International Institutional Law

International Institutional Law

International Institutional Law Unity within Diversity Fifth Revised Edition

By

Henry G. Schermers Niels M. Blokker

LEIDEN • BOSTON 2011

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Schermers, Henry G. International institutional law : unity within diversity / by Henry G. Schermers, Niels M. Blokker. — 5th rev. ed. p. cm. Includes index. ISBN 978-90-04-18796-2 (hardback : alk. paper) — ISBN 978-90-04-18798-6 (pbk. : alk. paper) 1. International agencies. 2. International courts. 3. International cooperation. I. Blokker, Niels. II. Title. KZ4850.S337 2011 341.2—dc23 2011020351

ISBN 978 90 04 18798 6 (PB) ISBN 978 90 04 18796 2 (HB) Copyright 2011 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV 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.

PREFACE

We depend for our future on international order. Our destiny is increasingly influenced by the activities – or lack thereof – of international organizations. These activities affect our daily life more than we often realize. They are also more and more important when natural and man-made disasters occur. At the time of writing, an earthquake, a tsunami and a severe nuclear accident have struck Japan. The United Nations (UN), the International Atomic Energy Agency, the World Health Organization, the World Meteorological Organization and the Preparatory Commission for the Comprehensive Test-Ban Treaty Organization play an important role in dealing with the effects of these events by assisting Japan and by providing information on the spread of radiation. At the same time, an armed conflict is taking place in Libya, in which a key role is played by the UN, the League of Arab States and the North Atlantic Treaty Organization. It is difficult to imagine life today without international organizations. The growing significance of international organizations makes it necessary to analyze their law and practice. Each organization has its own unique law and practice, 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 World Trade Organization, the World Bank, the European Union, and the Organization of the Petroleum Exporting Countries. Nevertheless, international organizations also have much in common, and are confronted with a large number of similar day-to-day questions. For example, may international organizations exercise powers that have not been given to them by the members? May members withdraw from an international organization if the constitution of the organization does not contain provisions on withdrawal? May members refuse to pay part of their contribution to an organization because they do not agree with certain activities? Should international organizations accept funds from private enterprises to finance their activities? How can non-governmental organizations be involved in the work of international organizations? 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)?

vi

preface

These examples demonstrate that international organizations, despite their widely diverging objectives, powers, fields of activity and number of member states, share all kinds of similar 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 and principles have developed. These shared problems, rules and principles of international organizations particularly relate to institutional legal matters. Institutional law does not differ dramatically from one organization to the next: each organization needs rules concerning, for example, its 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 an impressive body of institutional rules has been developed. This explains the subtitle of this book: unity in 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 passed by. The United States continues to be a superpower that plays a key role in many international organizations. But other states (such as China, Brazil and India) have also become powerful players in international relations. Another change 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 arose and the need to cooperate to solve it was identified. In more recent years, however, the opposite attitude has become predominant: at present, governments almost instinctively prefer not to create a new organization when a problem presents itself and the need to cooperate arises. With regard to existing organizations, the organization’s responsibility for its own acts, as well as larger questions of accountability, are now hotly debated issues 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, new international organizations continue to be created. They are confronted with similar institutional questions, whether old or new. Often, the answers given to these questions are not given in isolation; the law and practice of other international organizations is frequently taken into account. Henry Schermers passed away on 31 August 2006. He conceived the idea of this book and created the name of this field of law. From the beginning until the very end of his professional life, international institutional law was close to his heart. Working in the Dutch Foreign Ministry in the 1950s, Henry Schermers was confronted with a great number of institutional issues regarding international orga-

preface

vii

nizations, and the academic reflection of this practical experience was laid down in his doctoral thesis on the specialized agencies (1957). At the end of his professional life, in his farewell lecture at Leiden University (2002), he announced that he would finance a Chair in this field of law. Although Henry Schermers has not been involved in this fifth edition of his magnum opus, I am confident that he would have supported it. Since much of the substance, the structure, and most of all, the key ideas behind this book have remained the same, it is obvious that he has also remained the first and main author. Henry Schermers taught a specialized course on international institutional law beginning in 1963, first at the Law Faculty of the University of Amsterdam and subsequently, from 1978, at the Law Faculty of the University of Leiden. From 1984, this course was given together by Henry Schermers and myself. I joined the legal service of the Dutch Foreign Ministry in 2000. In 2003, I was appointed on a part-time basis to the abovementioned Schermers Chair at Leiden University, and teach two specialized annual courses in this field. It is almost always a privilege to work both in practice and in academia. Le monde du spectateur est bien différent de celui de l’acteur. My experience at the ministry has certainly influenced my work for this new edition, but the views expressed here are personal. In the previous editions of this book, published in 1972, 1980, 1995 and 2003, acknowledgements were made to many people. For the present, fifth edition I would like to repeat these acknowledgements. Although the text has been updated and revised, the previous editions have been the foundations without which no fifth edition would have been possible. The preparations for this fifth edition started two years ago. Many people have assisted me. I thank my colleagues and friends in the Dutch Foreign Ministry and at Leiden University for their help and suggestions. Numerous staff members of international organizations have provided me with valuable written and unwritten information. I have benefited from, and enjoyed the research support of, a number of students in the Advanced LLM Programme Public International Law of Leiden University, during the 2009-2010 and 2010-2011 academic years. During the last few hectic weeks, excellent work was done by Claire Achmad, Carolin Beverungen, and Alessandro Tonutti. I am particularly grateful to Peter Holcombe Henley, who read and edited the whole manuscript and made many improvements to the text, relating both to language and to substance. Finally, from the very beginning of work on this fifth edition, Martinus Nijhoff Publishers, part of Brill Publishers, has supported this in numerous ways; I would like to thank Peter Buschman and Ingeborg van der Laan in particular. Academic work is by definition of a largely solitary nature. This was even more so when preparing this edition without Henry Schermers. But without the assistance of the many people mentioned here, I could not have completed this fifth edition. 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

viii

preface

unavoidable. Suggestions for improvement are therefore most welcome at the Law School of Leiden University, P.O. Box 9520, 2300 RA Leiden, The Netherlands, or at [email protected]. Leiden, March 2011 Niels Blokker

CONTENTS

Preface ................................................................................................................... List of abbreviations and notes on terminology ............................................ Chapter One Introduction I. 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 ........................................................................... a. Legal research into the law of international organizations .......................................................................... b. Constitutionalism .................................................................. c. Global administrative law .................................................... d. Political science and international organizations ............ e. Virally and the concept of ‘function’ ................................. C. Unity within diversity? .................................................................... D. Method ............................................................................................... II. Definition ................................................................................................. A. International cooperation, international organizations, (con)federations ................................................................................ B. A definition: three elements ........................................................... 1. International agreement ............................................................. 2. At least one organ with a will of its own ................................ 3. Established under international law ........................................ C. International organizations, international corporations, Non-Governmental Organizations ................................................ 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 ................................................................. IV. Conclusion ...............................................................................................

v xxix

§1 §1 §6 §7 §12 §13 §13 §13B §13H §14 §15 §22 §26 §29 §29 §32 §34 §44 §45 §46 §48 §48 §51 §51 §53 §58 §58 §60 §63 §63 §64 §65

x

contents

Chapter Two Participants I. 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 ............................................... II. Associate members .................................................................................. III. Partial members ....................................................................................... IV. Affiliate members ..................................................................................... V. Observers ................................................................................................... A. General ............................................................................................ B. Categories of observers ..................................................................... 1. Non-member states and entities ................................................ 2. National liberation movements ................................................. 3. Public international organizations ............................................

§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 §149 §154 §155 §156 §162 §166 §169 §172 §173 §173 §179 §180 §182 §185

contents

xi

4. Private organizations ................................................................... 5. Individuals and private companies ........................................... VI. Concluding observations ........................................................................

§188 §196 §198

Chapter Three Rules 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 .................................................................................. 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 ............................................................................................

§206 §206 §206 §209 §211 §217 §224 §231 §232 §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

xii

contents

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 Four Policy-Making and Administrative Organs I. Classifying international organs ............................................................ II. Policy-making organs .............................................................................. A. Plenary policy-making organs ......................................................... 1. General congress or council of ministers ................................ a. Denomination ......................................................................... b. Task ........................................................................................... 2. Junior congress .............................................................................

§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

§384 §389 §390 §390 §390 §391 §393

contents 3. Specialized congresses ................................................................. 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 ..................................................... 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, inquiry, mediation, conciliation, arbitration ................................................................................. o. Performance of instructions ................................................. 2. Power and accountability ........................................................... 3. Delegation of tasks; outside experts .......................................... C. Seat ..................................................................................................... 1. Requirements ................................................................................ 2. Centralization ................................................................................ 3. Decentralization: regional offices ..............................................

xiii §396 §400 §401 §404 §406 §406 §409 §410 §410 §412 §415 §415 §418 §421 §422 §424 §426 §427 §428 §432 §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

xiv

contents

D. International civil servants .............................................................. 1. Appointment ................................................................................. 2. Number of international civil servants ..................................... 3. Qualifications ................................................................................ 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 ...................................................................... IV. The European Commission .................................................................... A. Task ............................................................................................ B. Composition ....................................................................................... V. Concluding observations ........................................................................

§491 §492 §496 §498 §500 §506 §508 §511 §515 §516 §518 §523 §524 §525 §529 §530 §533 §534 §534 §535 §536 §538 §539 §539 §542 §547 §547 §550 §551

Chapter Five 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 and in legislation ........ E. Functioning of parliamentary organs .........................................

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

contents

xv

II. Judicial organs ....................................................................................... §597 A. The need for judicial organs ......................................................... §597 1. Control of the legality of decisions ........................................ §599 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 Committee on the Rights of Persons with Disabilities ........................................................................... §615A k. The Committee on Enforced Disappearances ............... §615B l. The International Tribunal for the Law of the Sea ........ §616 2. Regional judicial organs ........................................................... §617 a. The Court of Justice and the European Union ............. §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, African Human Rights Court, and the African Court of Justice and Human Rights ................................................ §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. East African Court of Justice ............................................. §639

xvi

contents

q. ECOWAS Community Court of Justice .......................... r. Court of Justice of the Common Market for Eastern and Southern Africa ............................................................ s. Tribunal of the South African Development Community ............................................................................. t. Caribbean Court of Justice ................................................ u. MERCOSUR Permanent Review Tribunal ..................... 3. Staff administrative tribunals .................................................. a. The UN Dispute and Appeals Tribunals ......................... b. The ILO Administrative Tribunal (ILOAT) ................... c. The World Bank Administrative Tribunal ...................... d. The Administrative Tribunal of the International Monetary Fund .................................................................... e. Regional administrative tribunals ..................................... 4. Arbitration, conciliation, mediation and fact-finding 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 Six Decision-Making Process I. The concept of a decision .................................................................... II. Legal basis ......................................................................................... 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 ...............................................................

§640 §641 §641A §641B §641C §642 §642 §643 §645 §646 §647 §648 §670 §672 §672 §675 §679 §680 §683 §684 §685 §686 §687 §688 §692 §693 §693 §694 §695 §700

§706 §708 §710 §710 §711 §712 §712 §715 §719 §720 §721

contents IV. Drafting of the text .................................................................................. A. Preparation of proposals .................................................................. 1. Submission .................................................................................. 2. The draft ...................................................................................... 3. Two examples ............................................................................. a. Law-making in the UN ........................................................ b. Decision-making and legislation in the European Union ........................................................................................ B. Discussion of proposals .................................................................... 1. Date of submission .................................................................... 2. Sponsors ...................................................................................... 3. Amendments ............................................................................... 4. Time-limits, marathon sessions ............................................... 5. Package deals .............................................................................. 6. Informal consultation, pressure ............................................... 7. Caucuses ...................................................................................... 8. Negotiating groups .................................................................... 9. Withdrawal of proposals and amendments .......................... 10. Financial implications of resolutions ..................................... 11. Closure of discussions ............................................................... V. 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 ............................................................................

xvii §725 §725 §725 §727 §729 §730 §739 §747 §747 §750 §752 §753 §756 §760 §763 §766 §768 §769 §770 §771 §771 §773 §781 §787 §787 §788 §789 §791 §791 §794 §795 §795 §795 §799 §813 §817 §817 §820 §821 §823 §824 §830 §831 §837

xviii

contents

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 ........................................................ 3. Secret vote .................................................................................. 4. Vote by correspondence .......................................................... 5. Alteration of votes cast ............................................................ E. Conditional voting ......................................................................... VII. Entry into force of decisions ............................................................... A. Immediate entry into force ........................................................... B. Previous agreement of other organs ........................................... C. Previous agreement of member states ........................................ VIII. 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 .....................................................................

§838 §838 §842 §849 §851 §851 §855 §856 §857 §858 §861 §863 §868 §869 §871 §873 §876 §882 §884 §888 §888 §889 §892 §897 §898 §898 §905 §907 §908 §910 §911 §912 §912 §914 §915 §917

Chapter Seven 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 ...........................................

§928 §928 §931 §931 §931 §938 §942

contents

xix

a. General overview ....................................................................... §943 b. Development assistance; “economic and social cohesion” ... §945 c. Peace operations ........................................................................ §951 3. Instruments ....................................................................................... §955 a. Personnel ..................................................................................... §956 b. Sessions of the organs of the organization ............................ §957 c. Buildings ...................................................................................... §960 d. Equipment ................................................................................... §963 e. General expenses ........................................................................ §964 II. Income ......................................................................................................... §965 A. Contributions ......................................................................................... §966 1. Contributors ..................................................................................... §966 2. The sharing of expenditure ............................................................ §967 a. Equal contributions ................................................................... §967 b. Optional classes of contribution ............................................. §969 c. Scales of assessment .................................................................. §974 (i) Capacity to pay ................................................................ §976 (ii) Interest in the work of the organization and other factors ................................................................................ §980 (iii) Flexibility of scales .......................................................... §986 3. Limits to contributions of members ............................................ §992 a. Minimum contribution ............................................................. §992 b. Maximum contribution ............................................................ §993 c. Maximum expenditure ......................................................... §1001 d. Special rates ............................................................................ §1002 4. The organs involved .................................................................... §1005 5. Currencies of contributions ....................................................... §1006 6. Defaults in payment .................................................................... §1010 a. Refusal to pay ......................................................................... §1010 b. Incentives to pay .................................................................... §1014 c. Filling the gap: working capital funds ................................ §1017 7. Table of contributions ................................................................ §1021 B. Voluntary contributions ................................................................... §1022 1. The principle of voluntary contributions ................................ §1022 2. Existing systems of voluntary contributions .......................... §1026 3. Trust funds ................................................................................... §1029 4. International organizations contributing to voluntary programmes .................................................................................. §1032 5. Voluntary contributions from non-members ........................ §1033 6. Raising voluntary contributions ............................................... §1034 a. Pledging ................................................................................... §1034 b. Collection of voluntary contributions ................................ §1037 C. Gifts ..................................................................................................... §1040 1. Gifts that benefit the budget of the organization ................... §1040 2. Gifts for specific programmes ................................................... §1043 3. Acceptance of gifts ...................................................................... §1049

xx

contents D. 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 ............................................................ E. Taxation .......................................................................................... 1. Definition of taxation ................................................................ 2. Conditions for international taxation ..................................... 3. Existing systems of taxation ..................................................... 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 / strategic frameworks............ 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 ......................................................................

Chapter Eight Legal Order I. Introduction .......................................................................................... II. Constitution .......................................................................................... A. Legal force ......................................................................................... B. Characteristics .................................................................................. 1. Creation of a legal person ......................................................... 2. Limitation on reservations ........................................................

§1050 §1051 §1051 §1053 §1056 §1057 §1058 §1062 §1064 §1070 §1073 §1074 §1074 §1075 §1081 §1091 §1091 §1091 §1094 §1097 §1100 §1101 §1103 §1105 §1105 §1108 §1109 §1109 §1111 §1121 §1122 §1123 §1123 §1125 §1131

§1139 §1145 §1146 §1147 §1148 §1150

contents 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 ............................................................................ 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 ................................

xxi §1154 §1155 §1157 §1157 §1163 §1163 §1165 §1166 §1168 §1169 §1173 §1178 §1187 §1189 §1189 §1190 §1191 §1192 §1193 §1194 §1195 §1196 §1196 §1201 §1206 §1206 §1208 §1210 §1216 §1217 §1217 §1220 §1221 §1223 §1224 §1231 §1233 §1237 §1238 §1240 §1241

xxii

contents

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 ....................................................................... b. Types of binding decisions ................................................. (i) Decisions addressed to governments ....................... (ii) Decisions addressed to individuals .......................... (iii) General regulations ..................................................... IV. Other elements of the legal order ....................................................... A. International law ............................................................................. B. General principles of law ............................................................... C. Customary law ................................................................................. V. Concluding observations ......................................................................

§1244 §1244 §1248 §1262 §1262 §1262 §1263 §1266 §1271 §1276 §1281 §1281 §1282 §1288 §1295 §1297 §1298 §1298 §1300 §1305 §1306 §1311 §1318 §1322 §1323 §1323 §1330 §1332 §1335 §1335 §1336 §1339 §1340

Chapter Nine Interpretation and Settlement of Disputes I. Means of interpretation ........................................................................ A. The text; practice of the organization .......................................... B. The intention of the law-maker .................................................... C. The object and purpose of the rule concerned .......................... D. Other issues relevant for the means of interpretation .............. II. Authorities charged with interpretation ............................................ A. Interpretation by the members ..................................................... 1. National executives .................................................................... 2. National courts ...........................................................................

§1346 §1347 §1348 §1349 §1350 §1351 §1351 §1351 §1352

contents B. Interpretation by organs of the organization ............................. 1. Policy-making organs ................................................................ 2. Judicial organs ............................................................................ a. Judgments .............................................................................. b. Advisory opinions ................................................................ c. Preliminary rulings ............................................................... III. Competence to request interpretation ............................................... A. Organs of the organization ............................................................ B. Members of the organization ........................................................ C. Private persons ................................................................................. D. National courts ................................................................................ IV. Concluding observations ...................................................................... Chapter Ten Supervision and Sanctions I. Definitions A. Internal supervision ........................................................................ B. External supervision ........................................................................ 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 ................................................................................ 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 .......................................................................................... III. Official recognition of violations ......................................................... IV. Waiver of obligations ............................................................................ V. 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 ...................................................................

xxiii §1355 §1355 §1363 §1364 §1366 §1374 §1379 §1379 §1380 §1384 §1385 §1387

§1392 §1392 §1395 §1399 §1400 §1402 §1402 §1406 §1414 §1415 §1424 §1428 §1429 §1435 §1436 §1437 §1439 §1444 §1445 §1449 §1450 §1450 §1455 §1461 §1463 §1466 §1470 §1475 §1476 §1478

xxiv

contents

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 Eleven Legal Status I. 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 ..................... C. Responsibility and liability under international law ................. II. 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 ........................................................ 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 ......................................................................................

§1487 §1513 §1518 §1521 §1522 §1522 §1522 §1538 §1541 §1545 §1549 §1553

§1562 §1562 §1572 §1575 §1577 §1579 §1580 §1582 §1591 §1591 §1591 §1591 §1592 §1594 §1598 §1599 §1599 §1601 §1606 §1610 §1613 §1617 §1617 §1623 §1623 §1629 §1629 §1632 §1637 §1639 §1640

contents f. Constitutional amendment .............................................. g. Changed circumstances .................................................... h. Denouncing membership ................................................. i. 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 ................................................................................ IV. Concluding observations ...................................................................

xxv §1641 §1642 §1643A §1644 §1645 §1645 §1648 §1650 §1651 §1654 §1656 §1657 §1661 §1665 §1666 §1673 §1680 §1681

Chapter Twelve External Relations I. Partners for external relations .......................................................... §1687 A. Relations with states ..................................................................... §1687 1. Non-members .......................................................................... §1687 2. Members ................................................................................... §1688 3. Host states ................................................................................ §1689 B. Relations with other international organizations ................... §1691 1. “Families” of international organizations ........................... §1691 a. The “UN family” ................................................................ §1692 b. The European Union ........................................................ §1698 c. Inter-American organizations ......................................... §1699 d. Other families ..................................................................... §1701 2. Coordination ............................................................................ §1702 a. The need for coordination ............................................... §1702 b. Forms of coordination ...................................................... §1705 c. Coordination at the international level: by whom? ....... §1706 d. Coordination at the international level: how? .............. §1713 (i) Priority for the acts of one organization ............ §1713 (ii) Delimitation of competences ................................ §1718 (iii) Common organs ..................................................... §1721 (iv) Joint sessions and meetings; joint programmes ... §1727 (v) Consultations .......................................................... §1728A (vi) Exchange of observers ........................................... §1729 (vii) Reporting ................................................................. §1730 (viii) Planning ...................................................................... §1732 (ix) Exchanges .................................................................... §1733 (x) Training ....................................................................... §1738 e. Coordination at national level ........................................... §1739

xxvi

contents

II. 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 §1776 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 ........................................................................... e. Registration ............................................................................ f. Termination ........................................................................... B. 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 ......................... C. Recognition of other subjects of international law .................... 1. Recognition of states .................................................................. 2. Recognition of governments ..................................................... 3. Recognition of territorial sovereignty .....................................

§1742 §1743 §1744 §1748 §1748 §1756 §1763 §1769 §1770 §1771 §1772 §1773

§1783 §1783 §1784 §1787 §1789 §1789 §1791 §1794 §1795 §1796 §1799 §1801 §1801 §1803 §1816 §1816 §1820 §1820 §1829 §1831 §1832 §1834 §1840 §1841 §1843 §1845 §1851 §1852

contents 4. The competent organ ................................................................. 5. “Passive” recognition ................................................................. D. Judicial actions and responsibility under public law ................. 1. Competence to bring and receive international claims ....... 2. The possibility to bring international claims to court ......... E. Convening international conferences ........................................... F. Issuing passports .............................................................................. G. Depositary of treaties ...................................................................... H. Registration of treaties .................................................................... I. Registration of ships and aircraft .................................................. J. Flag, seal and emblem ..................................................................... III. Concluding observations .......................................................................

xxvii §1853 §1855 §1856 §1856 §1859 §1860 §1863 §1867 §1868 §1870 §1872 §1875

Concluding Remarks I. Introduction ........................................................................................... II. The relationship between an international organization and its members ................................................................................................... III. Diversity of the rules of international institutional law .................. IV. Unity of the rules of international institutional law ........................ V. Towards more centralized international law? ...................................

§1885 §1882 §1896 §1900

Index .....................................................................................................................

1225

§1884

LIST OF ABBREVIATIONS AND NOTES ON TERMINOLOGY

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 APSCO 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 Chinese JIL Chr.Pol.ét. Chula. L. Rev.

