedings of the ICJ/UNITAR Colloquium to celebrate the 50th anniversary of the Court (1997). A.S. Muller et al. (eds.), The International Court of Justice: its future role after fifty years (1997). S. Rosenne, The Law and Practice of the International Court, 1920-1996 (1997). Gbenga Oduntan, The law and practice of the International Court of Justice (1945-1996): a critique of the contentious and advisory jurisdictions (1999). Arthur Eyffinger, La Cour internationale de Justice, 1946-1996 (1999). Bimal N. Patel, The World Court reference guide: judgments, advisory opinions and orders of the Permanent Court of International Justice and the International Court of Justice (1922-2000) (2002). Mohamed Sameh M. Amr, The role of the International Court of Justice as the principal judicial organ of the United Nations (2003). 6.

Secretariat (www.un.org/documents/st.htm)

Georges Langrod, The International Civil Service its origins, its nature, its evolution (1963). Jean Siotis, Essai sur Le Secrétariat International (1963). Arthur W. Rovine, The first fifty years the Secretary-General in World Politics 1920-1970 (1970). Theodor Meron, The United Nations Secretariat the rules and the practice (1977).

1221

Selected bibliography on individual international organizations

Theodor Meron, Charter powers of the United Nations Secretary-General with regard to the secretariat and the role of General Assembly Resolutions, 42 ZaöRV 731-779 (1982). Brian Urquart, The role of the Secretary-General, 36 Aussenpolit. 257-263 (1985). Javier Perez de Cuellar, Le rôle du secrétaire général de l’ONU, 5 Rev. Algér. Rel. Internat. 13-25 (1987). Robert S. Jordan, The organizational constraints on the UN Secretary General’s influence, in M.S. Rajan (ed.), The nonaligned and the UN 258-270 (1987). Thomas M. Franck, The prerogative powers of the Secretary-General, in M.S. Rajan (ed.), The nonaligned and the UN 271-286 (1987). Roberto Lavalle, The “inherent” powers of the UN Secretary-General in the political sphere: a legal analysis, 37 NILR 22-36 (1990). B.G. Ramcharan, The Office of the United Nations Secretary-General, 13 Dalhousie L.J. 742757 (1990). M.-Christiane Bourloyannis, Fact-finding by the Secretary-General of the United Nations, 22 N.Y.U.J. Int’l L. & Pol. 641-669 (1990). Theodor Meron, “Exclusive preserves” and the new Soviet policy toward the UN Secretariat, 85 AJIL 322-329 (1991). Theo van Boven, The role of the United Nations Secretariat in the area of human rights, N.Y.U.J. Int’l L. & Pol. 69-107 (1991). Paul C. Szasz, The role of the UN Secretary-General: some legal aspects, 24 N.Y.U.J. Int’l L. & Pol. 161-198 (1991). Thomas E. Boudreau, Sheathing the sword: the UN Secretary General and the prevention of international conflict (1991). Joakim E. Parker, Electing the United Nations’ Secretary-General after the Cold war, 44 Hastings L.J. 161-184 (1992). Benjamin Rivlin & Leon Gordenker (eds.), Challenging Role of the UN SecretaryGeneral: Making the Most Impossible Job in the World Possible (1993). Carl-August Fleischhauer, The United Nations decade of international law, the role and work of the Secretariat of the United Nations and of its system of organizations, in International legal issues arising under the United Nations decade of international law (1995). Jacques Lemoine, The International Civil Servant – an enfangered species (1995). Houshang Ameri, Politics of staffing the United Nations Secretariat (1996). Yves Beigbeder, The United Nations Secretariat: reform in progress, in The United Nations at the millennium (2000). C.

Subsidiary organs

1.

Economic Commission for Africa (ECA) (www.uneca.org)

James S. Magee, ECA and the Paradox of African Cooperation, 580 Int. Conc. (Nov. 1970). Rose M. D’sa, The Lagos plan of action: legal mechanisms for cooperation between the Organization of African Unity and the United Nations Economic Commission for Africa, 27 JAL 4-21 (1983). 2.

Economic Commission for Europe (ECE) (www.unece.org)

Jean Siotis, ECE in the Emerging European System, 561 Int. Conc. (Jan. 1967). Gunnar Myrdal, Twenty Years of the United Nations Economic Commission for Europe, 22 International Organization 617-628 (1968).

Annex

1222

David R. Patterson, Reform of the ECE, 6 Int. Geneva Yb 115-131 (1992). Gerald Hinteregger, The United Nations Economic Commission for Europe (UN/ECE) in a changing Europe: a secretariat perspective, 7 Int. Geneva Yb. 96-110 (1993). 3.

Economic Commission for Latin America and the Caribbean (ECLAC) (www.eclac.org)

De Economische Commissie voor Latijns Amerika (ECLA) 1948-1968, Publication No. 92 of the Netherlands Ministry of Foreign Affairs. 4.

Economic and Social Commission for Asia and the Pacific (ESCAP) (www.unescap.org)

D. Wightman, Toward Economic Cooperation in Asia he United Nations Economic Commission for Asia and the Far East (1963). 5.

International Law Commission (www.un.org/law/ilc)

Herbert W. Briggs, The International Law Commission (1965). B.G. Ramcharan, The International Law Commission its approach to the codification and progressive development of international law (1977). Erik Peterson, The International Law Commission and the lacunae of arbitral procedure (1980). Subir Goswami, Politics in law making: a study of the International Law Commission of the UN (1986). D.M. McRae, The International Law Commission: codification and progressive development after forty years, 25 CYIL 355-368 (1987). Ian Sinclair, The International Law Commission (1987). Sompong Sucharitkul, The role of the International Law Commission in the decade of international law, 3 LJIL 15-42 (1990). B. Graefrath, The International Law Commission tomorrow: improving its organization and methods of work, 85 AJIL 595-612 (1991). P.H.F. Bekker, The Work of the International Law Commission on “Relations between States and International Organizations” Discontinued: an Assessment, 6 LJIL 3-16 (1993). A.E. Boyle, British Institute of International and Comparative Law, Report of the Study Group on the Future Work of the International Law Commission (1996). Gerhard Hafner, The International Law Commission and the future codification of international law, 2 ILSA Journal of International & Comparative Law 671-677 (1996). International law on the eve of the twenty-first century: views from the International Law Commission: réflexions de codificateurs (1997). Francisco Villagrán Kramer, The first fifty years of the U.N. International Law Commission, in 16 Chinese Yearbook of international law and affairs 1-32 (1998). Michael R. Anderson, British Institute of International and Comparative Law, The International Law Commission and the future of international law (1998). Analytical guide to the work of the International Law Commission, 1949-1997 (UN, Office of Legal Affairs (1998)). M.C.W. Pinto, The International Law Commission: representative of civilisations, agent of change, in Emile Yakpo and Tahar Boumedra (eds.), Liber amicorum judge Mohammed Bedjaoui (1999).

1223

Selected bibliography on individual international organizations

Arthur Watts, The International Law Commission 1949-1998 (1999). Stephen M. Schwebel, The inter-active influence of the International Court of Justice and the International Law Commission, in Liber amicorum ’In memoriam’ of judge José María Ruda (2000). James Crawford, Prospects for the codification and development of international law by the United Nations: the work of the International Law Commission, The Finnish yearbook of international law (2000). 6.

United Nations Committee for Decolonization

Maurice Barbier, Le Comité de Décolonisation des Nations Unies (1974). 7.

United Nations Commission on International Trade Law (UNCITRAL) (www.uncitral.org)

Newell E. Cumming, United Nations Commission on International Trade Law: Will a Uniform Law in International Sales Finally Emerge? 9 CWILJ 157-184 (1979). Paul B. Larsen, New work in UNCITRAL on stable, inflation-proof liability limits, 48 JALC 665-692 (1983). Aron Broches, A model law on international commercial arbitration? A progress report on the work undertaken within the UN Commission on International Trade Law (UNCITRAL), 18 Geo. Wash. J. Int’l L. & Econ. 79-95 (1984). UNCITRAL: The United Nations Commission on International Trade Law (UN publication, 1986). Pieter Sanders, The work of UNCITRAL on arbitration and conciliation (2001). 8.

United Nations Conference on Trade and Development (UNCTAD) (www.unctad.org)

Branislav Gosovic, UNCTAD Conflict and Compromise (1972). Thomas G. Weiss, UNCTAD: what next?, 19 JWTL 251-268 (1985). Alain Pellet, Quelques problèmes institutionnels et juridiques posés par la coopération économique entre pays en développement au sein de la CNUCED, 19 RJPEM 123-134 (1986). Zalmaï Haquani, La CNUCED VII entre l’impasse et l’ouverture, 92 RGDIP 335-364 (1988). 9.

United Nations Development Programme (UNDP) (www.undp.org)

Paul Berthoud, The United Nations Development Programme, Framework and Procedures, 4 JWTL 155-191 (1970). Stephan Klingebiel, Frank Cass (in ass. with the German Development Institute), Effectiveness and reform of the United Nations Development Programme (UNDP) (1999). M.K. Kamala, The UN development co-operation and the Third World: a study with special reference to the UNDP and India (2002). 10.

United Nations Environment Programme (UNEP) (ww.unep.org)

Mark Allan Gray, The United Nations Environment Programme: an assessment, 20 Envtl. L. 291-319 (1990). Carol Annette Petsonk, The role of the United Nations Environmental Programme (UNEP) in the development of international environmental law, 5 Am. U.J. Int’l L.& Pol’y 351-391 (1990).

Annex

1224

Jodie Hierlmeier, UNEP: retrospect and prospect - options for reforming the global environmental governance regime, in 14 Georgetown international environmental law review 767-805 (2002). 11.

United Nations Commission on Human Rights (www.unhchr.ch)

Marc J. Bossuyt, The development of special procedures of the United Nations Commission on Human Rights, 6 HRLJ 179-210 (1985). Mel James, The country mechanisms of the United Nations Commission on Human Rights, in Yael Danieli, Elsa Stamatopoulou, Clarence J. Dias (eds.), The Universal Declaration of Human Rights: fifty years and beyond (1999). Cees Flinterman, The United Nations Commission of Human Rights and the human factor, in Rendering justice to the vulnerable (2000). Beate Rudolf, The thematic rapporteurs and working groups of the United Nations Commission on Human Rights, 4 Max Planck UNYB 289-329 (2000). 12.

United Nations High Commissioner for Refugees (UNHCR) (www.unhcr.ch)

Louis W. Holborn, Refugees: A problem of our time the work of the UN High Commissioner for Refugees (two volumes, 1975). P.D. Maynard, The legal competence of the United Nations high commissioner for refugees, 31 ICLQ 415-425 (1982). Howard Tolley, Jr., Decision-making at the United Nations Commission on Human Rights, 1979-82, 5 Hum. Rts. Quart. 27-57 (1983). Nagendra Singh, The role and record of the UN High Commissioner for Refugees (1984). Nagendra Singh, The role and record of the UN High Commissioner for Refugees, in: The refugee problem on universal, regional and national level (1987). Daniel Warner, Forty years of the UNHCR Executive Committee: from the old to the new, 2 IJRL 238-251 (1990). Peter Nicolaus, Das Amt des Hohen Flüchtlingskommissars der Vereinten Nationen und 40 Jahre Genfer Flüchtlingskonvention, 11 ZAR 113-121 (1991). Iain Guest, The United Nations, the UNHCR, and refugee protection: a non-specialist analysis, 3 IJRL 585-605 (1991). V. Türk, Das Flüchtlingshochkommissariat der Vereinten Nationen (UNHCR) (1992). Leonardo Franco, Legal issues arising from recent UNHCR operations: introduction, in Vera Gowlland-Debbas (ed.), The problem of refugees in the light of contemporary international law issues (1996). Marjolein Zieck, UNHCR’s “Special Agreements”, in Jan Klabbers, René Lefeber (eds.), Essays on the law of treaties: a collection of essays in honour of Bert Vierdag (1998). 13.

United Nations Childrens’s Fund (UNICEF) (www.unicef.org)

Judith M. Spiegelman, We are the children: a celebration of UNICEF’s first forty years (1986). Maggie Black, The children and the nations: the story of UNICEF (1986). Rebeca Rios-Kohn, The impact of the United Nations Convention on the Rights of the Child on UNICEF’s Mission, in 6 Transnational law & contemporary problems 287-307 (1996). Karin Landgren, UN sanctions: dilemmas for UNICEF, in Vera Gowlland-Debbas (ed.), United Nations sanctions and international law (2001).

1225

Selected bibliography on individual international organizations

Jean Dupraz, UNICEF and the Sanctions Committee: lessons learned from Iraq, in Vera Gowlland-Debbas (ed.), United Nations sanctions and international law (2001). 14.

United Nations Institute for Training and Research (UNITAR) (www.unitar.org)

Robert S. Jordan, UNITAR and UN research, 30 International Organization 163-171 (1976). 15.

United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) (www.un.org/unrwa)

Edward H. Buehrig, The UN and the Palestinian Refugees A Study in Nonterritorial Administration (1971). William Dale, UNRWA A subsidiary organ of the United Nations, 23 ICLQ 576-609 (1974). Milton Viorst, UNRWA and peace in the Middle East (1984). Milton Viorst, Reaching for the olive branch UNRWA and peace in the Middle East (1989). Ignaz Seidl-Hohenveldern, The UNRWA special panel of adjudicators 1983-1991, in Karel Wellens (ed.), International law: theory and practice (1998). Jalal Al Husseini, L’UNRWA et les réfugiés: enjeux humanitaires, intérêts nationaux, 86 Revue d’études Palestiniennes 71-85 (2003). 16.

World Food Programme (WFP) (www.wfp.org)

Mark W. Charlton, Innovation and inter-organizational politics: the case of the World Food Programme, 47 Internat. J. (Toronto) 630-665 (1992). John Shaw, Hans W. Singer, A note on some UN achievements with special reference to the World Food Programme, in The United Nations at work (1998). Jens H. Schulthes, Is there a future for the WFP as a development agency or does food aid still have a comparative advantage?, in Edward Clay and Olav Stokke (eds.), Food aid and human security (2000). Just Faaland, Diana McLean, Ole David Koht Norbye, The World Food Programme (WFP) and international food aid, in Edward Clay and Olav Stokke (eds.), Food aid and human security (2000). D. John Shaw, The UN World Food Programme and the development of food aid (2001).

III.

Other universal organizations

A.

The specialized agencies

1.

General

(For detailed legal bibliographies on the specialized agencies, see UNJY.) Jean-Luc Mathieu, Les institutions specialisées des Nations Unies (1977). Houshang Ameri, Politics and process in the specialized agencies of the United Nations (1982). Victor-Yves Ghebali, The politicization of UN specialized agencies: a preliminary analysis, 14 Millenium 317-334 (1985). A.I.L. Campbell, The attitudes and practices of the specialised agencies and UN organs and the interpretation of their basic constitutions, 2 JR 177-191 (1986).

Annex

1226

Douglas Williams, The specialized agencies and the United Nations: the system in crisis (1987). Jeffrey Harrod, United Nations specialized agencies: from functionalist intervention to international co-operation?, in J. Harrod & N. Schrijver (eds.), The UN under attack 130-144 (1988). Mark F. Imber, The USA, ILO, UNESCO and IAEA: politicization and withdrawal in the specialised agencies (1989). Frank Zeidler, Der Austritt und Ausschluss von Mitgliedern aus den Sonderorganisationen der Vereinten Nationen (1990). Wolfgang Münch, The Joint Inspection Unit of the United Nations and the Specialized Agencies: the role and working methods of a comprehensive oversight institution in the United Nations system, 2 Max Planck UNYB 287-306 (1998). 2.

International Labour Organization (ILO) (www.ilo.org)

James T. Shotwell, The Origins of the International Labour Organisation (2 volumes, 1934). E.A. Landy, The Effectiveness of International Supervision Thirty Years of ILO Experience (1966). Anthony Alcock, History of the International Labour Organisation (1971). Virginia A. Leary, International Labour Conventions and National Law: The Effectiveness of the Automatic Incorporation of Treaties in National Legal Systems (1982). Abdul Karim Tikriti, Tripartism and the International Labour Organisation: a study of the legal concept: its origins, function and evolution in the law of nations (1982). Ebere Osieke, Constitutional law and practice in the International Labour Organisation (1985). Paolo Cesarini, The constitutional reform of the International Labour Organization, 7 ItYIL 216-250 (1986/87). Victor-Yves Ghebali, The International Labour Organisation: a case study on the evolution of UN specialised agencies (1988). Steve Charnovitz, The International Labour Organization in its second century, 4 Max Planck UNYB 147-184 (2000). 3.

Food and Agriculture Organization of the United Nations (FAO) (www.fao.org)

Gove Hambidge, The Story of FAO (1955). S. Marchisio & A. di Blase, The Food and Agriculture Organization (1991). John Abbott, Politics and poverty: a critique of the Food and Agriculture Organization of the United Nations (1992). Jacques Schwob, L’amendement à l’acte constitutif de la FAO visant à permettre l’admission en qualité de membre d’organisations d’ integration économique regionale et la Communauté économique européenne, 29 RTDE 1-16 (1993). Soulaimane Soudjay, La FAO: organisation des Nations Unies pour l’alimentation et l’agriculture (1996). 4.

United Nations Educational, Scientific and Cultural Organization (UNESCO) (www.unesco.org)

Julian Huxley, UNESCO: Its Purpose and its Philosophy (1947). W.H.C. Laves and G.A. Thomson, UNESCO: Purpose, Progress (1957).

1227

Selected bibliography on individual international organizations

George N. Shuster, UNESCO: Assessment and Promise (1963). James P. Sewell, UNESCO and World Politics engaging in international relations (1975). Peter I. Hajnal, Guide to UNESCO (1983). Victor-Yves Ghebali, L’UNESCO a l’ heure de reformes, 14 Déf. Nat. 47-64 (1985). Amadou Mahtar M’Bow, L’UNESCO à la veille de son 40e anniversaire (1985). Maurice Flory, La crise de l’UNESCO, 31 AFDI 653-670 (1985). Peri A. Hoffer, Upheaval in the United Nations system: United States’ withdrawal from UNESCO, Brooklyn J. Int’l L. 161-207 (1986). Clare Wells, The UN, UNESCO and the politics of knowledge (1987). S. Nihal Singh, The rise and fall of UNESCO (1988). William Preston (ed.), Hope and folly: the United States and UNESCO, 1945-1985 (1989). 5.

World Health Organization (WHO) (www.who.int)

Robert Berkov, The World Health Organization a study in decentralized International Administration (1957). Monika Vierheilig, Die rechtliche Einordnung der von der Weltgesundheitsorganisation beschlossenen regulations (1984). John Starrels, The World Health Organization: resisting third world ideological pressures (1985). Sev. S. Fluss, The health legislation programme of the World Health Organization: past, present and future, 11 Comp. L. Yb. 231-243 (1992). Javed Siddiqi, World health and world politics: the World Health Organization and the UN system (1995). Yves Beigbeder, The World Health Organization (1998). David P. Fidler, The future of the World Health Organization: what role for international law?, 31 Vanderbilt journal of transnational law 1079-1126 (1998). 6.

International Monetary Fund (IMF) (www.imf.org)

Hans Aufricht, The International Monetary Fund: legal bases, structure, functions (1964). Shigeo Horie, The International Monetary Fund (1964). Joseph Gold, Legal and institutional aspects of the international monetary system (Vol. I, 1979). Kenneth W. Dam, The Rules of the Game Reform and Evolution in the International Monetary System (1982). Jeanne Asherman, The International Monetary Fund: a history of compromise, N.Y.U.J. Int’l & Pol. 235-304 (1984). Joseph Gold, Legal and institutional aspects of the international monetary system (Vol. II, 1984). Richard W. Edwards, International monetary collaboration (1985). Joseph Gold, SDR’s, currencies, and gold (1987). Robert J. Myers (ed.), The political morality of the International Monetary Fund (1987). Hans G. Petersmann, Financial assistance to developing countries: the changing role of the World Bank and International Monetary Fund: institutional, legal, and policy perspectives (1988). Tyrone Ferguson, The Third World and Decision Making in the International Monetary Fund (1988). Catherine Gwin and Richard E. Feinberg (eds.), Pulling together: the International Monetary Fund in a multipolar world (1989).

Annex

1228

A.I.D. Bruon, International Monetary Fund: structure, working and management, its policies and effect on world economy (1990). William N. Gianaris, Weighted voting in the International Monetary Fund and the World Bank, 14 Fordham Int’l L. J. 910-945 (1991). Joseph Gold, Interpretation: the IMF and international law (1996). Erik Denters, Law and policy of IMF conditionality (1996). Ngaire Woods, Making the IMF and the World Bank more accountable, 77 International affairs (2001). 7.

International Bank for Reconstruction and Development (World Bank) (www.worldbank.org)

A. Broches, International Legal Aspects of the World Bank, 98 RdC 301-409 (1959 III). Edward S. Mason and Robert E. Asher, The World Bank since Bretton Woods (1973). Hans G. Petersmann, Financial assistance to developing countries: the changing role of the World Bank and International Monetary Fund: institutional, legal, and policy perspectives (1988). Ibrahim F.I. Shihata, The World Bank in a changing world: selected essays (1991). Kevin Danaher, 50 years is enough: the case against the World Bank and the International Monetary Fund (1994). Anne C.M. Salda, World Bank (1995). Seamus Cleary, The World Bank and NGOs, in: Peter Willetts (ed.), The conscience of the world (1996). Devesh Kapur, The World Bank: its first half century (1997). Richard E. Feinberg, The changing relationship between the World Bank and the International Monetary Fund, in: Paul F. Diehl (ed.), The politics of global governance (1997). Edith Brown Weiss, Andres Rigo Sureda, Laurence Boisson de Chazournes (eds.), The World Bank, international financial institutions, and the development of international law: a symposium held in honor of dr. Ibrahim F.I. Shihata (1999). Ibrahim F.I. Shihata, The World Bank legal papers (2000). Ibrahim F.I. Shihata, The World Bank in a changing world (Vol. III, 2000). Ibrahim F.I. Shihata, The World Bank Inspection Panel: In Practice (2nd ed. 2000). Christopher L. Gilbert, The World Bank: structure and policies (2000). Sigrun I. Skogly, The human rights obligations of the World Bank and the International Monetary Fund (2001). Gudmundur Alfredsson, The Inspection Panel of the World Bank: a different complaints procedure (2001). Mac Darrow, Between light and shadow: the World Bank, the International Monetary Fund and international human rights law (2003). Andrés Rigo Sureda, Informality and effectiveness in the operation of the International Bank for Reconstruction and Development, 6 Journal of international economic law 565-596 (2003). 8.

International Finance Corporation (IFC) (www.ifc.org)

James C. Baker, The International Finance Corporation: Origin, Operations and Evaluation (1968). Carol F. Lee, International Finance Corporation: financing environmentally and sociallly sustainable private investment, in Edith Brown Weiss, Andres Rigo Sureda, Laurence Boisson de Chazournes (eds.), Liber amicorum Ibrahim F.I. Shihata (2001).

1229

9.

Selected bibliography on individual international organizations

International Development Association (IDA) (www.worldbank.org)

James H. Weaver, The International Development Association, A new approach to foreign aid (1966). 10.

Multilateral Investment Guarantee Agency (MIGA) (www.miga.org)

Hans G. Petersmann, Die Multilaterale Investitions-Garantie-Agentur (MIGA), 46 ZaöRV 758-773 (1986). I.F.I. Shihata, The Multilateral Investment Guarantee Agency (MIGA) and the legal treatment of foreign investment, 203 RdC (1987 III), at 95-320. S.K. Chatterjee, The Convention establishing the Multilateral Investment Guarantee Agency, 36 ICLQ 76-91 (1987). Ines Potocnik, Die multilaterale Investitions-Garantie-Agentur (MIGA): völkerrechtliche Analyse der Rechts-, Organisations- und Handlungsformen der multilateralen Investitions-Garantie-Agentur sowie deren Streitbeilegungsmechanismen unter Berücksichtigung neuerer Entwicklungen (1999). Motomichi Ikawa, Multilateral investment guarantee agency, in Edith Brown Weiss, Andres Rigo Sureda, Laurence Boisson de Chazournes (eds.), The World Bank, international financial institutions, and the development of international law: a symposium held in honor of dr. Ibrahim F.I. Shihata (1999). Ibrahim F.I. Shibata, MIGA’s creation and evolution: a personal account, in Law of international business and dispute settlement in the 21st century (2001). 11.

International Civil Aviation Organization (ICAO) (www.icao.int)

Thomas Buergenthal, Law-Making in the International Civil Aviation Organization (1969). E. Sochor, L’OACI au sein de l’ONU: le fonctionalisme et ses applications, 19 Et. Internat. 273-292 (1988). R.I.R. Abeyrathe, Law making and decision making powers of the ICAO Council: a critical analysis, 41 ZLW 387-394 (1992). 19 Annals of Air and Space Law, Chicago Conference Anniversary 1944-1994 (1994). 19 Air and Space Law No. 3 (June 1994; Special Issue: 50 years Chicago Convention). 12.

Universal Postal Union (UPU) (www.upu.int)

George A. Codding, The Universal Postal Union (1964). M.A.K. Menon, Universal Postal Union, 552 Int. Conc. (March 1965). Yirka Omeorogbe, Functionalism in the UPU and the ITU, 27 IJIL 50-62 (1987). 13.

International Telecommunication Union (ITU) (www.itu.int)

George A. Codding & Anthony M. Rutkowski, The International Telecommunication Union in a changing world (1982). Francis Lyall, The International Telecommunication Union: Nairobi, 1982, 4 J. Media L. & Pract. 224-244 (1983). Yirka Omeorogbe, Functionalism in the UPU and the ITU, 27 IJIL 50-62 (1987). Klaus W. Grewlich, ITU-Telecommunications and Universality, 40 Aussenpolit. 349-359 (1989).

Annex

1230

Brian E. Harris, The new telecommunications development: Bureau of the International Telecommunications Union, Am. U.J. Int’l L. & Pol’y 83-103 (1991). George A. Codding, The International Telecommunications Union: 130 years of telecommunications regulation, 23 Denver journal of international law and policy 501-511 (1995). 14.

World Meteorological Organization (WMO) (www.wmo.ch)

H.G. Cannegieter, Annalen der Meteorologie The history of the International Meteorological Organization 1872-1951 (1963) (on the predecessor of the WMO). E. Ott, L’organisation météorologique mondiale (1976), R. Wachs, Die Funktion des Sekretariats der Spezialorganisationen der VN im Verhältnis zu seinen politischen Führungsorganen am Beispeil der Weltorganization für Meteorologie (1981). A. Davies, (ed.), Forty Years of Progress and Achievement A historical review of WMO (1990). G.O.P. Obasi, World Meteorological Organization in the 21st millennium, 15 International Geneva Yearbook 8-22 (2001). 15.

Intergovernmental Maritime Consultative Organization (IMCO)/ International Maritime Organization (IMO) (www.imo.org)

J. Dutheil de la Rochère, Une institution spécialisée renaissante: la nouvelle Organisation maritime internationale, 22 AFDI 434-473 (1976). Samir Mankabady (ed.), The International Maritime Organization (1984). Elisabeth Mann Borgese, The IMO and the UN Convention on the Law of the Sea, 7 Ocean Yb. 8-41 (1988). K.R. Simmonds, The International Maritime Organization (1994). Peter Ehlers, 50 Jahre Vereinte Nationen: Tätigkeit und Wirken der Internationalen Seeschifffahrts-Organisation (IMO): 3. Rostocker Gespräch zum Seerecht (1997). Christoph Ilg, Die Rechtsetzungstätigkeit der International Maritime Organization: zur Bedeutung der IMO bei der Weiterentwicklung des Meeresumweltrechts (2001). 16.