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 Asia-Pacific Space Cooperation Organization American Political Science Review Association of Southeast 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 Chinese Journal of International Law Chronique de Politique étrangère Chulalongkorn Law Review

xxx

list of abbreviations and notes on terminology

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

The Comparative and International Law Journal of Southern Africa Comparative Law Yearbook 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 Comprehensive Nuclear Test-Ban Treaty Comprehensive Nuclear Test-Ban Treaty Organization 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 Atomic Energy Community European Bank for Reconstruction and Development Economic Commission for Africa Economic Commission for Asia and the Far East Economic Commission for Europe European Court of Justice (official name: Court of Justice of the European Union) Economic Commission for Latin America Economic Commission for Latin America and the Caribbean European Centre for Medium Range Weather Forecasts Economic Cooperation Organization 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) Community European Foreign Affairs Review European Free Trade Association European Human Rights Law Review European Journal of International Law

list of abbreviations and notes on terminology ELR Emory J. Int’l Disp. Res. ENEA Envtl. L. EPIL ESA ESA Bull. ESCAP EU EuConst 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. GNI 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.

xxxi

European Law Review 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 European Constitutional Law Review 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 Gross National Income 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

xxxii

list of abbreviations and notes on terminology

ICTR ICTY IDA IEA IFAD IFC IJIL ILC ILM ILO ILR IMCO IMF IMO IMSO Infofish

INMARSAT INTELSAT 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 IRENA Ir. Stud. Int’l Aff. ITU It.YIL JAIL JAL JALC JCMS JDI JICJ

International Criminal Tribunal for Rwanda 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 Mobile Satellite Organization Intergovernmental Organization for Marketing Information and Technical Advisory Services for Fishery Products in the Asia and Pacific Region International Maritime Satellite Organization International Telecommunications Satellite 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 International Renewable Energy Agency 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 Journal of International Criminal Justice

list of abbreviations and notes on terminology JIEL JIU JR JSL JWT JWTL J. Interam. Stud. & Wld. Aff. J. Media L. & Pract. J. Mod. Af. Stud. J. Space L. J. Internat.Aff. LAFTA LAIA LCI 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

xxxiii

Journal of International Economic Law Joint Inspection Unit The Juridical Review Journal of Space Law 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 Latin American Free Trade Association Latin American Integration Association La comunità internazionale 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 Politics 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

xxxiv

list of abbreviations and notes on terminology

OECD OEEC OJ ONUC OPCW OPEC OR 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 RHDI RIW/AWD RMC Round Table RTDE

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 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 Revue Hellenique de Droit International Recht der Internationalen Wirtschaft. Aussenwirtschaftsdienst des Betriebsberaters Revue du Marché Commun The Round Table Revue trimestrielle de droit européen

list of abbreviations and notes on terminology RW SADC SAYIL SC SCO SCOR SELA SEW SJIR

xxxv

Rechtskundig Weekblad Southern African Development Community South African Yearbook of International Law Security Council of the United Nations Shanghai Cooperation Organization Security Council Official Records Latin American Economic System Sociaal Economische Wetgeving Schweizerische Jahrbuch für internationales Recht (Annuaire suisse de droit international) SRIEL Swiss Review of International and European Law Staff Papers Staff Papers of the International Monetary Fund Stanford L. Rev. Stanford Law Review Stud. Diplom. Studia Diplomatica SWAPO South West Africa People’s Organization Syr. J. Int’l L. & Com. Syracuse Journal of International Law and Commerce TEU Treaty on European Union Tex. Int’l L.J. Texas International Law Journal TFEU Treaty on the Functioning of the European Union Trb. Tractatenblad (Netherlands Treaty Series) UAR United Arab Republic UK United Kingdom UN United Nations UNAT United Nations Administrative Tribunal UNCDF United Nations Capital Development Fund UNCIO United Nations Conference on International Organization UNCITRAL United Nations Commission on International Trade Law UNCTAD United Nations Conference on Trade and Development UNDP United Nations Development Programme UNEF United Nations Emergency Force UNEP United Nations Environment Programme UNESCO United Nations Educational, Scientific and Cultural Organization UNFICYP United Nations Peace-keeping Force in Cyprus UNHCR United Nations High Commissioner for Refugees UNICEF United Nations Children’s Fund UNIDO United Nations Industrial Development Organization UNITAR United Nations Institute for Training and Research UNJY United Nations Juridical Yearbook UNRWA United Nations Relief and Works Agency for Palestine Refugees in the Near East UNTS United Nations Treaty Series U. Miami Inter-Am. University of Miami Inter-American Law Review L. Rev. UNCTAD Rev. UNCTAD Review UPU Universal Postal Union

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

list of abbreviations and notes on terminology United States of America Union of Soviet Socialist Republics Virginia Journal of International Law Vanderbilt Journal of Transnational Law Vereinte Nationen Verfassung und Recht in Übersee Western European and Other Group 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

Notes on terminology • International institutional law is a field of law full of abbreviations. The text will often refer to international organizations by using their full name, but for reasons of brevity or style, abbrevs cannot be avoided. • Occasionally, reference is made to the EEC. Created in 1957 as the European Economic Community, this name was changed into European Community by the 1992 Treaty on European Union. When the text refers to “EEC”, this relates to legal situations dating from before November 1993 (when the Treaty on European Union entered into force). On 1 December 2009, the European Community was replaced and succeeded by the European Union (EU). As much as possible, reference is made to the EU, even when, strictly speaking, the text refers to a legal situation prior to 1 December 2009. • “European Court of Justice” refers to the Court of Justice of the European Union and to the Court of Justice of the European Communities, as this Court was named before 1 December 2009. • For reasons of brevity, the text does not usually use the alternative pronouns “he or she”, but only refers to “he”. This should always be interpreted in a gender neutral way, unless explicitly indicated otherwise. • Regarding references to websites in footnotes: between brackets, reference is made to the month of last access to a website only in cases of references to specific websites, or specific entries presented on general websites.

CHAPTER ONE

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, China 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.2 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 a 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, fax and internet 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

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. “Global governance is generally defined as an instance of governance in the absence of government. There is no government at the global level . . .” ( J.G. Ruggie, Foreword, in T.G. Weiss and R. Thakur, Global Governance and the UN – An Unfinished Journey xv (2010)). 2 Cf. the Lisbon judgment of the German constitutional court: “[t]he state is neither a myth nor an end in itself but the historically grown and globally recognized form of organization of a viable political community” (judgment of 30 June 2009, para. 224 (www.bverfg.de/entscheidungen/es20090630_2bve000208en.html (March 2011))).

2

chapter one

§3

is imperative for the protection of human 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 more 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 demonstrates, however, 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.3 §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.4 Some specific examples illustrate this paradox. In 1992, Foreign Secretary Hurd of the United Kingdom stated in a speech about the Treaty on European Union: “[i]t 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 gone”.5 The 2004 Sutherland Report, prepared at the request of the Director-General of the World Trade Organization, observed the following: “[i]n committing to the WTO and its proce-

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). 4 See also J.-V. Louis, The Community Legal Order 14 (3rd rev. ed., 1995). 5 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.

§5

introduction

3

dures and disciplines, governments are returning to themselves a degree of ‘sovereignty’ lost through the process of globalization. If governments are losing the capacity to regulate meaningfully at the domestic level, they are reclaiming some control of their economic destinies at the multilateral level”.6 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”.7 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’)”.8

§5 It is not purely accidental that these examples all deal with international organizations. Particularly since the end of World War II, international cooperation has increasingly been structured within the framework of international organizations, which are created by states to cope with the consequences of increasing interdependence.9 They reconcile the wish of states to remain independent with the reality of a growing list of transboundary problems. Such reconciliation has been achieved since the first international organizations were established in the 19th century. An example is the Universal Postal Union, created in 1874. According to Article 1.1 of its constitution, “[t]he countries adopting this Constitution shall comprise, under the title of the Universal Postal Union, a single postal territory for the reciprocal exchange of letter-post items”. This creation of a fictitious, functional territory in which the organization has jurisdiction is an example of global governance avant la lettre. 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.10 There is neither a universal state

6 The Future of the WTO – Addressing institutional challenges in the new millennium, report by the Consultative Board to the Director-General Supachai Panitchpakdi (2004). On this report, see the Forum discussion in 2 IOLR 127-225 (2005). 7 UN Doc. A/54/PV.1, at 12-13. 8 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. 9 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); Weiss and Thakur, op. cit. note 1, in particular the introductory chapter and chapter 1. 10 As former UN Secretary-General Annan stated in his final annual report: “while nation-states are no longer the sole players in international relations, they are still the most important” (UN Doc. A/61/1, at 2 (para. 6)). Cf. 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

4

chapter one

§6

nor a world government.11 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 private enterprises, non-governmental organizations, interest groups, local authorities), international organizations have become familiar players in global governance.12 The proliferation of international organizations is one of the characteristics of modern society.13 B. Objectives §6 This study aims to fulfil three objectives. First, to examine in detail the institutional law of international organizations, and 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 that 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 to one another, or are even identical. This explains the subtitle of this book: unity within 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, international criminal justice and environmental protection are some striking examples.14 As far

Amicorum Georges Abi-Saab (2001) 153-176; Ruggie, op. cit. note 1, at xvii: “[i]nternational organizations remain anchored in the state system”. 11 P. Capps, The rejection of the universal state, in N. Tsagourias (ed.), Transnational Constitutionalism 17-43 (2007). 12 See particularly with respect to the economic field C. Tietje, Global Governance and InterAgency Cooperation in International Economic Law, 36 JWT 501-515 (2002). 13 See on a number of legal issues involved N.M. Blokker and H.G. Schermers (eds.), Proliferation of International Organizations (2001). 14 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

§9

introduction

5

as the structure of international law is concerned, the most significant development is the increasing number of international organizations and the expansion of their activities. 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 and the World Tourism Organization. International organizations, whether they be large or small, general or specific, provide interstate cooperation with a permanent framework.15 §9 International law has sometimes been described 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.16 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: “[s]overeignty 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”.17 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”.18 The fact that, since the early twentieth century, public international law has increasingly 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 is retained.19 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

1944) imposes a number of limitations upon the freedom of its members ‘to regulate their own currency’. 15 See in this context M. Ruffert and C. Walter, Institutionalisiertes Völkerrecht (2009), at 2: “[a]ls institutionelles Völkerrecht bietet es [– das Recht der Internationalen Organisationen –] dem materiellen Völkerrecht das organisatorische Rückgrat und ist seinerseits nur unter Einbeziehung der materiell völkerrechtlichen Regelungen und der Organisationsaufgaben aus der materiellen Völkerrechtsordnung zu verstehen”. 16 See e.g. 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 Tadić), 2 October 1995, para 11 (reproduced in 35 ILM (1996), at 32, and 105 ILR (1997), at 453. 17 Published in 22 AJIL 867-912 (1928), at 875. 18 H. Steinberger, Sovereignty, 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. Ninčić, The Problem of Sovereignty in the Charter and in the Practice of the United Nations (1970). 19 Steinberger, op. cit. note 18, in particular at 512-513.

6

chapter one

§10

(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 the formal equality of states. More generally, this can be illustrated by what is probably the primary attribute of sovereignty: the state’s monopoly over the use 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 imposes a general obligation on states to refrain from the threat 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, and the lack of coherence, of international law.20 §10 International organizations have, to some extent, narrowed the differences between international and municipal law, and each has given international law a more vertical character within its own field of operation. In this way, 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 therefore remedied, to some extent, what has been called the carence institutionelle of the international legal order.21 They embody the institutionalization of the international society.22 Their existence led Mosler to the conclusion that “they now form a kind of superstructure over and above the society of states”.23 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 that choose to participate in them. 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.24 To study the institutional law of international

20 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. 21 I.e. the “institutional deficiency” of the international legal order; G. Scelle, Manuel de droit international public 21 (1948). 22 T. Ben Salah, Institutions internationales (2005), at 48: “[i]l y a là l’amorce d’une institutionnalisation de la société internationale”. 23 H. Mosler, The International Society as a Legal Community, in: 140 RdC 1-320 (1974 IV), at 189. 24 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 Organi-

§12

introduction

7

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.25 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 analyze the institutional rules that currently exist in all their varieties, and examine how similar institutional problems encountered by different international organizations have been solved. It will be presumed that solutions found by one organization might also be useful for others. Comparisons may eventually lead to the identification of potential improvements in the structure and functioning of international organizations. However, two provisos must always be borne in mind when drawing such comparisons. Firstly, institutional rules must not simply be copied from one organization to another, without taking into account differences in the objectives and structure of those organizations (see below, §24). Secondly, it should be realized that international institutional law cannot establish an ideal blueprint for all organizations. Institutions are not ends in themselves, but instead are necessary instruments largely in the hands

zation, 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, in: MacDonald and Johnston (eds.), op. cit. note 16, 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. AbiSaab, 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”. 25 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).

8

chapter one

§13

of states, which have been created to perform specific functions.26 It is these functions which, in the final analysis, determine the optimal institutional structure of international organizations.27 The functional nature of the institutional structure of international organizations, and the fact that institutions are crucial but not ends in themselves, may be illustrated by referring to the opening provision in the Treaty on European Union on the institutions of the Union: “[t]he Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the member states, and ensure the consistency, effectiveness and continuity of its policies and actions”.28

3. To contribute to a better understanding of international institutional law a. Legal research into the law of international organizations §13 We are faced with a rapidly growing wealth of institutional law and practice of international organizations. It was therefore 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.29 Why then should we embark upon this impossible research project? For precisely 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 on them, it will be impossible to distinguish the wood from the trees. If no such attempts are made, we run the risk of drowning in an ever-increasing flood of rules and facts, with no opportunity to keep our heads above water. We need to have some understanding of this field, in order to make well-informed decisions in practice about the question of whether or not to create a new organization, and about a myriad more specific institutional questions that emerge within existing international organizations on a daily basis. 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. In his view, such reflection would need to depart from a comparative study of all types of contemporary international organizations.30 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 areas of international institutional law, which we have

26 Cf. I. Claude, Swords into Plowshares (4th ed. 1971), at 84: “[o]ne 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”. 27 See e.g. UN Doc. E/AC.62/9 (A New United Nations Structure for Global Economic Cooperation), at 1-4. 28 TEU, Art. 13.1. 29 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. 30 M. Virally, l’Organisation mondiale 25 (1972).

§13A

introduction

9

sought to address in the separate chapters of this book, an attempt will be made to conclude each chapter with some general reflections that seek to increase our understanding of the law of international organizations. §13A While it is true that theoretical reflection in the field of international organizations has been limited, this does not mean that such entities have not been studied from a legal perspective. Since the establishment of the first international organizations in the 19th century, organizations and their law have been the subject of legal research, in a wide variety of countries and languages.31 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 commenced in the early 1990s. According to Klabbers, while 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: for example, 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.32 Since the 1990s, there has been an increased interest amongst lawyers in theoretical reflection in the field of the law of international organizations. Two approaches should be briefly discussed here, as they have deep roots and have met with considerable support: constitutionalism and global administrative law. There are others as well, of which the public law approach in particular should be mentioned, which is the result of a project of the Max Planck Institute for Comparative Public Law and International Law (Heidelberg, Germany).33 This latter approach focuses on the exercise of international public authority. Since international public authority is mostly exercised by international organizations, international institutional law is used as a basis for analysis. International public authority is both constituted and limited by public law. The public law approach aims to facilitate the legal analysis of global governance, and to develop legal standards for legitimate governance.34

31

Sohn, op. cit. note 29, gives an excellent overview of such research until the mid 1960s. 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. Coicaud and V. Heiskanen (eds.), The Legitimacy of International Organizations 221-255 (2001). 33 A. von Bogdandy et al. (eds.), The Exercise of Public Authority by International Institutions – Advancing International Institutional Law 575-605 (2010). See in particular the introductory article in this book: A. von Bogdandy, P. Dann & M. Goldmann, Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities (at 3-32). As these authors indicate (at 22), their project is inspired by the constitutionalist approach. 34 Id., at 5. 32

10 b.

chapter one

§13B

Constitutionalism

§13B Constitutionalism has a long history in national contexts. It concerns the relationship between law and politics. While constitutionalism has been defined in different ways, a common starting point is the principle that political power must be exercised within the limits of the law.35 Constitutionalism has been named as such since, at the national level, the constitution is the foundation of the national legal order, providing for basic institutional and substantive rules for national political communities. Those communities, therefore, do not function in a lawless limbo, but in accordance with the rule of law, as a Rechtsstaat. To implement this key principle, national constitutions usually include two types of provisions: those providing for a separation of powers (trias politica), and those laying down fundamental rights. §13C Since political power is also increasingly exercised at the international level, constitutionalism is relevant at this level as well, as has been demonstrated in numerous academic writings.36 Key elements of constitutionalist thinking can already be found in such early works as Grotius’ treatise De Iure Belli ac Pacis, which was written based the conviction that “there is a common law among nations, which is valid alike for war and in war”.37 It is now generally accepted that international relations do not take place in a lawless limbo, but within boundaries set by international law. At the same time, however, the substance of these boundaries, as well as the way in which they are implemented, is different from the substance and modalities of implementation of their more mature national equivalents. It is generally recognized that there is no Rechtsstaat at the international level similar to that which exists at the national level. For example, at the international level there is no separation of powers between a legislature, an executive branch, and a judiciary as commonly exists at the national level. And although during the last few decades an impressive web of international human rights obligations has been developed, those obligations essentially serve to protect individuals against states, not against some Global Sovereign. §13D While there is no Rechtsstaat at the international level similar to that which exists at the national level, it has nevertheless been suggested that the international

35 See e.g. T. Koopmans, Courts and Political Institutions – A Comparative View (2003), at 245: “[i]n its simplest form, constitutionalism means that the powers of the State are not exercised arbitrarily, reflecting the mere will of the political leaders of the day, but in accordance with the law, which creates or recognizes permanent institutions and organizes the powers to be exercised by them”. 36 E.g. H. Lauterpacht, The Function of Law in the International Community (1933); T. Opsahl, An International Constitutional Law?, 10 ICLQ 760-784 (1961); Tsagourias, op. cit. note 11; J.L. Dunoff and J.P. Trachtman, Ruling the World? Constitutionalism, International Law, and Global Governance (2009); J. Klabbers, A. Peters and G. Ulfstein, The Constitutionalization of International Law (2009). 37 The Law of War and Peace, translation by F. Kelsey (1925), Prolegomena, para. 28.

§13E

introduction

11

legal order has a constitution of its own, and that the UN Charter could be considered not only as the constitution of the UN, but also as the constitution of the international community.38 These suggestions are by no means generally accepted. Views diverge, partly because different definitions are used: the narrower one’s definition of a constitution, the more difficult it is to conclude that the international community has its own constitution. But it cannot be denied that the international legal order has certain substantive and institutional ground rules that resemble ground rules of national constitutions; or that the UN Charter has a number of characteristics that make it comparable, to a greater or lesser degree, to national constitutions. Although the Charter does not contain separation of power provisions similar to those at the national level, the Charter has a number of provisions governing the principal organs of the UN and their interrelationship. Furthermore, while the Charter does not include a catalogue of fundamental rights, it does refer to the promotion of human rights as one of the UN’s purposes, and in practice a catalogue of such rights has been elaborated through separate general and specific treaties. Neither can it be denied that the international legal order is developing in a ‘more constitutional’ direction – reference is sometimes made to a process of ‘constitutionalization’ – and that initial views concerning the abovementioned suggestions may need to be revised over time.39 It is therefore necessary to approach these issues with an open mind, keeping a close eye on developments in practice, while always taking into consideration the fundamental differences between national legal orders and the international legal order. §13E The application of constitutionalism above the level of the state is not limited to the universal level and to the UN, but can also be observed regionally. At the European regional level, it has been authoritatively concluded that key European treaties are of a constitutional nature. For example, in 1986 the European Court of Justice referred to the (then) EEC Treaty as “a basic constitutional charter”;40 and in 1995 the European Court of Human Rights described the European Convention on Human Rights as “a constitutional instrument of European public order (ordre public)”.41 More recently, in 2004, the governments of the (then) 25 EU member

38 Classical works in this area have mostly written by German scholars, see A. Verdross, Die Verfassung der Völkerrechtsgemeinschaft (1926); A. Verdross and B. Simma, Universelles Völkerrecht (1976; 3rd ed. 1984); B. Simma, From bilateralism to community interest in international law, in 250 RdC (1994-VI), in particular at 256-285; B. Fassbender, The United Nations Charter as the Constitution of the International Community (2009). See also R. Chemain and A. Pellet, La Charte des Nations Unies, constitution mondiale? (2006). 39 See e.g. D.Z. Cass, The Constitutionalization of the World Trade Organization (2005), for a careful and critical analysis of the claim that the WTO is ‘constitutionalizing’. See also J.L. Dunoff, The Politics of International Constitutions: The Curious Case of the World Trade Organization, in Dunoff and Trachtman, op. cit. note 36, at 178-205 (in which the WTO is analyzed as a “curious case”, since the constitutionalization of the WTO is a key issue in scholarly writings about the WTO, but not at all in WTO practice). 40 Case 294/83, Parti écologiste ‘Les Verts’ v. European Parliament, ECR 1986, at 1339 (para. 23). 41 Loizidou Case, Appl. No. 15318/89, judgment of 23 March 1995 (para. 75).

12

chapter one

§13F

states signed a draft “Treaty Establishing a European Constitution”. However, referenda in France and the Netherlands rejected this draft. Apparently for many citizens the idea of having a formal European constitution was a bridge too far, even though in practice the founding European Treaties have widely been accepted as being of a constitutional nature.42 Following a period of reflection, the governments of the EU member states decided not to adopt a new constitution, but to introduce somewhat less ambitious changes in the form of amendments of the existing EC and EU Treaties.43 Nonetheless, these changes are significant from the perspective of constitutionalism, inter alia because they include a legally binding Charter of Fundamental Rights of the EU. In addition, the EC and EU Treaties have always contained provisions resembling separation of powers provisions in national constitutions, and the European Court has developed the principle of institutional balance, which governs relations between EU institutions (see below, §220-221). §13F Constitutionalism may therefore be relevant for international organizations. Their constitutions establish a legal framework for their operation. Exercising political power in the context of an international organization is therefore different from doing so outside this context, for example in bilateral interstate relations, ad hoc conferences and informal settings. To the extent that international organizations exercise political power, they do not do so “arbitrarily, reflecting the mere will of the political leaders of the day”.44 International organizations are usually created by treaties that define their competences and create quasi-permanent institutional structures. These treaties lay down legal boundaries for what the organizations may do. Amongst these boundaries are the attribution principle (see below, §206-236), the decision-making rules of the organization (see below, Chapter 6) and, in exceptional cases, review or scrutiny by judicial or quasi-judicial organs (see below, Chapter 5, Section II). While constitutions of international organizations, unlike national constitutions, usually lack fundamental rights provisions, they typically have specific provisions relating to the organs of the organization and their inter-relationship. At the same time, it may not always be easy in concrete cases to identify the applicable law and the precise limits it prescribes. For example, while it was not unlawful for the UN Security Council to impose financial sanctions on individuals, constitutionalism may help to explain why such sanctions were nevertheless widely considered illegitimate, absent any independent review mechanism (see below, §1483). There are, however, reasons why the relevance of constitutionalism for international organizations is limited. Many international organizations exercise little or no political power. In addition, most of their activities concern cooperation

42 There is a vast amount of literature on this, see e.g. J.H.H. Weiler and M. Wind (eds.), European Constitutionalism Beyond the State (2003); N. Walker, Reframing EU Constitutionalism, in Dunoff and Trachtman, op. cit. note 36, at 149-176. 43 These amendments are laid down in the 2007 Lisbon Treaty. Art. 1 of this Treaty contains the amendments to the EU Treaty, Art. 2 contains the amendments to the EC Treaty. 44 Koopmans, op. cit. note 35.

§13G

introduction

13

between governments, and only affect individuals indirectly.45 The World Meteorological Organization, the International Cocoa Council, the International Network on Bamboo and Rattan, and hundreds of other organizations were deliberately created as frameworks for technical, depoliticized cooperation. This does not mean that highly political issues (such as apartheid in the 1960s and 1970s) cannot arise in the context of their work. However, this is the exception, not the rule. Only some of the most well-known organizations, such as the UN, the EU, and a handful of others, exercise political power to a significant extent. This should be reflected in our analysis: the greater the diversity, the more there is a need for nuance. §13G Against the background of these fundamental debates, this book will follow a rather modest approach. It does not seek answers to questions such as the question of whether the international community has a constitution, or whether constitutionalist ideas should require a reform of international organizations. This book is largely based on a comparison of the institutional law and practice of international organizations. Its approach is more ‘bottom up’ than ‘top down’. International organizations are usually created by treaty. These treaties may have different names, such as Covenant, Charter, Statute, or Constitution (see below, §1146). The generic term given to these treaties is either “constituent instrument” or “constitution”.46 This book will use the term “constitution”. All constitutions of international organizations have characteristics comparable to those of national constitutions, some more than others. A key difference between international organizations and states, however, is that almost all organizations, except for the UN, the EU and some other general regional organizations (such as the OAS and the AU), do not have a general field of operation, but are instead ‘functional’ in the sense that they have been created to perform specific functions in a particular area in which institutionalized cooperation is desired. Examples are the Universal Postal Union, the International Organization of Vine and Wine, and the Mekong River Commission. Because these and most other international organizations lack the state’s general, overall scope of operation, their constitutions are also different in scope than national constitutions. The legal order of an international organization 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, whereas the domestic

45 For many international organizations it therefore still holds true to some extent what Tammes has written in an early international institutional law study: “[t]he activities of international organizations, at the present stage of their development, take place on the surface of social reality. International organizations mainly have contact with international legal persons, either states, other organizations, or further bearers of international rights and obligations. It is relatively rare that they have contact with people, other than with people as representatives of organs. Nearly all implementation and realization of international decisions takes place at the national level.” (A.J.P. Tammes, Hoofdstukken van Internationale Organisatie, eerste stuk (1951), at 1 (our translation)). 46 The ILC has generally used the term “constituent instrument” when preparing conventions in which definitions were given of treaties creating international organizations (see e.g. Vienna Convention on the Law of Treaties (1969), Art. 5; Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986), Art. 2.1(j) and Art. 5). The ICJ has used both “constituent instrument” and “constitution”.

14

chapter one

§13H

legal order is integral (see below, §1139-1144). Nonetheless, even constitutions of organizations with very limited, specific functions have characteristics that distinguish them from ordinary treaties and make them comparable to national constitutions to some degree. For example, constitutions of international organizations may formulate certain substantive ground rules for international cooperation in a particular area, or provide for a distribution of competences among the organs of the organization. An alternative title for this book could therefore have been “International Constitutional Law”.47 Indeed, while preparing the first edition of this book, consideration was given to naming this field of study “international constitutional law”. This alternative title was rejected, however, “as constitutional law was a wider notion also including fundamental human rights”.48 “A second option was to reserve ‘constitutional law’ for national constitutions and use ‘institutional law’, inspired by the institutions of the [then] recently established European Communities, for the constitutions of international organizations”.49 Moreover, because this field of study considers not only the ground rules of international organizations, but also the much more detailed rules relating to the functioning of international organizations, “international institutional law” is a more appropriate term than “international constitutional law”. Indeed, such more detailed rules often resemble those of administrative law at the national level. This brings us to another approach that has been suggested in more recent years and that is relevant to the study of the law of international organizations: global administrative law. c. Global administrative law §13H Global administrative law deals with the growing number of rules and decisions that originate from a wide variety of bodies at the international level: not only international organizations, but also institutions such as the International Association of Insurance Supervisors,50 the Internet Corporation for Assigned Names and Numbers (ICANN),51 and hybrid public-private organs such as the World Anti-Doping Agency.52 What these regulatory bodies have in common

47 On the term ‘international constitutional law’, see Opsahl, op. cit. note 36. See also J.H. Jackson, Sovereignty, the WTO, and Changing Fundamentals of International Law (2006), in particular at 49-56, 222-227 and 266-268. Jackson is in favour of strengthening international organizations and a development from international institutional law to international constitutional law. 48 H.G. Schermers, The Birth and Development of International Institutional Law, 1 IOLR 5-8 (2004), quotations at 6. 49 Id. 50 See www.iaisweb.org. 51 See www.icann.org. ICANN is a non-profit corporation under Californian law. On this Corporation, see M. Hartwig, ICANN – Governance by Technical Necessity, in Von Bogdandy et al. (eds.), op. cit. note 33, at 575-605. 52 See www.wada-ama.org. WADA was established in 1999 as a private foundation under Swiss law. On this Agency, see L. Casini, Global Hybrid Public-Private Bodies: The World AntiDoping Agency (WADA), 6 IOLR 421-446 (2009).

§13I

introduction

15

is the fact that, at the international level, they make rules or take decisions that resemble national administrative law. Traditionally, administrative law existed only at the national level. However, growing interdependence amongst states has resulted in increased international regulation and administration by international organizations, NGOs, informal groups and public-private forms of cooperation. This development has created an accountability deficit. At the national level, administrative law is embedded in national legal orders that have their own national accountability mechanisms. National administrative law provides for secondary rules for administrative decisions and practices. These are rules about rules, which lay down a framework regulating administrative decisions and practices. In the absence of a global government, such an overarching regulatory framework and similar accountability mechanisms exist only in rudimentary form at the international level. Therefore, to compensate for the absence of such a framework, greater openness, participation and transparency is required in the context of international administrative law.53 Global administrative law has been defined as “comprising the mechanisms, principles, practices, and supporting social understandings that promote or otherwise affect the accountability of global administrative bodies, in particular by ensuring they meet adequate standards of transparency, participation, reasoned decision, and legality, and by providing effective review of the rules and decisions they make”.54 It has been suggested that this emerging field of law may provide a conceptual framework for addressing some of the practical legal problems of international organizations, which “may contribute to the reframing and deepening of the existing field of international institutional law”.55 §13I Like constitutionalism, global administrative law has deep roots. In the late 19th and early 20th centuries, international administrative law developed as a separate field of study.56 After a long period of relative silence, this field of study has received renewed attention since the early years of this century. It has been rebranded as “Global Administrative Law” (GAL) and is now developed much further, in particular by Kingsbury and Stewart at the NYU Institute for International Law and Justice,57 and by S. Cassese and Casini. While constitutionalism is about basic, fundamental rules for the international society, about the establishment of a Rechtsstaat at the international level, global administrative law is more oriented towards specific executive or implementing rules and decisions. What

53 S. Cassese, Administrative Law without the State? The Challenge of Global Regulation, 37 NYUJILP 663-694 (2005). 54 B. Kingsbury, N. Krisch, R.B. Stewart, The Emergence of Global Administrative Law, 68 Law and Contemporary Problems 15-61 (2005); see also B. Kingsbury, The Concept of ‘Law’ in Global Administrative Law, 20 EJIL 23-57 (2009). 55 B. Kingsbury and L. Casini, Global Administrative Law Dimensions of International Organizations Law, 6 IOLR 319-358 (2009). 56 See e.g. P. Kazansky, Théorie de l’administration internationale, 9 RGDIP 353-367 (1902); P.S. Reinsch, International Administrative Law and National Sovereignty, 3 AJIL 1-45 (1909). 57 See www.iilj.org/GAL.

16

chapter one

§14

these approaches have in common is that they seek to deal with emerging international cooperation in the absence of a State at the global level. Global administrative law is both wider and narrower than international institutional law. It is narrower in that it does not cover all types of institutional rules of international organizations, such as (most of the) rules on membership, decisionmaking and legal status.58 At the same time, it is also wider, because it is not limited to the law of international organizations. Global administrative law also encompasses the law of all kinds of other public and private bodies. Its focus is on the output of these bodies: the rules and decisions that they produce. By contrast, the focus of international institutional law is on formal international organizations, and on the question: in the absence of a State at the global level, how has the international community organized itself ? The renaissance of this field of study in recent years is to be welcomed, as it enriches our understanding of a number of developments in practice. It is to be welcomed specifically for the study of the law of international organizations. Although global administrative law has a different orientation than international institutional law (focusing more on ‘administrative output’ than on the phenomenon of international organization), it enhances our insight into important parts of international institutional law, in particular those that are related to the rules and decisions of international organizations, and to their operational activities.59 d. Political science and international organizations §14 While there is no strongly established tradition of developing theories on international organizations in the land of legal science, notwithstanding the recently developed schools of constitutionalism and international administrative law, the situation 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, that pay some attention to international organizations.60 These studies, of course, approach international organizations from a different perspective. They pose different questions, and use a different methodology. As a discipline, they are more interested in matters of power and influence, while legal studies have rules as their departure

58 This is also one of the reasons why the public law approach does not use the notion of administration as a foundational concept; see Von Bogdandy, Dann and Goldmann, op. cit. note 33, at 16. 59 See further Kingsbury and Casini, op. cit. note 55, in particular at 334-356, in which the authors discuss five areas of operational practice of international organizations to which, in their view, a global administrative law approach may make some contribution: emergency actions by international organizations; human rights dimensions of their operations; the administration of field offices and field missions; public-private partnerships; and the increasing use of soft law. 60 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); F. Kratochwil and J.G. Ruggie, International Organization: a State of the Art or an Art of the State, 40 International Organization 753775 (1986); M.P. Karns and K.A. Mingst, International Organizations – The Politics and Processes of Global Governance (2004), in particular at 35-60.

§15

introduction

17

point. Naturally there is some degree of overlap,61 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 (for example, institutionalists and regime theorists).62 While some lawyers, in their study of international organizations, are well-known for their view that legal science should be pure, and free of non-legal elements,63 others (for example, McDougal and Lasswell, Falk) focus so much on the role of law in practice that it is sometimes difficult to distinguish their work from studies by political scientists. Nevertheless, all legal studies of international organizations share the assumption that the rules of these organizations are more or less relevant. This assumption is also the starting-point for the present study, which does not seek to answer questions such as: what roles and functions are performed by international organizations in international relations? How can the management of international organizations be improved?64 Do international organizations contribute to international stability or international peace, and in what ways?65 It is assumed for the purposes of this book that international organizations have a role to play in reality. e. Virally and the concept of ‘function’ §15 In this attempt to better understand international institutional law, we can benefit from the pioneering work of Virally, which is hardly known outside the French-speaking parts of the world.66 It suffices here to indicate briefly the gist

61 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). 62 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. 63 See e.g. H. Kelsen’s voluminous study: The Law of the United Nations (1951). 64 This is discussed in D. Dijkzeul and Y. Beigbeder (eds.), Rethinking International Organizations – Pathology and Promise (2003). 65 Questions like these are addressed in international relations studies. See e.g. R.O. Keohane, J.S. Nye, S. Hoffmann (eds.), After the Cold War, International Institutions and State Strategies in Europe, 1989-1991 (1993); M. Barnett and M. Finnemore, Rules for the World – International Organizations in Global Politics (2004) (viewing international organizations as bureaucracies). 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 by Archer as “traditionalist”, like all other international law studies (at 128-129). 66 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).

18

chapter one

§16

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.67 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. §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, and so forth). 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. This can be contrasted with 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).68 Therefore, decisions taken by organs of international organizations often refer to provisions in the constitution attributing the power to these organs to take the decisions in question. In the UN, such references are often lacking, although since the 1990s they have been included in a large number of Security Council resolutions. Within the EU, the decision-making organs are obliged to refer to the legal basis of the decision; according to the European Court of Justice, “the choice of the legal basis for a measure may not depend simply on an

The importance of this work has mainly been recognized by French and Italian authorities; see e.g. 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. 67 Virally, La notion de fonction, op. cit. note 66, 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. 68 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 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Rep. 1996, at 78 (para. 25): “[t]he 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”. See further below, §209-210.

§17

introduction

19

institution’s conviction as to the objective pursued but must be based on objective factors which are amenable to judicial review”.69

§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 aimlessly, 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: “[t]he General Assembly may 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: “[n]othing 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 on 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 352 of the Treaty on the Functioning of the European Union: “[i]f action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures” (emphasis added). §18 It is clear that, in practice, a tension is perceptible between Virally’s two poles – 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.70 Similarly, although the organization is sometimes obliged to act,

69

Case 45/86, Commission v. Council, ECR 1987, at 1520. See e.g. 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 70

20

chapter one

§19

disagreement among its 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 91 TFEU) 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 European Court of Justice in 1985 to prompt cooperation in this field.71 The decision of states to create an international organization does not alter the fact that the same states are regularly the organization’s most significant opponents.72 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.73 This can be explained by the horizontal structure of international law and the enduring 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.74 §19 Virally was aware of this practice, 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, which justify 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?”.75 §20 Fortunately, not only academics are aware of this danger. When creating international organizations, states also display some degree of self-knowledge, and

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). 71 Case 13/83, European Parliament v. Council, ECR 1985, at 1556. 72 Cf. P. Reuter, Institutions internationales 213 (7th ed. 1972). 73 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, 36 International Organization, 479-496 (1982), at 484. See also the 1982 Annual Report of the UN Secretary General: “[t]here 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 SecretaryGeneral, “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). 74 I. Claude in: The International Encyclopedia of the Social Sciences, Vol. 8 (1968), at 35. 75 Virally, op. cit. note 66, at 300 (our translation).

§21

introduction

21

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 on the member states from acting against the goals of the organization, and if necessary to subordinate their own interests to those of the organization.76 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”.77 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; and the notion of good faith is meant as a guide for the execution of Charter obligations.78 Another example is Article 4.3 of the Treaty on European Union: “. . . The member states shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The member states shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives”. 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 Union, the Court of Justice has used it as a basis for further development of the obligations of the member states.79 Other organizations lack judicial organs with powers similar to those of the EU Court; in those contexts, the application of such general 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.80 §21 It is clear that these general good faith obligations can never completely remove the basic tension that exists between the two poles of state sovereignty and the function of international organizations, even if organizations have judicial organs. The 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.81 Only then will states fully come to recognize that “world order is more important than national interests” and that they can no longer “consider their sovereignty

76 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). 77 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 63, at 89). 78 Zoller, op. cit. note 76, at 158. See also Virally, op. cit. note 9, at 271. 79 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). 80 See in particular Conditions of Admission of a State to Membership in the United Nations, Advisory Opinion, ICJ Rep. 1948, at 63. 81 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).

22

chapter one

§22

as an unlimited power to dissociate themselves and to perform dysfunctional activities”.82 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 those 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? This question deserves closer attention, because it may not be immediately self-evident that there is anything more than the law of each individual international organization. Indeed, not all academics specializing in this field agree that there is a separate discipline of international institutional law.83 International organizations differ widely in a number of respects. Some have only a few members (for example the Andean Community, Benelux, the Mekong River Commission or NAFTA), whereas others include nearly all existing states (for instance, the United Nations and most of its specialized agencies). Some organizations have limited powers (for instance, to function only as a forum for consultations: examples are the International Copper Study Group and the Asian and Pacific Coconut Community), 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, makes its own rules and performs its own functions. There is little coordination of the activities of international organizations. Thus, international organizations vary greatly. The same is of course true for states.84 Differences between states are immense as well, as far as the size of their territory and population is concerned, their political systems, economic characteristics, the cultures of their peoples and so forth. Nevertheless, states, even failed states, have something that international organizations do not have: a territory. This partly explains why states are sovereign and international organizations are not, and why the principle of sovereign equality of states does not have a ‘brother’ or ‘sister’ principle of the equality of international organizations.

82

Cf. the quotations above from the studies by Claude (§18) and Virally (§19). This is questioned in particular by J. Klabbers, see his The Paradox of International Institutional Law, 5 IOLR 151-173 (2008). 84 See F. Morgenstern, Legal Problems of International Organizations 1 (1986); N. Blokker, Comparing Apples and Oranges? Reinventing the Wheel? Schermers’ book and Challenges for the Future of International Institutional Law, 5 IOLR 197-213 (2008), at 204; Nguyen Quoc Dinh, P. Daillier, M. Forteau and A. Pellet, Droit international public 642 (8th ed. 2009). 83

§23

introduction

23

Each organization is unique. Therefore, the danger exists that comparing institutional law of one organization to that of another is like comparing apples and oranges. §23 Nevertheless, international organizations also have much in common. Three common characteristics may be distinguished. (1) International organizations are influenced by the same political factors that shape 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 (for example, NATO), or even in the birth or the demise of international organizations (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.85 This dominant position of the US also has its influence on the law of international organizations. The participation of the US in these organizations 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. Apart from this dominant position of the US, during the first decade of the 21st century a few other states have also become powerful players in international relations. Examples are China, Brazil and India. Together with Russia, these countries have created an informal framework for cooperation, BRIC, which had a first official summit meeting in June 2009. 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 others – that bring their own national interests with them. Having established an international organization, its member states 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, and have not outgrown the control of the member states. Basically, all international organizations seek to 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. (2) 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 once was a member needed to respond to the disintegration of this state: could and should the Russian Federation step into the shoes of

85 See further M. Byers and G. Nolte (eds.), United States Hegemony and the Foundations of International Law (2003).

24

chapter one

§23

the Soviet Union, without being formally admitted as such, or did it need to be admitted as a new member? Could and 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 and should Kosovo or Palestine be admitted as a member to international organizations? Can the European Union become a member of another international organization, even if 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 its 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 an organ, when adopting the budget of the organization, refuse to allocate finances for activities initiated by another organ that is exclusively competent to decide upon such activities? These examples demonstrate that international organizations, despite their widely-diverging objectives, powers, fields of activity and number of member states, have all kinds of similar problems with legal aspects. (3) 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 follow common rules or principles.86 This view is supported by legal practice, as may be illustrated by a few examples.

86 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 66, at 92-93; P. Reuter, Sur quelques limites du droit des organisations internationales, in: E. Diez et al. (eds.), Festschrift Bindschedler 491-507 (1980); C.F. Amerasinghe, Principles of the Institutional Law of International Organizations (2nd ed. 2005), in

§23

introduction

25

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 re-election in the Charter of the United Nations and the Statute of the International Court of Justice”.87 Another example is offered by the case law of two regional courts, the Andean Court of Justice and the East African Court of Justice. In its first preliminary rulings, the Andean Court has found that Andean community law takes precedence over national law, and has referred to the Costa-ENEL ruling of the European Court of Justice (EU Court).88 Likewise, the East African Court in one of its first cases referred to case law of the EU Court.89 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 EU Court and stated that, although it is not bound by these rulings, they “do carry persuasive authority”.90 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).91 Likewise, the European Court of Human Rights and the EU Court regularly refer to judgments of other international courts and decisions of supervisory institutions such as the Human Rights Committee.92 The European Court of Human Rights has repeatedly held, more generally, that the European Convention on Human Rights93 or the principles underlying that Convention,94 “cannot be interpreted and applied in a vacuum”. Furthermore, the Human Rights Committee, established by

particular at 17-20 and 344-348; Nguyen Quoc Dinh, Daillier, Forteau and Pellet, op. cit. note 84, at 642; P. Sands and P. Klein, Bowett’s Law of International Institutions (6th ed. 2009), at 16. 87 Quoted in Lauterpacht, op. cit. note 86, at 401. 88 J. Polakiewicz, Andean Common Market, Court of Justice, EPIL Vol. 1 (1992), at 163-164. 89 Anyang’ Nyong’O et al. v. Attorney General of Kenya, judgment of 30 March 2007, available at www.eacj.org; for a brief analysis of this case, see A.P. van der Mei, Regional Integration: The Contribution of the Court of Justice of the East African Community, 69 ZaöRV 403-425 (2009). 90 Judgment 1296 (Cook). 91 Judgment 2232 (Bustani). 92 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; Case of Mamatkulov and Askarov v. Turkey, Judgment of 4 February 2005, Appl. nos. 46827/99 and 46951/99. 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. For a detailed study relating to the European Court of Human Rights, see M. Forowicz, The Reception of International Law in the European Court of Human Rights (2010). For an analysis of the relevant case-law of the EU Court, see A. Rosas, With a Little Help from my Friends: International Case-Law as a Source of Reference for the EU Courts, in 5 The Global Community Yearbook of International Law and Jurisprudence 2005, at 203-230 (2005); M. Bronckers, The Relationship of the EC Courts with Other International Tribunals: Non-committal, Respectful or Submissive? 44 CMLRev. 601-627 (2007). 93 E.g. Al-Adsani Case, Judgment of 21 November 2001, 34 EHRR 11, para. 55; Cudak Case, Judgment of 23 March 2010, Appl. no. 15869/02, para. 56. 94 E.g. Loizidou Case, Judgment of 18 December 1996, Reports 1996-VI, para. 43; Banković Case, Judgment of 12 December 2001, para. 57 (reproduced in 41 ILM 517 (2002)).

26

chapter one

§23

the International Covenant on Civil and Political Rights, has clearly been inspired by the case law of the European Commission and the European Court of Human Rights.95 In addition, the International Court of Justice has referred to case law of other international courts and tribunals. For example, in interpreting the International Covenant on Civil and Political Rights, it has taken into account the jurisprudence of the Human Rights Committee, in order “to achieve the necessary clarity and consistency of international law”.96 It has also observed that, when it is called upon to apply a regional instrument for the protection of human rights, “it must take due account of the interpretation of that instrument adopted by the independent bodies which have been specifically created, if such has been the case, to monitor the sound application of the treaty in question”.97 These examples demonstrate that, over the years, growing interconnections have developed between these international judicial bodies. What Mosler wrote in 1974 is even more true today: international organizations “now form a kind of superstructure over and above the society of states”.98 The abovementioned 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. In 1981, the World Bank Administrative Tribunal observed, in its first decision, that some judgments of the various existing international administrative tribunals “speak of general principles of international civil service law or of a body of rules applicable to the international civil service”; it also referred to “the tendency toward a certain rapprochement”.99 Furthermore, 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 customary international law.100 In addition, it has been observed that certain rules of procedure applied by international organizations and international conferences “have achieved near universal

95 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; M. Bossuyt and O. Lins, La prise en considération de la jurisprudence de Strasbourg par le Comité des droits de l’homme des Nations Unies, in G. Cohen-Jonathan and J.-F. Flauss (eds.), Le rayonnement international de la jurisprudence de la Cour européenne des droits de l’homme 83-100 (2005). 96 ICJ, Ahmadou Sadio Diallo (Republic of Guinea v. DRC), Judgment of 30 November 2010, para. 66. 97 Id., para. 67. 98 Op. cit. note 23. 99 Decision No. 1 (de Merode et al.). 100 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.

§24

introduction

27

application and may well by now have the status of customary international law”.101 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.102 A further example is provided by the draft rules on responsibility of international organizations, adopted on first reading by the International Law Commission in 2009.103 §24 Therefore, while each international organization is unique, for the abovementioned three reasons they have sufficient characteristics in common to justify comparison of them, to support the claim that there is unity within diversity, and to consider international institutional law to be a sub-discipline within the larger field of public international law. This is confirmed in practice. Whenever a new international organization is established, and a constituent instrument and more specific rules (such as rules of procedure for the organs of the new organization) have to be agreed upon, there is no ‘start from scratch’. Key institutional rules cannot be avoided, and rules of existing organizations are normally used in the process of drafting. In this process, on the one hand it may be decided to depart from existing rules because the new organization is considered to have different needs or – as a much more mundane but certainly not less accurate explanation – because other people are involved. On the other hand, it is also very common to rely on existing rules of existing organizations, notwithstanding differences between the relevant organizations. Such existing rules have proven their worth, and it may be wise to rely on such rules rather than on proposed rules that come out of the blue: why re-invent the wheel? The development of new rules in the law of international organizations often is characterized by a tension between the ‘apples-and-oranges-argument’ on the one hand, and the ‘why-reinvent-the-wheel argument’ on the other.104 §25 The shared problems and rules of international organizations particularly relate to institutional legal matters. 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.105 However, 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

101 R. Sabel, Procedure at International Conferences – A study of the rules of procedure at the UN and at intergovernmental conferences 6 (2nd ed. 2006). 102 Text published in UN Doc. A/CONF.129/15. This convention has not yet entered into force. As at 5 March 2011, it was ratified by 29 states and 12 international organizations (see below, §1743 and §1773). 103 Reproduced in UN Doc. A/64/10, at 13-178. 104 Blokker, op. cit. note 84, in particular at 200-201. 105 Monaco even observes that “les organisations internationales possèdent, en principe, une structure de base qui devient de plus en plus semblable” (op. cit. note 66, at 122).