World Intellectual Property Organization (WIPO) (www.wipo.int)

Joseph E. Samnik, L’Organisation Mondiale de la Propriété Intellectuelle (1975). H. Ballreich, Die Interdependenz internationaler Organisationen, Das System zum Schutz des gewerblichen Eigentums als Beispiel, 19 Archiv des Völkerrechts 121-168 (1981). Michael Kirk, WIPO’s involvement in international developments, 50 Albany L. Rev. 601-610 (1986). A. Bogsch, Brief History of the First 25 Years of the World Intellectual Property Organization (1992). 17.

International Fund for Agricultual Development (IFAD) (www.ifad.org)

Dominique Carreau, Aide publique au développement, 23 AFDI 650-654 (1977). Ross B. Talbot, Historical dictionary of the international food agencies: FAO, WFP, WFC, IFAD (1994). Paul C. Szasz, Establishment of the International Fund for Agricultural development, in Edith Brown Weiss, Andres Rigo Sureda, Laurence Boisson de Chazournes (eds.), The

1231

Selected bibliography on individual international organizations

World Bank, international financial institutions, and the development of international law: a symposium held in honor of dr. Ibrahim F.I. Shihata (1999). Fawzi H. Al-Sultan, Ibrahim Shihata and the establishment of the international fund for agricultural development, in Liber amicorum Ibrahim F.I. Shihata (2001). 18.

United Nations Industrial Development Organization (UNIDO) (www.unido.org)

Robert Charvin, L’Organisation des Nations Unies pour le Développement Industriel, 73 RGDIP 744-785 (1969). Peter Hermann, Industrialisierung: Die illusionen sind verflogen. Die UNIDO vor der Umwandlung in eine Sonderorganisation, 32 VN 6-11 (1984). Carlos A. Magariños, Reforming the UN system: UNIDO’s need-driven model (2001). B.

Other Organizations connected with the UN

1.

International Atomic Energy Agency (IAEA) (www.iaea.int)

Paul C. Szasz, The Law and Practice of the International Atomic Energy Agency (IAEA Legal Series No. 7, 1970). Lawrence Scheinman, The International Atomic Energy Agency and world nuclear order. Resources for the Future (1987). Hans Blix, The role of the IAEA in the development of international law, 58 Nord. J. Int’l L. 231-242 (1989). Reinhard H. Rainer and Paul C. Szasz, The Law and Practice of the International Atomic Energy Agency 1970-1980: Suppl. 1 to the 1970 edition of Legal Series No. 7 (1993). David Fischer, History of the International Atomic Energy Agency: the first forty years (1997). Nathalie L.J.T. Horbach, International Atomic Energy Agency (IAEA) (1998). Alison Van Lear, Loud talk about a quiet issue: the International Atomic Energy Agency’s struggle to maintain the confidentiality of information gained in nuclear facility inspections, 28 Georgia journal of international and comparative law 349-379 (2000). 2.

General Agreement on Tariffs and Trade (GATT)/World Trade Organization (www.wto.org)

John H. Jackson, World Trade and the Law of GATT (1969). Kenneth W. Dam, The GATT Law and International Economic Organization (1970). Meinhard Hilf, Francis G. Jacobs & Ernst-Ulrich Petersmann (eds.), The European Community and GATT (1986). Oliver Long, Law and its Limitations in the GATT Multilateral Trade System (1986). Edmond McGovern, International trade regulation: GATT, the United States, and the European Community (2nd ed. 1986). Robert E. Hudec, Developing Countries in the GATT Legal System (1987). Diana Tussie, The less developed countries and the world trading system: a challenge to the GATT (1987). Ernst-Ulrich Petersmann & Meinhard Hilf (eds.), The new GATT round of multilateral trade negotiations: legal and economic problems (1988). Robert E. Hudec, Enforcing international trade law: GATT dispute settlement in the 1980s (1990). Wolfgang Benedek, Die Rechtsordnung des GATT aus völkerrechtlicher Sicht (1990).

Annex

1232

John H. Jackson, Restructuring the GATT system (1990). Robert E. Hudec, The GATT legal system and world trade diplomacy (2nd ed. 1990). Pierre Pescatore, William J. Davey & Andreas F. Lowenfeld, Handbook of GATT dispute settlement (1991). Robert E. Hudec, Enforcing international trade law: the evolution of the modern GATT legal system (1993). GATT Analytical Index, Guide to GATT Law and Practice (6th ed. 1994). E.-U. Petersmann, The Dispute Settlement System of the World Trade Organization and the Evolution of the GATT Dispute Settlement System Since 1948, 31 CMLRev. 1157-1244 (1994). Patrick M. Moore, The decisions bridging the GATT 1947 and the WTO Agreement, 90 AJIL 317-328 (1996). John H. Jackson, The World Trading System (2nd ed. 1997). Thomas Oppermann and José Christian Cascante, Dispute settlement in the EC: lessons for the GATT/WTO dispute settlement system?, in International trade law and the GATT/WTO dispute settlement system (1997). Guglielmo Verdirame, The definition of developing countries under GATT and other international law, 39 GYIL 164-197 (1997). Robert L. Howse, The house that Jackson built: restructuring the GATT system, 20 Michigan journal of international law 107-119 (1999). Peter C. Maki, Interpreting GATT using the Vienna Convention on the Law of Treaties: a method to increase the legitimacy of the dispute settlement system, 9 Minnesota journal of global trade 343-360 (2000). John H. Jackson, The jurisprudence of GATT and the WTO: insights on treaty law and economic relations (2000). Haruo Saburi, The GATT/WTO and regional integration, 44 The Japanese annual of international law 60-85 (2001). 3.

World Tourism Organization (www.world-tourism.org)

Laurent Klein, L’Organisation Mondiale du Tourisme, 20 AFDI 659-662 (1974). Patrick Vrancken, The World Tourism Organisation, 24 South African yearbook of international law 231-245 (1999). 4.

International Refugee Organization (IRO) (dissolved)

Louis W. Holborn, The International Refugee Organization, a specialized agency of the United Nations, Its History and Work (1956). 5.

United Nations Relief and Rehabilitation Administration (UNRRA) (dissolved)

George Woodbridge, UNRRA The History of the United Nations Relief and Rehabilitation Administration (1950). C.

International Commodity Councils

1.

General

J.E.S. Fawcett, The Function of Law in International Commodity Agreements, 44 BYIL 157-176 (1970).

1233

Selected bibliography on individual international organizations

Pierre Michel Eisemann, L’Organisation internationale du commerce des produits de base: droit des accords intergouvernementaux producteurs-consommateurs (1982). K. Khan, The law and organization of international commodity agreements (1982). James A. Crutchfield, Regional fisheries councils: what have they done and how have they worked? 18 Proceedings Law of the Sea Institute Annual Conference 444-459 (1985). B.S. Chimni, International commodity agreements: a legal study (1987). Horst-Michael Pelikahn, Internationale Rohstoffabkommen (1990). E. Quill, The failure of international commodity agreements: forms, functions, and implications, 22 Denver Journal of International Law and Policy 503-539 (1994). Marcelo Raffaelli, Rise and demise of commodity agreements: an investigation into the breakdown of international commodity agreements (1995). Erik Chrispeels, International commodity organisations in transition (2002). 2.

International Cocoa Council (www.icco.org)

Pierre Michel Eisemann, L’Accord international sur le cocoa, 21 AFDI 738-766 (1975). 3.

International Coffee Council (www.ico.org)

Bart S. Fisher, The International Coffee Agreement A Study in Coffee Diplomacy (1972). James Mwanda, John Nicholls, Malcom Sargent, Coffee the international commodity agreements (1985). Matthew J. Foli, International coffee agreements and the elusive goal of price stability, 4 Minnesota journal of global trade 79-102 (1995). 4.

International Sugar Council (www.sugaronline.com/iso/)

Vincent A. Mahler, The political economy of North-South commodity bargaining: the case of the International Sugar Agreement, 38 International Organization 709-731 (1984). 5.

International Tin Council

William Fox, Tin The Working of a Commodity Agreement (1974). Eric J. MacFadden, The collapse of tin: restructuring a failed commodity agreement, 80 AJIL 811-830 (1986). P. Sands, The Tin Council litigation in the English courts, 34 NILR 367-391 (1987). Matthias Herdegen, The insolvency of international organizations and the legal position of creditors: some observations in the light of the International Tin Council crisis, 35 NILR 135-144 (1988). Henry G. Schermers, Liability of international organizations, 1 LJIL 3-14 (1988). Ignaz Seidl-Hohenveldern, Piercing the corporate veil of international organizations: the International Tin Council case in the English Court of Appeals, 32 GYIL 43-54 (1989). Ian A. Mallory, Conduct unbecoming: the collapse of the International Tin Agreement, 5 Am. U.J. Int’l L. & Pol. 835-892 (1990). Romana Sadurska, & C.M. Chinkin, The collapse of the International Tin Council: a case of state responsibility?, 30 VJIL 845-890 (1990). C.T. Ebenroth, Shareholders’ liability in international organizations the settlement of the International Tin Council Case, 4 LJIL 171-183 (1991).

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1234

IV.

Closed organizations

A.

Intercontinental Organizations of “Western” States

1.

Organization for Economic Cooperation and Development (OECD) (www.oecd.org)

Henry G. Aubrey, Atlantic Economic Cooperation: the Case of the OECD (1967). Hugo J. Hahn and Albrecht Weber, Die OECD: Organisation für Wirtschaftliche Zusammenarbeit und Entwicklung (1976). Michael Henderson, The OECD as an instrument of national policy, Internat. J. (Toronto) 793-814 (1981). David J. Blair, Trade negotiations in the OECD: structures, institutions and states (1993). 2.

North Atlantic Treaty Organization (NATO) (www.nato.int)

NATO Facts and Figures (published by NATO). Stanley R. Sloan, NATO’s future: towards a new transatlantic bargain (1986). Manfred Wörner, NATO in the 1990’s: challenges and opportunities, 42 Stud. Diplom. 5-10 (1989). Richard Bates, NATO’s mid-life crisis, 68 Foreign Aff. 37-52 (1989). Keith A. Dunn & Stephen J. Flanagan, NATO in the fifth decade (1990). Ted Galen Carpenter, NATO at 40: confronting a changing world (1990). Keir Bonine, Bureau de l’information et de la presse de l’OTAN, OTAN 1949-1999: 50ème anniversaire: édition commemorative: 50th anniversary (1999). Anton A. Bebler, The challenge of NATO enlargement (1999). Todd Sandler, The political economy of NATO: past, present, and into the 21st century (1999). NATO Handbook (1999). Ronald D. Asmus, Opening NATO’s door: how the alliance remade itself for a new era (2002). B.

European Organizations

1.

European Bank for Reconstruction and Development (EBRD) (www.ebrd.com)

Ibrahim, F.I. Shihata, The role of the European Bank for Reconstruction and Development in the promotion and financing of investment in Central and Eastern Europe: a legal analysis, 5 ICSID Rev. 207-231 (1990). Ibrahim F.I. Shihata, The European Bank for Reconstruction and Development: a comparative analysis of the constituent agreement (1990). D.R.R. Dunnett, The European Bank for Reconstruction and Development: a legal survey, 28 CMLRev. 571-597 (1991). Paul A. Menkveld, Origin and role of the European Bank for Reconstruction and Development (1991). Chris A. Wold, & Durwood Zaelke, Promoting sustainable development and democracy in Central and Eastern Europe: the role of the European Bank for Reconstruction and Development, 7 Am. U.J.Int’l L. & Pol’y 559-604 (1992).

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2. a.

Selected bibliography on individual international organizations

The European Communities/European Union (http://europa.eu.int) General

Mauro Cappelletti, Monica Seccombe, Joseph H.H. Weiler (eds.) Integration through law: Europe and the American federal experience (1986). Juliet Lodge (ed.), European Union: the European Community in search of a future (1986). David Vaughan, Law of the European Communities (1986). H.A.H. Audretsch, Supervision in European community law: observance by the member states of their treaty obligations: a treatise on international and supra-national supervision (2nd rev. ed. 1986). M. Waelbroeck, J.-V. Louis, D. Vignes, J.-L. Dewost, G. Vandersanden (eds.), Commentaire Mégret Le droit de la CEE (fifteen volumes). Albert Bleckmann, Europarecht Das Recht der Europäischen Gemeinschaft (5th ed. 1991). Jean Boulouis, Droit institutionnel des Communautés européennes (3rd ed. 1991). D. Wyatt and A. Dashwood, European Community Law (3rd ed. 1993). T.C. Hartley, The foundations of European Community law: an introduction to the constitutional and administrative law of the European Community (3rd ed. 1994). David A.O. Edward and Robert C. Lane, European Community Law An Introduction (2nd ed. 1995). Stephen Weatherill, Law and integration in the European Union (1995). I. MacLeod, The external relations of the European Communities: a manual of law and practice (1996). Hans von der Groeben et al. (eds.), Kommentar zum EU-EG-Vertrag (5th ed. 1997). Dominic MacGoldrick, International relations law of the European Union (1997). Damian Chalmers, European Union law (1998). Franz J. Heidinger, Introduction to the law and language of the European Union (2. überarb. und erw. Aufl., 1998). Ton Heukels, Niels Blokker, Marcel Brus (eds.) The European Union after Amsterdam A Legal Analysis (1998). P.J.G. Kapteyn and P. VerLoren van Themaat, Introduction to the Law of the European Communities (3rd edition, edited by L.W. Gormley, 1998). Martti Koskenniemi (ed.), International law aspects of the European Union (1998). Andrew Evans, A textbook on EU law (1998). Ralph H. Folsom, European Union law in a nutshell (3rd ed. 1999). Koen Lenaerts and Piet van Nuffel, Constitutional law of the European Union (1999). P.S.R.F. Mathijsen, A guide to European Union law (7th ed. 1999). Stephen Weatherill & Paul Beaumont, EU Law (3rd ed. 1999). Ramses A. Wessel, The European Union’s Foreign and Security Policy – A Legal Institutional Perspective (1999), Wyatt and Dashwood’s European Union law (4th ed. 2000). Jo Shaw, Law of the European Union (3rd ed. 2000). Penelope Kent, Law of the European Union (3rd ed. 2001). K.P.E. Lasok, Law and institutions of the European Union (7th rev. and enlarged ed., 2001). Henry G. Schermers and Denis F. Waelbroeck, Judicial protection in the European Union (6th ed. 2001).

Annex

b.

1236

European Court of Justice (http://curia.eu.int)

K.P.E. Lasok, The European Court of Justice practice and procedure (1984). Hjalte Rasmussen, On law and policy in the European Court of Justice: a comparative study in judicial policymaking (1986). L. Neville Brown and Tom Kennedy, The Court of Justice of the European Communities (4th ed. 1994). Kees Jan Kuilwijk, The European Court of Justice and the GATT dilemma: public interest versus individual rights? (1996). Hjalte Rasmussen, The European Court of Justice (1998). Iris Canor, The limits of judicial discretion in the European Court of Justice: security and foreign affairs issues (1998). Renaud Dehousse, The European Court of Justice: the politics of judicial integration (1998). Anthony Arnull, The European Union and its court of justice (1999). L. Neville Brown, The Court of Justice of the European Communities (5th rev. ed. 2000). Gráinne De Búrca, The European Court of justice (2001). 3.

Benelux Economische Unie (www.benelux.be)

Achille G. Samoy, La création de l’union économique Bénélux, 34 Stud. Diplom. 179-206 (1981). F. Dumon, Le Benelux et l’harmonisation du droit, 101 JT 118-121 (1992). Benelux, Benelux in de kijker, Gedenkboek ter gelegenheid van het 50-jarig bestaan van de samenwerking tussen België, Nederland en Luxemburg (1994). 4.

Central Commission for the Navigation of the Rhine (www.ccr-zkr.org)

W.E. Haak, Experience in The Netherlands Regarding the Case-Law of the Chamber of Appeal of the Central Commission for Navigation of the Rhine, 19 NYIL 3-51 (1988). A. Bos, Reflections on the Provision of the Act of Mannheim Enshrining the Right of Complaint to the Central Commission for the Navigation of the Rhine, in: N. Blokker and S. Muller (eds.), Towards More Effective Supervision by International Organizations, Essays in Honour of Henry G. Schermers Vol. I (1994), at 205-215. 5.

Council of Europe (www.coe.int)

Otto Schmuck (ed.), Vierzig Jahre Europarat: Renaissance in gesamteuropäischer Perspektive? (1990). Hans-Jürgen Bartsch, Council of Europe legal cooperation, 10 YEL 493-533 (1990). John Andrews & Ann Sherlock, Council of Europe, 16 ELR 262-274 (1991). J.-L. Burban, Le Conseil de l’Europe (2nd ed. 1993). H.-P. Furrer, La contribution du Conseil de l’Europe à la construction européenne, in: Société Française pour le Droit International, Les organisations internationales contemporaines, crise, mutation, développement 281-321 (1988). D. Simon, Le Conseil de l’Europe: matrice de la coopération paneuropéenne?, in J.-C. Gautron (ed.), Les relations Communauté européenne Europe de l’Est 683-695 (1991). Denis Huber, A decade that made history: the Council of Europe 1989-1999 (1999).

1237

6.

Selected bibliography on individual international organizations

European Free Trade Association (EFTA) (www.efta.int)

John S. Lambrinidis, The Structure, Function anf Law of a Free Trade Area (1965). Felix Wieser, European Free Trade Association (EFTA), in: Kenneth Robbert Redden (ed.), Modern Legal Systems Cyclopedia 381-461 (1984). Friedl Weiss, The European Free Trade Association after twenty five years, 5 YEL 287-323 (1985). Iver B. Neumann, The European Free Trade Association: the problems of an all-European role, 27 CMLRev. 359-377 (1990). Hansjörg Renk, EFTA a new turn at 30, 4 Int. Geneva Yb. 64-69 (1990). Finn Laursen, EFTA and the EC: implications of 1992 (1990). Thomas Pedersen, European Union and the EFTA countries: enlargement and integration (1994). 7.

European Space Agency (ESA) (www.esa.int)

Jean Chappez, La création de l’Agence spaciale européenne, 21 AFDI 801-823 (1975). Valerie Anne Hood, The European Space Agency, 3 YEL 239-266 (1983). G. Lafferanderie, L’Agence Spatiale Europeenne une approche bibliographique, ESA Bull. 85-98. (1984). George van Reeth & René Oosterlinck, Experience of the European Space Agency, in K.H. Böckstiegel, Space Stations 187-197 (1985). G. Lafferranderie, The enlargement of the European Space Agency legal issues, 15 J. Space L. 119-130 (1987). European Centre for Space Law (ed.), The Implementation of the ESA Convention Lessons from the Past (1994). Roger M. Bonnet, International cooperation in space: the example of the European Space Agency (1994). 8.

Nordic Council (www.norden.org)

Erik Solem, The Nordic Council and Scandinavian Integration (1977). René Milas, L’intégration nordique: aspects juridiques et institutionnels, RMC 420-430 (1984). Nordic Council, The Nordic Council and European cooperation / report of the Nordic Council’s Committee on International Cooperation (1989). Carsten Krage, Die Tätigheit des Nordischen Rates im Jahre 1989, 33 GYIL 460-485 (1990). T.H. Sveinsson, Activities of the Nordic Council 1990-1992, 36 GYIL 495-523 (1993). 9.

Western European Union (WEU)

Armand Imbert, L’Union de l’Europe occidentale (1968). Alfred Cahen, La défense européenne: perspectives nouvelles ouvertes par la réactivation de l’Union de l’Europe Occidentale, 33 Annu. Eur. (The Hague) 15-38 (1985). Peter Schmidt, The WEU: a union without perspective?, 27 Aussenpolit. 388-399 (1986). Daniel Colard, L’UEO et la securité européenne, 44 Déf. Nat. 75-83 (1988). G.P. Burduli, Die Wiederbelebung der Westeuropäischen Union, 42 SW/GB 623-639 (1989). Liapis, Assemblée de l’Union de l’Europe occidentale (1996).

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C.

Organizations of Socialist States

1.

General

Richard Szawlowski, The System of International Organizations of the Communist Countries (with twnety-two basic texts of Eastern European organizations) (1976). William E. Butler, A Source Book on Socialist International Organizations (1978). 2.

Council for Mutual Economic Assistance (CMEA) (dissolved)

Gunner L. Amundsen, Le Conseil d’Entraide Economique, Structure, Realisations, Perspektives (1971). Jean Caillot, Le CAEM, Aspects juridiques et formes de cooperation économique entre les pays socialistes (1971). N. Faddejew, Der Rat für Gegenseitige Wirtschaftshilfe (1975). Gudrun Burkhard (ed.), Rat für gegenseitige Wirtschaftshilfe: Strukturen und Probleme (1987). Arie Bloed, The external relations of the Council for Mutual Economic Assistance (1988). Adam Zwass, The Council for Mutual Economic Assistance: the thorny path from political to economic integration (1989). Vladimir Sobell, The CMEA in crisis: toward a new European order? (1990). Werner Knüpfer, Die völkerrechtliche Paralyse des Rates für Gegenseitige Witschaftshilfe und verspätete Reformversuche (1992). 3.

Treaty of Friendschip, Co-operation and Mutual Assistance (Warsaw Pact) (dissolved)

Robin A. Remington, The Warsaw Pact Case Studies in Communist Conflict Resolution (1971). Stephen Tiedtke, Die Warschauer Vertragsorganisation (1978). D.

American Organizations

1.

Andean Common Market (www.comunidadandina.org)

David E. Hojman, The Andean pact: failure of a model of economic integration?, 20 JCMS 139-160 (1981). Helmut Fischer, Der Andenpakt: ein Versuch zur Verminderung aussenwirtschaftlicher Abhängigkeit (1981). Francisco V. Garcia-Amador, The law and institutions of the Andean subregional economic integration, in: Comparative law studies: Law and legal systems of the Commonwealth Caribbean states and the other members of the Organization of American States 21-26 (1986). Nicolas De Pierola, The Andean Court of Justice, 2 Emory J. Int’l Disp. Res. 11-38 (1987). E. Barlow Keener, The Andean Common Market Court of Justice: its purpose, structure, and future, 2 Emory J. Int’l Disp. Res. 39-71 (1987). Marcia Covarrubias, Le Pacte Andin ou Accord de Carthagène, 28 Et. Internat. 107-124 (1988). Aline Frambes-Alzerreca, Der Andenpakt: Wandlungen eines Integrationsprozesses (1989).

1239

Selected bibliography on individual international organizations

Christine Wyatt, Regionale Integration und Entwicklung: Möglichkeiten und Grenzen des Andenpakts (1989). Werner Lachmann (ed.), Andenpakt und Europäische Gemeinschaft: ein Symposion der Johannes Gutenberg-Universität, Mainz und der Universidad de los Andes, Bogotá (1990). César Amorim Krieger, The possibilities of integration in the Americas: Mercosur, Nafta, the Andean Pact and the summit of the western hemisphere in 1994 (1996). 2.

Caribbean Community (CARICOM) (www.caricom.org)

Hans J. Geiser, Legal Problems of Caribbean Integration. A Study on the Legal Aspects of CARICOM (1976). Anselm Francis, Treaty establishing the Caribbean Community an analysis, 22 IJIL 278-288 (1982). B.G. Ramcharan & L.B. Francis (eds.), Caribbean Perspectives on International Law and Organizations (1989). C. Ray Miskelley, Grand Anse Declaration: can the Caribbean Community realistically integrate intraregional trade and production within the confines of the CARICOM Treaty by 1993?, 20 Ga. J. Int’l & Comp. L. 185-205 (1990). 3.

The Organization of Eastern Caribbean States (www.oecs.org)

William C. Gilmore, Legal and institutional aspects of the Organisation of Eastern Carribbean States, 11 EA 311-328 (1985). P.K. Menon, The Organization of Eastern Caribbean States an important milestone in subregional integration, 17 U. Miami Inter-Am. L. Rev. 297-311 (1986). P.K. Menon, Eastern Carribean States: institutional arrangements to promote cooperation among member states, 14 Nigerian J. Int’l Aff. 146-170 (1988). 4.

Central American Common Market

K.R. Simmonds, The Central American Common Market, 16 ICLQ 911-955 (1967). Roberto Eugenio Fischmann, The Central American Common Market (CACM), in Kenneth Robert Redden (ed.), Modern Legal Systems Cyclopedia 695-717 (1985). Mechthild Minkner, Central American integration: evolution, experiences and perspectives, 32 GYIL 195-240 (1989). 5.

North American Free Trade Association (NAFTA) (www.nafta-sec-alena.org)

R. Edward Ishmael Jr., NAFTA: dispute resolution procedures, 2 Am. Rev. Int’l Arb. 455472 (1991). Taylor L. Wilson, and Rona R. Mears, Let the games begin: the tough road ahead for the North American Free Trade negotiations, 27 Tex.ILJ 865-881 (1992). T.J. Schoenbaum, The North American Free Trade Agreement (NAFTA): good for jobs, for the environment, and for America, 23 Ga. J. Int’l & Comp. L. 461-506 (1993). K.L. Oelstrom, A Treaty for the future: the dispute settlement mechanisms of the NAFTA, 25 Law & Pol’y Int’l Bus. 783-812 (1994). Frederick M. Abbott, Law and policy of regional integration: the NAFTA and western hemispheric integration in the World Trade Organization system (1995).

Annex

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César Amorim Krieger, The possibilities of integration in the Americas: Mercosur, Nafta, the Andean Pact and the summit of the western hemisphere in 1994 (1996). Leon E. Trakman, Dispute settlement under the NAFTA: manual and source book (1996). Stefan A. Schirm, Kooperation in den Amerikas: NAFTA, MERCOSUR und die neue Dynamik regionaler Zusammenarbeit (1996). Richard Senti, NAFTA die nordamerikanische Freihandelszone: Entstehung - Vertragsinhalt - Auswirkungen (1996). Dorinda G. Dallmeyer, Joining together, standing apart: national identities after NAFTA (1997). Ralph H. Folsom, Handbook of NAFTA dispute settlement (1998). Vicente Guillermo Arnaud, Mercosur, Unión Europea, Nafta y los procecos de integración regional (2a. ed., ampliada y actualizada, 1999). Ralph Haughwout Folsom, NAFTA in a nutshell(1999). Stephen Clarkson, “Apples and oranges”: prospects for the comparative analysis of the EU and NAFTA as continental systems (2000). Maxwell A. Cameron, The making of Nafta: how the deal was done (2000). Joseph A. MacKinney, Created from NAFTA: the structure, function, and significance of the treaty’s related institutions (2000). J.H.H. Weiler, The EU, the WTO and the NAFTA: towards a common law of international trade? (2000). 6.

Organization of American States (OAS) (www.oas.org)

Charles G. Fenwick, The OAS (1963). Ann van Wynen Thomas and A.J. Thomas Jr., The Organization of American States (1963). L. Ronald Scheman, The OAS and the quest for international cooperation: American vision or mirage, 13 Case W. Res. J. Int.’l L. 83-105 (1981). Henry Wells, The institutional framework of inter-American relations, 13 Calif. W. Int’l L.J. 223-247 (1983). Francisco Orrego Vicuña, A la recherche d’un nouveau rôle pour l’Organisation de Etats Américains: le Protocole d’amendements de 1985 de la Charte, 33 AFDI 784-797 (1987). L. Ronald Scheman, Institutional reform in the Organization of American States 1975-1983: a case study in problems of international cooperation, 7 Pub. Admin. & Dev. 215-236 (1987). Henry H. Han, Problems and prospects of the Organization of American States: perceptions of the member states’ leaders (1987). F.V. Garcia-Amador (ed.), The Inter-American system: treaties, conventions & other documents; a compilation (1987). Rudolf Dolzer, Enforcement of international obligations through regional arrangements: structures and experience of the OAS, 47 ZaöRV 113-133 (1987). Ronald L. Scheman, The Inter-American dilemma: the search for inter-american cooperation at the centennial of the inter-american system (1988). Richard J. Bloomfield & Abraham I. Lowenthal, Inter-American institutions in a time of change, 45 Internat. J. 867-888 (1990). O.C. Stoetzer, The Organization of American States (2nd ed. 1993). D. Sheinin, The Organization of American States (1995). Christopher R. Thomas, The Organization of American States in its 50th year: overview of a regional commitment (1998).

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Selected bibliography on individual international organizations

E.

African Organizations

1.

General

S. Akintan, The Law of International Economic Institutions in Africa (1977). Raymond Ranjeva, La succession d’organisations internationales en Afrique (1978). D. Mazzeo (ed.), African Regional Organizations (1984). Mohamed Bedjaoui, Le projet de création d’une Communauté Economique Africaine: Problèmes institutionnels et juridiques, Rev. Algér. Rel. Internat., 35-51 (1986). M. Glété-Ahanhanzo, Introduction à l’organisation de l’unité africaine et aux organisations régionales africaines (1986). Maurice Kamto, La Communauté économique des Etats de l’Afrique centrale (CEEAC) une Communauté de plus?, 33 AFDI 839-862 (1987). E. Kwam Kowassi, Organisations Internationales Africaines (1987). Robert Julienne, Vingt ans d’institutions monétaires ouest-africaines: 1955-1975 (1988). Sylvie Belaouane-Gherari, Les organisations régionales africaines: recueil de textes et documents (1988). Pierre-François Gonidec, Les organisations internationales africaines: étude comparative (1988). Guy Martin, African regional integration: lessons from the West and Central African experiences (1989). Frank T. Joshua, Experience of African regional economic integration, 1 UNCTAD Rev. 59-78 (1989). Jon Walters, Renegotiating dependency: the Case of the Southern African Customs Union, 28 JCMS 29-52 (1989). Regional organisations in Africa, 24 Quart. J. Adm., special issue with contributions by various authors (1989/90). Umesh Kumar, Southern African Customs Union and BLS-Countries (Botswana, Lesotho and Swaziland), 24 JWT 31-53 (1990). Richard Fredland, A guide to African international organizations (1990). Piero Pennetta, Le organizzazioni internazionali dei paesi in via di sviluppo – Vol. 1: Le organizzazioni economiche regionali africane (1998). 2.

African Development Bank (ww.afdb.org)

Yewou Charles Amegavie, La Banque Africaine de développement (1977). Kwame D. Fordwor, The African Development Bank: problems of international cooperation (1981). Craig Scott Barnes, The African Development Bank’s role in promoting regional integration in the Ecomomic Community of West African States, 4 Boston College Third World L.J. 151-182 (1984). Michael Reiterer, Die Afrikanische Entwicklungsbank und ihr “Afrikanischer Charakter”: zwei Jahrzehnte afrikanischer Entwicklungshilfepolitik, 23 AVR 294-336 (1985). Karen A. Mingst, Politics and the African Development Bank (1990). 3.

East African Community (www.eachq.org)

Victor Umbricht, Principles of international mediation. The case of the East African Community, 187 RdC 307-390 (1984). George Nangale, Know the reborn East-African community (2002).

Annex

4.

1242

Economic Community of West African States (ECOWAS) (www.ecowas.int)

T.O. Elias, The Economic Community of West Africa, YbWA 93-116 (1978). Uka Ezenwe, ECOWAS and the economic integration of West Africa (1983). S.B. Ajulo, Law, language and international organisation in Africa: the case of ECOWAS, 29 JAL 1-25 (1985). Julius Emeka Okolo, Integrative and cooperative regionalism: the economic community of West African states, 39 International Organization 121-153 (1985). Akinola A. Owosekun (ed.), Towards an African Economic Community: (Lessons of experience from ECOWAS); proceedings of an international conference (1986). Alhaji M. Munu, The future of ECOWAS (1989). Julius Emeka Okole, Ecowas regional cooperation regime, 32 GYIL 111-137 (1989). Julius Emeka Okole, Obstacles to increased intra-ECOWAS trade, 44 Int. J. 171-214 (1989). Augustus Asante Agyemang, Trade liberalization under the Treaty of the Economic Community of West African States (ECOWAS): some preliminary highlights of legal and economic problems, 24 JWT 57-104 (1990). Ibrahim A. Gambari, Political and comparative dimensions of regional integration: the case of ECOWAS (1991). Yinka Omorogbe, The legal framework for economic integration in the ECOWAS region: an analysis of the trade liberalisation scheme, 5 Afr. Journal of Int. and Comp. Law 335370 (1993). K. Oteng Kufuor, Law, power, politics and economics: critical issues arising out of the new ECOWAS Treaty, 6 Afr. Journal of Int. and Comp. Law 429-448 (1994). Obasi Okafor-Obasi, Die Wirtschaftsgemeinschaft Westafrikanischer Staaten (ECOWAS): Hintergrund, rechtliche Probleme und Lösungsvorschläge (1995). Thomas Jaye, Issues of sovereignty, strategy, and security in the Economic Community of West African States (ECOWAS) intervention in the Liberian Civil War (2003). 5.

Organization of African Unity (OAU)

Boutros Boutros-Ghali, L’Organisation de l’Unité Africaine (1969). Jon Woronoff, Organizing African Unity (1970). Yassin El-Ayouty & I. William Zartman, The OAU after twenty years (1984). Abdoul Ba, Bruno Koffi & Fethi Sahli, L’Organisation de l’Unité Africaine: de la Charte d’Addis Abeba à la Convention des Droits de l’Homme et des Peuples (1984). Edmond Jouve, L’Organisation de l’Unité Africaine (1984). Jean Mfoulou, L’OUA triomphe de l’unité ou des nationalités: essai d’une sociologie politique de l’Organisation de l’Unité Africaine (1987). Kwesi Krafona (ed.), Organization of African Unity: 25 years on essays in honour of Kwame Nkrumah (1988). R.A. Akindele (ed.), The Organization of African Unity 1963-1988 (1988). Asuka-Ngongo Mononi, L’Organisation de l’Unité Africaine: vingt ans après des espoirs deçus? (1988). Gino J. Naldi, The Organization of African Unity: an analysis of its role (1989). B. Boutros Ghali, L’OUA, 25 ans après, 34 Et. Internat. (Tunis) 11-20 (1990). Maurice Kamto, Jean-Emmanuel Pondi, Laurent Zang, L’OUA: rétrospective et perspectives africaines (1990). Joffre P. Dias, Le panafricanisme et l’Organisation de l’Unité Africaine: synthèse historique et bibliographique (1990).

1243

Selected bibliography on individual international organizations

Gino J. Naldi (ed.), Documents of the Organization of African Unity (1992). Y. El-Ayouty (ed.), The Organization of African Unity after thirty years (1994). Klaas van Walraven, Dreams of Power – The Role of the Organization of African Unity in the Politics of Africa 1963-1993 (1996). Uwe Tonndorf, Menschenrechte in Afrika: Konzeption, Verletzung und Rechtsschutz im Rahmen der OAU (1997). 6.

Southern Africa Development Coordination Conference (SADCC)

P.E. Slinn, The Southern African development coordination conference, 38 YbWA 183-197 (1984). Konrad Ginther, Völkerrechtliche Aspekte der Southern African Development Coordination Conference (SADCC), 5 Jb. Afr. Recht 47-65 (1984). Wolff-Christian Peters, Regionale Kooperation und der Konflikt im südlichen Afrika: zur Bedeutung der Southern African Development Coordination Conference (SADCC) (1987). Gupta, Vijay, Pressures against regional cooperation: a study of the SADCC, 26 Internat. Stud. (New Delhi) 299-322 (1989). Olayiwola Abegunrin, Economic dependence and regional cooperation in Southern Africa: SADCC and South Africa in confrontation (1990). 7.

The African Union (www.africa-union.org)

African Yearbook of International Law, Vol. 9, 2001 (special theme: the African Union). F.

Arab Organizations

1.

General

Taoufik Bouachba, L’organisation de la Conference islamique, 28 AFDI 265-291 (1982). Fakhri Kaddari, The joint Arab economic action and the role of the Council of Arab Economic Unity, 36 Stud. Diplom. 29-48 (1983). Abdelaziz Djerad, La concentration multilatérale entre les Etats arabes, 5 Rev. Algèr. Rel. Internat. 49-60 (1987). S.A. Meenai, The Islamic Development Bank: a case study of Islamic cooperation (1989). Susanne Bauer & Joachim Oehme, Arabische Institutionen: datenblätter über arabische Entwicklungsbanken und multilaterale arabische Institutionen (1989). Maurice Flory and Pierre-Sateh Agate (eds.), Le système régionale arabe (1989). 2.

Arab Common Market

Muhammad Diab, The Arab Common Market, 4 JCMS 238-250 (1965). Fawzi Saadeddin, Der “Arabische Gemeinsame Markt” Ein Erfolg? 1 Orient 87-107 (1976). 3.

Arab Maghreb Union/Union du Maghreb Arabe (www.maghrebarabe.org)

Zakya Daoud, Dossiers et documents: la creation de l’Union du Maghreb Arabe, 124 Monde Arabe Maghreb Machrek 120-137 (1989).

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1244

Habib Gherari, L’Union du Maghreb Arabe, 43 Stud. Diplom. 83-115 (1990). Abdelkader El Kadiri, Réflexions sur le traité de Marrakech constituant l’Union du Maghreb Arabe, 95 RGDIP 71-92 (1991). Eva Weidnitzer, Regionale Kooperation im Rahmen der “Union de Maghreb Arabe” und Perspektiven der Zusammenarbeit mit der EG (1991). Sadok Belaid, Le traité de Marrakech et la construction de l’Union du Maghreb Arabe, in: Le droit international au service de la paix, de la justice et de développement, Mélanges Michel Virally (1991). Robert W. McKeon Jr., The Arab Maghreb Union: possibilities of Maghrebine political and economic unity, and enhanced trade in the world community, 10 Dick. J. Int’l L. 263-302 (1992). 4.

Gulf Cooperation Council

Mohammed-Reza Djalili, Le Conseil de Cooperation du Golfe: quelques problemes d’ordre structurel, 36 Stud. Diplom. 625-636 (1983). Liesl Graz, Die Bedeutung des Golf-Kooperationsrats für die Region, 40 EA 75-86 (1985). Mohamed Badaoui, Le Conseil de Coopération du Golfe: organisation de coopération pour le développement inter-arabe ou instrument du golfo-tropisme? 46 RJPIC 430-437 (1992). E.R. Peterson, The Gulf Cooperation Council: search for unity in a dynamic region (1988). R.K. Ramazani, The Gulf Cooperation Council: record and analysis (1988). S.B. Farajallah, Le Conseil de Coopération des Etats Arabes du Golfe, 228 RdC 9-182 (1991 III). 5.

League of Arab States (www.arableagueonline.org)

Robert W. MacDonald, The League of Arab States (1965). Boutros Boutros-Ghali, La Ligue des Etats arabes, 137 RdC 1-82 (1972 III). S.G. Zamzani, The origins of the League of Arab States and its activities within the member states: 1942-1970 (thesis Claremont Graduate School 1978). Sadok Chaobane, La réforme du Pacte de la Ligue des Etats Arabes, 86 RGDIP 508-542 (1982). Lazhar Bouony, Le régime des décisions dans la Ligue des Etats arabes réalité et perspectives, 29 AFDI 543-563 (1983). I. Pogany, The Arab League and regional peace keeping, 34 NILR 54-74 (1987). Istvan Pogany, The Arab League and peacekeeping in the Lebanon (1990). Rafaa Ben Achour, La reintegration de l’Egypte au sein de la Ligue des Etats Arabes, 94 RGDIP 743-762 (1990). G.

Asian Organizations

1.

Australia, New Zealand and United States Security Pact (ANZUS).

Compbell McLachlan, ANZUS: the treaty reappraised, NZLJ 271-279 (1985). Grant Hewison, Withdrawal from ANZUS, NZLJ 87-89 (1986).

1245

2.

Selected bibliography on individual international organizations

Asian Development Bank (www.adb.org)

Dennis T. Yasutomo, Japan and the Asian Development Bank (1983). Aleth Manin, La participation de la Republique populaire de Chine et de Taiwan a la banque asiatique de développement, in: Actualités juridiques et politiques en Asie: études à la memoire de Van Minh (1988). Law and development at the Asian Development Bank (Asian Development Bank Office of the General Counsel, 4th ed. 1998). 3.

Association of South East Asian Nations (ASEAN) (www.aseansec.org)

Stuart Drummond, Fifteen years of ASEAN, 20 JCMS 301-319 (1982). Jun Mishikawa, ASEAN and the United Nations system (1983). Patricia Lim (Ed.), ASEAN: a bibliography (1984). Vitit Muntarbhorn, The future of ASEAN legal cooperation, 4 Chula. L. Rev. 17-38 (198586). Purificacion Valera-Quisumbing, Asean legal cooperation: quest and challenge, 1 ASEAN L. & Soc’y J. 1-21 (1984). Vitit Muntarbhorn, The challenge of law: legal cooperation among ASEAN countries (1986). Ronald D. Palmer, Building ASEAN: 20 years of Southeast Asian Cooperation (1987). Donald K. Emerson, ASEAN as an international regime, 41 J.Internat.Aff. 1-16 (1987). Ajita Thuraisingham (ed.), Asean: a bibliography 1981-1985 (1988). R. Nagi, ASEAN 20 years: a comprehensive documentation (1989). Alison Broinowski (ed.), ASEAN into the 1990’s (1990). Michael Antolik, ASEAN and the diplomacy of accommodation (1990). Susanne Feske, ASEAN: ein Modell für regionale Sicherheid: Ursprung, Entwicklung und Bilanz sicherheitspolitischer Zusammenarbeit in Südostasien (1991). S. Sucharitkul, ASEAN society: a dynamic experiment for South-East Asian regional cooperation, Asian Yb. Int. Law Vol. 1 (1991), at 113-148. P. Kenevan and A. Winden, Flexible free trade: the ASEAN Free Trade Area, in: 34 HILJ 224-240 (1993). Paul J. Davidson, ASEAN: the legal framework for its trade relations, 49 International Journal 588-612 (1993-1994). Deborah A. Haas, Out of others’ shadows: ASEAN moves toward greater regional cooperation in the face of the EC and NAFTA, 9 Am.U.J.Int’l L. & Pol’y 809-867 (1993-1994). John Redmond, ASEAN in a world of trade blocs: regional integration in the AsiaPacific, in Till Geiger and Dennis Kennedy (eds.), Regional trade blocs, multilateralism, and the GATT (1996). Sophie Boisseau du Rocher, L’ASEAN et la construction régionale en Asie du Sud-Est (1998). Jeannie Henderson, Reassessing ASEAN (1999). May T. Yeung, Regional trading blocs in the global economy: the EU and ASEAN (1999). Nikolas Busse, Die Entstehung von kollektiven Identitäten: das Beispiel der ASEANStaaten (2000). Katja Gehrt, Die Sicherheitspolitik der ASEAN: Grenzen, Probleme, Perspektiven (2000). Sompong Sucharitkul, Dispute settlement; ASEAN (United Nations, 2003).

Annex

1246

H.

Closed Functional Organizations

1.

Organization of the Petroleum Exporting Countries (OPEC) (www.opec.org)

OPEC, OPEC Facts and Figures, 1982-1990 (1991). Fuad Rouhani, A History of O.P.E.C. (1971). Zuhayr Mikdashi, The Community of Oil Exporting Countries (1972). Anwar-I-Quadeer, A multilateral agreement on oil, 3 Hous. J. Int’l L. 1-50 (1981). Ian Seymour, OPEC: instrument of change (1981). A.L. Danielsen, The Evolution of OPEC (1982). A. Alnasrawi, OPEC in a Changing World Economy (1985). P. Terzian, OPEC: the inside story (1985). Shukri Ghanem, OPEC, the rise and fall of an exclusive club (1986). J. Evans, OPEC, its member states and the world energy market (1986). A. Sampson, The Seven Sisters (1988). Ian Skeet, OPEC: twenty-five years of prices and politics (1988). Coby van der Linde, Dynamic International Oil Markets, Oil Market Developments and Structure 1860-1990 (1991). 2.

International Energy Agency (IEA) (www.iea.org)

Mason Willrich and Melvin A. Conant, The International Energy Agency: An Interpretation and Assessment, 71 AJIL 199-223 (1977). Richard F. Scott, Role of the IEA in world energy supplies, 3 Hous. J. Int’l L. 101-113 (1980). A.C. Evans, The International Energy Agency, 15 JWTL 440-450 (1981). Richard H. Lauwaars, Some institutional aspects of the International Energy Agency, 12 NYIL 113-145 (1981). IEA, International Energy Agency (1983). Richard Scott, The History of the International Energy Agency: IEA, the first twenty years, 1974-1994 (1994). Richard Scott, The history of the International Energy Agency: IEA, the first twenty years, 1974-1994 (1994). 3.

Organization for Security and Cooperation in Europe (OSCE) (www.osce.org)

A. Bloed (ed.), The Conference on Security and Cooperation in Europe: Analysis and Basic Documents, 1972-1993 (1993). D. McGoldrick, The development of the Conference on Security and Cooperation in Europe (CSCE) after the Helsinki 1992 Conference, 42 ICLQ 411-432 (1993). OSCE Handbook (1999).

Index

A absence, from voting, §305, 831-836, 892 absorption, §1627 abstention, §824-829, 832, 837, 1339 · by party in dispute, §789 abuse of power, see powers, misuse of abuse of procedure, §353 acceptance, · negative -, §1172, 1264-1266, 12881294 · - of gifts, §1049 · - of membership, §100-101 · - of resolutions, §1231-1232 acclamation; see consensus accounting standards (UN), §1127 act, see decisions Act of State doctrine, §1353 acquis institutionnel, §1897 ad hoc commissions, §426, 649, 726, 1240, 1360 ad hoc judges, §675-678 adjournments of meetings, §307, 350 administrative expenditure; see costs administrative jurisdiction, §602, 605 administrative tribunals, §544, 602, 642-647 · access to -, §690 · composition, §643, 672 · regional -, §647 admission, §85-99 · see also membership advisors, §239 Advisory Committee on Administrative and Budgetary Questions (ACABQ), §715, 1050, 1099, 1106

advisory opinions, §689, 694, 13661373; see also International Court of Justice advisory organs, §556-702; see also parliamentary and judicial Advocates-General, §684 affiliate members, §172 Afghanistan, §882 African Charter on Human and People’s Rights, §630 African Commission on Human and People’s Rights, §630, 660 African Court on Human and People’s Rights, §630 African Development Bank, §798, 800, 1629 African Postal and Telecommunications Unions, §956 African Union, §397, 1357 Agency for International Trade Information and Cooperation, §47 agenda, §338-339, 393, 444(3), 844 · adoption of -, §338-339 · approval of -, §339, 844 · discussion of - items, §342 · proposal of - items, §713, 719, 844 Agenda for Development, §946-947, 950 Agenda for Peace, §1494 Agera Case (CoJ), §1337 Agreement on an International Energy Programme, §710 Agreement on Textiles and Clothing, §656 agreements, §1743-1800, 1876; see also headquarters · association -, §1780-1782; see EC/EU

Index

· after dissolution of organizations, §1661-1664 · - between int. organizations, §185187, 450, 1099, 1581, 1747, 1749 · - between organs, §889-891, 1202, 1746 · - between specialized agencies, §186, 1223 · binding force, §1787-1788 · competence to conclude -, §17481768, 1770, 1785 · competent organ, §1763-1768 · - concerning dissolution, §1639 · conclusion, §1789-1792 · definition, §1744-1747 · entry into force, §1794 · establishing new organizations, §1776-1782 · internal -, §889-891, 1202, 1746 · law-making, §1773-1775, 1847, 1862 · legal force of -, §1783-1788 · mixed -, §1756-1762 · - on development, §1771 · partial -, §1055, 1268, 1270 · partial adherence to -, §1759-1760 · registration, §1796-1797 · reservations, §1795 · revocation of -, §1786, 1789 · subjects for -, §1769-1782 · succession -, §1749 · termination, §1799-1800 · validity, §1784-1786 · - with host state; see headquarters · - with member states, §1749 · - with non-member states, §1749 · - with specialized agencies; see UN agrément, §1826 aircraft, registration of -, §1870-1871 allowances, · of staff members, §512 Alphasteel Case (CoJ), §906 amendment, see also conventions and constitutional, · - by decision, §1178-1186 · - by interpretation, §1185 · - by qualified majority, §1173-1177 · - by unanimity, §1160, 1168-1172 · entry into force, §1194

1248

· · · ·

- of decisions, §898-904 majority required for -, §902 - of proposals, §752 - of conventions, §1294, 1303, 1311-1317 · methods of -, §1313 · procedure for -, §1189-1195 · voting on -, §845, 854 · withdrawal of -, §768 American Convention on Human Rights, §629, 1431; see also Organization of American States · petitions, §1431 amicus curiae, §450 Andean Common Market, §624; see Andean Integration Agreement Andean Court of Justice, §24, 624, 1897 · access to -, §690 · composition, §672, 678, 681 · preliminary rulings, §691, 1374, 1377, 1537 Andean Integration Agreement, §392393 · Junta, §415, 689 · voting, §788, 816 Andean Parliament, §564, 566 annulment of decisions, §911 · judicial -, §912-915 Antarctic Treaty, §30 Appeals Board, §543 approval of decisions, · - by member states, §892-896 · - by other organs, §889-891, 911, 1792, 1794, 1853 Arab Common Market, · conditions on membership, §92 Arab League; see League of Arab States Arab Organization for Industrialization, §1588 arbitral tribunal, §1452 arbitration, §692, 1358, 1859 · - commissions, §648-669; see also mediation, conciliation and factfinding · rules of -, §650, 664 archives, §1677 Argentina, · Eichmann kidnapping, §790 arms embargoes, §1483 Asian Development Bank, §800, 1629

1249

assembly, §566; see also parliamentary organs assistance, §454-455, 945-950, 1053, 1692; see also development · agreements on -, §1771 assizes, §584 associate members, §117, 166-168 · see also members and membership Association of South East Asian Nations (ASEAN), · secretariat, §434, 522, 525 attributed competence, doctrine of -, §209-210, 382 audit, · external -, §1125-1130 · internal -, §1123-1124 Austria, · application of IMF Agreement, §1539 · sanctions by EU members, §1449 Austrian-German Property Treaty, §1377 B Badinter Commission, §651 Balkan Alliance, §1709 Bank for International Settlements, §82, 647, 1603 Belgium, · enforcement of international rules, §1534 · legal personality of int. organizations, §1595 Belgium-Luxemburg Economic Union (BLEU), §1562 Benelux, · bound by EC decisions, §1580 · College of Arbitrators, §663, 685, 692 · advisory opinions, §1373 · Consultative Interparliamentary Council, §565, 569, 582, 594 · Court of Justice, §622 · Advocates-General, §684 · composition, §672, 679 · preliminary rulings, §691, 694, 1377 · registrar, §685 · delegations, §254

Index

· · · · ·

external audit, §1128 initiatives, §713 legal order, §1268 organs of civil servants, §275 plenary functional commissions, §405 · precedence of -, §1709 · recommendations, §1230 · sanctions, §1449 · voting, §788 block solidarity, §874 board, §409, 441, 492 · - of auditors, §1124, 1125 · executive -, §410-414; see also executive · governing -, §415-420; see also governing · interpreting rules, §1358 bonds, §1019, 1065 Bonifaci Case (CoJ), §1515, 1517 book-keeping income, §1072-1074 Bosnia-Herzegovina, §1224, 1388 budget, §1091-1130, 1696; see also costs and expenditure · adoption of -, §1109-1122 · approval of -, §1001 · control by parliamentary organs over -, §582-583, 701 · coordination, §1730 · - cycle, §1101-1102 · execution of -, §1121 · explanatory memorandum, §1100 · gifts and the -, §1040-1041 · influence by national parliaments over -, §561(c), 701 · obligation to approve -, §1112 · power to adopt -, §1111-1120 · preparation, §1105-1108, 1696 · - by secretariat, §443 · purpose of -, §1091-1093 · revised estimates, §1108 · structure of -, §1097-1099 · supplementary estimates, §1121 · surpluses, §1122 · unity of -, §1094-1096 · voting on questions of -, §854, 940 budgetary authority, §1111-1120 buildings, §1602, 1673 · cost of -, §960-962, 1073 bureau, §342, 365; see also secretariat

Index

Burkina Fasso, · taxation of staff from -, §530 Bustani Case, §24, 492, 544 Byelorussian SSR, §75, 1845 C Cambodia, · recognition of government, §259 · UN forces in -, §1502, 1833 Canada, · legal status of int. organizations, §1593 capacity, · internal and external, §66-68, 199, 314, 316 · treaty-making -, §1748-1755 capacity to pay, · - of int. organizations, §926, 1001 · - of member states, §976-979 Caribbean Community (CARICOM), §1593, 1633, 1668 · agreements, §1749 · conditions on membership, §92 Caribbean Development Bank, §800 Cartagena Agreement, §392; see also Andean Integration Agreement caucus, §763-765 censorship, §1607 Central African Customs and Economic Union, §967, 1332 Central American Common Market, §1412, 1552, 1617 Central American Court of Justice, §637 Central American Parliaments, §566 Central Commission for the Navigation of the Rhine, §631, 967, 1364 · composition, §672 · sanctions, §1549 centralization of international organizations, §478-488 chairman; see also president · appointment of -, §354-360, 448 · independence of -, §358 · rotation, §355 · task, §342, 361-364, 779 · term of office, §359-360 chambers, §672, 673

1250

Charter of Economic Rights and Duties, §710 China, · - in the Security Council, §830 · membership of FAO, GATT, World Trade Organization, §87 · recognition of government in UN, §258, 1013, 1853 · sanctions against -, §1482 · special UN-mission to -, §1837, 1839 civil servants, §275, 435; see staff claims, §1856-1859 clausula rebus sic stantibus, §1642 Codex Alimentarius Commission (CAC), §1231-1232, 1716 codification, §1249, 1279; see also customary law coercion, §1451; see also sanctions Colombia, · conflict with Peru, §1492 colonies, §166 Commission for Real Property Claims of Displaced Persons and Refugees, §45 commissions, §342, 363, 1789 · advisory -, §426 · arbitration -, §648-669 · composition, §423, 429 · conciliation -, §648-669 · congressional -, §401-403 · consultative -, §424-425 · coordination between -, §448 · fact-finding -, §648-669 · functional -, §422-423, 426, 726 · in parliamentary organs, §595 · mediation -, §648-669 · plenary -, §400-405 · plenary functional -, §404-405 · preparation of decisions by -, §401, 425-426 · preparatory -, §1619-1620 · procedural -, §427 · regional -, §428-431, 441 · supervisory, §1415 committees, §421-431; see also commissions · executive -, see board · national -, §1436, 1831