28

chapter one

§26

(individuals, enterprises within) the member states, such as the EU’s agricultural regulations, the monetary rules of the IMF, the labour conventions of the ILO, and prohibitions or catch limits for commercial whaling set by the International Whaling Commission. Unlike institutional law, the content of these substantive rules differs between organizations because it directly reflects the diverging tasks and fields of competence of those organizations. D. Method §26 There are basically two methods for studying the law of international organizations. First, 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 is the most appropriate. The institutional structure of one or a few specific international organizations 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. Our analysis distinguishes between 11 areas of institutional law: these are covered in the following 11 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 that no longer exist (for example, the 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,106 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.107 In their view, this is to compare apples and oranges.

106 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. 107 See e.g. P.J.G. Kapteyn in a review of the Dutch version of the second edition of this book; 33 SEW 537-538 (1985).

§28

introduction

29

The most profound expression of this view is given by Virally,108 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”.109 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.110 §28 The latter view is the point of departure in this study. The members of the EU continue to be sovereign states, as is clear from a number of characteristics of the Union. This situation has not changed after the entry into force of the Lisbon Treaty (1 December 2009). For instance, the principle of conferred powers continues to apply (see below, §209-210), and member states now have the explicit right to withdraw from the Union.111 In Germany, complaints were brought before the German Constitutional Court, in which it was argued that the Act Approving the Lisbon Treaty would result in the loss of statehood for Germany. The Court rejected this analysis, and recalled that the German Basic Law does not allow Germany to abandon its sovereignty by joining a federal state, and only provides for taking part in the EU as an association of states that remain sovereign. Analyzing the Lisbon Treaty, the Court concluded that “[a] will that aims at founding a state cannot be ascertained”.112 It will be demonstrated that, although the European Union imposes much stronger constraints on domestic policies of the member states than other international

108 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)). 109 Id., at 62. 110 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 25, 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. 111 TEU, Art. 50. 112 Judgment of 30 June 2009, op. cit. note 2, in particular paras. 111, 228-229 (quotation at para. 277).

30

chapter one

§29

organizations, its 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.113 This study is therefore based on the presumption that all international organizations, including those which 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,114 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.115 We will mainly use the terms “international organization”, or simply “organization”. Other terms are occasionally used, in particular the French notion “institution internationale”, based on the concept of “institution” introduced by Maurice Hauriou.116 This term 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.117

113 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, where the suggestion is made to transpose the Council-Commission structure of the EU to the level of the UN. 114 By the Scottish jurist James Lorimer. See P.B. Potter, Origin of the term international organization, 39 AJIL 803-806 (1945). 115 “Public international organization” is used in, e.g., ICJ Statute, Art. 34; ILO Constitution, Art. 12. “Intergovernmental organization” is used in, e.g., OAS Constitution, Art. 124; the Agreement Establishing the Agency for International Trade Information and Cooperation as an Intergovernmental Organization (2002), Art. 1. “International organization” is used in, e.g., the Agreement establishing the Pacific Islands Forum (2005), Art. I.1; the Statute of the International Renewable Energy Agency (IRENA) (2009), Preamble; the Agreement for the Establishment of the International Anti-Corruption Academy as an International Organization (2010), Art. I.1. 116 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). 117 For example, the principal EU organs are called “institutions” (see Art. 13.1 TEU). Reuter’s 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; 6th ed. by Sands and Klein (2009), op. cit. note 86). A very broad definition is given by J. Charpentier:

§29A

introduction

31

§29A The International Law Commission (ILC) has preferred the term “intergovernmental organization” for a long period of time, and has decided, on a number of occasions, not to elaborate a precise definition.118 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 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 nongovernmental organizations are excluded”.119 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”.120 This definition is largely similar to the one used in this book (see further below, §32-45). One small difference is the ILC requirement of international legal personality. This excludes organizations such as 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:

“ 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 1 (17th ed., 2009). A somewhat similar definition is used by Ben Salah : “[l]’étude des institutions internationales tend à la description des règles et mécanismes qui gouvernent les rapports entre les membres de la société internationale” (op. cit. note 22, at 2). 118 See in particular Yearbook of the ILC 1985, Vol. II, Part One, at 105-107. 119 Yearbook of the ILC 1966, Vol. II, at 190. See also UNJY 2008, at 438 (where the UN Office of Legal Affairs referred to this “laconic” definition of international organizations in these three Vienna Conventions). 120 UN Doc. A/CN.4/L.636/Add.1, at 5 (at 6-7 the ILC indicates the shortcomings of the approach followed previously); this is the definition as now included in Art. 2(a) of the draft articles on responsibility of international organizations adopted by the ILC on first reading, see UN Doc. A/64/10, at 43. 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 right) (UN Doc. A/64/10, at 49). For a criticism of the proposed definition, see M. Mendelson, The Definition of ‘International Organization’ in the International Law Commission’s Current Project on the Responsibility of International Organizations, in M. Ragazzi (ed.), International Responsibility Today – Essays in Memory of Oscar Schachter 371-389 (2005).

32

chapter one

§30

if an international organization has no legal personality, it is not the organization but only the members that can be held responsible.121 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.122 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”.123 This definition was extensively discussed within the ILC in 2003. An openended working group was established. The outcome of these discussions 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. There are many examples of flexible, informal, more or less structured frameworks for cooperation that cannot be qualified as international organizations. To name just a few: the Quartet on the Middle East; the Group on Earth Observations (established in 2005 to coordinate efforts to build a Global Earth Observation System of Systems);124 BRIC (a forum of newly emerging economies in which Brazil, Russia, India and China cooperate); the G-8; and the G-20. It is the intention of the participants in these groupings not to structure their cooperation in the form of an international organization. In practice, it is clear that such cooperation is indeed more flexible than that within an international organization. For example, in 2011, BRIC was changed into BRICS when South Africa joined it, without any formal admission procedures, ratification, and so forth. Another example is the G-20. Whereas, in the past, the G-8 has been a high-level framework for policy coordination, following the 2008 financial crisis it was decided not to use the G-8, but rather the G-20 as a forum for the coordination of financial policies, because the G-20 was widely seen as more representative of the existing international economic power relations. In contrast, it is much more difficult to adapt formal international organizations to changes in international relations, as is illustrated by the now more than 20-year history of unsuccessful attempts to reform the UN Security Council. It is necessary to define international organizations in order to make clear when the line is crossed: when forms of international cooperation have become

121 See also the first report on responsibility of international organizations by ILC Special Rapporteur Gaja, UN Doc. A/CN.4/532, at 15. 122 Id. 123 Id., at 18. 124 See www.earthobservations.org (March 2011). As at March 2011, this Group has 86 “members” (states and the European Commission), 61 “participating organizations”, and seven “observers”. Its Secretariat is located at the World Meteorological Organization in Geneva.

§30

introduction

33

so institutionalized and structured that they should be classified as international organizations. However, this is easier said than done. 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. Moreover, the institutional intensity of cooperation may change over time: less structured forms of international cooperation may develop into an international organization. For example, when the Conference on Security and Cooperation in Europe (CSCE) was concluded in 1975, and the so-called 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; and it also provided for the creation of a CSCE parliamentary assembly at a later date.125 In December 1994 at the Budapest Summit, this process of institutionalization culminated in the decision to change the name of the Conference to ‘Organization for Security and Cooperation in Europe’ (OSCE).126 However, at the same time there was reluctance to transform the CSCE into a fully-fledged international organization. It was decided that OSCE’s participating states should not become “members”, but should continue to be named “participating states”. In addition, more problematically, no legal personality was given to the OSCE (see further below, §1569). 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.127 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

125 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. 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); 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). 126 OSCE Handbook (2007), at 8. This decision took effect on 1 January 1995. 127 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, §44A.

34

chapter one

§30

acting consistently as an entity legally separate from its contracting parties and has been treated as having legal capacity”.128 Nevertheless, strictly seen, GATT still remained a provisional trade agreement. In practice, it was considered necessary to make the formal status of this organization more clear and to create a firmer and permanent institution for cooperation in international trade.129 In 1994, it was agreed, therefore, that the World Trade Organization should be established to replace the GATT.130 Another example is the 1957 Antarctic Treaty, which originally did not establish an international organization. However, a gradual process of institutionalization has taken place, and following years of discussions a permanent Secretariat was created in 2001.131 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 end of the globe, the Arctic Council, which has been described as a “forum without legal personality”,132 a “standing conference”,133 and “not an international organization but a form of cooperation sui generis”.134 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 estimated that there could be some 40,000 persons still missing as a result of the armed conflict. Its task was to assist families in locating and identifying these persons.135 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”. Subsequently, ICMP – benefiting from its experience in the former Yugoslavia – has also carried out activities in other regions of the world. It has assisted in identifying thousands of victims in Thailand and the Maldives after the December 2004 tsunami, and it has operated or is operating in, for example, Iraq, Kuwait and Chile. It identified victims of the hurricane Katrina (US, 2005) and of the typhoon Frank (Philippines, 2008-2009).136 This is one of the reasons why suggestions have been made to transform 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 and to conclude agreements with states, other international organizations and private entities. As a final example we refer to the multilateral agreements in the environmental field that create some institutional framework. Although in practice these frameworks are often

128 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. 129 J.H. Jackson, Restructuring the GATT System (1990). 130 Agreement establishing the World Trade Organization (Marrakesh, 15 April 1994). This Agreement entered into force on 1 January 1995. 131 K. Scott, Institutional Developments within the Antarctic Treaty System, 52 ICLQ 473-487 (2003). 132 E.T. Bloom, Establishment of the Arctic Council, 93 AJIL 712-722 (1999), at 721. 133 F. Griffiths, Towards a Canadian Arctic Strategy, 69 ZaöRV 579-624 (2009), at 598. 134 R. Wolfrum, The Arctic in the Context of International Law, 69 ZaöRV 533-543 (2009), at 542. 135 See www.ic-mp.org. 136 Id.

§31

introduction

35

not considered to be international organizations, this is in fact what they sometimes 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.137 Examples are the 1992 UN Framework Convention on Climate Change and the 1992 Convention on Biological Diversity. One study has analyzed these agreements, 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”.138 Numerous studies have indicated the need to make these arrangements in the environmental field more formal, and some have even suggested the creation of a new global environmental organization,139 or have proposed to give the UN Trusteeship Council the task of overall supervision of global environmental protection.140

§31 On the other hand, it is possible that states may gradually attribute so many powers to an international organization that it comes to resemble a confederation or a federation. This is illustrated by the development of the European Union, which is generally considered to be an international organization,141 but which is also often called a “supranational organization” in view of its special characteristics (see below, Section III).142 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.143 In the distant past, other examples of cooperation between autonomous political entities that gradually developed into one new

137 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. 138 R.R. Churchill and G. Ulfstein, Autonomous Institutional Arrangements in Multilateral Environmental Agreements: a little-noticed phenomenon in international law, 94 AJIL 623-659 (2000), quotation at 658. 139 K.T. Farr, A New Global Environmental Organization, 28 Ga.J.Int’l&Comp.L. 493-525 (2000); S. Charnovitz, A World Environment Organization, 27 Columbia Journal of Environmental Law 323-362 (2002). 140 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); B. Desai, Institutionalizing International Environmental Law (2004). 141 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). 142 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”. 143 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).

36

chapter one

§32

single sovereign entity can be found: the Swiss Confederation, the Dutch Republic, the American Confederation and the German Confederation.144 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. A sliding scale of institutionalization of international cooperation can be identified. Hence, a definition of what constitutes an international organization 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.145 Equally, there have been instances in which a treaty has explicitly stated that no international organization is created by it.146 To create, or not to create, an international organization: what exactly does this mean? While there is no universally accepted definition of what constitutes an international organization,147 most studies on international organizations are limited to public international organizations, and exclude nongovernmental organizations (NGOs). 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).

144 See on the process of decision-making in these early confederations Tammes, op. cit. note 45, at 18-38. 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. 145 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.) Another example is Art. I.1 of the 2010 Agreement for the Establishment of the International Anti-Corruption Academy as an International Organization: “There is hereby established the Academy as an International Organization” (this Agreement is reproduced on the website of the Academy, at www.iaca-info.org/IACAcontent/IACAdocuments/Treaty/IACA_ AGREEMENT_E.pdf (November 2010). 146 Agreement relating to the Establishment of the Functional Airspace Block “Europe Central” between Germany, Belgium, France, Luxembourg, the Netherlands and Switzerland (2 December 2010), Art. 2.2: “This Agreement does not create an international organization with international legal personality”. See www.fabectreaty.tv/downloads/FABEC_Treaty_English_version.pdf (March 2011). 147 Virally, op. cit. note 108, at 59; for further literature, see id., at 71.

§33 §33

introduction

37

In this study, international organizations are defined as forms of cooperation

(1) founded on an international agreement; (2) having at least one organ with a will of its own; and (3) established under international law. The three elements of this definition will now be discussed in more detail. It is difficult to determine 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 fewer than 700 public international organizations.148

1. International agreement §34 The first element relates to the way in which international organizations come into being: through an international agreement. The most common 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.149 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,150 the Inter-American Defense Board,151 the International Wool Study Group152 and the Restructured Global Environmental Facility153 were established. In addition, 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.154 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.155 This approval was given on 8 September 1997.156

148 Amerasinghe, op. cit. note 86, at 6 (footnote 10); Virally, op. cit. note 9, at 252 (footnote 86). See further N.M. Blokker, Proliferation of International Organizations: an Exploratory Introduction, in Blokker and Schermers (eds.), op. cit. note 13, at 2-4. 149 See also I. Brownlie, Principles of Public International Law 678 (7th ed. 2008); SeidlHohenveldern, op. cit. note 125; Seidl-Hohenveldern and Loibl, op. cit. note 110, at 5; UN Doc. A/CN.4/L.636/Add. 1, at 7-8. 150 Peaslee I(1), at 79. As of 2001, the name of this organization is the Asian-African Legal Consultative Organization. 151 Id., I(2), at 805. 152 Id., II, at 533. 153 See below, §38. 154 Peaslee I(1), at 326. 155 Constitution of the SADCPF, Art. 1. 156 See www.sadcpf.org for futher details.

38

chapter one

§35

The Organization of the Petroleum Exporting Countries (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 1960.157 The Statutes of OPEC were adopted by the second OPEC Conference (Caracas, January 1961).158 A final example is the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization. This is an international organization, established in 1996 by resolution adopted by the states signatories of the Comprehensive Nuclear-Test-Ban Treaty (see further below, §1619).159

§35 Even without an express decision by government representatives, an agreement on the creation of an organization may emerge. The Commonwealth Agricultural Bureau became an international organization through development over many years. It had its roots in the Imperial Agricultural Research Conference of 1927.160 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, and their continued membership of the organization was taken as proof of their agreement. Different views have been expressed in relation to the question of 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.161 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”.162 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).163 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 (IPU), on

157 Res. I.2 adopted by this conference, para. 1 (see OPEC publication Official Resolutions and Press Releases 1960-1983 (1984), at 1-2). 158 Res. II.6 (see id., at 4-8). See further I.F.I. Shihata and A.R. Parra, Organization of the Petroleum Exporting Countries, EPIL Vol. 3 (1997), at 828-832. 159 Resolution adopted 19 November 1996, Doc. CTBT/MSS/Res/1. See para. 7 of the Annex to this Resolution: “The Commission shall have standing as an international organization, authority to negotiate and enter into agreements, and such other legal capacity as necessary for the exercise of its functions and the fulfillment of its purposes”. 160 Peaslee II, at 55. 161 E.g. I.A. Shearer, Starke’s International Law 105-106 (11th ed. 1994). 162 The Memorandum is reproduced in Peaslee I(1), at 290. 163 See further W. Dale, Is the Commonwealth an International Organization?, 31 ICLQ 451-473 (1982); YIO 2008-2009, Vol. 1, at 533-536.

§36

introduction

39

the other hand, was also created by national parliaments, but its purpose is strictly limited to parliamentary cooperation. Governments do not take part. The IPU is therefore generally classified as a non-governmental organization; it also has this status with the United Nations (see below, §189-194). However, the IPU is presently examining the possibility of concluding a convention on the IPU, by which it would be transformed from a private into a public international organization. Such a transformation would make it possible to give privileges and immunities to delegates to IPU meetings and to IPU officials.164 §36 The agreement to create an international organization must be concluded between at least two states. Most organizations have three or more members, but there are some examples of organizations with only two member states.165 An agreement creating an international organization may provide that the organization needs to have a minimum number of members.166 The agreement will usually be concluded between states, but increasingly international organizations or other entities are also parties to the agreements in which new organizations are set up.167 For example, among the parties to the agreement establishing the European Bank for Reconstruction and Development are the EEC (now EU) 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.168 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 . . .”.169 (See below, §81-84 and §1776-1782.)

164

See e.g. IPU Doc. www.ipu.org/cnl-e/186/rpt-convention.htm ( January 2011). 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; see N. Sybesma-Knol and K. Wellens, Enige volkenrechtelijke vragen rond de Nederlandse Taalunie (1987). 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. A further example is the Administrative Commission of the River Uruguay (“CARU”), established under the Statute of the River Uruguay, a treaty concluded in 1975 between Argentina and Uruguay (UNTS Vol. 1295, No. I-21425, at 340). 166 E.g. Art. XXV.1 of the Convention for the establishment of a European Space Agency (1975), according to which this organization “shall be dissolved if the number of member states becomes less than five”; Art. 42 of the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean (establishing the South Pacific Regional Fisheries Management Organization): “This Convention shall be automatically terminated if and when, as the result of withdrawals, the number of Contracting Parties drops below 4”. 167 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). 168 YIO 2008-2009, Vol. I, at 848-849. 169 See P. Szasz, The Complexification of the United Nations System, 3 Max Planck UNYB 1999, at 1-57 (this example is mentioned at 46). 165

40

chapter one

§37

On the other hand, agreements between branches of different governments or between particular public authorities do not normally create international organizations.170 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).171 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.172 Further proof of its intergovernmental status is the 1982 headquarters agreement concluded between Interpol and France.173

§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 not created by a treaty will have to prove the existence of an international agreement when they claim a public, intergovernmental status. A first reason for establishing an international organization through an international agreement is that this is a clear indication of such a status in most cases. The existence of an agreement has also been accepted by the UN as the main criterion for distinguishing these organizations from non-governmental organizations.174 §38 A second reason why an international agreement is needed is to establish the separate legal personality of the new organization,175 and thus distinguish it from

170 E.g. the International Union of Local Authorities (IULA), which was founded in 1913 under Belgian law and has local governments (such as the Amsterdam municipality, the Dubai municipality, Lomé city) and associations of local governments as members. 171 A. Gallas, Interpol, EPIL Vol. 2 (1995), at 1414: “Interpol is not an international organization”. The Yearbook of International Organizations, however, states: “Interpol currently functions as an international intergovernmental organization” (YIO 2008-2009, Vol. I, at 1672). For an extensive analysis, see R.S.J. Martha, The Legal Foundations of INTERPOL (2010). Martha concludes that Interpol is an international organization based on an agreement under international law. 172 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). 173 For the text of this agreement, see www.interpol.int/public/ICPO/LegalMaterials (March 2011). Interpol has also concluded headquarter agreements with other countries in which its offices or bureaux are located. 174 ECOSOC Resolutions 288 B(X), 1296 (XLIV) and 1996/31. 175 In exceptional cases, no separate legal personality is given; see below, §44 and Chapter Eleven.

§38

introduction

41

mere organs of organizations. This separate legal identity gives organizations a degree of independence that organs usually lack. Nevertheless, practice demonstrates that a certain measure of independence is sometimes also 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 similar provision was included in the Statute of the United Nations Institute for Training and Research (UNITAR),176 and in Resolution 2186 (XXI) establishing the United Nations Capital Development Fund (UNCDF). UNITAR and UNCDF have operational budgets of their own, as did UNIDO until 1986. Resolution 1995 (XIX) of the UN 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).177 Similarly, although its budget is part of the UN budget, UNCTAD has a certain amount of autonomy in budgetary matters.178 Another example is the Global Environmental Facility. Created in 1991 as a World Bank organ,179 it was restructured in 1994 and may now be characterized as an international organization.180 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

176 UNITAR was established by the Secretary-General, pursuant to GA Res. 1934 (XVIII), as an “autonomous institution within the framework of the United Nations” (Statute, Art. 1). On the autonomous status of UNITAR, see UNJY 2008, at 427-434. 177 B. Gosovic, UNCTAD – Conflict and Compromise 180 (1972). 178 Id., at 183-185. 179 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. 180 Although an attempt was made 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 no longer 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 2008-2009, at 1272). 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 169, 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 13, 111-134 (in particular at 125-127).

42

chapter one

§39

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 states181 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).182 This instrument was amended in 2002 and 2006.183 The restructured GEF has an Assembly (consisting of representatives of all participants), a Council (composed of 32 members, representing constituency groupings), and a Secretariat.

These examples show 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 conversion took place on the initiative of developing countries, to increase and further develop the autonomy and powers of UNIDO.184 §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 that 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.185

§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; but this constitution was subsequently signed and ratified by the participating states.186

181 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. 182 33 ILM (1994), at 1283 ff. 183 For the text of the amended instrument, see Instrument for the Establishment of the Restructured Global Environment Facility (a GEF publication, March 2008), also reproduced on the GEF website: www.thegef.org. 184 P. Bretton, La transformation de l’ONUDI en institution spécialisée, in: 25 AFDI 567-578 (1979), at 568. 185 SELA, Arts. 20-26 (15 ILM 1092-1093 (1976)); Rule 11 of SELA action committees (15 ILM 1121 (1976)). 186 W. Dale, UNRWA – A Subsidiary Organ of the United Nations, in: 23 ICLQ 581 (1974).

§41

introduction

43

§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 such as 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 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.187 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 if the former does not consent to such application vis-à-vis the new member.188 §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 operation. This happened when, in December 1950, US President Truman decided not to submit the Havana Charter to Congress.189 Other states also 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, and one of these states decides not to ratify. Thus, when the Dutch

187

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). 189 See W. Diebold, The End of the ITO (Princeton Essays in International Finance No. 16, 1952). 188

44

chapter one

§44

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 (then) European Communities).190

2. At least one organ with a will of its own §44 The second element in our definition of an international organization is the requirement that the organization should have at least one organ with a will of its own. In, among others, German and French literature the same term is used for the requirement of “a will of its own”: der eigene Wille, volonté distincte. The French term is particularly apt as it expresses not only the independent will of the organ, but also, implicitly, that from which it should be distinguished: the volonté of the members. This second element is fundamental, as it makes clear that the decisions taken by the organ concerned emanate not from an ad hoc grouping of states, but from a separate body upon which powers have been bestowed to adopt such decisions, a body that is therefore more than the sum of its members. Such separate bodies are, in the words used by the International Court of Justice, “subjects of law endowed with a certain autonomy”.191 Constitutions of international organizations generally do not refer to the requirement of a volonté distincte. To the extent that they mention the separate identity of the organization, the term ‘legal personality’ is used. 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.192 For example, according to the Statutes for the Global Water Partnership Network and the Global Water Partnership Organization, “[t]he Network does not have legal personality”.193 With regard to some other organizations, there is (for instance, the Organization on Security and Cooperation in Europe) or has been (for instance, the European Union) considerable debate concerning their legal personality (see below, §1569). Therefore, in exceptional cases international organizations do not become legal persons. There is also an example of the reverse situation (legal person, but no organization): an organization that may be dissolved while its legal personality

190 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. 191 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Rep. 1996, at 75 (para. 19). On the autonomy of international organizations, see R. Collins and N.D. White (eds.), International Organizations and the Idea of Autonomy: Institutional Independence in the International Legal Order (forthcoming in 2011); N.M. Blokker, International Organizations as Independent Actors: Sweet Memory or Functionally Necessary?, in J. Wouters et al. (eds.), Accountability for Human Rights Violations by International Organizations 37-50 (2010). 192 See also Amerasinghe, op. cit. note 86, at 10-11; Brownlie, op. cit. note 149, at 678. 193 Art. I.2 (Trb. 2002, 93).