1251

Committee against Torture (CAT), §613, 660 Committee for Development Planning, §715 Committee on Economic, Social and Cultural Rights, §268, 610 Committee on the Elimination of Racial Discrimination (CERD), §611, 660, 1430 Committee on the Elimination of Discrimination against Women (CEDAW), §612 Committee of Ministers; see Council of Europe Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, §615 Committee on the Rights of the Child, §614 commodity agreements, §302, 15881589, 1773 · sanctions in -, §1513 commodity conferences, §1860 Commodity Council, §480 · contributions, §982 · dispute settlement, §659 · membership, §116, 1177, 1188 · suspension of voting rights, §1456 · taxation, §1083 · voting, §804, 865, 1893 · waiver of obligations, §1444 Common Fund for Commodities, §805, 1694 Common Market for Eastern and Southern Africa, §641, 691, 698, 1377 Common Market Tribunal, see East African Community common system of salaries (UN), §506 Commonwealth, §35 communications, §607, 609-615 competence(s), §209-210, 217-218 · delimitation of -, §1712-1714 · - to adopt budget, §1111-1120 · - to amend constitution, §1189 · - to bring and receive international claims, §1856-1858 · - to bring international claims to court, §1859 · - to conclude agreements, §17481768, 1785, 1790

Index

· · · ·

- to contract loans, §1065 - to create trust funds, §1031 - to decide on expenses, §939 - to decide on expulsion/ suspension, §262-263 · - to impose sanctions, §1472 · - to issue declarations, §1247 · - to make conventions, §1271-1275 · - to perform acts of recognition, §1853-1854 · - to perform operational activities, §1210-1215 · - to present gifts, §1047 · - to request interpretations, §13791386 composition of organs, see organs conciliation, §462-463; see also arbitration, mediation and fact-finding · - commissions, §648-669 · - in UNCTAD, §777 concurrent opinion, §695-699 conferences, §1860, 1881; see also meeting and session · convening international -, §18601862 · delegations to -, §1841-1842 · financial involvement, §1861 · founding -, §1619 · UN law making -, §1860 Conference on Security and Cooperation in Europe (CSCE), §30, 1885 · Committee of Senior Officials, §665 · dispute settlement procedure, §665 · interparliamentary assembly, §566, 569, 594 · Mechanism procedure, §665 conflicts (law of -), §604 Congo, §1833, 1858 · crisis in -, §713 · technical assistance to -, §455 congress, §306; see also general congress · junior -, §393-395 · specialized -, §396-399 Connolly Case, §516 consensus, §771-786, 887, 923, 1897; see also decision-making · active -, §778 · non-participation in -, §830

Index

constitutional amendment, §896, 903, 1157-1195 · - admission of new members, §8889 · - binding not all members, §11871188 · - by decision, §1178 · - by interpretation, §1185 · - by qualified majority, §1173-1177 · - by unanimity, §1168-1172 · - by UNGA Resolution, §1180 · - creating new obligations; see obligations · dissolution by -, §1628, 1641 · entry into force, §1176, 1194 · exclusion of -, §1166 · - expulsion from int. org., §137, 146 · - in the ECSC, §619, 1166-1167 · legal character, §1163-1164 · need of -, §1157-1162 · procedures for -, §1159, 1177, 1189-1195 · proposals for -, §747, 1183 · provisional application, §1192 · provisions for -, §1155-1156, 11631164, 1182 · requirements for -, §1163-1188 · tacit -, §1155-1156 · variation, §1184 constitutional provisions, · application of -, §1538-1548 · - for amendment, §1155-1156, 1163-1164, 1182 · - on the competence to conclude agreements, §1749-1751 · - on the composition of delegations, §1740(1) · - for dissolution of organization, §1629-1631, 1673 · - for expulsion, §143, 148 · - of legal personality, §1564-1565, 1591 · - on priority of rules, §1707-1711 · - on qualified majority voting, §852-853 · - for recommendations, §1221-1222 · - for sanctions, §1454, 1467, 1470 · - on staff, §540 · - for waiver of obligations, §1444

1252

constitutions, §1145-1195, 1618-1622 · - as mixed agreements, §1762 · - on absence from voting, §834-835 · characteristics of -, §1147-1156 · creation of new organs, §231, 386, 397; see also organs · delegation of power, §224-230, 1145 · - to boards, §410, 416 · - secretariats, §439 · domestic jurisdiction clauses, §207, 211-216 · implied powers, §232, 234 · living -, §1156 · membership, §76, 101 · reservations to -, §1150-1153 · no provisions for -, §1152 · revisions, §1195 · withdrawal from -, §1154 consultants, §466-468; see also observers consultation, · - of experts §739 · - groups, §763 · informal -, §760-762 · mutual -, §1733 · - procedure, §590 Consultative Committee on Administrative Questions (CCAQ), §1717 consultative status, see also observers · - of private int. organizations, §189-195 consulting firms, §466-468 contracting out; see negative acceptance contracts, §1665 contributions, §966-1039, 1074, 1122 · - based on capacity to pay, §976979 · - based on interest, §980-985 · - based on population, §982 · currencies of -, §1006-1009, 1039 · equal -, §967-968, 1895 · - in kind, §1039 · incentives to pay -, §1014-1016 · interest on outstanding -, §1016 · limits to -, §992-1004 · maximum -, §993-1000, 1711 · minimum -, §992 · - from non-members, §1033 · non-payment of -, §1010-1012

1253

· after dissolution of organization, §1675 · optional classes of -, §969-973 · per capita -, §995-996, 998-1000 · refusal to pay -, §1010-1012 · scales of assessment, §974-991, 1730 · flexibility of -, §986-991 · organs competent to adopt -, §1005 · special -, §991, 1002-1004 · table of -, §1021 · voluntary -, §1022-1039, 1074 · acceptance of -, §1125 · collection of -, §1037-1039 · existing systems of -, §1026-1028 · from non-members, §1033 · raising -, §1034-1039 contributors, §966 control, §556-702; see also parliamentary and judicial controller, §1121, 1123 conventions, §1262-1317, 1743; see also agreements and treaty · after dissolution of organization, §1651-1653 · amendment of -, §1266, 1294, 1303, 1311-1317, 1652 · as legislative instruments, §1315 · characteristics of -, §1266-1270 · codifying -, §1279-1280 · definition, §1262 · - drafted by organizations, §893, 903, 1267 · entry into force, §1232, 1291, 1302 · final clauses, §1306-1310 · forms of -, §1263-1265 · legal force, §1276-1297; see ratification · negative acceptance (contracting out, tacit acceptance), §1288-1294 · parties to -, §1298-1305, 1847 · provisional application, §1295-1296 · reservations to -, §1308-1310 · - versus binding decisions, §1328 · - versus recommendations, §1232, 1276 · - versus treaties, §1267 · withdrawal from -, §1263, 1307

Index

Convention against Torture (CAT), §613, 1423, 1431; see also International Committee Convention on Biological Diversity, §779A Convention on the Elaboration of a European Pharmacopoeia, §1296 Convention on the Elimination of All Forms of Discrimination against Women, §612 Convention concerning International Carriage by Rail (COTIF), §357, 525, 661, 980 · negative acceptance, §1292 Convention on International Liability for Damage caused by Space Objects, §1760, 1858 Convention on the Privileges and Immunities of the Specialized Agencies, §1594, 1606-1607, 1795 Convention on the Rights of the Child, §614 co-option, §296 Coordinated Organizations, §1718 Coordinating Committee of Government Budget Experts, §1718 coordination, §1702-1741, 1878 · - at national level, §1739-1741 · - between commissions, §448 · - between regional offices, §490 · - between secretariats, §546 · forms of -, §1705, 1740-1741 · need for -, §1702-1704 · negative -, §1705 · organs responsible for -, §17261731 · planning, §1732 · UNDP, §1820-1828 Costa-ENEL Case (CoJ), §24, 15351537, 1542, 1897 Costa Rica, · withdrawal from LoN, §1450 costs; see also expenditure · administrative -, §938-941 · - of buildings, §960-962 · classification of -, §931-964 · - according to field of activity, §931-937, 942-954 · - according to instrument, §931937, 955-964

Index

· - of conferences, §1861 · - of equipment, §963 · - of int. organizations, §928-930, 943 · - of meetings, §313-316, 957-959 · operational -, §938-941 · - paid by interested parties, §1053 · - sharing, §1056 · - of translations, §369 Council, see board Council for Arab Economic Unity, §1082 Council for Mutual Economic Assistance (CMEA), §1701 · constitutional amendments, §1172 · dissolution, §1624, 1674 · expulsion, §147-148 · seat, §1674 · staff (appointment), §493 · structure, §393, 1701 · voting, §828, 834 Council of Europe (CoE), · agreements, §1749 · amendment of constitution, §1173, 1179, 1181, 1193 · appointment of members of human rights organs, §680 · budget, §929, 964 · building, §961 · Committee of Ministers, §587, 625, 829, 862, 1441, 1452, 1461 · conditions on membership, §95 · constitution, · Art. 1, §1268 · Art. 3, §145 · Art. 4, §95 · Art. 8, §137, 1461 · Art. 9, §1461 · Art. 12, §372 · Art. 14, §244 · Art. 15, §1272 · Art. 26, §569 · Art. 38, §316 · Art. 40, §1749 · Art. 41, §1179 · contributions, §982, 992 · conventions of -, §626, 633, 664, 670, 1243, 1267-1268, 1431 · final clauses, §1306 · open to int. organizations, §1305

1254

· open to non-members, §1300, 1302 · provisional application, §1296 · coordination, §1731, 1735 · decisions, §1220 · diplomatic relations, §1804, 1840 · expulsion from -, §137, 145 · external relations, §1712, 1716, 1721, 1723, 1725 · flag, §1874 · grades of staff, §509 · incomes from investments, §1068 · Parliamentary Assembly, §385, 565, 626-627, 1461 · advisory functions, §585, 587 · committees, §595 · control over budget, §582 · dual mandate, §573 · initiative, §587, 717 · political groups, §575, 596 · procedure, §342, 351 · quorum, §302 · sessions, §594 · size, §569 · special guests, §181, 1466 · suspension of voting rights, §1460 · voting, §847, 869 · partial agreements, §1268 · partial membership, §170 · privileges and immunities, §16061607 · relation with ngo’s, §195 · relation with observers, §186 · reporting, · - by organizations, §1725 · (proposed) - on application of CoE conventions, §1354 · - on ratifications, §1283, 1402 · seat, §482 · sessions, cost of -, §315 · specialized congresses, §397 · voting, §788, 829, 851, 862, 875, 876 council of ministers, §390-405; see also general congress · task, §391-392 · see also European Communities country strategy notes, §1739, 1822 Court of Appeal for East Africa, §640

1255

Court of First Instance, see European Communities Court of Justice, see European Communities Courts; see judicial organs creation, see also establishment · - of a legal person, §1148-1149 · of organs, §231, 386, 398; see also organs credentials, · - of delegates, §256-263, 1461, 1804, 1808 · - of the organization, §451, 17891790, 1808 · - of the Resident Coordinator, §1827 Cuba, · sanctions by the OAS, §1506 · suspension from OAS, §147 currencies, §476(8), 514, 1607 · - of contributions, §1006-1009, 1039 · instability of -, §1008 customary, · - law, §327, 332, 835, 1249-1252, 1257, 1269, 1279, 1650, 1678 · application of - by int. organizations, §1339, 1573, 1579 · - powers, §232 customs duties, §1606 Cyprus, §1848 Czechoslovakia, · expulsion from IMF and World Bank, §137 · problems of state succession, §111 · Warsaw Pact forces in -, §1489, 1491 D Dalmas Case (CoJ), §913 damages, §1602 · suit for -, · - against organization, §604 · - against member states, §1515 Danmark, §668 Danube Commissions, §1551, 1635, 1642, 1656, 1674 debate, §746-770, 876 · - on budget, §1100, 1116 · closure of the -, §348, 351, 770, 771

Index

· general -, §340-341 · preliminary, §401 decentralization, §489-490, 1692 decisions, §1196-1334; see also internal rules, recommendations, declarations and conventions · after dissolution of organization, §1657-1660 · amendment by -, §1178-1186 · amendment of -, §898-904, 1657 · annulment (political), §911 · judicial -, §912-916 · application of - by national courts, §1541-1548 · binding -, §1318-1334 · - addressed to governments, §1323-1329 · - addressed to individuals, §1330-1331, 1657 · definition, §1318-1319, 1322 · legal effect, §1327 · for non-members, §1324 · types of -, §1323-1334 · binding other int. organizations, §1580-1581 · - chain, §707 · definition, §706-707, 1322 · direct effect of -, §1329 · effect of -, §1144, 1236, 1327 · - majority -, §861-862 · entry into force -, §888-896 · - with financial implications, §769 · general regulations, §1332-1334 · illegality of -, §915-916 · initiative of national courts, §15451548 · legal basis for -, §708-709, 741 · legality of -, §599-601, 694, 915-916 · interpretation of - by national courts, §1353-1354 · need for majority -, §858-860 · preparation of -, §401, 404, 425426, 464 · procedural -, §813-814, 856, 858 · revocation of -, §905-906 · termination of -, §897-916 decision-making, §240, 783, 1897; see also procedure and voting · - on the budget, §1109-1122 · - by consensus, §771-786

Index

· examples of -, §773-780 · increasing trend of -, §781-786 · - by majority, §863-867, 1319 · - by members collectively, §165, 892 · by unanimity -, §782-783; see also unanimity · - in two stages, §403, 725, 728 · influence of recommendations on , §1223 · participation by parliamentary organs in -, §589-593, 894; see also parliamentary · - procedures, · - in the EC/EU, §590-593, 739746 · - in the UN, §730-738 · - process, §703-924 · quorum, §303-304 · restraints on -, §919-922 declarations, §1216, 1244-1261 · after dissolution of organization, §1650 · competence to issue, §1247 · definition, §1244-1247 · entry into force, §888 · internal legal force of -, §1261 · - interpreting the constitution, §123 · - by judges, §699 · legal effect, §1248-1261, 1443 · - of succession, §1281 · - of vote, §887 · - qualifying a situation as illegal, §1443 decolonisation; see also independence · supervision on -, §1415 dédoublement fonctionnel, §919, 1886, 1898 defendant, §692 delegation, §196, see also powers and representation · composition of -, §243-254, 1740(1) · credentials of delegates, §256-263, 1804, 1808, 1827 · denomination of -, §239 · expulsion of members of -, §1812 · instructions to -, §240-241, 243, 338, 725, 1740(2) · leadership of -, §364

1256

· obligation to send a -, §255 · permanent, §1804-1815 · privileges and immunities of -, §327-336 · size of -, §242 · to international conferences, §1841-1842 delegation of powers, §460 delimitation of competences, §17121714, 1731 denunciation, see withdrawal depositary, §115, 457-458, 1317, 1647, 1867 determinations, §1245 development assistance, §1211, 1728 · agreements on -, §1771 · expenditure on -, §945-950 · missions for -, §1820-1828 Development Banks, §290 diplomatic missions, §1801-1842, 1881; see also legation · agrément, §1826 · compared to permanent missions, §1812-1815 · compared to Resident Coordinators, §1825-1826 · definition, §1801-1802 · right to send, §1816-1819 direct application of decisions, §375, 1522-1548 direct contact procedure, §1426 direct effect, §913, 1144, 1329, 1333 directives (EC), §1326, 1332, 1405 Directorate, §554 disappearance of states, §149-153 discussions; see debate, decision-making and procedure dispensation of individual obligations, §157, 164 disputes, §597, 1344-1345 · European Convention for the Peaceful Settlement of -, §664 · settlement of -, §648, 1344-1389, 1612(b); see also interpretation · organs for -, §267, 597, 605-606, 648-669 dissenting opinion, §695-699 dissolution, · - of int. organizations, §154, 910, 1195, 1623-1680; see also succession

1257

· consequences of -, §1645-1679 · - for its functions, §1645-1647, 1659 · - for its legal acts, §1648-1665 · under private law, §1665 · - for the staff, §1666-1672 · - for the property, §1673-1679 · methods of -, §1629-1644 · - of organs, §1672 disuse, §1640 documentation, §322, 371 · exchange of -, §1734-1735 domestic; see national domestic jurisdiction, see jurisdiction Dominican Republic, · OAS forces in -, §1488, 1491 · OAS mission to -, §1832 · sanctions by OAS, §1506 donations, see gifts draft (proposal), §727-746, 844 dual mandate, §572-573, 584 dualism, §1522-1537 Dyestuff cases (CoJ), §697 E East African Community, §639, 1537 · composition of Tribunal, §681 · dissolution, §1643 · external relations, §1835 · taxation, §1082 Eastern Carelia Case (PCIJ), §1367 Eastern European states, · and the Interim Committee (UNGA), §395 Economic Commmission (regional), §428, 1486 · for Africa (ECA), §1766 · membership, §167, 1473 · observers to -, §182 · for Asia and the Far East (ECAFE), · membership, §169 · for Europe (ECE), §1754 · membership, §169 Economic and Social Commission for Asia and the Pacific (ESCAP), §428 · relation with FAO, §1712 economic sanctions, §1478-1486 · military enforcement of -, §1486

Index

Egypt, §1799 elections, · - of chairman, §355 · multiple -, §817(d), 849-850 · - of non-plenary organs, §285-305 · re-election, §300 · staggered -, §300 embargo; see economic sanctions emblem, §1872-1874 enforcement, §1900; see also sanctions and supervision · military -, §1487-1512 · - within the national legal order, §1518-1548 enhanced cooperation, §1268 environment, §671, 672 environmental agreements, §30, 44 equality of states, §1895 equipment, §963 ERTA Case (CoJ), §1753-1754 establishment, · - of int. organizations, §85-86, 721, 1161, 1617-1622, 1891 · agreements on -, §1776-1782 · - of new states, §103-117, 151 Euratom, see European Atomic Energy Agency Eurocontrol, §810, 1330, 1388, 1629 · - Case (CoJ), §913, 1388 European Atomic Energy Agency (Euratom), §1698; see also European Communities · agreements, §1749, 1772 · - with CoE, §1725 · - with IAEA, §1420, 1760 · - with third states, §619, 1760 · constitution · Art. 18, §618 · Art. 54, §1591 · Art. 77, §1420 · Art. 81, §1420 · Art. 83, §1550 · Art. 84, §1420 · Art. 86, §1420 · Art. 87, §1420 · Art. 101, §1749 · Art. 103, §619 · Art. 107, §566 · Art. 108, §984 · Art. 118, §809, 984

Index

· Art. 124, §311, 1410, 1442 · Art. 132, §838 · Art. 141, §547, 1442 · Art. 143, §1442 · Art. 146, §912 · Art. 147, §912 · Art. 148, §723 · Art. 151, §1612(b), 1615 · Art. 155, §1610, 1612(b) · Art. 156, §913 · Arts. 165-170, §1698 · Art. 169, §424 · Art. 170, §424 · Art. 172, §984, 986 · Art. 178, §1100 · Art. 187, §1410 · Art. 188, §1605, 1615 · Art. 193, §1449 · Art. 200, §1725 · Art. 203, §235 · contributions, §984-985 · Court of Justice, §618-621; see also European Communities · decisions, §867 · income, §1090 · - from loans, §1065 · - from services, §1052 · information, §1410, 1757 · inspection system, §1420 · privileges of UK staff, §532 · sanctions, §1550 · seat, §483-484 · staff, §1718 · Supply Agency, §1591 European Bank for Reconstruction and Development (EBRD), §376, 1629 European Coal and Steel Community (ECSC), §226, 1698; see also European Communities · amendments to constitution, §619, 890, 1163, 1166-1167, 1179 · consultative committee, §424 · constitution, · Art. 3, §226 · Art. 6, §1564 · Art. 8, §547, 1410 · Art. 13, §838 · Art. 14, §1217 · Art. 18, §424, 1698 · Art. 19, §1698

1258

· Art. 20, §566 · Art. 28, §819 · Art. 33, §912 · Art. 35, §723, 1435 · Art. 36, §913, 1550 · Art. 38, §912 · Art. 40, §906, 1610, 1612(b), 1615 · Art. 43, §620 · Arts. 46-47, §1410 · Art. 49, §1085 · Art. 50, §1085 · Art. 53, §226, 890 · Art. 78, §363 · Art. 78ter, §1100 · Art. 88, §547, 1435, 1442 · Art. 95, §235, 619, 890, 1372 · Art. 96, §619 · contributions, §984 · Court of Justice, §618-621; see also European Communities · decisions, §1217 · expiry of the ECSC Treaty, §1626, 1662, 1673 · external relations, §1725 · fines, §1550-1552 · income from loans, §1065, 1067 · inspections, §1421 · parliamentary assembly, §566, 569 · powers of penalties, §620 · seat, §482-484 · supervision, §1435, 1442 · taxation, §1085 · voting, §819 European Commission of Human Rights, §24, 625-627, 660, 1243, 1365 · access to, §690, 692, 722 · applications, · 8231/78, §326 · composition, §672, 674, 677, 680 · fact-finding, §1427 · independence of members, §683 · inter-states complaints, §1400 · as plaintiff, §689 · Secretary, §685 · sessions, §672 · sub-commissions, §682 · voting, §840, 846 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or

1259

Punishment (CPT), §379, 548, 670, 1243, 1423 European Communities/European Union (EC/EU), §27-28, 210, 216, 1698, 1715 · agencies, §228 · agreements, §1753-1755, 1773, 1782, 1855; see also external relations · association -, §591, 618, 1753, 1756, 1768, 1772, 1780 · types of -, §1781 · - between organs, §1202 · competence to conclude -, §1768, 1775, 1793, 1838, 1841 · mixed -, §1756-1757, 1779 · trade -, §1662, 1756, 1772, 1788, 1838 · - with CoE, §1725 · - with IAEA, §1420 · - with non-members, §619, 890, 1372, 1749 · amendment of constitutions, §1159, 1168-1169 · assent procedure, §591, 741 · Association Councils, §618 · budget, §929, 941, 956-957, 1009, 1104, 1888; see also costs and income · adoption of -, §1100, 1110 · - implementation, §1115, 1130 · power to adopt -, §1115 · preparation of -, §1105 · unity of -, §1096 · building, §961 · co-decision procedure, §592, 741, 1768 · Commission, §288, 547-550, 554 · as plaintiff, §689 · appointment of (vice-) chairman, §354, 550, 577 · budget implementation, §1115, 1130 · collection of information, §1410 · composition, §550 · independence, §549 · initiatives by -, §711, 739-746 · power of sanctions, §1410, 1465, 1516, 1552 · President, §354

Index

·

· · ·

· · · · ·

· ·

·

· recognition of violations, §1442 · relation with Council, §547(iii), 745, 1115, 1768 · role in amendments, §1168 · supervision, §1410, 1412, 14201422, 1516 · tasks, §547-549, 867, 1410, 1420, 1442, 1768, 1793 · term of office, §550, 620 · uniqueness, §548, 555 Committee of Permanent Representatives (COREPER), §311, 356, 393, 1740, 1813, 1878 · role in decision-making, §743745, 856, 862 Committee of the Regions, §740 Conciliation Committee, §593 Constitution, see European (Economic) Community and Treaty on European Union contributions, §984-985, 1007 conventions, §1273 cooperation procedure, §593, 741 coordination, §1715, 1740, 1813, 1878 Council of Ministers, §391-392, 393, 396 · budget powers, §583, 1115, 1130 · composition of, §242, 245, 396 · decision making, §718, 739-746, 1273, 1768, 1793 · trade negotiations, directives for -, §547(iv), 1841 · power of sanctions, §620 · relations with the Parliament, §579-580, 583 · rotation of presidency, §355-356 · Secretariat, §901 · sessions, §311 · voting, §741, 780, 834, 856 Court of Auditors, §583, 740, 11291130, 1698 Court of First Instance, §544, 618, 621, 647 · access to -, §690 · composition, §672, 684 Court of Justice (CoJ), §214, 216, 376, 599, 618-621, 1350 · access to -, §689-690, 692, 1379, 1382, 1384, 1386, 1420

Index

· ad hoc judges, §677 · advisory duties, §619, 1372; see CoJ, Opinions · Advocates-General, §684 · application of general principles of law, §1576, 1605 · appointment of judges, §681 · cases · 6/54, §424 · 5/55, §233 · 8/55, §233, 1333 · 7/56, §1337, 1571, 1591 · 9/56, §226 · 3-7/57, §1337, 1571, 1591 · 18/57, §1333 · 20/59, §233 · 25/59, §233 · 31/59, §1421 · 6/60, §531 · 19,21/60, §906 · 2-3/61, §906 · 2-3/62, §1465 · 26/62, §1143, 1536, 1546, 1779 · 15/63, §503 · 20/63, §1120 · 21/63, §1120 · 79/63, §1120 · 82/63, §1120 · 90-91/63, §1449 · 101/63, §307 · 6/64, §24, 1535 · 54/65, §906 · 57/65, §1546 · 62/65, §503 · 17/67, §1542 · 32/67, §531 · 6/68, §1333 · 7/68, §1442 · 29/69, §374, 1576 · 48/69, §228 · 22/70, §1753 · 25/70, §228, 275 · 26/70, §228, 275 · 30/70, §228, 229, 275 · 7/71, §1442 · 43/71, §1333 · 48/71, §1442 · 93/71, §1333 · 39/72, §884, 1333, 1542 · 57/72, §867

1260

· · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·

81/72, §1205 4/73, §1576 23/75, §229 3, 4, 6/76, §1753 80/76, §374 5/77, §275 30/77, §374 58/77, §1402 106/77, §1333 93/78, §97 128/78, §1333 141/78, §1401 9/79, §374 44/79, §1576 138/79, §590 139/79, §590 244/80, §1375 8/81, §1326 14/81, §906 230/81, §485 283/81, §374 301/81, §68 85/82, §503 13/83, §18 108/83, §485 294/83, §912 152/84, §1326 149/85, §307 314/85, §1353 358/85, §485 45/86, §16, 218, 235 51/86, §485 131/86, §901 C-241/87, §1614 374/87, §1576 5/88, §1576 16/88, §1115 C-70/88, §220, 741 C-143/88, §1353 C-213/88, §485 C-221/88, §1326 C-322/88, §1220 C-39/89, §485 C-92/89, §1353 C-104/89, §1615 C-300/89, §741 C-6/90, §1515, 1517 C-9/90, §1515, 1517 C-37/90, §1615 C-308/90, §1420

1261

Index

· · · · · ·

·

· C-320-322/90, §1375 · T-58/91, §503 · C-159/91, §1388 · C-160/91, §1388 · C-181/91, §67, 1273 · C-248/91, §67, 1273 · C-327/91, §1571, 1591, 1768 · C-91/92, §1326 · C-349/92, §1401 · C-364/92, §913, 1388 · C-432/92, §24 · C-46/93, §1515 · C-48/93, §1515 · C-65/93, §590 · C-280/93, §718, 742, 744 · C-417/93, §742 · C-185/95 P, §1576 · C-267/95, §374 · C-268/95, §374 · C-299/95, §1576 · C-345/95, §485 · C-388/95, §1401 · C-21/96, §1442 · C-106/96, §1115 · C-149/96, §1577 · C-164/97, §741 · C-165/97, §741 · C-269/97, §741 · C-36/98, §374 · T-72/98, §913 · C-376/98, §209 · T-222/99, §575 · T-327, §575 · T-329, §575 · C-273/99 P, §516 · C-274/99 P, §516 · C-50/00 P, §1156 chambers, §672, 674 claims for damages, §1515 composition, §672, 679 follow-up procedure, §1514, 1516 judgment, §693-694, 698 jurisdiction, · - over liability cases, §1612(b), 1615-1616 · - over staff cases, §544, 618, 621 number of cases, §1386, 1442, 1514, 1615