§44A

introduction

45

continues for the purpose of winding up the organization.194 The issue of legal personality of international organizations will be further discussed in Chapter Eleven. As they are usually legal persons, international organizations can be distinguished from so-called treaty organs, which do not have this quality. Organs of international organizations 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 treaty 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 and the 2008 Convention on Cluster Munitions), and the International Narcotics Control Board. Some authors also classify the Conferences of the Parties (COPs) of environmental conventions such as the Framework Convention on Climate Change as treaty organs.195 Treaty organs 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.196 Various problems may arise when membership of the treaty organ is not identical to membership of the ‘sponsoring’ organization. Treaty organs will be discussed somewhat further in Chapter Four (see below, §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 not be dependent on any particular state.197 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 distinguishes organizations from bilateral or multilateral treaties, whereby parties lay

194

See the 1997 Eurocontrol Revised Convention, Art. 38.5; see also below, §1629. E.g. G. Ulfstein, Treaty Bodies, in D. Bodansky, J. Brunnée and E. Hey (eds.), The Oxford Handbook of International Environmental Law 877-889 (2007). 196 According to Szasz, they are therefore “isolated organs that in effect operate under the care of the sponsoring [intergovernmental organization]” (op. cit. note 169, 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 86, who in their Chapter 4 (entitled: “Other autonomous organizations”) refer to “treaty organizations” (in particular at 115). In their Chapter 4, both treaty organs (such as the examples given above) and fully-fledged international organizations (such as the OPCW and the International Coffee Organization) are discussed. 197 Seyersted in 34 NorTIR 47 (1964); 4 IJIL 40-41 (1964). 195

46

chapter one

§45

down a common will, which remains their own, however, and is not entrusted to a newly created body.198 Nevertheless, it should be recognized 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 their own identity. A discrepancy may exist between the legal and the factual situation. Behind the legal personality veil of the organization its sovereign members remain visible. In this context, R.-J. Dupuy has referred to the ‘transparency’ of international organizations.199 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, 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.200

3. Established under international law §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.201

198 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 System at Geneva, A working guide 3-14 (2nd rev. ed. by J. Lemoine, 1998), at 5; Higgins, op. cit. note 100, at 46; Sands and Klein, op. cit. note 86, at 15; Seidl-Hohenveldern and Loibl, op. cit. note 110, at 5. Cf. also Bastid, op. cit. note 116, 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”. 199 Op. cit. note 25, at 121: “En dépit de son autonomie juridique, elle laisse voir les Etats toujours présents derrière ses structures”. See also P. Reuter, Institutions internationales (7th ed. 1972), at 192-193, 200-201. Brölmann has demonstrated how the law of treaties and the law of international responsibility have difficulties in dealing with such ‘transparant’ actors: C. Brölmann, A Flat Earth? International Organizations in the System of International Law, 70 Nord.J.Int’lL. 319-340 (2001), and C. Brölmann, The Institutional Veil in Public International Law – International Organizations and the Law of Treaties (2007). 200 Benedek, op. cit. note 127, at 262. See also above, §30. 201 The example is taken from I. Seidl-Hohenveldern, Das Recht der Internationalen Organisationen, einschließlich der Supranationalen Gemeinschaften (1st ed., 1966), para. 118.

§46

introduction

47

Another example is the agreement between France and Switzerland concerning the BâleMulhouse airport, which declares that, as a rule, French law shall apply to the enterprise.202 A final example is the Institut du Monde Arabe, established as a foundation under French law by twenty states.203 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”.204 This Commission has 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”.205

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 to be an international organization.206 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, Microsoft 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.207 The Organization of Arab Petroleum Exporting Countries (OAPEC) has created four international companies, based on treaties, three of them concerning petroleum and one

202

See I. Seidl-Hohenveldern, Corporations in and under International Law 115 (1987). Mentioned in UN Doc. A/64/10, at 46. 204 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. 205 Id., at 629. 206 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 110, at 56-59. 207 See YIO 2003-2004, Vol. I, at 71. Air Afrique was dissolved in 2002. 203

48

chapter one

§47

concerning ship-building.208 Euratom has established a number of joint undertakings (see Articles 45-51 of the Euratom Treaty).209

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 to be international organizations. The World Bank and regional development banks (such as the Inter-American Development Bank) borrow in international financial markets and makes long-term loans at nearmarket interest rates. The International Telecommunications Satellite Organization (INTELSAT) and the International Maritime Satellite Organization (Inmarsat) owned satellites and operated them as commercial enterprises.210 INTELSAT and Inmarsat were created as public international organizations but were privatized in 1999 (Inmarsat) and in 2001 (INTELSAT; its name was changed to Intelsat).

§47 Nor is it usually difficult to distinguish between (public) international organizations and international non-governmental organizations (NGOs). The notion “non-governmental” refers to the function of these organizations: they are not endowed with governmental tasks. NGOs are not created by treaty; nor are they established under international law. Apart from these characteristics, NGOs 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 NGOs remains to be formulated” still seems accurate.211 The Union of International Associations, itself an NGO, has recognized 7628 international NGOs as such (using a rather narrow definition).212 They vary from large and influential organizations, such as Amnesty International, the International Chamber of Commerce 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.

208 M. Al Saqqaf, Les entreprises communes créées au sein de l’OPAEP, in: 23 AFDI 709-729 (1977). 209 Kapteyn & VerLoren van Themaat, The Law of the European Union and the European Communities (4th rev. ed., edited by P.J.G. Kapteyn, A.M. McDonnell, K.J.M. Mortelmans, C.W.A. Timmermans and the late L.A. Geelhoed, 2008), at 1231. 210 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”. 211 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. 212 YIO 2008-2009, Vol. I, at 2945. The criteria used in this Yearbook to classify an organization as an (international) NGO are mentioned in YIO 1994/95, Vol. I, at 1617-1618.

§47

introduction

49

Many NGOs 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. Such official recognition has also been given to organizations that do not qualify as NGOs (in view of their public functions) nor as intergovernmental organizations. Examples of such hybrid organizations are two organizations that are part of the International Red Cross and Red Crescent Movement: the International Committee of the Red Cross (ICRC) and the International Federation of Red Cross and Red Crescent Societies (IFRC).213 ICRC’s activities particularly concentrate on the protection of civilians in situations of armed conflict and the dissemination of international humanitarian law. The IFRC’s key field of operation is the coordination of international relief assistance, as well as the support to the work of the national Red Cross and Red Crescent Societies. The ICRC is a private association composed of a maximum of 25 members of Swiss nationality, which was established under Swiss law, not under international law. The mandate of the ICRC is incorporated in the four 1949 Geneva Conventions and the 1977 Additional Protocols, which are the core international instruments in the field of international humanitarian law. The ICRC has concluded a number of agreements, for example headquarters agreements. It is widely recognized that the ICRC is not a public international organization, but that it has international legal personality.214 The IFRC has a similar status: it is a private Swiss association. Its members are the 186 National Red Cross and Red Crescent Societies. A large number of states have concluded status agreements with the IFRC in which privileges and immunities are given to this organization.215 Both ICRC and IFRC have observer status in the UN General Assembly. 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,216 the International Development Law Institute217 and the Agency for International Trade Information and Cooperation.218

213 The third component of this Movement is formed by the National Red Cross and Red Crescent Societies. 214 D. Bindschedler-Robert, Red Cross, 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 Croix-Rouge, in id., at 783-791; Seidl-Hohenveldern and Loibl, op. cit. note 110, at 5. Cf. also Brownlie, op. cit. note 149, at 678. 215 See IFRC, International disaster response laws, principles and practice: reflections, prospects and challenges (2003), in particular at 128-137; P. Gautier, O.N.G. et personnalité internationale: à propos de l’accord conclu le 29 novembre 1996 entre la Suisse et la Fédération internationale des sociétés de la Croix-Rouge et du Croissant-Rouge, 30 RBDI 172-189 (1997). 216 Established in 1958 as an NGO, and transformed into a public international organization in 1966. See YIO 2008-2009, Vol. I, at 1593. 217 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 2008-2009, Vol. I, at 1680. 218 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.

50

chapter one

§48

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.219 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 that suggested by Virally. Not surprisingly, his criterion is related to the notion of function discussed above (see above, §15-17). [I]t 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 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.220

§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)?221

219

E.g. El-Erian, in Yearbook of the ILC 1963, Vol. II, at 167-169, and the literature mentioned

there. 220 221

Virally, op. cit. note 108, at 66. Id., at 66-67.

§50

introduction

51

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 standard-setting 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 versus 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 major 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) that are beyond the reach of organizations with a universal vocation. Secondly, supranational 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 that general organizations lack. It should be recognized, 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 world-wide 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’

52

chapter one

§52

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 states: “The objective of the World Health Organization . . . shall be the attainment by all peoples of the highest possible level of health”. The 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, 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.222 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.223 These organizations will be described as closed organizations, to emphasize the closed circle from which this membership is drawn.224 There are three types of closed organizations: regional organizations, organizations of states

222

Yearbook of the ILC 1967, Vol. II, at 148. See e.g. 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 in 1987, when Morocco officially applied for membership (see Europe No. 4594 (1987)). 224 Similarly Virally, op. cit. note 108, 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. 223

§54

introduction

53

with a common background (for example, language or a political system), and closed special organizations. §54 Regional organizations are the most common kind of closed organizations.225 Examples are the European Union, the Organization of American States, the Caribbean Community (Caricom), the African Union, the Cooperation Council of the Arab Gulf States, the Association of Southeast Asian Nations and the Pacific Islands Forum. In fact, the notion ‘regional’ is often not appropriate, since there are few organizations the membership of which is entirely based on geographical factors. Generally, political factors play at least an equally important role.226 Still, organizations such as the Council of Europe, the African Union 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 that 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. Instead, their members share(d) 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),227 the Commonwealth (see above, §35), and the Organisation internationale de la Francophonie (established to bring together countries linked by their common usage of the French language).228

225 The literature on regional organizations mostly concentrates on individual regional organizations, but there are also some comparative studies, see e.g. A. Acharya and A.I. Johnston (eds.), Crafting Cooperation – Regional International Institutions in Comparative Perspective (2007). 226 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. 227 YIO 2008-2009, Vol. I, at 2337-2339; M. Shihab, Organization of the Islamic Conference, EPIL Vol. 3 (1997), at 824-828. 228 YIO 2008-2009, Vol. I, at 2328.

54

chapter one

§56

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 geographical 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). As a result of the latter (emphasized) criterion, Western countries will not be eligible for OPEC membership.229 §57

Closed organizations have a number of characteristics in common.

(1) 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. (2) 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 all 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 Coffee 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.230 (3) 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 Union have permitted a gradual increase in membership. Neutral states do not wish to participate in the North Atlantic Treaty Organization, while non-democratic and non-European

229 See I.F.I. Shihata and A.R. Parra, Organization of Petroleum Exporting Countries, EPIL Vol. 3 (1997), at 828-832. 230 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.

§58

introduction

55

states are excluded from membership of the Council of Europe. The membership of organizations uniting states that share particular interests necessarily varies with those interests. C. Intergovernmental versus supranational organizations 1. Intergovernmental organizations §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 that 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.231 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”.232 §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 between 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.

231 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. 232 F. Capotorti, Supranational organizations, EPIL Vol. 4 (2000), at 738-739.

56

chapter one

§60

2. 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’,233 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.234 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.235

§61 The most fundamental characteristics of supranational organizations are the following: (1) The organization should have the power to take decisions binding on 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. Secondly, by composing the decision-making organ of independent individuals. (3) The organization should be empowered to make rules that 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 member states are used to aid the organization in this field. Thus, a national parliament and the

233 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 232, at 737-744; K. Lenaerts and P. van Nuffel, Constitutional Law of the European Union 11-18 (2nd ed. 2005). 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). 234 Capotorti, op. cit. note 232, at 737. 235 H. Wagner, Grundbegriffe des Beschlußrechts der Europäischen Gemeinschaften 81-82 (1965).

§62

introduction

57

national judiciary may coerce their government to fulfil the state’s 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 peace-keeping 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 abovementioned 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 that is fully supranational, we shall use the term ‘supranational’ in a relative, not absolute sense. The closer the abovementioned conditions are to being fulfilled, the more supranational the organization is considered to be. All intergovernmental organizations have some supranational aspects. Binding decisions are taken by majority vote in most organizations (although often only on procedural issues). In many technical organizations, independent committees of experts take decisions that 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 non-compliance 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 organization’.236 However, it is submitted that this notion can be used in this relative sense, to indicate that the supranational elements prevail.

236 M.S. Korowicz, Organisations internationales et souveraineté des états membres 283-286 (1961). For a list of authors sharing this opinion, see Hay, op. cit. note 233, at 76 ff.

58

chapter one

§63

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, and the International Renewable Energy Agency for promoting renewable energy. 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” (in the French version: “. . . des questions touchant à la politique internationale”).237 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 is likely to 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, or the position of South Africa during the era of apartheid. At its sixteenth session, the Universal Postal Union (UPU), decided to exclude practically all questions of a political nature from its debates.238 However, this decision proved fruitless, and the UPU has spent many hours discussing political matters, such as the representation of South Africa.

2. 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

237 238

Art. 2 of the General Regulations of the International Hydrographic Organization. UPU Res. C 4 (1969), UNJY 1969, at 119-120.

§65

introduction

59

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, the African Union, and the Association of Southeast Asian Nations. 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 (for example, 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.

CHAPTER TWO

PARTICIPANTS

§66 One element all international organizations have in common is that they have members. In most organizations, only states may become members. Increasingly, however, international organizations may also have other international organizations as members. For example, nowadays the European Union is a member of numerous international organizations, such as the Food and Agricultural Organization of the UN and the World Trade Organization.1 For reasons of brevity, and since in most cases only states are members of international organizations, we will usually refer to member states. 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 will of the member states to cooperate. For example, for many years the UN Security Council was unable to perform the task for which it was created, mainly because of fundamental disagreement among its permanent members. The internal role or capacity can easily be recognized in the composition and functioning of non-plenary, 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 members of the Security

1 See below, §81-84. Cf. also the definition of international organizations adopted by the ILC in its draft articles on responsibility of international organizations (text adopted on first reading; see above, §29A): “. . . International organizations may include as members, in addition to states, other entities”. 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 E.g. 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 E.g. ICAO, Art. 50(b); IMO, Art. 18(c); UNESCO, Art. V.A.2; WHO, Art. 24.

62

chapter two

§67

Council sometimes explicitly refer to their duty to take into account not only their own interests but also the concerns or interests of their regions.5 In 2005 the Senate of the Dutch Parliament informed the Dutch Minister of Justice that it was of the opinion that the Minister should not participate in consultations in the EU Council relating to a specific item on the agenda. The Minister of Justice however refused to implement this wish of the Senate. One of the reasons for his refusal was his view that “the Minister as member of the Council is not exclusively a Dutch Minister, but also a member of an EU organ. His functioning as such is also governed by what is necessary in the general interest of the Union”.6

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 that may have a direct or indirect impact on them, and they must respect such decisions to a degree which is commensurate with their legal effect. 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”.7 However, the distinction is fundamental and may have important legal consequences. Only in their internal role do member states cooperate within the framework of the organ and as such must 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 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 of the EC Treaty (now Articles 313314 of the TFEU). By failing to adopt the decision under this article, the Parliament contended that 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

5 6 7

E.g. UN Docs. S/PV.2977 (Part II), at 311 (India) and 322 (Cuba); S/PV.3413, at 9 (Brazil ). Letter by the Minister of Justice of 20 June 2005, Senate document 2004-2005, 23490, AS. Tammes, op. cit. note 2, at 354.

§68

participants

63

Article 173 of the Treaty (now Article 263 TFEU).8 The Court followed a broad interpretation based on substantive 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 if they were subsequently to refuse to follow it to the extent of its legal force. This can be illustrated by case-law of the EU Court with regard to directives. These directives must be implemented by the member states within time limits, as indicated in each specific directive. The Court has frequently criticized members for not implementing 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”.9 Such a lifting of the organization’s veil should encourage 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 only participate in some activities. 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, and others may decisively influence the discussions by using their expert knowledge. §70 When discussing membership of international organizations it should be borne in mind that member states are ‘collectivities’, entities that represent individuals and that 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

8 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). 9 E.g. case 301/81, Commission v. Belgium, ECR 1983, at 478; case 364/85, Commission v. Italy, ECR 1987, at 487.

64

chapter two

§71

it is sufficient to note that it is not the governments that 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 Chapter Four: 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.10 There is usually no difference of opinion as to whether candidate members fulfil this requirement. An exceptional case in which there is disagreement about statehood is Kosovo. Following the adoption of its declaration of independence in 2008, Kosovo applied for membership of a number of international organizations. In 2009 it became a member of the IMF, World Bank, IDA, IFC and MIGA. In these cases the competent organs of these organizations took decisions by majority vote, outvoting members that had not recognized Kosovo.11 In other organizations the procedure for admission is different and would prevent Kosovo from becoming a member. For example, Kosovo could only be admitted to the UN following a positive recommendation by the Security Council: the possibility of obtaining such a positive recommendation is excluded as long as Russia and China do not recognize Kosovo and are expected to use their veto should Kosovo apply for membership of the UN.

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. 11 The IMF decision was taken by 138 votes in favour, 10 votes against; the World Bank decision was taken by 96 votes in favour and 7 against (figures taken from the “Further written contribution of the Republic of Kosovo”, 17 July 2009, in the context of the ICJ proceedings dealing with the request for an advisory opinion by the General Assembly of the UN (Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo)).

§72

participants

65

§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.12 There is no generally agreed 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.13 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 that guarantees 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 mini-members in one way or another.14 On the other hand, some members

12 See the literature mentioned in the second edition of this book, at 35 (footnote 4), and, more recently, D.L. Mendis, The Mini-States and the United Nations System, 21 Commonwealth Law Bulletin 992-1009 (1995); J. Duursma, Fragmentation and the international relations of microstates: 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, para. 172; GAOR 26 Suppl. No. 1A (A/8401/Add.1), at 13, para. 105. 13 J. Chappez, Les micro-Etats et les Nations Unies, 17 AFDI 541-551 (1971). 14 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).

66

chapter two

§74

questioned 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.15 (This is similar to one of the reasons why the League of Nations had refused to admit Liechtenstein as a member in 1920).16 §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: 87,298), St. Vincent and the Grenadines (1980; population: 109,022), Liechtenstein (1990; population: 35,789), San Marino (1992; population: 31,451), Monaco (1993; population: 31,109), Andorra (1993; population: 85,116), Palau (1994; population: 21,388), Nauru (1999; population: 10,065) and Tuvalu (2000; population: 9,561).17 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 created by the discrepancy between, on the one hand, the formal principle of sovereign equality of members and the corresponding one-state-one-vote principle, and, on the other hand, the material 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).18 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”.19

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. 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

15

E.g., 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 12, at 173-176. 17 See T.D. Grant, States Newly Admitted to the United Nations: Some Implications, 39 CJTL 177-192 (2000); T.D. Grant, Admission to the United Nations – Charter Article 4 and the Rise of Universal Organization (2009), at 238-244. Population data have been taken from the UN Demographic Yearbook, Section “Population, latest available census and estimates (2008-2009)”; see http://unstats.un.org/unsd/demographic/products/vitstats/serATab2.pdf (December 2010). 18 Liechtenstein: Council of Europe, Parliamentary Assembly, Doc. 4193 (1978). San Marino: Council of Europe, Parliamentary Assembly, Doc. 5938 (1988). 19 Council of Europe, Parliamentary Assembly, Doc. 4193 (1978), at 19. 16

§75

participants

67

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.20 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.21 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.22 For example, Namibia was admitted as a full member of the FAO (1977) and of the ILO (1978).23 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.24 Only independent Arab states can become members of the League of Arab States.25 Nevertheless, in 1976 Palestine became a full member (represented by the PLO), necessitating the adoption of an Annex to the constitution of the League which stipulates, inter alia, that the existence and independence of Palestine can not 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”.26 Palestine (represented by the PLO) is also a full member of the Organization of the Islamic Conference and of some Arab organizations.27 Following the 1988 declaration of

20 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). 21 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). 22 See, inter alia, Res. 31/149, para. 3, and Res. 32/9E. 23 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. 24 See Osieke, op. cit. note 23. 25 Constitution of the League of Arab States, Art. 1. 26 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. 27 E.g. the Arab League Educational Cultural and Scientific Organization, a specialized agency of the League of Arab States, and the Arab Monetary Fund.

68

chapter two

§76

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).28 §76 The constitutions of other organizations explicitly distinguish membership from statehood and provide an opportunity for the admission of non-autonomous territories as members.29 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 (until 10 October 2010, when the Netherlands Antilles ceased to exist) and Aruba; the UK Overseas Territories).30 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 UK and the US). In the convention entering into force in 1975, membership is limited to sovereign countries.31 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 (until 10 October 2010) and Aruba, New Caledonia.32

28 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. 29 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. 30 UPU, Art. 2; UPU, Constitution, General Regulations (with commentary by the UPU International Bureau), at A.8 (2010). On UPU membership see J.D. Codreau, Historical Development of the Universal Postal Union and the Question of Membership, thesis Fribourg (1975). The Netherlands Antilles ceased to exist on 10 October 2010. As of that date, Curaçao and St. Maarten obtained an autonomous status comparable to the status of the former Netherlands Antilles, and may each become full member of UPU. 31 YUN 1973, at 594; YUN 1975, at 1068. 32 See www.wmo.int/pages/members/membership/index_en.html#N (December 2010). The Netherlands Antilles ceased to exist on 10 October 2010. As of that date, Curaçao and St. Maarten obtained an autonomous status comparable to the status of the former Netherlands Antilles, and may each become full member of the WMO.

§76

participants

69

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 of this provision.33 Previously, such territories have become members of the GATT, in accordance with Article XXVI.5(c).34 5. Not only states but also separate customs territories may become members of the World Customs Organization. Bermuda, Hong Kong, Macau and the Netherlands Antilles (until 10 October 2010) are full members of this organization.35 6. 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.36 7. In some development banks non-sovereign territories may become separate members.37 For example, Hong Kong is a member of the Asian Development Bank.38 The British Virgin Islands and the Cayman Islands are members of the Caribbean Development Bank.39 8. Overseas territories of members may acquire separate membership of the International Institute of Refrigeration (Institut International du Froid, Paris) (Article 3).40 9. Article 5 of the 1976, the 1983, and the 2001 International Coffee Agreements provided that net coffee importing members of the International Coffee Organization could 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 would have separate membership. In the 2007 International Coffee Agreement this provision was no longer included.41 10. Montserrat, a British overseas territory, is a full member of CARICOM.42 11. Three Belgian regions – the Flemish Region, the Walloon Region and the Brussels Capital Region – are full members of two river commissions. Together with Belgium, France and the Netherlands they are members of the International Commission for the Scheldt.43 Together with Belgium, France, Germany, Luxembourg and the Netherlands they are members of the International Meuse Commission.44 12. Two non-sovereign territories, Cook Islands (New Zealand) and Guam (US), are among the fourteen founding members of the South Pacific Applied Geoscience Commission (SOPAC). Article 3 of the 1990 Agreement establishing this Commission provides that

33

See www.wto.org (December 2010). 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. 35 See www.wcoomd.org (December 2010); Art. II(a)(ii) of the constitution of the WCO. The Netherlands Antilles ceased to exist on 10 October 2010. 36 See www.eppo.org (December 2010). 37 Caribbean Development Bank, Art. 3; Asian Development Bank, Art. 3(3). 38 See www.adb.org/Countries/ (December 2010). 39 See www.caribank.org (December 2010). This Bank may have, inter alia, “states and territories of the region” as its members (Art. 3.1 of the Constitution). 40 At present this organization has only independent members. See www.iifiir.org/ (December 2010). 41 See www.ico.org (December 2010). 42 See the list of members in Art. 3.1 of the 2001 revised CARICOM Treaty: www.caricom .org (December 2010). 43 See www.isc-cie.com (December 2010). 44 See www.cipm-icbm.be (December 2010). 34

70

chapter two

§77

any government which is “the government of a self-governing island country in the South Pacific which is in free association with another state” may become a full member of the Commission. In 1994 Niue (New Zealand) was admitted on this basis, becoming the third non-sovereign member of this organization.45 13. Other examples are the Inter-American Tropical Tuna Commission, the Asian Productivity Organization, the World Organization for Animal Health, the Asia/Pacific Group on Money Laundering, the Central American Bank for Economic Integration, the Asian Development Bank, as well as some other organizations of which Taiwan (often referred to as “Chinese Taipei”) is a full member.46

§77 In principle, parts of states cannot be independent parties to the treaty embodying the constitution of an international organization. Is it nevertheless justifiable to accept them as full members? 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 that are independent with regard to certain specific public functions, but that are not responsible for the conduct of their general international relations. It is the independence of the function that 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 foreign policy issues. 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 nonautonomous 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 are not entitled to vote or to take a decision on the

45

See www.sopac.org (December 2010). For a complete list of international organizations of which Taiwan is a full member, see www.mofa.gov.tw/webapp/public/Data/811511552371.pdf (December 2010). 46

§79

participants

71

following subjects: amendment or interpretation of the constitution or proposals for a new constitution; requests for membership; relations with other international organizations; and election of the president and vice-presidents of the organization as well as the members of the Executive Council.47 This system does seem to be the most appropriate one. The non-autonomous territories are given full powers only in those fields in respect of which they are self-governing. However, it hardly seems possible to consider such membership as full membership. 3. Groups of states §79 In the International Coffee Organization two or more contracting parties may declare that they are participating in the Organization as a member group.48 It is required that they notify this to the Council and to the depositary. The notice takes effect on a date to be specified by the contracting parties concerned and on conditions agreed by the Council.49 At present, no member group exists within this organization.50 Previous International Coffee Agreements also provided for this form of participation, but had much more extensive rules for member groups. Under these previous coffee agreements, the member group constituted 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 was counted individually. To become a member group, the parties had 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.51 In practice, this would usually mean that the member group was itself an international organization, such as the Organisation Africaine et Malgache du Café. However, a looser relationship between the partners of a member group was 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 and 32 of the Constitution (dealing with the appointment of a Governor and with voting). For the purpose of Article 65, only the last four mentioned members are considered a single member; Anguilla is an individual member.52

47 48 49 50 51 52

WMO, Art. 11(a). Art. 5 of the 2007 International Coffee Agreement. Id. See www.ico.org/listmembers.asp (December 2010). Art. 6 of the 1976, the 1983, the 1994 and the 2001 International Coffee Agreements. See Art. 3.4 of the Constitution.

72

chapter two

§80

§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). 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 that want to be involved in technical organizations, but are unable to send delegations to each of the increasing number of existing organizations, or are 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,53 the more usual course of affairs being for them to have observer status and a purely advisory role. However, there are exceptions, one being the European Investment Bank, which is a member of the European Bank for Reconstruction and Development.54 Another example is the Common Fund for Commodities, of which not only states but also some international organizations (for example, the African Union, the Common Market for Eastern and Southern Africa, the Southern African Development Community and the Andean Community) 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.55 However, the main exception is the European Union, which is a full member of a number of other international organizations. As at 1 December 2009, the following international organizations were the main organizations of which the EU is a full member:56

53 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). 54 Cf. D.R.R. Dunnett, The European Investment Bank: Autonomous Instrument of Common Policy?, 31 CMLRev. 721-763 (1994), in particular at 732. 55 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 abovementioned organizations. The WTO became the sixth member in 1998. See www.jvi.org (December 2010). 56 See http://eur-lex.europa.eu/en/legis/20090901/index.htm, Directory of Community legislation in force. See on EC/EU 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 S. Hyett, The External Relations of the European Communities 165-207 (1996); D. Dormoy

§81

participants

73

FAO WTO Hague Conference on Private International Law World Customs Organization57 International Cocoa Organization International Coffee Organization International Grains Council International Olive Council International Sugar Organization International Tropical Timber Organization Common Fund for Commodities International Copper Study Group International Jute Study Group International Nickel Study Group International Rubber Study Group Northeast Atlantic Fisheries Commission Northwest Atlantic Fisheries Organization South-East Atlantic Fisheries Organization Western and Central Pacific Fisheries Commission Commission for the Conservation of Antarctic Marine Living Resources International Commission for the Conservation of Atlantic Tunas North Atlantic Salmon Conservation Organization Baltic Marine Environment Protection Commission (Helsinki Commission) Commission for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Commission) International Commission for the Protection of the Danube River 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 Eurocontrol58 European Economic Area European Bank for Reconstruction and Development International Science and Technology Center In addition, the EU is a party to a number of association and cooperation agreements that establish separate international organizations (despite their rather ‘thin’ institutional

(ed.), L’Union européenne et les organisations internationales (1997); J. Wouters, F. Hoffmeister, T. Ruys (eds.), The United Nations and the European Union – an ever stronger partnership (2006); F. Hoffmeister, Outsider or Frontrunner? Recent Developments under International and European Law on the Status of the European Union in International Organizations and Treaty Bodies, 44 CMLRev. 41-68 (2007). 57 Formally, as of December 2010, the EU was not yet a member of the WCO. However, it has requested full membership. An amendment to the WCO constitution was adopted allowing the EU to become a full member. Pending the entry into force of this amendment the EU is exercising rights and obligations akin to those of WCO members (on the basis of a decision taken by the WCO Council in June 2007). 58 See the Eurocontrol publication Skyway (Winter 2002), at 6-8. Formally the EU is not yet a member. On 8 October 2002, the Eurocontrol members and the EC signed a Protocol on the Accession of the EC to the revised Eurocontrol Convention. Pending the entry into force of this Protocol, certain of its provisions are provisionally applied. See www.eurocontrol.int/corporate/ public/standard_page/org_membership.html (December 2010) and P. Mendes de Leon, The Relationship between Eurocontrol and the EC: Living Apart Together, 4 IOLR 305-320 (2007).

74

chapter two

§82

framework). Examples are the 1963 association agreement with Turkey59 and the 1988 cooperation agreement with the states party to the Charter of the Cooperation Council for the Arab States of the Gulf.60 In the case of many other international organizations, the EU is not a full member: in most cases, it has observer status (see below, §185-187), without the right to vote.61

§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 depends not only on the internal transfer of powers to the organization, but also on the recognition of the organization by the parties to the relevant treaties and organizations.62 It is now generally accepted in practice that international organizations may participate in treaties and organizations alongside states. At present, many treaties provide for this possibility.63 In addition, if a new organization is established, its 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.64 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 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 Union, in

59

OJ 1973, C 113. OJ 1989, L 54/1. 61 See for an overview of the position of the EU within other organizations (situation on 1 September 1989): Commission of the European Communities, Relations between the European Community and International Organizations (1989); Hoffmeister, op. cit. note 56. 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; Wouters, Hoffmeister, Ruys (eds.), op. cit. note 56. 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; M.D. Masson-Matthee, The Codex Alimentarius Commission and its Standards (2007), in particular Chapter III. 62 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). 63 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). 64 Art. XIV.1. 60

§83

participants

75

the light of the purposes of the IMF.65 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 EU. 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 to the European Union alone. Instead, this possibility is created for any Regional Economic Integration Organization (REIO). A REIO that has been admitted as a member does become a full member in many but not in all respects.66 In particular, REIOs may not participate in a number of non-plenary commissions,67 nor do they pay full contributions to the budget (they need only 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 the FAO, since budget discussions are policy discussions at the same time.68 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 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 EU), 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.69 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 that are not on this

65 E. Denters, Representation of the EC in the IMF, in M. Giovanoli (ed.), International Monetary Law – Issues for the New Millennium 211-224 (2000). 66 E.g., 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. 67 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 56, 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. 68 Frid, op. cit. note 67, at 252-253; Pernice, op. cit. note 56, at 279-280. 69 Frid, op. cit. note 67, 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.

76

chapter two

§84

list are assumed to belong to the individual REIO members.70 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.71 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).72 Essentially, these problems are not unique to the FAO. These and other membership problems have also emerged when the ‘upgrading’ of the position of the European Union in other organizations was discussed. §84 In the past, the European Union has become a full member of a number of fisheries organizations. In some of these organizations, the EU 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 EU membership. In general, by contrast to the situation in the FAO, the EU 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 is used for the other parties. Additionally, the members of the EU are not separate members of these organizations.73 B. Commencement of membership 1. Establishment of the organization §85 A state74 can become a member of an international organization through participation in its creation or through subsequent admission. Some constitutions draw a distinction between “original” members and “additional” or “other” members,75 although this distinction is rarely significant from a legal point of view

70 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). 71 Frid, op. cit. note 67, at 250-251; Tavares de Pinho, op. cit. note 69, at 662-665. 72 Frid, op. cit. note 67, at 251-252; Tavares de Pinho, op. cit. note 69, at 669-670; Schwob, op. cit. note 67, at 12-14. 73 Koers, op. cit. note 62. 74 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. 75 See e.g. UN, Arts. 3-4; FAO, Art. 2; IMF, Art. II; World Bank, Art. II; IAEA, Art. 4; IRENA, Art. VI.B.1.

§86

participants

77

since the rights and obligations of the original members are usually the same as those of the members admitted later.76 A rare exception is OPEC. 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,77 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 1965.78

§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 that have signed but not yet ratified 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 non-governmental 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 to ratify the constitution. A related question is whether founding states that 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,79 while others do so only for a limited period.80 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.

76 From a political point of view, however, the distinction is sometimes considered important. E.g., China tried hard to become one of the original members of the World Trade Organization, but was unsuccessful in the end. 77 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. 78 F. Rouhani, A History of OPEC 80 (1971). 79 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. See, with regard to the ICAO, T. Buergenthal, Law-Making in the International Civil Aviation Organization 14-18 (1969). 80 WHO, Art. 5 ; IMF, Art. II; World Tourism Organization, Arts. 41, 42; IAEA, Art. 4A; EBRD, Art. 61.2.

78

chapter two

§87

2. Re-admission of ex-members §87 Sometimes members withdraw from international organizations that they subsequently wish to rejoin.81 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 nonmembers in general, including ex-members. Practice generally reflects this rule. Some Eastern European members had withdrawn from the FAO in 1949 and 1950.82 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 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.83 In 1986, China informed the GATT that it wanted to “resume” membership of this organization.84 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.85 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 had 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. At the time, China had a centrally planned economy and trade policies that were, 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 China’s 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

81

See below (§119-136) on withdrawal by members of international organizations. See YUN 1948-1949, at 1010; YUN 1950, at 908. 83 See YUN 1971, at 133-134. 84 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); Zeng Huaqun, One China, Four WTO Memberships, 8 The Journal of World Investment and Trade 671-690 (2007). 85 In 1984 China became a party to the Multifibre Arrangement. 82

§88

participants

79

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.

3. Admission of new members a. Admission by constitutional amendment §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 and meetings will last longer. The 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 that 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 (for example, 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.86

§89 Constitutions that require unanimity for modifications usually also require it for the admission of new members.87 Organizations that 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.88

86 When the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and the Slovak Republic acceded to the European Union a number of agreements were concluded, among which was an Act of Accession. See OJ 2003, L 236 (988 pages). 87 E.g. EFTA, Art. 41; OECD, Art. 16. 88 Art. 4.2 jo. Art. 27.3 of the UN Charter.

80

chapter two

§90

The relationship that exists between the amendment of the constitution and the admission of new members suggests admission by constitutional amendment would be quite proper for organizations that lack the constitutional provisions to allow the admission of new members,89 or that restrict membership to the founding states.90 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 in the CMEA (and did not ratify any amendment), but formally remained a member. The amendment therefore never formally entered into force, although it was accepted in practice.91

b. Conditions imposed by the constitution §90 (1) A few constitutions provide that states can join an organization merely by giving unilateral notification of the intention to join, with no approval from the organization being required.92 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, however, lead to difficulties when entities notify their adherence when they are not generally recognized as states (see above, §75). §91 (2) Some constitutions neither freely admit states to the organization nor impose conditions. They grant membership to all states that are admitted by a decision of the organization.93 It is thus presumed that accessions do not automatically help the organization pursue its objectives. If this is deemed to be 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 considered to be a state. There is a growing practice among international organizations of following

89

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). 91 N.W. Faddejew, Der Rat für Gegenseitige Wirtschaftshilfe 47 (1965); R. Szawlowski, The System of International Organizations of the Communist Countries 49-52 (1976). 92 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 can 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 (accession by notification to the US government). Likewise, states become members of the OPCW simply by becoming a party to the Chemical Weapons Convention (see Arts. XX and VIII.2 of this Convention). 93 E.g. ILO, Art. 1.4; WHO, Art. 6; FAO, Art. 2.2; ESA, Art. XXII; APSCO, Art. 30.1. 90

§92

participants

81

the lead of the General Assembly of the UN when deciding to recognize an entity as a state.94 If constitutions do not impose conditions, does this mean that the 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”95 or, in our words, the rule of functionality. This provides that the criterion by which to decide whether candidate members should be admitted or not ought to 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 (3) 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 (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 . . .”.96 Membership of a regional organization is open to all states of the region concerned.97 States invited to a constitutional conference may usually adhere to the organization in question

94 See e.g. UN Doc. E/5513, para. 11. See also below, §1853; the same practice has emerged as for adherence to conventions of international organizations by non-members, see below, §13001304. 95 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). 96 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). 97 OAS Charter of 1948, Art. 2 (Art. 4 of the 1993 Charter); AU, Art. 29.1; TEU, Art. 49; ASEAN, Art. 6.2(a).

82

chapter two

§93

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.98 Members of the Arab League may freely join the Arab Common Market.99 Membership of the Caribbean Community (CARICOM) is open to fourteen expressly designated states and territories, although other states and territories can be admitted as well.100 Some regional development banks are open exclusively to members of certain other organizations.101

§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.102 Would this mean that new members had to ratify those treaties? The question created problems when Trinidad-Tobago and Jamaica were to be admitted.103 No OAS organ was charged by the Charter with questions concerning admission. 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”.104 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).105

§94 In the ICAO, the admission of states that 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.106 This requirement is not applicable to the admission 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”.107 The words

98 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. 99 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). 100 Art. 3 of the Constitution (2001) (Art. 2 of the original constitution). 101 With the exception of Canada, Bahamas and Guyana, regional members of the Inter-American Development Bank must be members of the OAS (IADB Agreement, Art. II, Section 1(b)); regional members of the Asian Development Bank must be members or associate members of ESCAP (Art. 3.1); membership of the EBRD is open, inter alia, to non-European countries that are members of the IMF (Art. 3). 102 OAS (1948), Art. 25 (Art. 29 in the 1993 OAS Charter). 103 L.R. Scheman, Admission of states to the Organization of American States, 58 AJIL 968-974 (1964). 104 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). 105 G. Kutzner, Die Organisation der Amerikanischen Staaten 161-162 (1970). 106 ICAO, Art. 93. 107 ICAO, Art. 92.

§95

participants

83

“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).108 §95 (4) 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 “peace-loving” (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.109 This is of particular importance for neutral states like Austria110 and Switzerland.111 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.112 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.113

108 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 631632; also Buergenthal, op. cit. note 79, at 18-24. 109 UN Charter, Art. 4. 110 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. 111 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. 112 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; Grant, op. cit. note 17 [Admission to the United Nations] (favouring a return to the stricter application of the admission criteria in Art. 4 in possible future cases). 113 On the procedure for admission to membership of the UN, see UNJY 2004, at 344-345.

84

chapter two

§95

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.114 In practice, candidate 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.115 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 (for example, judicial action against independent press bodies and the dissolution of the municipal council in Zagreb where democratic elections had voted the opposition into power), 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.116 The application for membership by Belarus in 1993 has so far been rejected.117 The WMO requires candidates for membership to 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). Article 6.2 of the ASEAN Charter (2007) provides that “[a]dmission shall be based on the following criteria: (a) (b) (c) (d)

location in the recognized geographical region of Southeast Asia; recognition by all ASEAN Member States; agreement to be bound and to abide by the Charter; and ability and willingness to carry out the obligations of membership”.

114 See for example the reports on the application of Czechoslovakia for membership: Parliamentary Assembly, 42d ordinary session, Documents 6346, 6361 and 6380. These reports do 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. See the following reports of the Parliamentary Assembly: Docs. 8747 and 8756 (Armenia) and Docs. 8748 and 8757 revisited (Azerbaijan). 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. Djerić, 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. 115 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). 116 Europe No. 6729, at 3. 117 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”.

§96

participants

85

§96 In all cases in which 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 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,118 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.119

The major powers in the Security Council did not however accept this view. The Soviet Union has always rejected it; and 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.120 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

118

Res. 506 A (VI). Admission of a state to the United Nations (Charter, Art. 4), Advisory Opinion, ICJ Rep. 1948, at 65. On this advisory opinion, see Grant, op. cit. note 17 [Admission to the United Nations], at 27-44. 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. 120 S. Jacobs and M. Poirier, The right to veto United Nations membership applications: The United States veto of the Viet-Nams, 17 HILJ 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. 119

86

chapter two

§97

cases in the future judicial organs of international organizations will be more successful in bringing about the observance in good faith of the applicable criteria for membership. 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.121

§97 (5) 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).122 §98 The majorities required to decide on admission in the cases mentioned under (2), (3), (4) and (5) above may differ. Organizations will take their decisions to admit new members by simple majority when there is a desire that membership be expanded easily.123 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. 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 orga-

121 H. Mosler, Die Aufnahme in internationale Organisationen, 19 ZaöRV 275-317 (1958), at 291-292. 122 See for example the Opinion by the European Commission following Sweden’s application for membership, Commission document SEC(92) 1582 def. (1992). More in general: the Commission’s report on the criteria and conditions for accession of new members (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 and J. Schwarze (eds.), Kommentar zum Vertrag über die Europäische Union und zur Gründung der Europäischen Gemeinschaft (6th ed. 2003), Band 1, at 513-553. 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. For case studies, see, e.g., M. Jorna, The Accession Negotiations with Austria, Sweden, Finland and Norway: A Guided Tour, 20 ELR 131-158 (1995); C. Hillion, Negotiating Turkey’s Membership to the European Union – Can the Member States Do As They Please? 3 EuConst 269-284 (2007); P. Van Elsuwege, From Soviet Republics to EU Member States – A Legal and Political Assessment of the Baltic States’ Accession to the EU (2008). 123 WHO, Art. 6 (majority of the general congress); AU, Art. 29.2 (majority of the members).

§99

participants

87

nization 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.124

§99 Whether conditions for membership are imposed or not, whether general or specific conditions are imposed, or 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.125 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.126

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 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.127

§101 Many constitutions provide that candidates for membership shall accept the constitution according to their national constitutional processes.128 Is this a 124

NRC-Handelsblad, 13 May 1989. Exceptions are those organizations which allow states to become members by unilateral notification (see above, §90). 126 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. 127 G.A. Johnston, The International Labour Organisation 19 (1970). 128 UN Charter, Art. 110; WHO, Arts. 4, 5; IAEA, Art. 21; OECD, Art. 14; EU, Art. 49.; OAS, Art. 139; AU, Art. 27.1. 125

88

chapter two

§102

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.129

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 (for example, 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.130 5. 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 constitutional provisions of most international organizations are sufficiently clear in this respect.131 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

129 Art. 46; see also the Vienna II Convention, 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”. 130 See on this point C. Vedder in Simma, op. cit. note 3, at 1374. 131 See e.g. UN Charter, Art. 110.

§103

participants

89

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.132 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).133 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.134

6. Establishment of new states135 §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 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 Syria136 into the United Arab Republic in February 1958, and of Tanganyika and Zanzibar137 into the United Republic of Tanzania in April 1964, led to the creation of new states.138 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.139 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.

132

E. Yemin, Legislative Powers in the United Nations and Specialized Agencies 76 (1969). Cf. YUN 1952, at 837, footnote 6. 134 FAO, Art. 2. 135 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. 136 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 79, at 31-32; K.G. Bühler, State Succession and Membership in International Organizations – Legal Theories versus Political Pragmatism (2001), at 50-61. 137 See Bühler, op. cit. note 136, at 62-68. 138 On their membership of FAO, see YbILC 1969 II, at 37-39; on the IMF membership, see Gold, op. cit. note 135, at 295-306. 139 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”. There 133

90

chapter two

§104

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.140 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,141 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 (for example, the Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples142 of the General Assembly, and the Committee on Housing, Building and Planning of the Economic and Social Council).143

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,144 not even in the case of the European Union.145 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.146 The constitution of the United Arab Republic contained provisions to the same effect.147 The same question arose as to ILO conventions to which East Germany was a party, and West Germany not. Germany has taken the posi-

has to be a new ratification (by the new political entity concerned) but no new decision by the OAS to admit the new political entity. 140 YUN 1957, at 502. 141 ILC Statute, Art. 2.2. 142 YUN 1964, at 603. 143 YUN 1964, at 617. 144 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. 145 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 136, 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 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). 146 ILO Official Bulletin 324 (1964). 147 Provisional constitution of the UAR, Art. 69 (8 ICLQ (1959), at 380).

§105

participants

91

tion that such multilateral conventions cease to apply to Germany, since with the extinction of East Germany, the respective contracting party has vanished.148 §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 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. In 2006, Serbia continued its membership of international organizations after Montenegro became an independent state.149 The mother countries succeeded the colonial empires when the latter disintegrated. §106 The Russian Federation continued the membership of the Soviet Union in international organizations when the USSR ceased to exist in 1991.150 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).151 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.152 §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

148 See S. Oeter, German Unification and State Succession, in: 51 ZaöRV 349-383 (1991), at 369-370. 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-à-vis UNIDO. 149 By a letter of 3 June 2006, the President of Serbia notified the Secretary-General of the UN that “membership of the state union of Serbia and Montenegro is continued by the republic of Serbia in the United Nations, including all organs and organizations of the United Nations system . . .”. See http://unog.ch/80256EDD006B8954/(httpAssets)/914C9098C35ABC88C1257575 002BDBF1/$file/Serbia.pdf (December 2010). Similar letters were written to other organizations of which ‘Serbia and Montenegro’ was a member. 150 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 354361 (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 136, at 151-170. 151 Cf. Art. 7 of the ILO Constitution. 152 Information obtained from the International Labour Office.