· ·

·

· · · ·

· Opinions, · 1/75, §1757 · 1/76, §1753, 1778 · 1/78, §1757 · 1/91, §1778-1779 · 2/91, §1754, 1757, 1841 · 1/92, §1779 · 1/94, §1757 · 2/94, §209, 233, 235, 324, 891, 1156, 1576, 1774 · powers, §618-620 · preliminary rulings, §603, 621, 691, 694, 912-914, 1374-1379, 1386, 1435, 1515, 1532 · proceedings, §375, 1375 · registry, §685 · voting, §841 credentials, §257, 451, 1808 decision-making, · by consensus, §780 · initiatives, §711, 718, 723 · package deals, §758 · participation by parliament, §589-593, 900 · procedures, §590-593, 718, 739746 · time-limits, §754 · voting, §788 decisions, · addressed to individuals, §1330 · alterations of -, §901 · amendment of -, §900-901, 904 · annulment of -, §911 · judicial -, §912-915, 1376, 1379 · binding and non-binding -, §547(ii), 888, 900, 1326 · direct application of -, §1542, 1546 · entry into force, §888 · important -, §867 · interpretation by national courts, §1352-1353, 1532, 1542 · legal basis, §741 · legality of -, §1376 · revocation of -, §906 delegation of powers, §228-229 delegations to -, §1804 development assistance, §948-949 directives, §1326, 1405

Index

· domestic jurisdiction clause, §215216 · Economic and Social Committee, §742 · Edinburgh European Council, §215 · elections, · of non-plenary organs, §286, 300 · enhanced cooperation, §1268 · European Central Bank, §1591 · European Convention (created by the European Council in the 2001 Laecken Declaration), §1569, 1575 · European Council (EU), §392, 549 · European Currency Unit (ECU), §1009 · European Development Fund, §1096 · European (Economic) Community (E(E)C), · Constitution · Art. 5, §210, 215 · Art. 7, §210 · Art. 10, §20, 1517 · Art. 25, §1546 · Art. 25, §1465 · Art. 26, §1465 · Art. 30, §215 · Art. 36, §901 · Art. 37, §710 · Art. 44, §710 · Art. 73, §1465 · Art. 71, §710 · Art. 81, §1352, 1388 · Art. 83, §710, 1352 · Art. 90, §1546-1547 · Art. 95, §741 · Art. 107, §1591 · Art. 111, §1753 · Art. 119, §215 · Art. 132, §1753 · Art. 133, §547(iv), 1580, 1662, 1749, 1753 · Art. 114, §1662 · Art. 138, §1757 · Arts. 158-162, §949 · Art. 170, §1753 · Art. 174.4, §1753 · Art. 175, §741 · Art. 177, §949

1262

· · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·

Art. 178, §949 Art. 181, §1753 Art. 189, §566 Art. 190, §569, 571-573, 581, 984 Art. 194, §724 Art. 203, §242, 355 Art. 205, §809, 984 Art. 207, §311, 1813 Art. 211, §217, 311, 1410, 1442 Art. 213, §550, 619 Art. 214, §355, 550, 577 Art. 216, §619 Art. 217, §355 Art. 218, §1202 Art. 219, §838 Art. 220, §376, 912 Art. 222, §684 Art. 223, §679, 681 Art. 224, §621 Art. 226, §547, 618, 1163, 1428, 1435, 1442, 1536 Art. 227, §618, 1428, 1536 Art. 228, §1442, 1514, 1516 Art. 229, §620, 1550 Art. 230, §67, 618, 621, 692, 912, 915, 1163, 1353, 1465 Art. 231, §912 Art. 232, §618, 621, 692, 723, 1435, 1465 Art. 234, §621, 913, 1163, 1353, 1374-1378, 1386, 1535 Art. 235, §618, 1612(b), 1615 Art. 236, §618, 690, 692 Art. 238, §618 Art. 240, §618, 1610, 1612(b) Art. 241, §618, 913 Art. 245, §1129 Art. 249, §210, 706, 1323, 1353, 1542 Art. 250, §718 Art. 251, §593, 741, 1768 Art. 252, §591, 741 Art. 254, §888 Art. 257, §195, 424 Arts. 257-262, §1698 Art. 258, §282 Art. 262, §424 Art. 263, §282, 424 Art. 269, §561, 985, 1090

1263

Index

· · · · · · · · · · ·

Art. 272, §583 Art. 273, §1110 Art. 274, §1115, 1130 Art. 276, §583, 1130 Art. 281, §1564, 1753 Art. 284, §1410 Art. 288, §692, 906, 1605, 1615 Art. 290, §373 Art. 292, §1449 Art. 293, §1273 Art. 300, §547(iv), 591, 619, 769, 890, 1372, 1749, 1757, 1768, 1779, 1787, 1841 · Art. 301, §1580 · Art. 303, §1725 · Art. 305, §1709 · Art. 306, §1709 · Art. 307, §1577, 1662 · Art. 308, §235 · Art. 310, §591, 1749, 1768 · European Parliament, §375, 566, 577 · adoption of budget, §1100, 1110, 1130 · advisory functions, §584-593 · appointment of the Commission, §577 · committees, §595 · decision-making, · participation in -, §589-593, 741-742, 1066, 1348, 1768, 1793 · direct election, §571-573 · distribution of seats, §569, 574575 · dual mandate, §572-573 · election of president, §354 · functioning of -, §594-596 · parties, §574-575 · political groups, §574-575 · powers, §577, 912, 1420 · budgetary -, §583 · questions (to Commission and Council), §579-580, 1410 · quorum, §302 · relation with the Council, §580 · relation with national parliaments, §586 · remuneration of members, §511 · role in amendments, §1168 · sessions, §307

·

· · · · · · · · · · · · · · · · · · · · · · · · · · · ·

· size, §569 · veto, right of, §591 external relations, §980, 1305, 1372, 1378, 1577, 1723, 1725, 1778, 1841 · - with non-members, §1687, 1805-1806, 1816, 1819, 1823, 1835-1836, 1838 · see also EC, agreements and relations federal goal, §31 fines, §904, 1550-1552 flag, §1874 framework decisions, §1326 heads of state, §392, 549 human rights, §1576, 1774 implied powers, §235 income, §984-985, 1086-1090 · - from taxation, §1079, 1090 information, collection of -, §1410 institutional balance, §219-223, 228, 590 laissez passer, §1863 languages, §373-375 legal order, §1144 legal status, §1562, 1569, 1571, 1591, 1681, 1816, 1841 liability, §1612(b), 1615-1616 loans, §1066 membership of other int. organizations, §81-84, 1577, 1840 Merger Treaty, §392, 547, 1085, 1698 Monetary Committee, §740 observers, §1724, 1805, 1808 Ombudsman, §581 organs of civil servants, §275, 1718 participation in int. conferences, §1841 party to conventions, §1305, 1750 privileges and immunities, §307, 1606-1607, 1610 procedures for decision-making, §590-593 recommendations, §1220 regulations, §590, 1326, 1332-1333, 1542 · 11, §1422 · 17, §1410, 1422 · 22, §1542 · 135/62, §1542

Index

· 38/64, §281 · 102/64, §1353 · relation to other organizations, §84, 166, 228, 264, 1840 · see also EC, agreements and EC, external relations · CoE, §1305 · EFTA/EEA, §623, 739, 746, 1779 · IAEA, §1420 · World Trade Organization, §1757 · relation with ngo’s, §195 · sanctions, §1514-1517, 1580 · - against individuals, §1550 · seat, §482-487 · Social Committee, §424 · specific interests, §275, 281 · Single European Act, §215, 392, 621, 741, 949 · staff, §437, 956 · grades of -, §509, 1120 · - tribunal, §621 · Structural Funds, §949 · subsidiarity, §215-216, 1901 · Treaty on European Union (TEU), §215-216, 392, 550, 581, 618, 741, 949, 1516, 1740 · Art. 1, §1159, 1698 · Art. 2, §1159 · Art. 14, §166 · Art. 5, §618 · Art. 7, §209 · Art. 19, §1840 · Art. 47, §1708 · Art. 48, §1163, 1168-1169 · Art. 48, §1159 · Art. 49, §92, 97, 788 · voting, §788, 809, 809A, 838, 884 · weighted representation, §282 European Conference of Ministers of Transport, §1701, 1714, 1720, 1725 European Conference for Peace in Yugoslavia, §651 European Convention for the Peaceful Settlement of Disputes, §664, 1452 European Convention on Human Rights, §1430-1431, 1534, 1576 · Art. 19, §625 · Art. 25, §625, 722, 1431 · Art. 26, §1365

1264

· Art. 28, §660, 1427 · Art. 30, §1400 · Arts. 31-32, §625, 695, 722, 1441 · Art. 43, §672 · Art. 45, §689 · Art. 48, §625, 1441 · Art. 51, §695 · Arts. 52-53, §625, 1441 · Art. 59, §327 · Art. 65, §909 · chambers, §672 · Eleventh Protocol, §627, 1431 · Inter-state complaints, §1400 · organs of the -, §625-628 · Second Protocol, §626, 1371 · Third Protocol, §682 European Convention on State Immunity, §627, 633 European Coordinated Organizations, §1718 European Council, §392, 549 European Court for Conciliation and Arbitration, §651 European Court of Human Rights, §24, 625, 1365 · advisory jurisdiction, §626, 1371 · cases · Aksoy, §1427 · Al-Adsani, §24 · Bankovic, §24, 1590A · Beaumartin, §1351 · - between states, §1400 · Lawless, §24 · Loizidou, §24 · Marckx, §24 · Sigurjónsson, §24 · Waite and Kennedy, §544A · chambers, §674, 682 · composition, §672, 674, 679, 680, 682 · independence of judges, §683 · president, voting by -, §840 · registry, §685 · summoning a state, §692 European Economic Area (EEA), §623, 739, 1756, 1779-1780 · interpretation of treaties, §1378 · Joint Committee, §746 · Joint Parliamentary Committee, §566, 569, 746

1265

· role in EC/EU decision-making, §739, 746 European Energy Charter, §718 European Free Trade Association (EFTA), · agreements, §1749, 1779 · budget, §929 · constitution, §1178 · contributions, §979, 997 · Council of Ministers, §666, 1427 · Court of Justice, §623 · dispute settlement, §666, 1383, 1427 · Examining Committees, §1427 · interpretation of treaties, §1379, 1383 · membership, §97 · parliamentary assembly, §566, 569, 594 · relation with the EC, §623, 739, 746, 1378, 1749 · sanctions, §1469 · against individuals, §1550 · staff, §522, 643 · Standing Committee of - states, §623 · supervision, §1427 · - Surveillance Authority, §623 · voting, §788 · waiver of obligations, §1444 European Investment Bank, §484, 949, 1066 · legal personality of -, §1571, 1591 European Organization for Nuclear Research (CERN), §469, 643 · finance, §929, 963, 979 European Organization for Safety of Air Navigation; see Eurocontrol European Parliament, see European Communities European Patent Organization, §1627 European Road Transport Agreement (ERTA), §1753-1754 European Space Agency (ESA), §713, 788, 1292, 1627 European Tribunal on State Immunity, §633 European Union, see European Communities

Index

exchanges, §1733-1737 · - of observers, §1723 · - of reports, §1725 execution of judgments, §693 executive board, see also board · composition, §291, 293, 412-414 · meetings, §411 · size, §237, 414 · task, §410, 1106 executive committee, see board and committee ex-members, re-admission of, §87 expenditure, §928-964; see also cost · general -, §964 · long-term forecasting, §1102 · maximum -, §926, 1001 · total -, §928-930, 943 experts, §239, 267-274, 407, 1860 · consultation of -, §739 · delegation of tasks to -, §466-468 · initiatives by -, §715-718 · organizations of -, §188 · subjects of privileges and immunities, §326 ex post facto, supervision, §670, 1243 expulsion, §1472, 1474 · - from int. organizations, §137-148, 262-263, 1471, 1475 · - from specific organs, §1470-1474 · - of members of missions, §1812 external effect of internal rules, §12061215 external relations, §1686-1883 · instruments of -, §1742-1874 · - with host states, §1689-1690 · - with member, §1688 · - with non-members, §1687 · - with other int. organizations, §1691-1741, 1809 external rules, §1216-1334 F fact-finding, §447; see also mediation, conciliation and arbitration · ad hoc -, §668 · - commissions, §648-669 · retrospective -, §1424-1427 families of int. organizations, §16911701 federal states, §236, 1299

Index

filibustering, §348 financial, · - coordination, §1705 · - plans, §1102-1104 · - regulations, §1093 · - year, §1101, 1121 financing, §925-1138; see also costs · and national parliaments, §561(c) · voluntary -, §344, 1861 fines, (levied by the EC), §904, 15501552 First Five Lille Cail Case (CoJ), §906 Fishery Organizations, §969 · contributions, §981, 1026 flag, §1507-1508, 1870, 1872-1874, 1882 Foglia v. Novello Case (CoJ), §1375 Food and Agriculture Organization (FAO), §267, 1694 · agreements, §1772, 1789, 1794 · amendment of constitution, §1165, 1187-1188, 1193 · budget, §1101 · composition, §270, 273, 413, 440, 1470 · contributions, §981, 992 · external relations, §1231, 1712, 1716, 1777 · - with WHO, §1231-1232, 1716 · membership, §83, 102, 1473, 1840 · national committees, §1831 · recommendations, §1222, 12311232 · reporting, §1403 · - on ratifications, §1282 · sanctions, §1456, 1470, 1473 · seat, §479, 489, 961 · special missions, §1832 · succession, §1633, 1639 · trust fund, §1030 · voting, §848-849 Forges de Chatillon Case (CoJ), §906 foreigners in delegation, §253, 1812 founding states, §85-86 France, · admission of Comoros to UN, §830 · approval of direct elections of EC Parliament, §571, 573 · enforcement of international rules, §1534

1266

· interpretation of treaties, §1351 · partial withdrawal from NATO, §136, 1011 · participation in EEC Council, §834 · role of UNR in European Parliament, §575 Francovich Case (CoJ), §1515, 1517 freedom of speech, §327, 346-348 function, see notion of function G General Agreement on Tariffs and Trade (GATT), §30, 44, 606, 1694, 1697 · see also World Trade Organization · application of GATT, · - by CoJ, §1577 · - by national courts, §1540, 1546 · Art. XII, §214 · Art. XIX, §214 · Art. XXVIII, §1772 · Art. XXXIII, §1772 · contributions, §980, 992 · coordination with UN, §1716 · dispute settlement, §656 · external relations, §1840 · legal order, §1268 · party to -, §116 · seat, §471-480 · secretariat, §1620 · succession by World Trade Organization, §1626 · supervision, §1402, 1432 · Textiles Monitoring Body, §379, 656 · Trade Policy Review Mechanism, §1402, 1404 general congress, §390-392, 407, 553, 595; see also council of ministers · amendment of constitutions, §1178-1186 · approval of decisions, §891 · competence to draft conventions, §1274 · composition of -, §247, 393 · conclusion of agreements, §1765 · dissolution of organizations, §1629, 1637-1638 · interpretation of rules, §1358

1267

· task, §391-392, 401, 428, 441, 492 general principles of law, §1253, 13361338, 1575-1576, 1604-1605, 1650 · application in domestic courts, §1604 · concerning binding force of decisions, §1320 · concerning binding force of pledges, §1037 · concerning jurisdiction of judicial organs, §693 · concerning legal position of staff, §539 · concerning re-submission of proposals, §768 · concerning rules of procedure, §1205 · infringement of -, §915 · right to withdraw from int. org., §135 general regulations, §1332-1334 · - after dissolution of organization, §1656 Geneva Conventions (1949), §1577 Germany, · Constitution and democratic rule, §563 · enforcement of international rules, §1535, 1546 · membership of int. org. after unification, §104, 151 · parliamentary control over foreign affairs, §560(a) · partial member of CoE, §170 · withdrawal from Elbe and Oder Commissions, §1640 gifts, §1022, 1040-1049, 1074 · acceptance of -, §1049, 1125 · after dissolution of organization, §1678 · - by individuals, §1042, 1044 · - by international organizations, §1046-1048 · - by non-members, §1043 · - for specific programmes, §10431048 Global Environmental Facility (GEF), §38, 803 good offices, §462-463

Index

governing board, · composition, §418-420 · task, §415-417 governing body, see board government(s), §58, 238 · - in exile, §166 · initiatives by -, §711 · legality of -, §260-263, 1013, 1851 grades (of staff), §508-510 Greece, · withdrawal from CoE, §1450 Greenland, withdrawal from EC, §136 groups; see also interest groups and voting · negotiating -, §766-767 · - of states, §280, 289-294, 759 Guinea Bissau, §1848 H Haiti, §1820 · UN forces in -, §1502, 1511 harmonization, §1739 · - of staff regulations, §506, 540 headquarters, see also seat and building · - of private int. organizations, §189, 195 headquarters agreements, §450, 1690, 1751, 1865; see also agreements · concerning passive legation, §1803, 1812 · concerning privileges and immunities, §332-336, 529, 531, 1362, 1763, 1812, 1863 high seas, §732 Holy See, §1803, 1805 host state, §1689; see also privileges and immunities · benefits, §470-471 · cost of meetings, §958 · relations with -, §1689-1690, 1877; see also headquarters · relation with delegations, §253, 378 · - presidency, §357 · taxation, §530 human right(s), §541, 1424, 1430-1432, 1438, 1576; see also Universal Declaration of -

Index

Human Rights Committee; see UN Human Rights Committee Humblet Case (CoJ), §531 Hurst-Miller draft, §727 I immunity, §323, 1538 · - from criminal jurisdiction, §331 · - from jurisdiction, §307 · - of staff, §534-537 · - of organizations, §540, 1582, 1610-1612 · see also privileges and staff, independence of implied powers, see powers inactive members, §127, 135(3), 161 income, §965-1090; see contributions independence, · - of int. organizations, §1607 · financial -, §1075-1076 · - of colonial countries and peoples, §1258, 1409 · - of staff, §524-537 India, §75 · conflict with Pakistan, §606, 1478 indigenous peoples, §273, 671 individual communications, §607, 609611, 613, 625, 629 individuals, · - and judicial annulment of decisions, §914, 1552 · - before Courts, §607, 609-613, 625, 629, 641, 690, 692, 1376, 1383-1384 · claims against -, §1676 · decisions addressed to -, §13301331 · - enacting recommendations, §1229 · - as experts, §267-274, 276 · income from services rendered to -, §1058-1061 · initiatives by -, §721-724 · - as observers, §196 · - as subjects of privileges and immunities, §326, 334-336 · sanctions against -, §1549-1552 · supervision by -, §1393, 1428-1438, 1523, 1545-1547; see also petitions · effect of -, §1437-1438

1268

· - and the UNESCO, §658 Indonesia, · nationalization of Dutch property, §1530 · withdrawal from UN, §132-133 information, · collected by the organization, §1406-1413 · given by secretariats, §444, 460, 562 · provided to domestic courts, §1522 infringement of the treaty, §915 initiative, · - by national courts, §1545-1548 · - by non-members, §1303 · - for amendment of constitution, §1190 · - for judicial annulment of decisions, §914 · - for decision-making, §461, 547, 710-724 INMARSAT, §1192 inspection, §1414-1427, 1832; see also fact-finding institutional balance, §220-223, 228, 288 Institut du Monde Arabe, §45 instructions, §464 · - to delegations, §240-241, 243, 338, 725, 1740(2) interim measures, §694 Inter-American Commission of Human Rights, see Organization of American States Inter-American Court of Human Rights, see Organization of American States Inter-American Development Bank, §800, §1629 Inter-American Tropical Tuna Commission, §980 interest, see representation interests, §1400, 1892 · bank-, (income from -), §1067-1068 interest groups, §424-425, 763-765 · initiatives by -, §720 · pressure by -, §760-762 Intergovernmental Committee for European Migration, §1624

1269

Intergovernmental Maritime Consultancy Organization (IMCO); see International Maritime Organization (IMO) Intergovernmental Organization for International Carriage By Rail, see Convention Intergovernmental Panel on Climate Change, §1716 Interim Commission for the International Trade Organization (ICITO), §1620 internal jurisdiction, see jurisdiction, domestic internal rules, §1196-1215, 1334; see also decisions · after dissolution of organization, §1654-1655 · agreements as -, §1746 · amendment of -, §1200, 1205 · binding -, §1203-1205 · - concerning the functioning of the organization, §1201-1205 · conventions as -, §1279 · declarations as -, §1261 · legal basis of -, §1197 · number of -, §1199 · - with external effect, §1206-1215, 1655 International Atomic Energy Agency (IAEA), §480, 1146, 1694 · agreements, §1418, 1420, 1749, 1772 · amendment of constitution, §1173, 1178 · board, §416, 1418 · budget, §1101, 1109 · building, §961 · contributions, §992 · conventions, §1263, 1301 · decisions, §1220, 1236, 1263 · decision-making, §747, 853 · diplomatic relations, §1804 · income from loans, §1065 · income from services, §1052 · inspections, §1418 · privileges and immunities, §336 · sanctions, §1418, 1456, 1461, 1463 · supervision by -, §1418 · suspension,

Index

· - of representation, §1461 · - of services, §1463 International Baltic Sea Fishery Commission, §967 International Bank for Reconstruction and Development (IBRD), see World Bank International Bureau of Weights and Measures, §144, 385 International Centre for Settlement of Investment Disputes (ICSID), §653, 690 International Civil Aviation Organization (ICAO), §1694, 1696 · agreements, §1795 · board, §416, 893 · conflict with UN, §1714 · contributions, §980, 992 · constitution, §1146, 1152, 1436 · amendment of -, §1165, 1176, 1179, 1187-1188, 1190 · decision-making, §726, 855, 893, 905 · - in the form of conventions, §1264, 1273, 1298, 1309 · - concerning individuals, §1331 · enforcement, §1522 · establishment, §1621 · European Commission of the -, §1725 · expulsion, §1476 · external relations, §1714, 1795 · ICJ as Court of Appeal, §606 · income from services, §1055 · inspection, §1419 · internal rules, §1201(8) · interpretation of rules, §1361 · languages, §1347 · membership, §94, 146, 855, 1152, 1476, 1696 · suspension of -, §1473 · National Facilitation Committees, §1436 · negative ratification of conventions, §1292, 1294 · president, §432 · recognition of Polish government, §1851 · registration, · - of aircraft, §1871

Index

· - of treaties, §458 · regulations, §1332 · sanctions, §1458, 1466, 1469 · - against individuals, §1550 · secretariat, §437, 480, 1668 · sessions, §317, 319, 359 · succession, §1637, 1668 · supervision, §1398, 1419, 1436 · - based on reporting by states, §1402 · suspension of voting rights, §1458, 1460 International Civil Servants, §491-546; see staff · organs of -, §546 International Civil Service Commission (UN), §506, 508, 1717 International Cocoa Agreement, §1673 International Coffee Agreement, §1460 International Coffee Organization, · membership, §79 International Commission of Enquiry, §652 International Commission on Missing Persons, §30 International Commission for the Northwest Atlantic Fisheries, §732, 1596 International Committee on the Elimination of Discrimination against Women, §612 International Committee against Torture (CAT), §613, 660, 1423, 1431 International Committee of Military Medicine, §956, 961 International Committee of the Red Cross, §47, 1419, 1427 · conventions (1949), §1577 International Commodity Councils; see commodity International Conciliation Commission, §652 International Convention Dealing with the Safety and Security of United Nations and Associated Personnel, §538 International Convention on the Elimination of all Forms of Racial Discrimination (CERD), §611, 1431

1270

International Convention for the Regulation of Whaling, §1294 International Court of Justice (ICJ), §222, 605-607, 648, 1350, 1363 · acceptance of treaty-making capacity, §1748 · ad hoc judges, §676, 1368 · administrative jurisdiction, §607, 644 · advisory opinions, §599, 605, 689, 912, 1360, 1366-1370, 1379-1380, 1440, 1859 · appointment of members, §680, 821, 849, 889 · cases · Admission Case, §96, 1348, 1467, 1886 · Aegean Sea Continental Shelf Case, §1747 · Aereal incident Case (Israel v. Bulgaria), §1649 · Anglo-Iranian Oil Company Case, §1347 · Aouzou Strip Case (Chad v. Libya), §1416 · Certain Expenses Case, §207, 219, 939, 1095, 1112, 1136, 1208, 1212-1213, 1226, 1368, 1440, 1459, 1495, 1785 · Crime of Genocide Case, §1888 · Cumaraswamy Case, §534 · Effects of Awards Case, §544, 642, 1112, 1204 · Ethiopia and Liberia v. South Africa, §1349, 1367 · Fasla Case, §642 · Interpretation of Agreement between WHO and Egypt, §1574, 1602 · Judgments of Administrative Tribunal Case, §231 · Judgments of the Administrative Tribunal of the ILO Case, §1369 · Jurisdiction of the ICAO Council Case, §1358, 1466 · Headquarters Agreement Case, §1344 · Lockerbie Case, §222, 1707, 1888 · Maritime Safety Committee Case, §282

1271

· · ·

· · ·

Index

· Mazilu Case, §326, 381, 1368 · Mortished Case, §642 · Namibia Case, §825, 1210, 1323, 1443 · Nicaragua Case (Military and Paramilitary Activities), §1250, 1452 · North Sea Continental Shelf Case, §1280 · Nuclear Tests Case, §343 · Nuclear Weapons Case (GA request), §1250 · Nuclear Weapons Case (WHO request), §233, 1148, 1347, 1693, 1696 · Peace Treaties Case, §1349, 13681369 · Quatar Bahrain Border Dispute Case, §1747 · Reparation for Injuries Case, §5, 233, 1143, 1337, 1566-1567, 1584, 1682, 1856-1857, 1859 · Reservation to the Convention on Genocide Case, §1278, 1310, 1349 · Second Admission Case, §1347 · South West Africa Case (1950), §1368, 1646, 1663 · South West Africa Voting Procedure Case (1955), §1647 · South West Africa Case (1962), §1401 · South West Africa Case (1966), §1118, 1366, 1401 · Temple of Preah Vihear Case, §1347, 1647 · Western Sahara Case, §1367 · Yakimetz Case, §642 chambers, §672 · regional -, §674 competence, §605, 616, 912, 13791380, 1859 composition, §652, 672, 679, 680 · - as Court of Appeal, §606-607, 1358 declarations, §699, 1443 interpretation by object and purpose, §1349 parties before the -, §689, 692, 1368, 1379-1380

· President, casting vote, §840 · reference to preparatory documents, §1348 · registry, §685 · separate opinions, §695, 699 · Statute, §1846 · Art. 2, §679 · Art. 3, §672 · Arts. 4-8, §680 · Arts. 10-12, §680, 818 · Art. 25, §672 · Art. 26, §672 · Art. 34, §1859 · Art. 36, §605, 1380, 1452, 1649 · Art. 55, §842 · Art. 57, §695 · Art. 69, §171 · succession of PCIJ, §1626, 1649 · trust fund, §1029 · voting, §840, 879 International Covenant on Civil and Political Rights, §24, 609, 1430, 1860 · Optional Protocol, §1431 International Covenant on Economic, Social and Cultural Rights, §1860 · implementation of -, §268, 379, 610, 1430 International Criminal Court, §608, 679, 929, 961, 1166, 1187, 1620, 1763, 1766 · Advance Team, §1620 · PrepCom, §1620 International Criminal Police Organization (Interpol), §36, 643 International Criminal Tribunal for the former Yugoslavia (ICTY), §227B, 608, 692, 1114 · budget, §1114 · nationality of judges, §675 · Tadic Case, §227B, 601, 702 · Todorovic Case, §1580 International Development Association (IDA), §290, 480, 1046, 1476, 1694, 1701 · administrative tribunal, §645 · dissolution, §1629 · expulsion from -, §144, 153, 1476 · financing, §1007 · income from services, §1051 · Inspection Panel, §671