92

chapter two

§108

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 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”.153 The General Assembly agreed to these recommendations.154 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 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.155 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, and five days later it was admitted.156 This application for membership was fully treated as an application for admission as a new member (not implying in some way the

153

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 150; 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 136, at 180-273. 155 Obtained from the UN Secretariat. See also the Annex to UN Doc. A/47/485 and UNJY 1992, at 428-429. 156 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. 154

§108

participants

93

continuation of membership of the former Yugoslavia). No explicit decision was taken on the termination of membership of the former Yugoslavia.157 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, however, this was less clear: until the admission of the FRY, the former Yugoslavia was formally treated as a UN member and no decision was taken to terminate its membership. Nevertheless, such termination of membership may be implied from the decision to admit the FRY to the UN: 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. But this view disregards the abovementioned 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”. The admission of the FRY to the UN seemed to have solved the problem, but there was a judicial aftermath to this episode. The ambiguous status of Yugoslavia/the FRY in the UN in the period 1992-2000 became a key issue in a number of cases before the International Court of Justice. According to Article 35.1 of its Statute, the Court is only open to states parties to the Statute, i.e. members of the UN. If the Court were to have concluded that the FRY had not been a member of the UN in this period, it would have lacked jurisdiction in cases in which the FRY was a party. In 2003, the Court carefully avoided drawing this conclusion, arguing that the accession of the FRY to the UN in 2000 “cannot have changed retroactively the sui generis position which the FRY found itself in vis-à-vis the United Nations over the period 1992-2000 or its position in relation to the Statute of the Court and the Genocide Convention”.158 Nevertheless, in 2004, in the eight parallel Use of Force cases, this was precisely what the Court concluded when it stated that, in this period, Serbia and Montenegro “was not a member of the United Nations, and in that capacity a State party to the Statute”.159 In 2007, however, the Court did not follow this approach in its judgment in the Genocide case. Instead, it chose to hold on to its finding of 1996 (as res judicata) that it had jurisdiction in this case and that the FRY was therefore “in a position to participate in cases before the Court”.160 Neither did the Court follow its ‘2004 approach’ in 2008, in yet another judgment involving the question whether the FRY was a party to the Statute before it was admitted to the UN.161 The changing position of the Court with respect to the status of the FRY in the UN in the period 1992-2000 has been criticized, both by the Court’s judges and by commentators.162

157 An explicit decision to terminate membership of the former Yugoslavia would have been preferable because – as indicated in the abovementioned memorandum of the UN Legal Counsel – all decisions limiting membership rights must be interpreted restrictively. 158 Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), Judgment, ICJ Reports 2003, at 31, para. 71. 159 See for example Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, ICJ Reports 2004, at 311, para. 79. 160 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment, ICJ Reports 2007, at 50, para. 132. 161 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, preliminary objections, ICJ Reports 2008, paras. 57-92. 162 See, inter alia, the Joint declaration of Vice-President Ranjeva, Judges Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal and Elaraby in the 2004 Use of Force cases (e.g. ICJ Reports 2004, at 330); Y.Z. Blum, Was Yugoslavia a Member of the United Nations in the Years 1992-2000?, 101 AJIL 800-818 (2007); Y.Z. Blum, Consistently Inconsistent: The International

94

chapter two

§109

It is true that the Court did not create the problem: this was mainly done by the Security Council and the General Assembly. It is also true that it was not for the Court to find a solution to this problem. However, the lack of consistency in the relevant judgments is significant, and cannot be fully justified by the specifics of the cases before the Court or by the changes in the composition of the Court. It has made the Court vulnerable to the criticism that it has acted arbitrarily in these cases, using the ambiguous status of Yugoslavia/the FRY in the UN as it suited, using this to conclude both that it had jurisdiction when it wanted to and that it did not have jurisdiction when it did not want it.

§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 in the case of the former Yugoslavia 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 relating to the former Yugoslavia, 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 USSR 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 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.163 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.164

Court of Justice and the Former Yugoslavia (Croatia v. Serbia), 103 AJIL 264-271 (2009); M.C. Vitucci, Has Pandora’s Box Been Closed? The Decisions on the Legality of Use of Force Cases in Relation to the Status of the Federal Republic of Yugoslavia (Serbia and Montenegro) within the United Nations, 19 LJIL 105-127 (2006); V. Dimitrijević and M. Milanović, The Strange Story of the Bosnian Genocide Case, 21 LJIL 65-94 (2008). 163 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). 164 This proved to be an effective solution: Serbia and Montenegro did not attend the meeting (information obtained from the International Labour Office).

§111

participants

95

§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 1993.165 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 between themselves that one would succeed to positions 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).166 The Czech and Slovak Republics were both admitted to the ILO and ICAO as “member states of the UN” (as of 19 January 1993).167 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.)168

§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. 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.169 Syria also continued its membership of the organizations of which only Egypt had been a member before the merger (IAEA, IFC).170 This has been criticized by some authors,171 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.172 Nonetheless, it could not resume its seat in the ILO, but was re-admitted as a member in 1947.173 Nor was the claim of the Baltic states accepted that they could resume their membership of the ILO following the dissolution of the USSR; in 1991 and 1992 they were admitted as new members of the ILO.174

165

See Scharf, op. cit. note 150; Bühler, op. cit. note 136, 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. 167 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. 168 Information obtained from the International Labour Office. 169 See R. Young, The State of Syria: Old or New?, 56 AJIL 482-488 (1962). 170 YUN 1961, at 597. 171 C. Rousseau, Chronique des faits internationaux, 66 RGDIP 413-417 (1962). See also Young, op. cit. note 169, and Anabtawi, op. cit. note 136, at 182-189. 172 The Austrian State Treaty of 1955 expressly recognizes Austria as being re-established. 173 Conférence International du Travail, trentième session (1947), Compte Rendu des Travaux, at 562-563. 174 Lithuania on 4 October 1991, Latvia on 3 December 1991, and Estonia on 12 January 1992. Information obtained from the International Labour Office. 166

96

chapter two

§113

§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,175 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 that have come into being after secession from existing states have never, or have not recently, been independent entities. They cannot therefore succeed their predecessors, and have to be admitted formally to international organizations.176 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.177 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”.178 In accordance with this precedent, both Singapore179 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, most of the former republics of the USSR, and Montenegro, which became members of the UN in 1991, 1992 and 2006 respectively.

§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.180 This principle was not applied to new

175 See also G. Cansacchi, Identité et continuité des sujets internationaux, 130 RdC (1970 II), at 7-90. 176 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). 177 See K.P. Misha, Succession of States: Pakistan’s Membership of the United Nations, 3 CYIL 281-289 (1965); Bühler, op. cit. note 136, at 42-50. 178 GAOR, Second Session, First Committee, Doc. A/C.1/212, at 582-583 (Annex 14g), reproduced in: YbILC 1962 II, at 103. 179 S. Jayakumar, Singapore and State Succession: International Relations and International Law, 19 ICLQ 398-423 (1970). 180 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

§115

participants

97

states that arose from separation rather than decolonization.181 In accordance with the clean slate principle, a newly independent state can decide to be bound only by those treaty obligations of its predecessor in respect of which it wishes to be bound. One exception to this principle, however, concerns the constituent instruments of international organizations. As regards international organizations with a formal process of admission, newly independent states can only become members by admission, and not by succession.182 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 that were subject to the regime of the organization prior to independence.183 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 the admission of new members.184

§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.185 Thus the Swiss government, as depository, has accepted notifications of succession from newly independent states in relation to the International Union for the Protection of Literary and Artistic Works and in relation to the International Union for the Protection of Industrial Property. This practice appears to have met with the approval of the then member states of those organizations.186

§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.187 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).

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). 181 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. 182 Art. 4(a). 183 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). 184 Id. 185 Report of the ILC (1974), at 20. 186 Id. 187 Id. at 35, para. 4.

98

chapter two

§117

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 of two years after the date upon which they acquired full autonomy, provided that the territories in question continued to apply de facto the Agreement to trade with the contracting parties.188 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.189 In 1994, 13 countries applied the General Agreement on this de facto basis.190 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 only as observers, and do not contribute to the GATT budget.191 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 a number of them during the past number of years became full WTO members (Papua New Guinea, Solomon Islands, Cambodia, Tonga, Cape Verde).192

§117 As a rule, the organizations that 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.193 C. Termination of membership194 §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; and 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 membership. Withdrawal by a member from a closed organization will weaken the orga-

188

GATT, Basic Instruments and Selected Documents (BISD), 9th Suppl. 1961, at 16-17. GATT, BISD 15th Suppl. (1967), at 64. 190 See GATT, Analytical Index: Guide to GATT Law and Practice 1047 (6th ed. 1994). 191 GATT, Analytical Index XXVI-10-11 (4th ed. 1985). 192 See www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (December 2010). 193 Kovar, op. cit. note 29, at 546-547. 194 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). 189

§120

participants

99

nization 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.195 The UK returned as a member in 1997; in 2003 the US rejoined. The withdrawal of Greece from the Council of Europe in 1969196 did not weaken the organization since the participation by a totalitarian member (as Greece then was) 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,197 though it is sometimes longer,198 sometimes shorter.199 One

195 See Y. Beigbeder, Management Problems in United Nations Organizations – Reform or Decline? (1987), in particular Chapter Two (The Unesco crisis: the end of universality?). 196 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. 197 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; SCO, Art. 13. In the CoE this period can vary between 9 and 15 months (Art. 7). 198 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). 199 Withdrawal from the commodity organizations often becomes effective after 90 days: Grains 1995 (Art. 29), Olive Oil 2005 (Art. 44.2), Tropical Timber 2006 (Art. 41.2), Coffee 2007 (Art. 45), Cocoa 2010 (Art. 59.2); sometimes even after 30 days: Sugar 1992 (Art. 42.2). Withdrawal from the OPCW takes effect 90 days after the date of receipt of written notice by a party (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).

100

chapter two

§121

year’s notice is also required by the 1969 and the 1986 Vienna Conventions on the Law of Treaties for treaties that contain no provision on withdrawal.200 During the period between the notification and the actual withdrawal, the withdrawal may be revoked,201 and indeed pressure may be exerted to that end.202 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 organization203 and have to be replaced, and so forth.204 The organization, of course, needs time to accommodate these changes. 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, and so forth). In view of all these adaptations, the position has sometimes been defended that two year’s notice of withdrawal would be preferable.205 However, any extension of this period beyond the bare minimum increases the danger 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 US 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 1977.206 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.207

200 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. 201 Buergenthal, op. cit. note 79, at 35. 202 Gold, op. cit. note 135, at 333. 203 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 135, at 397. Elected officers, such as chairmen and rapporteurs will normally leave. See with regard to UNESCO: UNJY 1985, at 162-163. 204 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. 205 C. Wilfred Jenks, Some Constitutional Problems of International Organizations, in: 22 BYbIL 23 (1945). 206 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 HILJ 623-638 (1976). Also Zeidler, op. cit. note 194, at 75-76 (with references to further literature). For the text of the US letter of withdrawal, see 14 ILM 1582 (1975). 207 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;

§122

participants

101

§122 Denunciation takes effect immediately in relation to the IMF and the World Bank.208 This was considered necessary to safeguard the economic independence of the participating states.209 On the four occasions when states withdrew from the IMF, agreements were reached for the settlement of all accounts.210 Withdrawal from the International Mobile Satellite Organization also is immediately effective upon receipt by the depository of the notification of withdrawal.211 In the League of Arab States, a year’s notice is normally required, unless it concerns a constitutional amendment, in which case immediate withdrawal is permitted.212 Some constitutions prohibit withdrawal for a certain initial period,213 to prevent members from withdrawing before the organization is running effectively. 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 constituting a withdrawal.214 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.215 When the UN was established, the possibility of withdrawal was discussed extensively.

on 17 November 1987 the notice was withdrawn. (The unilateral extension by one year was in fact illegal, but nevertheless accepted by the organization.) 208 Arts. XXVI.1 and VI.1 respectively. 209 Gold, op. cit. note 135, at 333-334. 210 Gold, op. cit. note 135, at 386. Information obtained from the IMF Secretariat (Oct. 1994). 211 IMSO Constitution (2008), Art. 21. 212 Arts. 18-19 of the constitution. See B. Boutros-Ghali, La Ligue des Etats Arabes, 137 RdC (1972 III), at 37. 213 ITER International Fusion Energy Organization, Art. 26 (10 years); European Molecular Biology Laboratory, Art. 16 (6 years); ESA, Art. 24 (6 years); APSCO (5 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); IRENA (5 years). 214 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 (now Art. 26.7, following the entry into force of the Vilnius Protocol, July 2006) provides that, following a period of at least 4 years of non-payment of contribution, the General Assembly shall consider whether the attitude of that state should be regarded as a tacit denunciation of the Convention. See www .otif.org. 215 UN, WHO and ASEAN, originally also UNESCO and the EC/EU. 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

102

chapter two

§124

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 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.216 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.217

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:

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 (before the entry into force of the Lisbon Treaty): A. Weber, in: Von der Groeben and Schwarze (eds.), op. cit. note 122, Band 4, at 1792-1793; J. Herbst, Observations on the Right to Withdraw from the European Union: Who are the ‘Masters of the Treaties’? 6 German Law Journal 17551760 (2005); S. Berglund, Prison or Voluntary Cooperation? The Possibility of Withdrawal from the European Union, 29 Scandinavian Political Studies 147-167 (2006). 216 L.M. Goodrich, E. Hambro and A.P. Simons, The Charter of the United Nations 74-76 (3rd ed. 1969). 217 For the text see Goodrich et al., op. cit. note 216, or 7 UNCIO, at 267.

§125

participants

103

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.218

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. When the UNESCO was set up, the inclusion of a provision for withdrawal was also considered;219 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. The EC and EU Treaties originally did not contain a withdrawal clause. In the literature some discussion took place regarding the implications of the absence of such a provision: did this imply that the member states did or did not have the right to withdraw?220 The 2007 Lisbon Treaty brought an end to this debate: since its entry into force (1 December 2009), Article 50 of the EU Treaty states: “[a]ny Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”. This refers to a unilateral decision by the member state concerned. The member state only has the obligation to notify the European Council of its intention. Subsequently, the European Council has to provide guidelines for this withdrawal and in this light the Union has to conclude an agreement with the member state concerned, “setting out the arrangements for its withdrawal, taking into account of the framework for its future relationship with the Union”.221 (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 seventeen specialized agencies of the UN are concerned, only the WHO does not have a provision on withdrawal; UNESCO did not have

218 Proceedings of the International Health Conference, 1946 (Official Records WHO, No.2), at 26 and 74. 219 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, the US in 2003). 220 See footnote 215. 221 See Art. 50.2 TEU. Paras. 3-4 contain further details of the procedure to withdraw. According to para. 5, the procedure for admission to the EU (Art. 49 TEU) applies should the withdrawing member state later decide to rejoin.

104

chapter two

§126

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); and three members withdrew from UNESCO (prior to 1954).222 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 states223 informed the Secretariat of the WHO that they were withdrawing from the organization,224 and on 6 May 1950, China followed suit (effective from 7 May 1950).225 Since the constitution did not contain any stipulation on denunciation, it was possible for them to declare that the withdrawal took effect almost immediately.226 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,227 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 that were in arrears.228

222

F. Zeidler, op. cit. note 194, 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. 224 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. 225 Official Records WHO, No. 28, Annex 13. 226 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. 227 UNESCO Res. II. 1.1, adopted at the eighth session of the General Conference of UNESCO, 8 December 1954. 228 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. 223

§129

participants

105

§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 that had ended their cooperation. Here too the states concerned wished to re-establish their membership a few years following denunciation. 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.229 The WHO accepted the Chinese wish 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.230 In the WHO, the question arose as to whether the ‘inactive’ states, upon resumption of active membership, should be considered to be bound by the (binding) Sanitary Regulations which had been adopted during those countries’ absence. The Sanitary Regulations became binding upon 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 to be 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.231 §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.232 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.233 They had to pay 5 per cent 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.234

229 Report of the Fifth Session of the WHO Congress (Official Records, WHO, No. 42), Annex 7. 230 Res. No. 6 of the Sixth Session of the General Congress of WHO (Official Records WHO, No. 48), at 18. 231 C.-H. Vignes, Le Règlement sanitaire international, AFDI 649-667 (1965), in particular at 655. 232 Minutes of the Seventeenth Session of the Executive Board, Geneva (1956), at 222, 223; 318 and 319. 233 Res. WHA 9.9, of 11 May 1956, Official records WHO, No. 71, at 19; see also at 111 and 153-164. 234 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).

106

chapter two

§131

§131 In all these cases both sides made concessions. The organizations did so by not demanding the full contributions for the years of inactive membership, while the states concerned did so by revoking their denunciation instead of re-applying 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”.235 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.236 The Italian government urged formal regulation of withdrawal because the declaration of San Francisco (see above, §123) 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.237 On 19 September 1966, the Ambassador of Indonesia in Washington transmitted a message238 from his government to the Secretary-General, stating that Indonesia 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 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 SecretaryGeneral to negotiate an appropriate payment with the representatives of Indonesia for

235 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 135, at 212- 213. 236 YUN 1965, at 189-192. 237 YUN 1965, at 237. 238 UN Doc. A/6419.

§133

participants

107

that period and to report the outcome of his negotiations to the Fifth Committee for its consideration.239

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 nonparticipation. Indonesia agreed to pay 10 per cent 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.240 §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.241 Nor did the General Assembly list Indonesia in its 1965 resolution on the assessment of contributions,242 while the Economic and Social Council elected successors to Indonesia in several of its functional commissions.243 (iii) Legality244 §134 States that 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. Articles 56 of the 1969 and 1986 Vienna Conventions on the Law of Treaties lay 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, these articles also formulate 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 opposing points of view.

239

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. 241 YUN 1965, at 798, 802. See also Blum, op. cit. note 235, at 527, 428. 242 GA Res. 2118 (XX). 243 See Schwelb, op. cit. note 235, at 667. 244 See also N. Feinberg, Unilateral withdrawal from an international organization, 39 BYIL 189-219 (1963); K. Widdows, op. cit. note 215. 240

108

chapter two

§135

Although there is nothing to support the submission that constitutions would generally be covered by these exceptions,245 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.246 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 were 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 withdraw, they should incorporate a withdrawal clause in this constitution. Then it is their sovereign right to have recourse to such a provision, in accordance with the more limited concept of state sovereignty mentioned above.247 (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 partici-

245 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). 246 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 244, at 212, note 2. 247 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”.

§135

participants

109

pate. 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 a 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.248 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 sustaining an argument based on a general principle of law. (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

248 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.

110

chapter two

§136

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 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 could withdraw from the organization entirely, 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 membership.249 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 1980.250 In 2009, France decided to resume full membership of NATO.251 A different sort of partial withdrawal was the ‘withdrawal’ of Greenland, part of Denmark, from the European Communities in 1985.252 In 1982, the Greenlanders had decided by referendum to leave the EC. Greenland’s right to leave has not been seriously contested.253 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

249 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 204. 250 See NATO, Facts and Figures (11th ed. 1989), at 146-147, 507. 251 Subsequently, the NATO Summit meeting in Strasbourg-Kehl (3-4 April 2009) issued a declaration in which (para. 5) “[w]e warmly welcome the French decision to fully participate in NATO structures; this will further contribute to a stronger Alliance”. 252 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, 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: A. Weber, op. cit. note 215. 253 Harhoff, op. cit. note 252, at 27.

§138

participants

111

concerned, as compared with 46 withdrawals.254 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: for example, by adopting an amendment to the constitution introducing the possibility of expulsion (see below, §146). This vague boundary 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.

a. The notion of ‘expulsion’ §138 Three aspects of the notion of ‘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.255 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, the obligations of a member, while they cease to exist in cases of expulsion, are often not affected by ‘mere’ suspension.256 Otherwise, the distinction has little practical significance. Ending a suspension will usually not be much easier than re-admission after expulsion.257 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”.258 Indeed, expulsion

254

Zeidler, op. cit. note 194, at 128, 290. E.g. Arts. 6 and 5 of the UN Charter. 256 See H.-J. Schütz in Simma, op. cit. note 3, at 201, with references to further literature. 257 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. 258 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). 255

112

chapter two

§141

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 former International Maritime Satellite Organization, which subjected expulsion to the condition that at least one year must have passed since the relevant failure to comply with an obligation under the constitution.259 The expediency of expulsion as a sanction is questionable.260 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 from 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, rather than in situations in which those representatives are never seen.261 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.262 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).263 (iii)

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

259 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). 260 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”. 261 Cf. C. Wilfred Jenks, op. cit. note 258 [1965], at 171: “The objective in the handling of acute political problems should therefore be to compel rather than to expel . . .”. 262 See YUN 1965, at 109. 263 Cf. C. Wilfred Jenks, op. cit. note 258 [1965]. L. Gross, On the degradation of the constitutional environment of the United Nations, 77 AJIL 569-584 (1983).

§142

participants

113

defend the organization against an obstructive member or against a member that 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. Jenks264 concludes from a British delegation note published by Hunter Miller265 that the possibility of expulsion, which was originally not envisaged for the League of Nations, was finally included266 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 that had strained relations with the League (for example, because it was denounced as an aggressor) would be able to completely paralyze the organization by sending a delegation with instructions 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.267 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.268 This would, of course, lead to the complete paralysis of the organization.

§142 Many organizations strive towards cooperation between a limited group of states (for example, 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 no 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 that would prevent it from

264

Jenks, op. cit. note 258 [1935], at 156. D. Hunter Miller, The Drafting of the Covenant, Vol. 1 (1928), at 417. 266 Art. 16.4 of the Covenant. See further on the drafting of this provision Magliveras, op. cit. note 196, at 7-11. 267 J. Caillot, Le C.A.E.M. Aspects juridiques et formes de coopération économique entre les pays socialistes 36 (1971). 268 R. Szawlowski, op. cit. note 91, at 52, 150-151. 265

114

chapter two

§143

functioning.269 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.270 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), the Asia-Pacific Space Cooperation Organization (Article 32), the Shanghai Cooperation Organization (Article 13). In addition, most commodity agreements (but not all: Tin 1981; Sugar 1992) include an expulsion clause: Sugar 1984 (Article 41), Olive Oil 1986 (Article 45), Grains 1995 (Article 30), Tropical Timber 2006 (Article 42), Coffee 2007 (Article 46), Cocoa 2010 (Article 60). 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 exercising a majority of the total voting power.271 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 that 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.272 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, each member must collaborate sincerely and effectively in the realization of

269 R. Khan, Implied Powers of the United Nations 124 (1970). See also below, §232-236. This view is rejected by Magliveras, op. cit. note 196, 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). 270 The expulsion clauses of the specialized agencies of the UN are analyzed in detail by Zeidler, op. cit. note 194 (in particular at 142-150). 271 In the Inter-American, the Asian and the African Development Banks a qualified majority is required. 272 Statute, Art. 8.

§146

participants

115

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 only provides for expulsion, not for the suspension of membership. In 1989, the League decided to allow Egypt to return.273

c. Expulsion without constitutional provision §146 In practice, difficulties arise particularly when organizations wish to expel a member and the constitution makes no express provision for expulsion. In such cases, organizations have sometimes exerted pressure to force the member concerned to withdraw ‘voluntarily’. An international organization has many means at its disposal for applying pressure. The ‘voluntary’ withdrawal of a member after pressure can be seen to closely resemble expulsion.274 When political pressure does not prove sufficient, organizations have also used the threat of amending the constitution (introducing an expulsion clause) as a means of applying pressure. An amendment to the constitution usually has to be ratified by all or by a certain number of members, which may prove to be timeconsuming. However, the adoption of a proposal for amendment to the constitution by the general congress has usually proved sufficient 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.275 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 that had been expelled from the UN276 or that had been found guilty by the UN of pursuing a policy of racial discrimination.277 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 1966.278 The amendment to the ILO constitution has not entered into force.