Index

· secretariat, §1720 International Development Law Institute, §47 International Energy Agency (IEA), §170, 197, 393 · secreatriat, §1720 · voting, §806 International Finance Corporation (IFC), §290, 480, 1179, 1476, 1694, 1701 · administrative tribunal, §645 · dissolution, §1629 · expulsion from -, §144, 153, 1476 · secretariat, §1720 International Fruit Company Case (third) (CoJ), §1577 International Fund for Agricultural Development (IFAD), §480, 802, 879, 1009, 1205, 1468, 1619, 1622, 1694, 1822 International Fund for Compensation of Oil Pollution Damage, §1083, 1355, 1673 International Institute of Agriculture (IIA), §435, 493, 808 · dissolution of -, §1633 International Institute for the Unification of Private Law (UNIDROIT), §961, 1026 International institutional law, §7-11, 1608; see also general principles · customary -, §327; see also customary · diversity of rules, §1889-1893 · general observations, §1884-1902 · substantive rules, §25 · unity of rules, §1894-1897 International Labour Organization (ILO), §206, 1628, 1694 · Administrative Tribunal (ILOAT), §522, 544, 643-644, 685, 1200, 1612(b), 1671, 1719 · access to -, §690 · appeal from -, §607, 643 · Bustani Case, §24, 544, 1886 · composition, §672 · archivist functions, §1652 · budget, §1101 · building, §961

1272

· Committee of Experts on the Application of Conventions and Recommendations, §655, 1404 · Commission of Inquiry, §655, 1425 · Conference Committee on the Application of Conventions and Recommendations, §1404, 1440 · Constitution, · amendment of -, §1146, 1152, 1165, 1173-1175, 1190, 1451, 1628 · Art. 1, §909 · Art. 3, §250 · Art. 7, §106, 289 · Art. 10, §460 · Art. 14, §340 · Art. 19, §66, 1271, 1284, 1308, 1521 · Art. 24, §1432 · Arts. 26-29, §655, 1425, 1432 · Art. 36, §1173 · contributions, §992 · conventions, §892, 1262, 1268, 1271, 1274, 1277, 1284 · enforcement of -, §1521, 1757 · final clauses, §1306 · reservations, §1308 · credentials of delegations, §259, 261 · Fact-Finding and Conciliation Commission, §655 · Governing Body, §1842 · - Committee on Freedom of Association, §655 · initiatives, §714, 716, 1190 · inspections, §1425-1426 · interpretation of rules, §1359, 1440, 1757 · membership, §104, 106, 146-147, 1152 · conditions on -, §1287 · organs, composition of -, §250, 271, 282, 289, 379 · petitions, §1432 · pressure to ratify conventions, §1284-1287 · recommendations, §1222 · sanctions, §1451, 1452, 1455-1456 · secretariat, §435, 460, 480, 489, 548, 1359 · strike by staff, §541

1273

· supervision, · - based on reporting by states, §1402, 1404 · - by other members, §1400 · - by private parties, §1432 · suspension of voting rights, §14551456 · tripartism, §250, 281, 379, 1893 · voting, §783, 868 · withdrawal from -, §909 international law, §1335, 1572-1581, 1898-1902 · agreements under -, §1746 · liability under -, §1582-1590 · status of organizations in -, §15621590, 1770 · verticalization of -, §7-11, 18981902 International Law Commission (ILC), §273, 297, 650 · definition of ‘constitution’, §1146 · definition of international organizations, §29A · initiatives by -, §715, 727 · on permanent observer missions, §1805 · on the competence to conclude agreements, §1765 · on the legal status of int. organizations, §1571 · responsibility of international organizations, §1583 · terminology in the law of treaties, §1262, 1269, 1295, 1744 · role in UN decision-making, §730738, 1348 International Maritime Organization (IMO), §282, 397, 480, 1152, 1694 · amendment of constitution, §1162, 1187 · board, §416 · contributions, §980, 992 · conventions, §1266, 1268 · membership, §1476 · suspension of voting rights, §14561457 International Maritime Satellite Organization (INMARSAT), §140, 807

Index

International Monetary Fund (IMF), §97, 163, 1694, 1696-1797 · Administrative Tribunal, §646, 685 · amendments of constitution, §1163, 1170, 1173, 1178 · board, §357, 459, 1356, 1384-1385, 1419 · composition, §290 · decisions, §461, 779, 855, 858, 911 · development assistance, §946 · dissolution of -, §1629 · enforcement in national legal orders, §1530, 1537-1540, 1544 · Group of Ten, §759 · expulsion, §144, 151, 153 · external relations, §1714 · Hong Case, §535 · income from services, §1051, 1122 · inspection, §1419 · interpretation of rules, · - by national courts, §1352-1354, 1384-1385, 1530, 1537-1540, 1544 · - by organs, §1356, 1359, 1379, 1384-1385 · membership, §1153, 1476 · recognition of Vietnamese government, §1851 · sanctions, §1460, 1463, 1469, 1714 · seat of -, §474, 480 · supervision, §1419 · suspension of services, §1463 · trust fund, §1030 · voting, §793, 799-800, 823, 827, 855, 858, 878, 880, 886 · - in Committee on Interpretation, §1356 · suspension of - rights, §1460 · waiver of obligations, §1444 · withdrawal, §122 International Narcotics Control Board, §415, 1651, 1695 International organizations, · as participants to int. conferences, §1841-1842 · as parties to conventions, §1305, 1577-1578, 1775 · basic functions of -, §388, 1772 · centralization of -, §478-488 · classification, §48-64, 210

Index

· - contributing to voluntary programmes, §1032 · coordination by -, §1726-1731 · definition, §30-45 · dissolution of -, §910, 1195, 16231680 · establishment of -, §1617-1622, 1776-1782 · families of -, §1691-1701 · forces of -, §1487-1512 · influence of -, §1411 · initiatives in other -, §719 · legal order of -, §1142-1144 · membership of other organizations, §81-84, 170, 264, 1762 · observers to other organizations, §185-187, 1806-1807 · parliamentary organs in -, §564567 · relations between -, §430, 450, 1046-1048, 1062-1063, 1691-1741, 1806-1809, 1840 · relationship with members, §18841888 · structure of -, §385, 552 · supervisory tasks, §1401-1427, 1900; see supervision · treaty-making capacity of -, §17481755 · types, §46-47 · see also public international organizations and private international organizations International Organization of Legal Metrology, §982 International Organization of Vine and Wine, §980 International Red Cross; see International Committee International Red Locust Control (Service), §808 International Refugee Organization (IRO), §1624, 1637, 1669 International Telecommunication Union (ITU), §197, 1694, 1852 · arbitration, §1440 · budget, §1001, 1058 · chairman, §357 · contributions, §969, 971-973, 1016

1274

· constitution, §1145, 1152, 1195 · credentials of delegations, §258, 1808 · decision-making, §720, 752 · establishment, §1621 · external relations, §1842, 1852 · meetings, §958 · membership, §77, 166, 1846 · organs, §385, 415, 418 · sanctions, §1467, 1886 · secretariat, §437, 442, 480, 492 · specialized congress, §396, 966 · supervision, §1440 · voting, §826, 830, 873 International Trade Organization (ITO), §606, 1620 International Tribunal for the Law of the Sea, §601, 616 · composition, §672 International Whaling Commission, §1294 internships, §523 Inter-Parliamentary Union (IPU), §35, 564, 643, 894 Interpol, see International Criminal Police Organization interpretation, §1344-1389, 1439, 1898 · amendment by -, §1185 · authorities charged with -, §13511378 · - by judicial organs, §1363-1378 · - by members, §1351-1354 · - by national courts, §1522-1538 · - by object and purpose, §1349 · - by policy-making organs, §13551362 · competence to request -, §13791386 · concerning languages, §374, 1347 · definition, §1344-1345 · - from intention, §1348 · means of -, §1346-1350 · - of EC/EU law, §1374-1379 · textual -, §1347 investments, · income from -, §1064-1069 Iran, §606, 654, 16, 1416 Iran-United States Claims Tribunal, §654, 690

1275

Iraq, §66, 212, 1416-1418, 1832 · UN forces in -, §1508 Ireland, §1524-1525 Israel, §1690, 1852, 1857, 1886 · special guest to Parliamentary Assembly of CoE, §181 Italy, · enforcement of international rules, §1535, 1540 · legal personality of int. organizations, §1595 ius cogens, §1341, 1786 J Jackson Report, §519, 1821 Joint Parliamentary Committee, §566 Jordan, §1829, 1857 · privileges and immunities in -, §712 judgment, §693, 695, 1364-1365, 13691370 judicial annulment (of decisions), §912916 judicial control, §599-604, 1234, 1888 judicial organs, §267, 379-380, 597-699 · access to -, §687-692, 1379, 18581859 · administrative tribunals, §642-647; see also administrative · advisory opinions, §689, 694 · appointment of members, §680-682 · arbitration commissions, §648-669; see also arbitration · competence, §604, 693, 1365 · composition, §672-685 · - concerning staff disputes, §543544, 602, 605, 642-647 · conciliation commissions, §648669; see also conciliation · creation of -, §608 · decisions, §693-694, 1364-1365 · existing -, §605-671 · fact-finding commissions, §648669; see also fact-finding · independence of -, §608, 685 · independence of members, §683, 697 · interpreting rules of international organizations, §1362-1378

Index

· mediation commissions, §648-669; see also mediation · members ad hoc, §675-678, 683 · nationality of members, §675-678, 701 · need of -, §597-604, 700 · number of members, §672-674 · procedure, §686-699 · proliferation of -, §702 · qualifications of members, §679 · regional -, §617-641 · registrar, §685 · river commissions, §631-632, 1364 · separate opinions, §695-699 · tasks, §598-604, 1364 judicial review, §214, 222, 233, 701, 1888 · ITO, §606 judiciary (national), · - accepting legal personality of int. organizations, §1595, 1873 · - applying EC/EU law, §13741378, 1532, 1542 · - applying rules of int. organizations, §1235-1237, 1259, 1264, 1333, 1365, 1385, 1522-1548 · - initiative for decisions of -, §1545-1548 · - interpretation by -, §1351-1354 · - as plaintiffs, §691 · - requesting interpretation, §13841385 judges, see judicial organs, members junior congress, §393-395 · composition, §394 jurisdiction, §219, 222 · domestic, §207, 211-216 · of judicial organs, §693 K Korea, · UN forces in -, §1507 Kurds, §212 Kuwait, §72, 1508 L languages, §367-375, 749 · additional, §368-369, 372

Index

· - and textual interpretation, §1347 · official and working -, §370 · staff needed for -, §497, 510 · translation costs, §369 laissez passer, §451, 1863-1866 Lasalle case (CoJ), §503 Latin American Economic System (SELA), §1700 · Action Committees, §39, 405, 1700 · budget, §1092 · Constitution · Arts. 20-26, §39, 1092 Latin American Free Trade Association (LAFTA), §429, 788, 1186, 1626, 1637 Latin American Integration Association (LAIA), §244, 376, 393, 429, 1626, 1637 · partial agreements, §1270 · voting, §788 Latin American Parliament, §566-567 law-making agreements, §1773-1775, 1847, 1862 Law of the Sea; see also United Nations Convention · Tribunal of the -, §601, 616, 672; see also International Tribunal lawyers (as members of courts), §679 League of Arab States, §1701, 1855 · administrative tribunal, §647 · agreement with OAU, §1781 · decisions, §827 · expulsion, §145 · recognition of observers, §183 · seat, §1855 · separation from -, §1627 · specialized agencies, §1701, 1716 · voting, §827 · withdrawal, §122 League of Nations (LoN), §217, 727, 824, 1318-1320, 1704 · agreements, §1663-1664, 1772 · Covenant, §1146 · Art. 5, §783, 788 · Art. 6, §986 · Art. 15, §212, 216 · Art. 16, §141, 1481, 1485, 1492 · Art. 22, §1646 · Art. 23, §1465 · Art. 24, §1704 · contributions, §986

1276

· decision-making, §730, 1318-1320 · diplomatic relations, §1804, 1816 · dissolution, §1637, 1639, 1653, 1663, 1673 · membership, §1152 · military enforcement, §1492 · petition, §1429 · protection of minorities, §1664 · registration of treaties, §1868 · sanctions, §1465, 1481, 1485 · Secretariat, §435 · staff, §539, 543-544, 1669 · succession by UN, §1626, 1663, 1669, 1673, 1678 · supervision, §1417, 1429 Lebanon, §712, 713, 1416 · Arab League force, §1026, 14901491 legal, · - force of agreements, §1783-1788 · - force of conventions, §1276-1297 · - order, §1140-1144, 1648 · - personality, §1560, 1562-1571, 1682, 1816, 1857, 1875 · (in)divisibility of -, §1571 · transferral of -, §1776 · - under domestic law, §15911598 · - status, §1559-1685 · agreements concerning -, §1770 · - in international law, §15621590 · - in national law, §1591-1616 · - system, · - applicable to int. organizations, §1599-1616 · - applicable to staff, §539-541 legal effect, · - of binding decisions, §1327 · - of declarations, §1248-1261, 1443 · - of recommendations, §1219, 1240 legation, §1802; see also diplomatic relations · active -, §1816-1842 · passive -, §1803-1815 legitimization, §1238-1239 Les Verts Case (CoJ), §912 levy; see taxation

1277

liability, §604, 1612(b), 1666 · - under international law, §15821590, 1856-1859 · - under private law, §1613-1616 · - of member states, §1585-1586 Liberia, §1817 liberation movements, · as associate members, §166 · observers from -, §182-184 · recognition of -, §1844, 1847 library, §478, 963, 1042, 1044 Libya, §222 Liechtenstein, §73 liquidation, §1638 list of speakers, closure of, §347 loans, §961, 1018, 1061, 1064-1069, 1073 local remedies, exhaustion of -, §1433 Lomé Agreements, §1756, 1780-1781 · Joint Assembly, §566, 569 lots (drawing of -), §839, 841 Luxembourg, · - Accords (EEC), §780, 861 · - as seat, §483-485 · enforcement of international rules, §1534, 1544 M majority, §783, 791, 817-867, 1897; see also decision-making and voting · absolute, §817-818 · calculation of -, §820-837 · distributed -, §820 · double -, §144, 819 · kinds of -, §817-819 · - needed for amending constitutions, §1173-1177 · - needed for amending conventions, §1312 · - needed for amending decisions, §902 · - needed for admitting new members, §88-89, 98 · - needed for approval of budget, §1001, 1109 · - needed for expulsion, §144, 262 · - of membership, §165, 821-822 · - of votes, §823 · qualified -, §165, 592-593, 727, 817, 851-855

Index

· · · · ·

relative -, §817 simple -, §817-818, 838, 854 unqualified -, §838-850 vote, §857-867 vote, need for judicial control, §601 · see also quorum management committees (EC), §228, 275, 405, 904 mandate of UN forces, §1502-1505, 1509, 1833, 1896 marathon sessions, §753-755 mediation, · - commissions, §648-669 · by secretariat, §462-463 meetings, §187, 450, 594, 713, 1815 · regional -, §711, 726 · see also sessions members, §66-204, 1846 · affiliate -, §171 · agreements with -, §1749 · - as parties to conventions, §1298 · assistance for -, §948, 1771 · associate -, §117, 166-168 · competence to request interpretation of rules, §1380-1383 · delegation to -, §229 · - of delegations, see delegation, composition of · int. organizations as -, §81-84, 170, 264, 1762, 1840 · - interpreting rules of int. organizations, §1351-1354 · liability of -, §1585-1589 · partial -, §169-171 · relation with -, §1688, 1884-1888 · representation of -, §238-266 · rights and obligations, §155-165, 1449 · sanctions against other -, §1449 membership, §51-57, 198-204, 1201(4), 1840 · collective -, §79-80 · commencement of -, §102 · - of regional committees, §429 · common -, §79-80 · conditions, §90-99, 149, 152-153 · sorts of -, §69-70

Index

· contributions by different -, §966 · termination of -, §118-154, 908-909, 1154, 1636 · see also obligations member states; see also members · role of, §66-70, 1885-1888 merger, · - of organizations, §1627 · - of states, §104, 151 Meroni case (CoJ), §226, 231 micro-states, see mini-states military enforcement, §1487-1512 Milosevic Case before Dutch courts, §1353 mini-states, §72-74, 279, 1803 Ministers of Foreign Affairs, · coordination by, §1740 · interpretation by -, §1351 minorities, · qualified -, §856 · protection of -, §1432, 1664 · - in voting, §819, 857-867 · representation in organs, §287 missions; see delegations and permanent -, · special -, §1832-1833, 1837-1838 · - to non-members, §1834-1839 · - to other int. organizations, §1840 mixed agreements; see agreements monism, §1522-1537 motions, §350 · - of procedure, §349-353 Mozambique, · UN forces in -, §1502 Multilateral Investment Guarantee Agency (MIGA), §144, 1701 multinational delegations, §254 N Namibia, §75, 166, 979, 1003, 1502, 1833, 1848, 1852 · - under UN administration, §1201, 1548, 1852, 1866 national laws, · application for int. organizations, §1599-1616 · granting legal personality, §15921598 national legal orders; see also judiciary

1278

· - applying constitutional provisions, §1538-1540 · - enforcing international rules, §603, 694, 913, 1353, 1365, 15181548 national level coordination, §1739-1741 National Liberation Movements, see Liberation Movements national parliaments, see parliaments nationality, · of staff, §500-505 negative acceptance, §1172, 1264-1266, 1288-1294, 1893 negative coordination, §1705 negative ratification; see negative acceptance negotiating groups, §766-767 negotiation by int. organizations, §1789-1790 Netherlands, · enforcement of international rules, §1524, 1526, 1530, 1534 · legal personality of int. organizations, §1595 · parliamentary control over foreign affairs, §560(a) · role in UNCLOS II, §734 Nigeria, §1832 Noblemaire principle, §512 non-autonomous territories, §75-78, 117, 166, 1846 non-governmental organization (ngo), §35, 47, 195 · assistance in reporting, §1404, 1430 · development assistance, §950 · in ECOSOC, §188-195, 1404 · financial support to int. organizations, §1048 · in ILO, §250, 1404 · initiatives by -, §720 · petitions by -, §1430 · and the World Bank, §671 · see also private int. organizations and organs non-member(s), · agreements with -, §1749 · as parties to conventions, §13001304, 1316 · assistance for -, §948 · decisions binding for -, §1324

1279

· · · ·

delegates from, §332 legal personality in - states, §1598 missions to -, §1834-1839 observers from, §180-181, 18051811 · privileges and immunities, §1811 · relations with -, §1687 · voluntary contributions from -, §1033 non-plenary organs, §237, 385, 406-433, 595, 1886 · composition of -, §276-277, 279, 282 · cost of sessions, §316 · election of -, §285-301, 849 · quorum, §305 · replacement of members, §299-301 · term of office, §297-298, 359 Non Proliferation Treaty, supervision on -, §1418 Nordic Council, §35, 566, · cooperation with governments, §578 · size, §569, North American Free Trade Agreement (NAFTA), §667 North Atlantic Treaty Organization (NATO), · Appeals Commission, §647 · contributions, §983 · council, §357, 1388 · decisions, §1323, 1388 · diplomatic relations, §1804 · membership, §95 · Operation Allied Force (Kosovo), §1438, 1577, 1590A · parliamentary assembly, §566, 569, 594 · partial withdrawal by France, §136 · priority of acts of -, §1708 · reporting, §1404 · Secretary-General, §459, 713 · staff, §522, 525 Norway, · partial membership of IEA, §170 notice · of withdrawal, §121 notion of function, §15-21, 199, 201, 377-382, 554-555, 1137, 1342, 1682, 1685, 1887, 1890-1893, 1896-1897

Index

Nuclear Test Ban Treaty, §1301, 1847 Nuremberg Tribunal, §1246, 1253; see also war crimes O objectives, §205-210, 215, 233, 235, 547(ii), 1210, 1215 obligations of membership, §156-165, 255, 344, 892, 1449, 1787-1788 · amendments creating new -, §1169, 1179, 1187, 1193 · fulfillment of -, §1518-1520 · specification of -, §1254 · suspension of -, §164, 1469 · see also waiver of obligations of organizations, §1566, 1570, 1583 · - attributed by treaties, §1750 observation of elections, §456 observers, §173-197, 1687 · credentials of -, §175, 1808 · individuals as -, §196 · influence of -, §178 · international organizations as -, §185-187, 1723 · invitation of -, §175 · legal position, §176-177 · liberation movements as -, §182184 · missions, §1805-1815 · parliamentarians as -, §252 · private companies as -, §197 · from private international organizations, §188-195 · in ECOSOC, §189-194 · privileges and immunities, §332 · UN -, §456, 1495, 1501, 1772; see also peace-keeping officers, §354-366, 492 ombudsman, §545, 581 operational activities, §1208-1215 · competence to perform -, §12101215 · definition, §1208 operational expenditure; see costs opinio iuris, §1250 optional classes of contribution, §969973

Index

organ(s), §306, 1565 · administrative -, §383-555 · advisory -, §385, 408, 556-702 · civil servants in -, §275 · classification of international -, §384-388 · common -, §1715-1720 · competence to request interpretation of rules, §1379 · competent - to conclude agreements, §1763-1768, 1785 · competent - to perform acts of recognition, §1853-1854 · composition of -, §237-305, 339, 384, 1720, 1896 · coordination by -, §1726-1731 · creation of new -, §231, 386, 1201, 1208, 1243, 1462 · - through mixed agreements, §1762 · dissolution of -, §1672 · effect of recommendations on -, §1241-1243 · function of -, §384 · hierarchy of -, §1261 · - of independent individuals, §267-274, 276, 1201(3) · initiatives by -, §712-718 · interpreting rules, §1355-1378, 1383 · judicial -, §597-699; see judicial · interpreting rules of int. organizations, §1362-1378 · legal personality of -, §1591 · member states as -, §155, 1201(3) · non-governmental -, §162, 407 · non-plenary -, see non-plenary organs · parliamentary -, §558-596; see also parliamentary · - as plaintiff before judicial organs, §689 · plenary -, §237, 276, 305, 316, 1886 · levels of -, §393 · policy-making -, §383-555 · - interpreting rules of the organization, §1355-1362, 1383 · non-plenary -, §406-433 · plenary -, §389-405 · primary -, §205

1280

· sessions, §306-322 · costs of -, §957-959 · size of -, §237 · specialized -, §308, 310 · status of members of -, §384 · subsidiary -, §175, 205, 224-230, 366, 891 · composition of -, §270, 295, 1470, 1720, 1840 · creation of -, §1201(2) · voting in -, §812 · supervisory -, §556-702, 1243 · treaty -, §386-387 organizations; see international organizations Organization of African Unity (OAU), §1640 · agreements, §1766, 1782 · Commission of Mediation, Conciliation and Arbitration, §661, 672 · constitution amendment, §747, 1173 · contributions, §979, 992, 997 · declarations, §1260 · dispute settlement, §661, 1357 · establishment, §1619 · expenditure, §964 · external relations, §1721, 1804 · observers to UN, §182-183 · relation to ECA, §1706 · special mission to Biafra, §1832 · structure, §394, 397, 661 · voting, §788, 851, 865, 873, 881 Organization of American States (OAS), §1699 · administrative tribunal, §647, 685 · amendment of Charter, §1181, 1187 · budget, §929, 951 · Charter, · Art. 1, §211 · Arts. 6-8, §1181 · Art. 23, §1707 · Art. 60, §393, 1323 · Arts. 127-128, §397 · Arts. 129-135, §1699 · Art. 131, §1708 · Art. 135, §488 · Art. 136, §1707

1281

· contributions, §979, 992, 997, 1010, 1016 · voluntary -, §1026 · Council, §629 · decisions, §1323 · declarations, §1259 · diplomatic relations, §1804 · external relations, §1707-1708 · funds, §929 · Inter-American Commission of Human Rights, §629, 660, 1365 · access to -, §690 · composition, §672 · Inter-American Court of Human Rights, §629, 1365 · composition, §672, 680 · see also American Convention · membership, §93, 147, 1181 · military forces, §1488, 1506 · peace-keeping, §951 · privileges and immunities, §16061607 · relation with UN, §1707 · sanctions, §1506 · seat, §488 · special mission to members, §1832 · specialized organizations, §1699 · structure, §393-394, 397 · voting, §788 Organization of Arab Petroleum Exporting Countries (OAPEC), §638, 1324, 1701 Organization of Central American States (ODECA), §637 Organization for Economic Cooperation and Development (OECD), §1195, 1701 · administrative tribunal, §647 · agreements, §1661, 1701, 1749, 1757 · constitution · Art. 5, §1749 · Art. 10, §357, 459 · Art. 12, §170, 1749 · Art. 15, §1660 · conventions, §1263, 1329, 1757 · negative acceptance of -, §1289 · council, §357 · decisions, §827, 1263, 1323, 1329, 1660

Index

· diplomatic relations, §1804-1805 · external relations, §1716, 1721 · Nuclear Energy Agency, §634, 1654 · suspension of services by -, §1463 · - Tribunal, §634, 672 · partial agreements, §1055 · partial membership, §170, 1805 · reporting by -, §1725 · secretariat, §1720 · Secretary-General, §459, 713, 1668 · staff, §1668, 1701 · succession of OEEC, §1626, 1633, 1652, 1654, 1660, 1661, 1665, 1668, 1679, 1716 · voting, §788, 827 Organization for European Economic Cooperation (OEEC), §1621 · succession of -, §1626, 1633, 1652, 1654, 1660, 1661, 1665, 1668, 1679, 1716 Organization of the Islamic Conference, §55 Organization of the Petroleum Exporting Countries (OPEC), §34, 55, 472, 476, 967 · binding decisions, §1324 · privileges and immunities, §1609 · Secretary-General, §440, 522 · voting, §788, 835 Organization for the Prohibition of Chemical Weapons, §1418A · Bustani Case, §24, 492, 544, 1886 · consensus, §779 · inspections, §1418A · tenure policy, §518 Organization on Security and Cooperation in Europe (OSCE), §30 P package deals, §756-759, 778 Pakistan, §882, 1820 · conflict with India, §606, 1478 Palestine, · UN Forces in -, §1416 Palestine Liberation Organization (PLO), §75, 98, 1805 · observer status, §182-183, 880

Index

panel, §656, 659, 667, 671 Parliamentarians for Global Action, §564 parliamentary assizes, §586 parliamentary organs, §558-596; see also European Parliament · advisory functions, §584-593 · composition, §568-575 · decision-making, participation in, §589-593, 894 · distribution of seats, §568, 701 · dual mandate, §572-573, 584 · election of members, §570-573 · - in international organizations, §564-567 · initiatives by -, §717, 724 · functioning of -, §594-596 · need for -, §558-563, 700, 1080 · parties, §574-575 · petitions to -, §724 · political groups in -, §574-575 · quorum, §302 · size, §568-569 · task, §576-593 parliaments, §255, 559, 894 · approval by -, §344, 894, 1037, 1525, 1528 · control by national -, §321, 559, 561, 749, 894, 1525 · delegations from national -, §251252, 561(b) · enforcement through national -, §1521, 1525 · and foreign affairs, §560-561 · relations between national and international -, §585-586 partial agreements; see agreements partial members, §169-171, 1004 parts of states, §282 passports, §1863-1866 peace-keeping, §232, 450, 774, 861, 1493-1512, 1833, 1896 · competence to engage in -, §12121215 · costs of -, §951-954, 991, 1005, 1114 · - Reserve Fund, §1020 · rules for -, §1201, 1577 · status of forces agreements, §1794 · supervision by -, §1416 · UN - forces, §1493-1512

1282

· mandate of -, §1502-1505, 1509, 1833, 1896 · operational principles for -, §1505 · use of UN flag, §1873 · voluntary contributions for -, §1027 pensions (of staff), §515 Permanent Court of Arbitration (PCA), §650, 652 · composition, §672 Permanent Court of International Justice (PCIJ), §385, 605, 1172 · cases, §8, 216, 343, 789, 1318, 1337, 1344, 1348, 1367 · succession by ICJ, §1626 permanent employment of staff, §518522 permanent missions, §1740, 1804-1815, 1840; see also missions · costs of -, §957 · - to members, §1820-1833 · - for development, §1820-1829 permanent seats, §283, 794 personality; see legal personnel; see staff Peru, §863 · conflict with Colombia, §1492 petitions, §196, 722, 724, 1429-1434 · importance of -, §1434 · see also supervision Philippines, §75 plaintiff, §688-691 planning, §1732 plea of illegality (EC), §913 pledges, §344, 1034-1036, 1037-1038 plenary see organs and commissions point of order, §351-353 Poland, §121, 1851 policy-making organs, §383-555 · - interpreting rules of the organization, §1355-1362 · non-plenary -, §406-433 · plenary -, §390-405 political annulment of decisions, §911 political groups, in parliamentary organs, §574-575, 596 Portugal, · sanctions against -, §1453, 1458, 1462, 1474, 1581, 1714

1283

powers, §206-236 · advisory - of parliamentary organs, §588, 717 · attribution of -, §206-223 · consultative -, §717 · customary -, §232 · delegation of -, §224-230, 251-252, 257, 460, 410, 460, 712, 912 · implied -, §232-236, 1834, 1856 · - to expel, §142, 148 · misuse of -, §915 · - of presidents, §361-364, 811 · sacrifice of -, §231 · separation of -, §1113; see also institutional balance preliminary objection, · - against competence, §709 preliminary rulings, §603, 691, 694, 912-914, 1374-1378 Premiums for slaughtering cows-Case (CoJ), §884 president, see also chairman · - of legal organs, §840 · - of the organization, §432-433, 811 presidental statements, §1323 pressure, §760-762; see also interest groups · - to comply with obligations, §1439-1440 · - to pay contributions, §1014-1016 · - to ratify conventions, §1268, 1279, 1282-1287 priority of particular rules, §1707-1711 private companies, §197, 1125 private international organizations, §188, 564, 567, 643 · fact-finding by -, §1427 · observers from, §189-195 · privileges and immunities of delegates from -, §334-336 · - in UNCLOS II, §738 · supervision by -, §1398 private law, §604, 1239, 1598 · contracts under -, §1665, 1752 · liability under -, §1613-1616 privileges, §363, 381; see also immunities and staff, independence of · agreements on -, §529, 1811 · decisions on -, §712 · - and immunities, §274, 307

Index

· instruments for -, §325 · - of organizations, §1606-1609, 1811-1812, 1827 · - of permanent missions, §1811 · - of staff, §529-533, 1863 · subjects of -, §326-336, 529, 1811, 1827, 1829, 1873 procedural decisions, §813-814, 856, 858 procedure, §337-353, 725; see also decision, decision-making · abuse of -, §353 · amendment -, §1189-1195 · assent -, §591 · co-decision -, §593 · committees on -, §427 · consultation -, §590 · cooperation -, §592 · customary law and -, §1339 · decision-making - (EC/EU), §590593 · - for decisions with financial implications, §769 · motions of -, §349-353 · protection of minorities in -, §856, 858 · role of president, §362-365 · rules of -, §337-354, 1201(1), 1205, 1859 procedure before judicial organs, §686699; see also judicial organs programme planning, §1732 property, · after dissolution of organization, §1673-1679 · protection of -, §1607 proportionality, §210 proposals, · amendment of -, §752, 845, 854, 904 · drafting of -, §727-746 · - for amendments, §1190 · preparation of -, §725-746 · reconsideration of -, §1117 · sponsors for -, §750-751 · submission of -, §725-726, 768 · date of -, §747-749, 844 · voting on -, §843 · withdrawal of -, §768

Index

provisional application of conventions, §1295-1296 proxy, §254, 377, 791, 892 public international organizations, §1703; see also international organizations · observers from, §185-187 · privilege and immunities of delegates from -, §333 · supervision, §1398 public opinion, §269, 424, 584, 587 public relations, §318, 1735 publications, · income from, §1058 · - of reports, §1404, 1439 publicity, · cost of -, §964 · - of meetings, §321 · - of violations, §1404, 1439 purposes, see objectives Q qualified majority; see majority questions (in parliament), §579 quorum, §255, 302-305, 377, 880 · - and absence, §836 · - and abstention, §824 R racism, §611, 905 rapporteur, §366, 670, 731 ratification, · - of agreements, §1791-1793 · - of conventions, §1268, 1281-1296 · legal force after, §1297 · legal force before -, §1276-1280 · - of constitutions, §102, 1170-1178 · negative -, §1172, 1288-1294 · number of -, §1288, 1302 recommendations, §1217-1243 · addressee, §1218, 1581 · after dissolution of organization, §1650 · definition, §1217-1219 · effect on other organizations, §1223, 1581 · entry into force, §888 · internal effects, §1241-1243

1284

· legal effect, §1219, 1240 · political effect, §1226-1229, 1240 · practical effect, §1220-1243 · reasons for applying -, §1220-1243 · technical, §1229 · - versus conventions, §1232 · - versus declarations, §1258 · withdrawal from -, §1232(3) recognition (by int. organizations), §1843-1855 · - as part of a region, §1851 · competent organ, §1853-1854 · express non- , §1849 · - of governments, §259-263, 1013, 1851 · - of states, §1301, §1845-1850 · de facto, §1847 · - of territorial sovereignty, §1852 · - of violations, §1439-1443 · passive -, §1855 reconciliation, see conciliation records of sessions, §321, 445 Red Cross, see International Committee of the Red Cross re-election, see election Regional Economic Integration Organization (REIO), §83 regional · - chambers, §674 · - groups, §428-431, 1850 · - meetings, §711, 726 · - offices, §428, 430, 489-490, 1823 regions, see representation, geographical registrar, see judicial organs registration, · - of agreements, §1796-1797 · - of flag and emblem, §1872 · - of objects sent into outer space, §464, 1305 · - of ships and aircraft, §1870-1871, 1873 · - of treaties, §457-458, 1868-1869 regulations, §1332-1334 relations; see external relations replacement, §1627 · dates of -, §299-301 reply, right of, §345, 347, 770 reporting, · - by member states, §446, 14021405

1285

· - on ratifications, §1282 · ways of promoting -, §1404 · - by organization(s), §445, 17241725 · - by state-parties, §609-615, 630 representation, see also delegation · - by a delegation, §239-264 · geographical -, §276-279, 289-294, 314, 365, 1850; see also sponsors · - of judges, §675 · - of interests, §276-284, 287, 412, 424-425, 792-793, 1719, 1892 · unequal -, §863-867, 1893 · - by individual experts, §267-274 · - of members, §238-266 · - by non-plenary organ, §286-287 · permanent -, §319; see permanent · - by presidents, §363 · - by proxy, §254, 264-266 · - by secretariats, §450-453 · - of specific interests, §250, 280-281 · strengthening of -, §282-284 · suspension of -, §1461-1462 · weighted -, §282, 794 representatives, §173, 237, 247-249 · - in specialized congresses, §397 · see also observers and delegation reservations, · - to agreements, §1795 · - to constitutions, §124, 1150-1154 · - to conventions, §1308-1311 Resident Coordinator (UNDP), §1728, 1741, 1817, 1820-1828, 1836 Resident Representative; see Resident Coordinator resolutions; see recommendations responsibility, §1856-1859; see also liability restatement (of recommendations), §1240 retributions, §1051-1052, 1054, 1074 revocation, · - of agreements, §1786 · - of decisions, §905-906; see decisions Rhine, see Central Commission Rhodesia, §1482, 1543, 1547, 1846 river commissions, §631-632 role, see capacity roll-call, §302

Index

roster, of private organizations, §192 rotation of seats, §295, 297 rule, “emitter” and “receiver”, §199 rule of essentiality, §91 rules, §1884; see also internal · diversity of -, §1889-1893 · self-enforcing -, §1233 · self-executing -, §1545-1546 · unity of -, §1894-1897 rules of arbitration, §650, 664, 1859 Russian Federation, · succession of USSR, §103, 106 Rwanda, §608, 1502, 1510 S Saar; see also Tribunal · LoN forces in -, §1492 sacrifice of powers, see powers safeguard clauses, §214-215 sanctions, §160, 693, 1445-1558, 1893 · - (authorized) by the organization, §1450-1517 · - against individuals, §1549-1552 · - by the other members, §1449 · - committees, §1484-1485 · definition, §1446-1448 · desirability of -, §1398-1399 · economic -, §1478-1486, 1577 · military enforcement of -, §1486 · expulsion, §140 · - for non-payment of contributions, §1015, 1038, 1455 · military -, §1487-1512 · natural -, §1233 · organs competent to impose -, §1472 · possibility of imposing -, §14501454, 1467 · - through other organizations, §1475, 1714 scales of assessment, §974-991, 1730; see contributions Seabed Authority, §616 seal, §1872-1874 seat(s), §469-490; see also building · centralization of -, §478-488, 962963, 1722 · decentralization of -, §489-490 · meetings at the -, §318-320, 959

Index

· permanent -, §283, 794 · requirements of -, §469-477 Secretariat(s), §434-546, 555, 1888 · administrative functions, §442 · assistance to members, §454-455 · budget preparation, §443, 11051108, 1130 · collection of contributions, §1014 · collection of information, §446-447, 1412 · common -, §1717-1720 · competence to conclude agreements, §1766 · composition, §267, 500-505 · coordination by -, §448-449, 461 · costs, §964 · definition, §434-438 · depositary of treaties, §457-458, 1867 · drafting of agenda for sessions, §338, 366, 713 · executive functions, §459-460 · influence of -, §460, 465, 714, 1412 · information, §444, 562 · initiatives by -, §461, 712-714 · interpretation of rules, §1359 · - of judicial organs, §685 · mediation by -, §462-463 · observation of elections, §456 · powers of -, §465 · representing the organization, §450-453, 1737, 1789, 1842 · seat of -, §469-490 · size, §497 · supervision by -, §1412 · task, §439-468, 462, 464, 548 · delegation of - to outsiders, §466-468 · use of outside experts, §466-468 Secretary-General, §440, 1842 · acting as chairman, §357 · appointment, §492 · arbitration by -, §462 · conclusion of agreements by -, §1766-1767, 1789 · executive functions, §459, 1842 · issue of credentials, §451, 17891790, 1808 · mediation by -, §463 · qualifications, §498

1286

self-support, §1050-1073 separate opinions, §695-699 separation, §1627 separation of powers, §1113; see also institutional balance services rendered by int. organizations, · income from -, §1051-1063, 1069 · suspension of -, §1463-1465 sessions, §306-353; see also meetings · costs of -, §313-316, 957-959 · documentation, §321 · exclusion from -, §1473 · frequency and duration, §309-311 · joint -, §1721-1722 · parliamentary -, §594-596 · place of -, §317 · procedure, §337-353 · publicity of -, §321 · records of -, §321 · special -, §308 · specialized -, §312 settlement (of disputes); see interpretation ships, registration of -, §1870-1871, 1873 social security (of staff), §515 socialist states, §864 · - in ILO, §250 Somalia, · UN forces in -, §1502-1504, 1509, 1833; see also UNITAF and UNOSOM South Africa, · agreement with LoN, §1663 · credentials of delegates, §262-263, 1462 · economic sanctions against -, §1482, 1581, 1714 · expulsion from int. org. §137, 146, 853, 874, 1473 · in FAO, §1473 · in ICAO, §1362, 1473 · in UNCTAD, §1472 · in UNESCO, §1473 · in WHO, §1458 · in WMO, §1467, 1887 · refusal to end mandate of Namibia, §1646-1647 · refusal to pay contributions, §1011

1287

· revocation of UN arms embargo, §905 · suspension of representation, §1462 · UN Resolutions concerning -, §1242, 1482, 1714 South African Development Community, §34, 1178 · Tribunal, §641A South African Development Community Parliamentary Forum (SADCPF), §34 South East Asian Treaty Organization (SEATO), §1637 South West African People’s Organization (SWAPO), §182, 1805 sovereignty, recognition of -, §1852 Soviet Union, §208, 463, 1789 · contribution to the UN, §1011 · dissolution of CMEA, §1673 · relation with EEC, §1773, 1841, 1855 · relation with international civil servants, §527 · new rates for former members of , §977 Spain, · economic sanctions against -, §1482, 1581, 1795 Special Drawing Rights (SDRs), §1009, 1549 special missions, §1832-1833, 1837-1838 specialized agencies, §261, 1594, 1699; see also UN · and observers, §186, 195 specialized congresses, §396-399 sponsor (of proposals), §750-751 sponsoring (of meetings), §957 staff, §491-546; see also Secretariat · administrative tribunal, §602, 605, 642-647, 1672; see also administrative · after dissolution of organization, §1666-1672 · allowances, §512 · appointment, §492-495, 519 · - as representant, §1737, 1842 · - assessment, §1070-1072, 1074 · borrowing of -, §522, 1736 · - college, §499, 1738

Index

· - committees, §542 · composition of -, §525 · conditions of employment, §506523 · contract, §539-540 · costs of -, §956 · dismissal of -, §519, 1666, 1672 · exchange, §507, 1736 · geographical distribution, §494, 500-505, 519 · grades, §508-510, 1120 · immunity from jurisdiction, §534537 · independence, §517, 520, 522, 524537 · legal position, §517, 539-545, 1672 · linguistic requirement, §499 · loan to government, §455 · local -, §505, 529 · nationality of -, §500, 503 · number of -, §496-497 · - related to financial contribution, §502 · obligations, §516-517 · on secondment, §522 · pensions of, §515 · permanent employment, §518-522 · political activities by -, §517 · privileges, §529-533 · qualifications, §498-499 · recruitment, §494-495, 504, 1119 · regulation, §507, 539 · harmonization of -, §506, 540 · relation with national government, §525-528 · remuneration, §511-514 · increase in -, §1119-1120 · safety and security of -, §538 · social security, §515 · strike by -. §541 · temporary -, §518-522, 525 · training, §1738 stamps, income from, §1059 state; see also members and recognition · - sovereignty, §2-4, 9, 15, 135, 198199, 207, 209, 216, 375, 376-382, 551-555, 1553, 1876, 1890-1893, 1895, 1901 statements, · binding effect of -, §343-344, 1747

Index

· in general debate, §340 status; see legal status of forces agreements, §1794 status quo, §858-859, 898 statutory rules, §540 Strasbourg, §482, 1804 structure of international organizations, §385 subsidiarity, §215-216, 1901 subsidiary, see organs succession; see also dissolution · - of organizations, §1574(1), 16231628, 1749 · implied -, §1632-1636 · - of states, · - as members, §105-117, 1013 · - as parties to conventions, §1287 supervision, §1390-1558, 1900 · - based on information collected by the organization, §1406-1413 · - based on inspection, §1414-1427; see also inspection · - based on reports by members, §1402-1405 · - by individuals, §1393, 1428-1438, 1523 · effect of -, §1437-1438 · - by members, §1400-1401 · - by national courts, §1522-1548 · arguments against -, §1529-1532 · - by national parliaments, §1521 · definition, §1392-1398 · external -, §1395-1398 · internal -, §1392 · - of obligations, §722, 1267, 1435 · - on the implementation of sanctions, §1484 · purpose of -, §1439 supervisory organs, §556-702, 1484 supranational, · - law, §1333, 1431, 1549, 1656 · - organizations, §31, 162, 673, 1892 supremacy of Community law, §1144 suspension, · - of meetings, §350 · - of obligations, §164, 1469 · - of representation, §262-263, 14611462, 1471

1288

· - of rights and privileges of membership, §139, 1466-1469 · - of services of the organization, §1463-1465 · - of sessions, §307 · - of voting rights, §1455-1460 Switzerland, §95, 357, 1004, 1603, 1805, 1809, 1834 Syria, · in Arab League forces -, §1490 T tacit acceptance; see negative acceptance taxation, §1074-1090 · conditions for international -, §1075-1080 · definition, §1074 · freedom from -, §530-532; see also privileges · national -, §530, 1070-1071 · - of int. organizations, §1606 · - of staff, §1070-1072 · systems of -, §1081-1090 Tchernobyl case (CoJ), §741 technical assistance, §454-455, 1053, 1692, 1820 temporary employment of staff, §518522, 525 time-limit, · - for speeches, §340, 346 · - for submission of proposals, §747-749, 844 · - for constitutional amendments, §1192 · - for taking decisions, §753-755 termination of membership, see membership territorial sea, §731, 845 territorial sovereignty, recognition of -, §1852 Tin Agreement, §1588, 1614, 1631, 1683 trade unions, · of staff, §540 traffic offences, immunity from -, §536537 training of staff, §1738 transfer; see also dissolution · - of personnel, §1669-1670 · - of property, §1673-1679

1289

· - of specific functions, §1627, 1645, 1674, 1679 transformation into national law, §1526, 1528 Transkei, §1849 transparency, §321 travaux préparatoires, §1348 treaty, §1743; see also agreements, constitution and conventions · breach of-, §1239 · depositary, §457-458, 1647, 1867 · int. organizations as parties to -, §1577-1578, 1750-1751, 1774 · law of -; see Vienna Convention · - making capacity of int. organizations, §1748-1755, 1862 · - provisions for dissolution, §16321636 · publication, §458 · registration of -, §457-458, 18681869 · states party to -, §1845 · termination of -, §1642 treaty organs, §44, 386-387 Tribunal of International Composition in the Saar, §636 tripartism, §250, 280, 1893 trusteeship agreements, §1749, 1772, 1799 Trusteeship Council, see UN Trusteeship Council trust funds, §1029-1031, 1043, 1053, 1063 Turkey, §1781, 1848 Turkish Republic of Northern Cyprus, §1848 Turner, gift to the UN, §1044 U Ukrainian SSR, §75, 1845 ultra vires, §206-208, 263, 485, 641, 708, 1136, 1213, 1784 unanimity, §590-593, 787-790; see also voting · adoption of conventions by -, §1275 · amendment by -, §1160, 1168-1172 · - and absence, §834-835 · - and abstention, §824-825, 834

Index

· · · ·

concept of -, §782-783 exceptions to -, §789-790 in judgment, §695 - and legal effect of declarations, §1257, 1318 · organizations requiring -, §788 Unified Task Force in Somalia (UNITAF), §1504, 1509 Union of African Parliaments, §567 United Arab Republic, §1857 United Kingdom (UK), · conflict with Denmark, §668 · EC mission in -, §1836 · enforcement of international rules, §1544 · legal personality of int. organizations, §1592, 1598, 1614 · taxation of staff from -, §532 · parliamentary control on foreign affairs, §561(a) United Nations (UN), §1692-1697 · Administrative and Budgetary Committee, §769 · Administrative Committee on Coordination (ACC), §449, 546, 562, 644, 1717-1718, 1721, 1732 · coordination of expenditures, §936, 943, 1726 · agreements, · - between organs, §889-890 · headquarters -, §1766, 1812 · registration of -, §1796-1798 · - with member states, §1749, 1795 · - with other int. organizations, §1749, 1840 · - with specialized agencies, §185, 644, 1099, 1223, 1418, 1581, 1693, 1696, 1777, 1791, 1794, 1840 · amendment of Charter, §414, 420, 457, 1155, 1159, 1173-1175, 1192 · Board of Auditors, §1124 · bonds, §1019, 1065 · borrowing, §1020 · budget, §928, 933, 935-937, 941, 943, 1695; see also cost · coordination of -, §1730 · operational -, §946, 1095

Index

· peace-keeping -, §951-954, 991, 1114 · power to adopt -, §1112-1114 · procedure for -, §1011, 1121 · unity of -, §1095, 1099 · building, §961, 963 · CEB, see UN System’s Chief Executives Board for Coordination · Charter, §1255, 1622 · Art. 1, §1212 · Art. 2, §20, 73, 156, 207, 212, 456, 832, 1245, 1255, 1438, 1901 · Art. 3, §75 · Art. 4, §73, 75, 109, 393, 889, 1379 · Art. 5, §109, 263, 1472 · Art. 6, §109, 141, 262-263, 1472 · Art. 7, §605, 1379 · Art. 10, §217 · Art. 12, §417 · Art. 14, §1212 · Art. 17, §1099, 1112, 1114, 1213, 1379, 1440 · Art. 18, §264, 706, 852, 860, 1213 · Art. 19, §774, 1015, 1213, 1459, 1472 · Art. 23, §288 · Art. 24, §417, 1212 · Art. 25, §417, 1323, 1482, 1580 · Art. 27, §789-790, 815, 1155, 1452 · Art. 28, §156 · Art. 29, §227 · Art. 34, §1407 · Art. 41, §1482, 1486 · Art. 42, §1482 · Art. 43, §1493-1495, 1509, 1749 · Art. 44, §1493 · Art. 47, §1234 · Art. 50, §1485 · Art. 55, §212, 946, 1210 · Art. 56, §946, 1255 · Art. 57, §1704, 1712 · Art. 58, §1704, 1726 · Art. 59, §1704 · Art. 62, §1218 · Art. 63, §890, 1704, 1712, 1749 · Art. 70, §185 · Art. 73, §236, 1207 · Art. 75, §1749 · Art. 77, §1749

1290

· · · · · · · · · ·

·

·

· ·

·

· ·

·

Art. 79, §1749 Art. 83, §1749 Art. 85, §1749, 1772 Art. 87, §1415, 1429 Art. 92, §222, 605 Art. 93, §605, 1846 Art. 94, §1370, 1452 Art. 96, §605, 689, 1367, 1379 Art. 99, §461, 713 Art. 102, §1307, 1796, 1798, 18681869 · Art. 103, §1341, 1707 · Art. 107, §832, 1707 · Art. 108, §420, 821, 1173 · Art. 109, §710, 821, 1159 · Art. 110, §1623 Commission on Human Rights, §670 · handling of individual petitions, §1430 · supervision by -, §1407-1408 Committee for Programming and Coordination (CPC), §1712, 1717, 1721, 1726, 1727, 1732 Committee on Relations with the Host Country, §476 contributions, §973, 976-979, 987991; see also contributions · limits to -, §993-996, 998-1000 · minimum -, §992 · non-payment of -, §1010-1012, 1019-1020 · special rates, §1002-1004 · voluntary -, §1027, 1032-1036 coordination, §1704-1705, 1712, 1714-1715, 1724, 1726-1727, 1730; see also UN, ACC · - at national level, §1739 declarations, §1257 decision-making procedure, §730738, 749, 770 · - involving expenditures, §769 · - by consensus, §773-775 · - by qualified majority, §852, 854 · - by majority, §860-861, 864-865 decisions, · amendment of -, §899 · annulment of -, §912 · binding force of -, §1321, 1323 · procedural -, §813-814

1291

· revocation of -, §905 · Department of Public Information, §444 · diplomatic relations, §1804 · documentation, §322 · Economic and Social Council (ECOSOC), §212, 410 · Committee on Economic, Social and Cultural Rights, §268, 610, 1404 · Committee on NonGovernmental Organizations, §193 · coordination, §1726, 1732 · co-sponsorship, §751 · external relations, §1842 · position of observers in -, §176, 182, 186, 188-194 · reporting, · - by organizations, §1724 · - by states, §1404 · Resolutions · 13 (III), §1717 · 51 (IV), §455 · 259 (IX), §1125 · 288 (X), §189 · 288 B(X), §37 · 455 (XIV), §193 · 517 (XVII), §169 · 545 (XVIII), §1860 · 974 (XXXVI), §1473 · 1079 (XXXIX), §715 · 1090 E(XXXIX), §1724 · 1172 (XLI), §1724 · 1196 (XLII), §415 · 1267 B (XLIII), §186 · 1277 (XLIII), §1724 · 1296 (XLIV), §37, 189, 193 · 1367 (XLV), §1726 · 1547 (XLIX), §1729 · 1548 (XLIV), §1724 · 1600 (LI), §169 · 1604 (LI), §169 · 1757 (LIV), §546 · 1768 (LIV), §312, 362 · 1770 (LIV), §322 · 1807 (LV), §312, 365 · 1894 (LVII), §322 · 1892 (LVII), §182 · 1913 (LVII), §269, 273

Index

· 2008 (LX), §1727 · 2089 (LXII), §169 · 2098 (LXIII), §1724 · 1985/17, §268, 610 · 1985/81, §1695 · 1987/94, §1727 · 1993/80, §189 · 1993/215, §189 · sessions, §312 · subsidiary organs, §224 · supervision, §1430, 1432 · - of commissions, §422, 428 · establishment, §1619, 1622 · expulsion, §137, 140, 141, 263, 1472, 1476-1477 · fact-finding, §669, 1424 · final clauses to conventions (Handbook), §1306 · UN Flag Code, §1873 · UN forces, §1493-1512, 1772; see also peace-keeping · rules for -, §1577 · General Assembly (UNGA), §208 · competence to draft conventions, §1272, 1860 · competence to perform acts of recognition, §1853 · delegation of functions, §410, 1379 · general debates, §341 · Interim Committee, §395, 815 · invitation of observers, §182-184, 193 · Main Committees, §402 · Resolutions · 11 (I), §528 · 13 (I), §444 · 14 (I), §978, 987, 1106 · 22 (I), §536 · 22 B(I), §1766 · 24 (I), §1319, 1646 · 24 (I)A, §1652 · 39 (I), §1482 · 50 (I), §1791 · 69 (I), §1002 · 76 (I), §529 · 91 (I), §169 · 95 (I), §1246, 1253 · 96 (I), §1278 · 97 (I), §457, 1796, 1868

Index

1292

· · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·

111 (II), §395 122 (II), §1417 169 (II), §395 182 (II), §1065 193 (III), §395 195 (III), §1417 196 (III), §395 217 (III), §1255, 1257 238 (III), §993, 995 248 (III), §515 257 (III), §1804 267 (III), §813 268D (III), §669 289 A(IV), §395 295 (IV), §395 347 (IV), §1125 351 (IV), §642 363 (IV), §169 364 B(IV), §357, 1796, 1868 368 (IV), §1301-1302 374 (IV), §731 376 (V), §1417 377 (V), §208, 217-218, 395, 417, 1714 386 (V), §1482 393 (V), §1034 396 (V), §259, 1852 396 (1950), §110, 150 410 (V), §1034 482 (V), §457, 1796, 1868 500 (V), §1482 506 (VI), §96 511 (VI), §462 571 B(VI), §1034 606 (VI), §193 693 (VII), §1034 742 (VIII), §1207, 1245, 1255 748 (VIII), §1255 806 (VIII), §169 849 (IX), §1255 906 (IX), §1837 957 (X), §607 983 (X), §883 1000 (ES-1), §1496 1075 (XI), §316 1133 (XI), §363 1137 (XII), §993 1202 (XII), §959 1212 (XII), §1084 1219 (XVII), §1824

· · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·

1237 1262 1386 1452 1496 1514 1541 1542 1575 1619 1654 1699 1710 1714 1721 1732 1739 1752 1761 1798 1803 1810 1875 1878 1903 1904 1955 1956 1962 1970 1977 1989 1991 1995 2021 2029 2049 2054 2095 2101 2105 2106 2107 2131 2132 2145 2150 2152 2184 2186

(ES III), §462, 712, 1829 (XIII), §650 (XIV), §1257 B(XIV), §1647 (XV), §1777 (XV), §1216, 1257 (XV), §1255 (XV), §1255 (XV), §991 (XV), §991 (XVI), §1409, 1415 (XVI), §1482 (XVI), §1726 (XVI), §1777 B(XVI), §464 (XVI), §991 (XVI), §1019, 1065 (XVII), §1053 (XVII), §1472, 1482 (XVII), §316 (XVII), §1257 (XVII), §1409, 1415 (S-IV), §991 (S-IV), §1019 (XVIII), §1653, 1658 (XVIII), §1253, 1257 (XIX), §1841 (XVIII), §1409 (XVIII), §1256, 1257 (XVIII), §1415 (XVIII), §262 (XVIII), §1019 A (XVIII), §278, 1174 (XIX), §38, 169, 280 (XX), §1653 (XX), §280 (XX), §1099 (XX), §1714 (XX), §1777 (XX), §1174 (XX), §1409, 1714 (XX), §386, 611, 1431 (XX), §1714 (XX), §1257 (XX), §1417 (XXI), §1201, 1245, 1852 (XX), §1099, 1126 (XXI), §38, 280, 1032 (XXI), §1714 (XXI), §169

1293

Index

· · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·

2189 2190 2200 2202 2222 2241 2248 2260 2263 2270 2311 2312 2323 2360 2372 2411 2426 2475 2482 2520 2542 2602 2602 2603 2621 2625 2627 2660 2674 2688 2715 2749 2795 2813 2832 2837 2847 2852 2853 2856 2961 3049 3061 3080 3101 3188 3201 3228 3235 3237

(XXI), §1714 (XXI), §976 (XXI), §386, 609, 1431 (XXI), §1714 (XXI), §1301 (XXI), §521 (S-V), §1201, 1852 (XXII), §1301 (XXII), §1257 (XXII), §1714 (XXII), §1714 (XXII), §1257 (XXII), §870, 872 (XXII), §1099 (XXII), §1852 (XXIII), §1726 (XXIII), §1714 (XXIII), §1099 (XXIII), §957 (XXIV), §171 (XXIV), §1257 A(XXIV), §461 E(XXIV), §461 (XXIV), §461, 1254 (XXV), §182 (XXV), §156, 1250, 1257 (XXV), §1257 (XXV), §1301 (XXV), §1254 (XXV), §1740 (XXV), §1261 (XXV), §1257 (XXVI), §182 (XXVI), §280 (XXVI), §1257 (XXVI), §303 (XXVI), §278, 1174 (XXVI), §1577 (XXVI), §1577 (XXVI), §1257 B (XXVII), §994 C (XXVII), §1013 (XXVIII), §1848 (XXVIII), §1240 (XXVI), §991 (XXVIII), §529 (S-VI), §1257 (XXIX), §996 (XXIX), §464 (XXIX), §183

· · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·

3259 (XXIX), §1240 3280 (XXIX), §182 3300 (XXIX), §182 3318 (XXIX), §1257 3341 (XXIX), §1255 3351 (XXIX), §224 3357 (XXIX), §506, 1717 3374 (XXX), §991 3379 (XXX), §905 3384 (XXX), §1257 3447 (XXX), §1257 3498 (XXX), §476 3452 (XXX), §1257 3456 (XXX), §1861 3541 (XXX), §1018 S-8/2, §991 31/2, §397 31/6, §1714 31/6A, §1848 31/93, §1728 31/95, §992 31/96, §321 31/99, §302 31/140, §224, 317 31/149, §979, 1003 31/152 (1976), §182 31/165, §1065 32/8, §280 32/9, §1003 32/197, §452, 461, 1036, 1715, 1727-1728, 1822 32/209, §467 32/213, §1715 32/215, §1018 33/38, §278 33/119, §644 33/141, §457, 1796 33/205, §952 33/419, §1036 34/180, §612 34/226, §369 34/232, §1018 35/167 (1980), §184 35/212, §534 36/52, §1714 36/117 A, §322 36/231 A, §1201 37/2, §1714 39/46, §613, 1431 40/180, §1695

Index

1294

· · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·

40/237, §1011 40/243, §317, 959 41/31, §1452 41/213, §775, 1011, 1121, 1727 41/216, §213 42/211, §1121 43/49, §317 43/160 (1988), §182 44/25, §614 45/158, §615 45/199, §1726 45/239, §522 46/59, §669 46/86, §905 46/206, §280 46/221, §978, 992, 1003 47/1 (1992), §107, 151 47/62 (1992), §420 47/133, §1257 47/135, §1257 47/187, §1724 47/199, §1739, 1822 47/213, §1121 47/217, §951, 1020 47/220, §966 47/226, §495 47/229 (1993), §107 47/235 (1993), §1114 47/236 (1993), §953, 1114 47/485 (1993), §151 48/13 (1993), §261-262 48/26 (1993), §420 48/148, §1408 48/216, §1127 48/232, §1018 48/415, §607, 642 50/54, §642 50/227, §312 51/241, §340 52/178, §260 52/215A, §992 53/23B, §260 53/208B, §322 54/109, §1272 55/2, §946, 1728 55/5B, §977, 978, 994, 1004 55/12, §108 55/159, §642 55/234, §1103 55/235, §991, 1095

· · · ·

·

· · · · · · · · · ·

·

· 55/283, §1379, 1694, 1696, 1750 · 56/82, §1584 · 56/254A, §930, 937 · 56/254B, §1071 · 56/257, §1018 · 57/4B, §1004 · 57/20, §237 · 57/23, §830 · 57/260, §779A · 57/280, §1121 · 57/288, §1114 · 57/317, §951, 1020 · rules of procedure, §337-353, 354, 749, 854, 1711 · sessions, §308, 321, 395 · special-, §399 geographical representation, §278, 365, 759 headquarters agreement; see UN, agreements High Commissioner for Human Rights, §1408 UN Human Rights Commission; see UN Commission on Human Rights UN Human Rights Committee (HRC), §24, 609, 660, 685, 1404 · access to -, §690 · composition, §672, 680 Human Rights Rapporteurs, §1408, 1430 implied powers, §236 information, §1829 Joint Inspection Unit, §1124, 1126 Joint Staff Pension Fund, §642, 1610, 1717 judicial review, §222 UN Legal Counsel,see UN Office of Legal Affairs UN Legal Office, see UN Office of Legal Affairs legal status, §1566-1568, 1573, 1577, 1580-1583, 1598 membership, §73-74, 92, 95, 107111, 113, 166, 889, 1152, 1845 · concerning UN Conventions, §1301-1302, 1845-1846 Military Staff Committee, §1234

1295

· UN Mission in Kosovo (UNMIK), §1611 · observer missions, §1805-1806, 1809; see also ECOSOC · Office for Inspections and Investigations, §1124 · UN Office of Legal Affairs, §108, 346, 457, 1606, 1804 · on adherence to law-making agreements, §1774 · on amendments to conventions, §1311 · on acceptance of gifts, §1049 · on closure of debates, §770 · on competence to conclude agreements, §1766 · on composition of organs, §272 · on conditional voting in UNCTAD, §885 · on election of non-plenary organs, §288, 292, 295 · on expenditures, §769 · on the interpretation of “takes note of”, §1359 · on legal effect of declarations, §1248 · on liability under int. law, §1583 · on privileges and immunities, §530, 1606, 1608, 1610, 1612 · on public utility services, §1606 · on ratification, §1277 · on resolutions concerning South africa, §1242 · on settlement of disputes, §1362 · on succession agreements, §1673 · on status of observers, §174 · on voting by qualified majority, §852 · UN Panel for Inquiry and Conciliation, §669 · partial membership, §169, 171 · party to treaties, §1577 · Peace-keeping Reserve Fund, §1020; see peace-keeping · permanent missions, §1805-1806 · UN pledging conference, §1036 · privileges and immunities, §325326, 1362, 1606-1608, 1610, 1612 · registration of treaties, §457-458, 1868-1869

Index

· reports on privileges and immunities, §534, 1598 · sanctions, §1472, 1482-1486 · implementation of -, §1543, 1547, 1710 · Secretariat, §436, 453, 455, 1651, 1717, 1721, 1732, 1869 · system of precedence, §1815 · Secretary-General, §456, 463-464, 1612(a), 1766 · initiatives by -, §713 · Security Council, §208, 222, 417, 813, 889, 1853 · absence from voting, §834 · authorizations to ‘coalitions of the able and willing’, §227C · composition, §419-420, 860 · embargoes, §1483 · enforcement measures by -, §1493-1495, 1512 · presidential statements, §1323 · recourse to -, §1452 · Resolutions, §1323 · 80 (1950), §1416 · 123 (1957), §363 · 128 (1958), §1416 · 143 (1960), §1789, 1833 · 146 (1960), §1789 · 186 (1964), §1833 · 232 (1966), §1482 · 179 (1963), §1053 · 202 (1965), §825 · 203 (1965), §1424 · 232 (1966), §1543, 1547 · 253 (1968), §1417, 1482, 1543 · 261 (1968), §1379 · 277 (1970), §1482, 1543 · 333 (1973), §1482 · 338 (1973), §1499 · 340 (1973), §1498 · 388 (1976), §1482 · 409 (1977), §1482 · 418 (1977), §905, 1482 · 421 (1977), §1417 · 425 (1978), §1500 · 435 (1978), §1502, 1833 · 460 (1979), §1482 · 558 (1984), §1482 · 566 (1985), §1482 · 569 (1985), §1482

Index

1296

· · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·

591 (1986), §1482 629 (1989), §1502 660 (1990), §1508 661 (1990), §1417 665 (1990), §367 660 (1990), §66, 917 678 (1990), §248, 1508 687 (1991), §1832 688 (1991), §212, 216 743 (1992), §1502 745 (1992), §1502 751 (1992), §1502 757 (1992), §1417 777 (1992), §107, 151 794 (1992), §1508 797 (1992), §1502 814 (1992), §1502, 1504 821 (1992), §107, 151 825 (1993), §1418 827 (1993), §608 823 (1993), §953 831 (1993), §1114 867 (1993), §1502 872 (1993), §1502 915 (1994), §1416 919 (1994), §905 929 (1994), §1510 940 (1994), §1511 949 (1994), §1387 954 (1994), §1504 955 (1994), §608 956 (1994), §1415 977 (1995), §608 1054 (1996), §1483 1127 (1997), §1483 1154 (1998), §463 1173 (1998), §1483 1196 (1998), §1483 1267 (1999), §1417, 1483 1284 (1999), §1832 1306 (2000), §1483 1315 (2000), §227B 1326 (2000), §108 1333 (2000), §1483 1373 (2001), §1282, 1404, 1417, 1483 1377 (2001), §1258 1390 (2002), §1483 1400 (2002), §227B 1402 (2002), §830

· 1405 (2002), §1424 · 1411 (2002), §675 · 1431 (2002), §608 · 1441 (2002), §1832 · smart sanctions, §1483 · supervision by -, §1407, 1484 · specialized agencies, §261, 1594, 1693; see also UN, agreements with -, · specific interests, §280 · succession of LoN, §1626, 16451647, 1652-1653, 1655, 1663, 1669, 1673, 1678 · supervising organs, §1415-1417, 1424, 1484 · taxation, §1084 · UN Trusteeship Council, §178, 410, 865, 1415, 1424 · handling of petitions, §1429 · veto, §813-815 · voting, §788-790, 799, 818, 821, 824-825, 830, 833-834, 838-839, 847, 852, 854 · methods of -, §870-873, 879, 882883 · - power, §799, 976 · - rights, suspension of -, §1459 · withdrawal, §123, 131-133 · UN Working Capital Fund, §10191020, 1620 United Nations Administrative Tribunal (UNAT), §522, 642, 644, 685, 1112, 1120 · appeal from -, §607 · composition, §672 · Robinson Case, §1261 United Nations Aouzou Strip Observer Group (UNASOG), §1416 United Nations Capital Development Fund (UNCDF), §1695 UN Centre for Human Settlements (UNCHS), §1716 United Nations Children Fund (UNICEF), §1044-1045, 1060, 1695, 1822 United Nations Commission on International Trade Law (UNCITRAL), §650, 654 United Nations Commission on Korea, §1417

1297

UN Committee on the Peaceful Uses of the Sea-Bed and Ocean Floor beyond the Limits of National Jurisdiction, §730 United Nations Conferences, §1860 United Nations Conference on Environment and Development (UNCED), §1860 United Nations Conference on International Organization (UNCIO), §1272, 1360, 1619 United Nations (Third) Conference on the Law of the Sea, §767, 1860 · chairman, §358 · deciding by consensus, §778 United Nations Conference on Trade and Development (UNCTAD), §38, 397, 442, 885, 1472, 1695, 1716, 1809, 1841 · conciliation, §765, 865 · deciding by consensus, §776-777 United Nations Convention on Diplomatic Relations, §727 United Nations Convention on the Law of the Sea (UNCLOS II),(1958), §727, 730, 761, 863 United Nations Convention on the Law of the Sea (UNCLOS III),(1982), §730 · Art. 159.10, §601 · Art. 287.1, §616 · Annex IX (Art. 2), §1756 · Preparatory Committee, §1011 United Nations Convention on the Law of Treaties, see Vienna Convention UN Convention on the Registration of Objects Launched into Outer Space, §1305 UN Convention on the Safety of UN and Associated Personnel, §538, 730 UN Convention on Succession of States in Respect of Treaties, §114, 1287 United Nations Development Decades, §1726 United Nations Development Program (UNDP), §489, 1695, 1820, 1822 · agreements, §1571, 1771 · budget, §941, 1056, 1696

Index

· coordination, §1728, 1741, 18201828 · loans, §1065 · special missions, §1832 · trust funds, §1029, 1053, 1063 United Nations Disengagement Observer Force (UNDOF), §1499 United Nations Educational, Scientific and Cultural Organization (UNESCO), §480, 1694, 1696 · amendment of constitution, §1165, 1173, 1190 · budget, §1101 · Committee on Conventions and Recomendations in Education, §658 · complaints procedure, §658 · contributions, §992 · decision-making, §853 · diplomatic relations, §1804 · domestic jurisdiction clause, §213 · individual experts in organs, §267, 273, 413 · loans, §1065 · membership, §1476, 1696 · national commissions, §1831 · recommendations, §1222 · reporting on ratifications, §1283, 1285-1286 · sanctions, §1456, 1462, 1473 · succession, §1627, 1639, 1674 · withdrawal from -, §124-128, 1157 United Nations Emergency Force (UNEF), §232, 952-953, 1005, 1011, 1057, 1214, 1799 UNEF I, §1496, 1672, 1870 UNEF II, §1498 United Nations Environment Programme (UNEP), §1695, 1716 United Nations Force in the Congo (ONUC), §232, 952-953, 1005, 1011, 1497, 1833, 1858 United Nations Force in Cyprus (UNFICYP), §1114, 1497, 1583, 1833 United Nations Fund for Population Activities (UNFPA), §1695 United Nations High Commissioner for Refugees (UNHCR), §1044, 1059, 1624, 1695

Index

United Nations Industrial Development Organization (UNIDO), §38, 315, 480, 961, 1032, 1173, 1292, 1627, 1694-1695, 1804, 1860 · suspension of voting rights, §1455 United Nations Institute for Training and Research, §1695 United Nations Interim Force for Southern Lebanon (UNIFIL), §1011, 1500 United Nations Iran-Iraq Military Observer Group (UNIIMOG), §1416 United Nations Legal Counsel, see UN, Office of Legal Affairs United Nations Mission in Haiti (UNMIH), §1511 United Nations Mission for the Referendum in Western Sahara, §1833 United Nations Monitoring, Verification and Inspection Commission (UNMOVIC), §1832 United Nations Observation Group in Lebanon, §1416 United Nations Observer Group in Central America (ONUCA), §1416 United Nations Operation in Mozambique, §1833 United Nations Operation in Somalia (UNOSOM I and II), §1502-1504, 1509, 1833 United Nations Population Fund, §1822 United Nations Postal Administration, §1059 United Nations Protection Force in Yugoslavia (UNPROFOR), §15021503, 1833 United Nations Relief and Rehabilitation Administration (UNRRA), §1595 · liquidation of -, §1637, 1638, 1645, 1669-1670, 1674, 1679 United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), §40, 1608, 1695, 1827 · staff, §505

1298

UN Special Commission (concerning Iraq), §1832 UN Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, §1258, 1409, 1415 · petitions, §1429 United Nations Suez Canal Clearance Operation, §1870 UN Sugar Conference, §1773, 1841 UN System’s Chief Executives Board for Coordination (CEB), §1717 United Nations Temporary Executive Authority (UNTEA), §1053, 1833 United Nations Transition Assistance Group (UNTAG), §1502, 1833 United Nations Transitional Authority in Cambodia (UNTAC), §1502, 1833 United Nations Treaty Series (UNTS), §458, 1748, 1796 United Nations Truce Supervision Organization (UNTSO), · in the Middle East, §1496 · in Palestine, §1416 United Nations Yemen Observation Mission (UNYOM), §1053 Universal Declaration of Human Rights, §1255, 1258, 1261, 1430 Universal Postal Union (UPU), §1694 · agreements, §1323 · amendment, · - of constitution, §1173, 1175, 1181, 1192, 1195 · - of conventions, §1314 · arbitral tribunals, composition, §679 · arbitration procedure, §657, 1440 · budget, §999, 1001 · building, §961 · chairman, §357 · contributions, §969, 970-973, 986, 1016, 1017 · debates, §1712 · decisions, §1323 · decision-making, §464, 548, 748, 768 · - by consensus, §779

1299

· - using conventions, §1295, 1301, 1309, 1314, 1328 · establishment, §1621 · external relations, §1842 · geographical factors, §277 · legal personality, §1594 · meetings, §958 · membership, §77, 147, 1301 · organs, §385, 410, 434, 464 · provisional application of Acts, §1295 · reservation, §1152, 1309 · services, §1059 · supervision, §1440 · voting, §826, 842, 873-874, 882 United Socialist Soviet Republics (USSR); see Soviet Union United States (US), · agreement with LoN, §1772 · conflict with Iran, §606, 654 · contribution to UN, §993-995, 1000, · refusal to pay -, §1011 · EC mission in -, §1836 · enforcement of international rules, §1528, 1540 · International Organizations Immunities Act, §1592 · membership of IMF and World Bank, §1153 · membership of WHO, §1152 · privileges and immunities in -, §1070 · withdrawal from ILO, §121, 250, 380, 989, 1011 · withdrawal from UNKRA and IRO, §999 Uniting for Peace, see UNGA Res. 377 (V) V Van Gend en Loos Case (CoJ), §1143, 1428, 1536, 1546, 1779 Van Leeuwen Case (CoJ), §531 variation, §1162, 1184 verticalization, §7-11, 1898-1902 veto, §417, 813-816, 856, · abuse of -, §1275 · double -, §814

Index

· right of -, §159, 591, 600, 813 · - in disputes, §815 vice-president, §365 Vienna Convention on Diplomatic Relations, §1612(a), 1801, 1817, 1835, 1860 Vienna Convention on the Law of Treaties, §727, 1743, 1860, 1880 · Preamble, §1748 · Art. 5, §1148, 1269 · Art. 7, §100 · Art. 6, §1748, 1750 · Art. 11, §1232 · Art. 12, §1181 · Art. 19, §1795 · Art. 20, §1151, 1310 · Art. 25, §1295 · Art. 32, §1348 · Art. 33, §374 · Art. 39, §1163, 1169, 1306, 1312, 1652 · Art. 40, §1169, 1189, 1306, 1312, 1652 · Art. 41, §1652 · Art. 46, §101, 1784 · Art. 47, §1789 · Arts. 48-50, §1786 · Art. 51, §1786 · Art. 52, §1786 · Art. 53, §1335-1336, 1786 · Art. 54, §1306 · Arts. 54-68, §1306 · Art. 56, §120, 134, 1154, 1306, 1799 · Art. 60, §148, 790 · Art. 61, §1661 · Art. 62, §135, 148, 1245, 1642, 1661, 1800 · Art. 64, §1335-1336, 1786 · Art. 65, §1306 · Arts. 76-79, §457 · Art. 80, §457, 1795 · Art. 81, §1301, 1795 · Art. 85, §1743 · Annex, para. 7, §1011 Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations, §24, 735, 1347, 1574, 1860 · Art. 46, §101

Index

· Art. 56, §134 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character (1975), §184, 242, 253-254, 257, 265, 735, 1860 · on delegations, §378, 1804, 1816 · on permanent missions, §378, 1803-1805, 1807, 1811 · on privileges and immunities, §330-332 Vietnam, §1851 violations, · recognition of -, §1439-1443 visa, §1877 · obligation to grant -, §334-336, 1690, 1864 voluntary contributions; see contributions voluntary programmes, §1026-1028, 1029, 1032 vote(s), · alteration of -, §882-883 · declaration of -, §887, 1225 · invalid -, §837 · political relevance of -, §1224-1226 · secret -, §853, 873-875 · tentative non-binding -, §846 · withdrawal of -, §880 voting, §787-887; see also veto, decisionmaking and majority · absence from -, §831-836, 892 · abstention from -, §824-829, 832, 837, 1339 · conditional -, §884-887 · - by correspondence, §876-881 · elimination-, §848 · - in general congresses, §391 · - groups, §759, 766 · majority -, §817-867 · methods of -, §868-883 · multiple -, §818; see elections · non-participation in -, §830 · open -, §869 · order of -, §749, 843-847 · package deals, §756-759, 778 · - power, §791-816 · equality of -, §791-793, 968, 999, 1895

1300

· - by proxy, §791 · recorded -, §871-872, 883 · - rights, · loss of -, §1015; see also suspension · restoration of -, §1456 · of the E(E)C, §1841 · roll-call, §302, 871-872, 883 · secret -, §853, 873-875 · simultaneous - (for several alternatives), §847-848 · unanimity, §787-790; see also unanimity · weighted -, §291, 784, 795-812, 819, 865, 923 · examples of -, §799-812 W waiver, · of immunity, §326, 536, 604, 1612(a) · of obligations, §157-158, 164, 234, 1444 War Crimes, Tribunals, §608, 692, 1114 Warsaw Pact, §1489, 1491, 1624 weapons; see arms weighted representation, §282, 794; see also voting West Irian (West New Guinea), §1866 Western European Union (WEU), §1234 · budget, §1100 · contributions, §967 · decisions, §1323 · membership, §166 · Parliamentary Assembly, §567, 582, 594 · reporting, §1404, 1725 · Tribunal, §635, 672, 682 Westland Helicopter case (ICC), §1588 Westzucker case (CoJ), §867 withdrawal; see also membership, termination of, · constitutional provisions, §120-135, 1636 · - from agreements, §1799 · - from conventions, §1263 · - from decisions, §907 · - from recommendations, §1232

1301

· - from a treaty, §1154 · legality of -, §134-135 · notice of -, §121 · prohibition of -, §122 · partial -, §136 · right of -, §134-135 · “voluntarily”, §145 women, · convention against discrimination against -, §612 · recruitment of -, §499 working capital funds, §1017-1020 World Bank, §97, 163, 1046, 1694, 16961697, 1701 · Administrative Tribunal (WBAT), §644-645, 685 · agreements, §1749, 1772, 1784, 1791, 1794 · amendment of constitution, §1170, 1173 · arbitration, §653 · board, §357, 459, 1701 · composition, §290 · conciliation, §653 · coordination, §1728 · development assistance, §946, 1823-1824 · expulsion from, §144, 153 · external relations, §1823-1824 · income from investments, §1064, 1122 · income from services, §1051, 1122 · Inspection Panel, §671 · interpretation of rules by national courts, §1353 · membership, §1157, 1476 · relation with UN, §1714 · secretariat, §437, 459, 474, 480, 489, 1720 · use of outside experts, §466 · voting, §798-800, 880 · withdrawal, §122 World Court; see International Court of Justice World Food Programme (WFP), §1464, 1695, 1716, 1777, 1822 World Health Organization (WHO), §480, 1694 · amendment of constitution, §11731175, 1451

Index

· · · · ·

associate membership, §166 budget, §940, 1008, 1010, 1101 building, §961 contributions, §992 conventions, §1265, 1272 · negative ratification of -, §1292 · reservations to -, §1309 · credentials of delegates, §261 · decisions, §1220, 1229, 1265, 1659 · decision-making, §852, 873 · expulsion from -, §147 · geographical factors, §277 · inspection for the Trusteeship Council, §1424 · membership, §1152 · Order of Malta as observer, §179 · pressure to ratify conventions, §1285 · recommendations (CAC), §12311232 · regional offices, §428, 430, 489 · regulations, §1265 · relation with FAO, §1231-1232, 1716 · sanctions, §1451, 1458 · services, §1059 · staff, §1667 · succession, §1638, 1659, 1667, 1674-1675 · suspension of voting rights, §1458 · withdrawal from -, §124-130, 1152 World Intellectual Property Organization (WIPO), §434, 480, 720, 1268, 1694, 1888 · contributions, §969-970 · income from services, §1061, 1076 · settlement of disputes, §1671 · succession, §1634, 1671 World Meteorological Organization (WMO), §277, 1694, 1697, 1893 · amendment of constitution, §11871188, 1190, 1193 · budget, §1001, 1102 · contributions, §980, 992 · conventions, §1292, 1301 · reservations to -, §1309 · external relations, §1716 · initiatives, §716, 1190 · membership, §78, 95, 151-152, 1301 · national committees, §1831

Index

negative ratification, §1292 role of president, §432 sanctions, §1461, 1467, 1887 seat, §479, 480 sponsoring, §957 staff, §1668, 1893 succession, §1626, 1628, 1637, 1655, 1659, 1668 · supervision, · -, based on reporting by states, §1402 · suspension of representation, §1461 · voting, §791, 851, 873 · - by correspondence, §877 World Tourism Organization, §480, 1694 · constitution · Art. 9, §172 · Art. 14, §172 · Art. 25, §172 · membership, §86, 966 · affiliate -, §172 · associate -, §166 World Trade Organization, §1694; see also General Agreement on Tariffs and Trade · agreements, §1772 · and GATT, §1626, 1668 · Appellate Body, §656 · Constitution · Art. 6, §656

1302

· · · · · · ·

· · · · · · · · ·

· Art. 9, §1201 · Art. XII, §97, 1772 · Art. XIII, §42 · Art. 16, §656 · Art. 17, §656 dispute settlement, §656, 1469 membership, §42, 1577, 1757, 1840 sanctions, §1469 seat, §471 sponsoring, §957 supervision, §1402 Textiles Monitoring Body, §379, 656 Trade Policy Review Mechanism, §1402 waiver of obligations, §1444

Y Yugoslavia, · problems of state succession, §107, 108, 151, 263 · UN forces in -, §1502-1503, 1833 · war crimes in -, §608, 692, 1114 Z Zaire, · credentials of delegates, §261