273 M. Shihab, Arab States, League of, in: EPIL Vol. I (1992), at 202-206; Magliveras, op. cit. note 196, at 96-100. 274 Cf. L.B. Sohn, Expulsion or forced withdrawal from an international organization, 77 Harv.L.Rev. 1416 (1964). 275 Art. 93 bis. See Buergenthal, op. cit. note 79, at 38-46. 276 ILO Official Bulletin (1964), Suppl. 1 to No. 3, at 10-12. 277 Id., at 8-9. 278 YUN 1966, at 977.

116

chapter two

§147

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”.279 After the adoption of this proposal, the South African delegation withdrew from the session of the 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.280 South Africa could not officially withdraw from the organization since there was 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.281 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.282 In 1973, the governments of South Africa and Portugal were excluded from all conferences and meetings of the Intergovernmental Maritime Consultative Organization.283 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.284 These efforts have not led to withdrawals, and in some international organizations efforts to expel South Africa failed.285

§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. 279

WHO Official Records, No. 135, at 23. WHO Official Records, No. 143, at 32ff. For the text see also YUN 1965, at 725. This amendment has not yet entered into force. 281 Letter dated 27 July 1966, WHO Official Records, No. 157, at 45 ff. 282 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). 283 IMCO Res. A.310(VIII). 284 See Sohn, op. cit. note 274; Zeidler, op. cit. note 194. 285 See D. Ruzié, Organisations internationales et sanctions internationales 41-49 (1971). 280

§147

participants

117

The ILO, for example, initially requested South Africa to withdraw from the organization.286 When South Africa did not comply with this request, the ILO proceeded to amend its constitution (see above, §146). In September 1979, a proposal to exclude South Africa from the World Intellectual Property Organization was defeated by a narrow margin.287 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 they dealt with the administrations of other members. This expulsion of South Africa was confirmed in 1984.288 South Africa was re-admitted to the UPU in 1994.289 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 InterAmerican 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.290 Except for Cuba, no state voted against the resolution. Six states291 abstained from voting mainly for legal reasons. They doubted whether such measures were possible since they were not provided for in the OAS constitution.292 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 that no longer satisfies the criteria on which the regional cooperation is based may be suspended from the organization 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. Only in 2009 did the OAS change its policy towards Cuba, when the OAS General Assembly adopted a resolution in which it stated that the 1962 resolution excluding the Cuban government from participating in the Inter-American system “hereby ceases to have effect in the Organization of American States”, thereby opening the door to the Cuban government. According to this 2009 resolution, “the participation of the Republic of Cuba in the OAS will be the result of a process of dialogue initiated at the request of

286 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 258 [1965], at 173-176. 287 U. Wassermann, WIPO: The Exclusion of South Africa?, 14 JWTL 78-80 (1980). 288 Zeidler, op. cit. note 194, 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 196, at 69-75. 289 Magliveras, op. cit. note 196, at 75. 290 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 274, at 1417-1420; A. van Wijnen Thomas & A.J. Thomas Jr., The Organization of American States 58-60 (1963); Kutzner, op. cit. note 84, at 171-176. 291 Argentina, Bolivia, Brazil, Chile, Ecuador and Mexico. 292 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.

118

chapter two

§148

the Government of Cuba, and in accordance with the practices, purposes, and principles of the OAS”.293 So far, the Government of Cuba has not made such a request. 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 generally 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.294 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 such a competence.295 Furthermore, if it was so clear that these organizations have such a 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.296 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 respect to the defaulting state. For this purpose, a material breach consists in 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 that requires the participation of all members (for example, 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.297 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

293

For the text of this Resolution, see 48 ILM 1246 (2009). See extensively, with references to further literature, Zeidler, op. cit. note 194, 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). 295 For a somewhat different point of view, Zeidler, op. cit. note 194, at 161. 296 E.g. Khan, op. cit. note 269, at 124. This would seem to have justified expulsion of Albania from the CMEA (see above, §141). 297 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. 294

§149

participants

119

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.298 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 jure if the member entirely ceases to exist or changes in such a way that it loses essential qualifications for membership. However, the disappearance of a state should not be easily assumed. A state does not vanish simply because its constitution or its frontiers have been changed. In 1963, the Federation of Malaya was changed into Malaysia. The relevant 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.299

§150 The extinction of a state as a legal person must be demonstrated before its rights and obligations can be considered to have ceased to exist.300 If there is disagreement as to the continued existence of a state, a judgment by the UN as the universal political organization would be useful for all international organizations. The General Assembly of the UN has no power to take binding external 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.301 §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.302 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

298 This third legal argument is for example used by Oppermann, op. cit. note 260, at 87; Makarczyk, op. cit. note 257, at 476-489, in particular at 488-489. 299 UNJY 1963, at 161-164. 300 UN Documents A/C.6/162 and A/C.1/212 of October 1947, GAOR 2nd session, First Committee, Annex 14g (at 582). 301 GA Res. 396(V). 302 See the 2nd edition of this book, at 84 (Ethiopia, Austria, Czechoslovakia, Albania and the three Baltic Republics).

120

chapter two

§152

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.303 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”.304 Nevertheless, this did not result in a termination of membership. Subsequent to the adoption of the relevant Security Council resolutions, the General Assembly merely decided that the Federal Republic of Yugoslavia (Serbia and Montenegro) could not participate in the work of the General Assembly and ECOSOC (see further above, §107).305 The IMF and the World Bank went further in deciding that the former Socialist Federal Republic of Yugoslavia ceased to exist and also ceased to be a member of the organizations.306 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 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.307 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.308

§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 states (OPEC), 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.

303 See UN Doc. A/44/946 (containing a letter from the Ministers of Foreign Affairs of North and South Yemen). 304 Resolutions 777 (1992) and 821 (1993). 305 GA Resolutions 47/1 (1992) and 47/485 (1993). 306 IMF, Annual Report 1993, at 181; World Bank, Annual Report 1993, at 16. See Williams, op. cit. note 163. 307 See R. Cohen, Legal problems arising from the dissolution of the Mali Federation, in: 36 BYIL 375-384 (1960). 308 Second Congress of the WMO, Final Report, Vol. I, Geneva 1955 (WMO Doc. No. 48, R.C.9), at 37.

§154

participants

121

Thus, the loss of membership of the World Bank means a loss of membership of the IFC and the IDA.309 The loss of membership of the FAO leads to a loss of membership in some international fisheries commissions, such as the Asia-Pacific Fishery Commission.310 Normally, membership of the IMF is a condition for membership of the World Bank;311 but the World Bank may decide to retain the membership of a particular state that has ceased to be a member of the IMF.312

4. 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), the Warsaw Pact (1991) and the International Jute Organization (2000) (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 that 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.313 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”. Another example is Article 29.1 of the 2006 constitution of

309

IFC, Arts. II.1 and V.3; IDA, Arts. II.1 and VII.3. A.W. Koers, International Regulations of Marine Fisheries 123 (1973); Asia-Pacific Fishery Commission, Art. XIII.3. 311 Art. II(1) of the Statute of the World Bank. 312 World Bank Statute, Art. VI(3). On this provision, see Gold, op. cit. note 135, at 397-399. 313 K. Ginther, in Ginther and Oppermann, op. cit. note 260, at 13, 21; M. Ruffert and C. Walter, Institutionalisiertes Völkerrecht 93 (2009). 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. 310

122

chapter two

§157

the International Tropical Timber Organization: “Members shall, for the duration of this Agreement, use their best endeavours and cooperate to promote the attainment of its objectives and avoid any action contrary thereto”.314 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 Article 28 of the Charter, under which all members of the Security Council are obliged to be present at the meetings.315 Systematic blocking, regardless of the subject matter, of all decisions that 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 of whether the organization can waive or dispense with those obligations. Gold concluded that international organizations normally do have the power to waive the obligations of members (see also below, §1444).316 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 basis of special circumstances (see above, §128-130), there appear to be no examples of purely institutional obligations being waived. For reasons of principle, however, 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 that are essential for the functioning of the organization will be waived. §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 the organization tolerates those 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

314

See also IAEA, Art. IV.C; TEU, Art. 4.3; CoE, Art. 3; OECD, Art. 3. J.L. Kunz, Legality of the Security Council Resolutions of June 25 and 27, 1950, 44 AJIL 137-142 (1950), at 141. 316 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)). 315

§159

participants

123

treat all members equally. In fact, the toleration of too many violations may lead to a tacit revision of the constitution.317 §159 Apart from the obligations all members share, other obligations may be imposed on only certain individual members. For example, by definition, only a limited number of members of an organization participate – and are obliged to cooperate – in non-plenary organs. Likewise, some rights are only attributed to certain members: 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 that 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 for universality, such inactive membership may be considered preferable to non-membership.318 The inactive member would at least 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.319 Thus, they can modify and even dissolve the organization regardless of its constitutional provisions.320 In that sense, they remain Herren der Verträge. To an extent, this is even true for the European Union.321

317 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. 318 Ginther, op. cit. note 260, at 14-24. 319 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. 320 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 SeidlHohenveldern – in honour of his 80th birthday 201-218 (1998), in particular at 204. 321 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

124

chapter two

§163

These powers are given only to the collective members and not to their governments, and still less to the delegations of these governments that are participating in the organs of the organization. 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, §157-158), 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 can be found in 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).322 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 that can be exercised against the collective members. In this respect, it is not supranational and differs from federal states.323 §163 In some organizations, certain powers cannot be exercised by any one organ, but are reserved for common action by all member states. Article 27.1(a) of the 1952 UPU constitution required the approval of all members to amend 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.324 In the European Union, the governments of the member states must appoint by common accord the Judges and Advocates-General of the Court of Justice.325 The seat of the institutions of the Union is also to be determined by the governments of the member states by common accord.326

It is submitted that all member states collectively can exert all powers of the organization that have not been attributed to any specific organ of the organization, unless the constitution expressly provides otherwise.

states, acting together, will do with the Treaties whatever they wish”. J. Werts, The European Council 305 (1992). 322 TEU, Art. 48. 323 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 decision-making” (id., at 331332). 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). 324 IMF, Art. XVII(b); World Bank, Art. VIII(b). 325 TEU, Art. 19.2. 326 TFEU, Art. 341; EAEC, Art. 189. See also Protocol No. 6 on the location of the seats of the institutions and of certain bodies, offices, agencies and departements of the European Union (annexed to the TEU, TFEU and the EAEC Treaty).

§164

participants

125

§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.327 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.328 §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 that is not a member of the UN. Twothirds of the WMO members have to approve the establishment of relations between this organization and other international organizations (Articles 25-26). The UPU requires the approval of two-thirds of its members for amendments to the constitution (Article 30.1). IMF and World Bank require, for some decisions, a qualified majority of all members.329

In other cases a simple majority of the members can exercise powers without 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 members330 §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.331 After becoming independent, such territories usually continued as associate members

327

Gold, op. cit. note 316, at 189-199. IMF, Art. XXVII, Section 1. 329 E.g. IMF, Art. XXVIII(a); World Bank, Art. VIII(a). 330 See also P. Hollenweger, Die Assoziation von Staaten mit internationalen Organisationen (Zürcher Studies zum Internationalen Recht No. 41, 1967). 331 WHO, Art. 8; FAO, Art. 2; UNESCO, Art. 2; IMO, Art. 9; World Tourism Organization, Art. 6; South Pacific Applied Geoscience Commission, Art. 3.2. 328

126

chapter two

§166

until their admission to full membership.332 The significance of associate membership has decreased with the decline in number of such territories,333 but this form of participation is still occasionally used, for example by the WHO, the Pacific Islands Forum, and the Caribbean Community.334 More recently, associate membership, or a status which in fact comes very close to it, has been granted to liberation movements,335 to governments in exile336 and to private legal entities or non-members.337 In addition, in 1992, the Western European Union granted associate membership to Iceland, Norway and Turkey.338 In 1996, Bolivia and Chile became associate members of Mercosur.339 Originally, it was not possible to become an associate member of the WEU. However, the 1992 Treaty on European Union provided that the WEU was 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: (1) by members of the European Union that were not WEU members; they were invited to become full members or observers of the WEU; (2) by other European states that were members of NATO; they were invited to become associate members of the WEU.340 Since the 1990s, European security and defence cooperation was increasingly taking place within the EU. The WEU became inactive.341 In 2010, it was decided to dissolve the organization.342

332 UNJY 1971, at 229-230. See membership tables in Kapteyn et al., op. cit. note 26, Suppl. I. App. A. 333 Nevertheless, occasionally non-autonomous territories still apply for this form of membership. In 1990 Macau became associate member of the IMO, in 2002 the Faroe Islands. Netherlands Antilles (1983), the British Virgin Islands (1983), Aruba (1987), Macau (1995), Cayman Islands (1999) and Tokelau (2001) became associate members of UNESCO. The Netherlands Antilles ceased to exist in 2010. 334 The WHO has two associate members: Tokelau (admitted in 1991) and Puerto Rico (admitted in 1992). New Caledonia and French Polynesia are associate members of the Pacific Islands Forum since 2006 (see www.forumsec.org (January 2011)). The Caribbean Community has five associate members: Anguilla (since 1999), Bermuda (since 2003), British Virgin Islands (since 1991), Cayman Islands (since 2002), Turks and Caicos Islands (since 1991) (see www.caricom .org (January 2011)). 335 In the OAU, see J. Woronoff, Organizing African Unity 196 (1970). 336 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. 337 Infofish, Art. 6; APSCO, Art. 9.7. 338 Decision taken by the WEU Council, see Europe Documents No. 1810 (1992). 339 YIO 2000/2001, Vol. I, at 2104; YIO 2008/2009, Vol. 1, at 2585. 340 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. 341 See R. A. Wessel, The EU as a black widow: devouring the WEU to give birth to a European security and defence policy, in V. Kronenberger, The European Union and the international legal order: discord or harmony? (2001), at 405-434. 342 Statement of the Presidency of the Permanent Council of the WEU, 31 March 2010.

§167

participants

127

Associate membership usually entails membership without the right to vote or hold office in the principal organs of the organization.343 It has been useful for delegates of newly independent countries who could thereby obtain experience prior to their countries’ independence. 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:344 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 for 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.345 Before the 1975 amendment of the ITU constitution, associate membership was not only open to territories that were not responsible for their external relations but also to independent states.346 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 non-autonomous territories were full members of the ITU, associate membership was not very common in this organization. This form of membership 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

343 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). 344 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). 345 Art. 14.2. Associate members of this organization are, inter alia, the Flemish Community of Belgium, the Netherlands Antilles (which ceased to exist 2010), Aruba and Madeira. The accession procedure for associate membership is governed by Art. 6.3 of the World Tourism Organization’s constitution. On this procedure, see UNJY 2003, at 530-531. 346 Art. 1.3.

128

chapter two

§168

membership.347 The non-sovereign territories of these regions may become associate members of these UN organs.348 Originally six European states, which were responsible for African territories, were full members of the Economic Commission for Africa (ECA). In 1963, full 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.349 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.350 §168 Some regional organizations also admit associate members in the same way as the organizations of the UN family.351 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 (for example, between the EU 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.352 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. Partial membership has been used most frequently in the UN, of which, for political reasons, not all states have 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.

347 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. 348 For an enumeration, see United Nations Handbook 2010-2011, at 153, 157. 349 See M.A. Ajomo, Regional Economic Organizations, the African Experience, 25 ICLQ 63-65 (1976). See also ECOSOC Res. 974 DI (XXXVI; 1963). 350 See YUN 1986, at 1533. 351 E.g. the Asia-Pacific Telecommunity (Art. 3.4). 352 See A. Elkin, The Organization for European Economic Cooperation, its structure and powers, European Yearbook 1956, at 97-150.

§170

participants

129

Normally, if a UN organ is to be open to states other than members of the UN, a provision to that effect 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.353 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).354 Switzerland became a member of the ECE in 1971.355 South Vietnam and the Korean Republic,356 Tonga, Western Samoa and Nauru were admitted to the Economic Commission for Asia and the Far East (ECAFE), while they were not UN members.357 In July 1977, the PLO became a member of the Economic Commission for Western Asia.358 Switzerland,359 Liechtenstein360 and San Marino361 became parties to the Statute of the International Court of Justice (one of the six principal organs of the UN) while 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.362 All state members of any specialized agency or of the IAEA (for example, 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.363

§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 nonmember 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.364

353

UNJY 1986, at 288-289. E.g., West-Germany; see ECOSOC Res. 594(XX). 355 ECOSOC Res. 1600(LI). 356 ECOSOC Res. 517(XVII). 357 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. 358 ECOSOC Res. 2089(LXIII). 359 GA Res. 91(I) and 17 UNTS, at 111. 360 GA Res. 363(IV) and 51 UNTS, at 115. 361 GA Res. 806 (VIII) and 186 UNTS, at 295. 362 YUN 1946-47, at 519, footnote 2. 363 See 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). 364 Agr. OECD/C/61/44, see Kapteyn et al., op. cit. note 26, at II.B.7.a, at 4 (Art. 12). 354

130

chapter two

§171

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.365 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.366 §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, at rates to be determined by the General Assembly.367 They are not, however, represented in the organ that 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.368 The activities of the secretariat and the appointment of its personnel are carried out under the supervision of the Secretary-General, who 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 such members.369

365 A.H. Robertson, The Council of Europe, its Structure, Functions and Achievements 19-21 (2nd ed., 1961). 366 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. 367 UN Financial Regulation 3.8. 368 ICJ Statute, Art. 69; GA Res. 2520 (XXIV). 369 See the difficulty of obtaining contributions from San Marino for international control of narcotic drugs, UNJY 1967, at 329.

§172

participants

131

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.370 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. As of December 2010, more than 400 affiliated members participated in the World Tourism Organization (including Air France, Club Méditerranée, the Arab Tourism Organization, Ecotourism Kenya and the International Youth Hostel Federation).371

There are a few other international organizations the constitutions of which provide for a similar type of affiliate membership. An example is the Asia-Pacific Telecommunity (Article 3.5). In 2010, this organization had 122 affiliate members.372

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.

370 371 372

Art. 7.1 of the constitution of the World Tourism Organization. See www.unwto.org (December 2010). See www.aptsec.org (December 2010).

132

chapter two

§174

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.373 §174 As has been observed by Suy, a former Legal Counsel of the UN, the practice with respect to these participants in international organizations is far from being clear, uniform or complete.374 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.375 The advantage of inconsistent practice in this area is that it “has minimized political tensions, as the irregularity makes the process more flexible to change and re-arrangement”.376 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”.377 §175 Granting observer status is often related to sessions of specific organs of an international organization. Some organizations, however, confer this status on a more general basis.378 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 that 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.379 Where an organ did not have the competence to invite observers, the UN Secretariat suggested that the representatives concerned be invited as official guests,380 a status apparently between observers and the public in open meetings.

373

UNJY 1982, at 156. See also UNJY 1977, at 220-222. E. Suy, The status of observers in international organizations, 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). 375 Suy, op. cit. note 374, at 83-84. 376 Id., at 159. 377 Id. See Sybesma-Knol, op. cit. note 374, 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). 378 See e.g. FAO General Rules, Rule XVII. 379 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. 380 UNJY 1963, at 171-172. 374

§176

participants

133

Organizations entitled to send observers should send a letter to the organization designating the individuals who act on their behalf. This letter performs a function similar to the credentials of delegates, but it usually does not require the approval of a credentials committee.381 §176 The precise legal position, and 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 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 by these observers? The question has arisen several times in ECOSOC. An observer from Libya (at the time 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 ECOSOC proposed that the Romanian observer be heard on the question of whether Romania should be admitted to UNESCO (at that time applications for membership of UNESCO first had to be transmitted to 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.382

§177 There are only two general characteristics that 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.383 However, in other cases they may not participate in the debate: for example, in the FAO a number of organs have arrangements for so-called silent observers, who “shall not take part in any debates”.384 Observers are normally seated in the conference hall, but are separated from delegates. They receive the working documents of the session like full members through distribution in so-called pigeon-holes.385 Normally, observers can circulate documents in the organs in which they participate, where a covering note from the chairman is available.386 In formal terms, the chairman circulates a

381 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 374, at 158. 382 UN Repertory of Practice of UN Organs, Vol. 3, at 536-537. 383 Suy, op. cit. note 374, at 131-142. 384 E.g. the Programme Committee and the Committee on Constitutional and Legal Matters (see Rules XXVI and XXXIV of the General Rules, and FAO Doc. CCLM 88/4, subsequently approved by the Conference). 385 UNJY 1972, at 159-160. See also Suy, op. cit. note 374, at 120-122. 386 See on the question of the circulation of written statements by NGOs in ECOSOC and its subsidiary organs, UNJY 1983, at 187. The UN Office of Legal Affairs has indicated that according

134

chapter two

§178

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).387 §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. 388

Nevertheless, observers sometimes participate fully in 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, because 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 neatly into one of these categories. The WHO, for example,

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. 387 See for example Rule 72.3 of the Rules of Procedure of the ECOSOC. Suy, op. cit. note 374, at 143-145. 388 Europe Nos. 7065 (at 6) and 7067 (at.5); information obtained from the Council of Europe Secretariat.

§180

participants

135

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.389 1. Non-member states and entities390 §180 International organizations often admit delegates from non-member states and entities to their meetings as observers when questions are discussed that are of interest to them.391 The UN General Assembly has granted permanent observer status to the Holy See and Palestine.392 Other UN organs and other international organizations have also granted such status to non-members.393 In 2009, after years of consultations, Taiwan was admitted as a non-member state observer to the general congress of the World Health Organization, under the name of Chinese Taipei.394 This form of participation allows the non-member to maintain contact with the work of the organization. Observer status for non-member states and entities 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.395 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.396 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.397 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

389

See C.-H. Vignes in 9 AFDI 636-638 (1963). See also Suy, op. cit. note 374, at 88-96 and 104-105; Sybesma-Knol, op. cit. note 374, 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). 391 See UN Repertory of the Practice of UN Organs, Vol. 1, at 653 and Vol. 3, at 536-538. 392 Originally the General Assembly refused to grant observer status on a permanent basis. See UN Repertory of the Practice of UN Organs, Vol. 1, at 652-653; UN Doc. ST/SG/SER.A/300, Permanent missions to the United Nations (March 2010). The Holy See did not apply for full membership of the UN due primarily to its “desire to maintain absolute neutrality in specific political problems” (see www.holyseemission.org/short_history.html (December 2010)). 393 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). 394 WHO Doc. A62/DIV/1 Rev.1, at 61. 395 See www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (December 2010). 396 See UNJY 1971, at 195-196, and UNJY 1972, at 168-170. 397 See F. Soltau, The Right to Participate in the Debates of the Security Council, ASIL Insight (October 2000). 390

136

chapter two

§181

other violations of international humanitarian law by the Yugoslavia Tribunal, an organ created by the Security Council.398

§181 In 1989, the Parliamentary Assembly of the Council of Europe created a special category of observers from non-member states, so-called special 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.399 This special category of observers was created through Resolution 917 (1989) of the Assembly. This resolution mandated the granting of special guest status to national legislative assemblies of European non-member countries that had shown their interest in being accorded such status, and had applied and implemented the Helsinki Final Act and the instruments adopted at the CSCE conferences, together with the 1966 UN Covenants on Human Rights. (See also Rule 58 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.400

2. National liberation movements 401 §182 In the early 1970s, national liberation movements gradually became an important category of observers in many international organizations.402 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).403 Except for Namibia, for which the UN Council for Namibia took responsibility, the arrangement was subsequently confirmed by the UN General Assembly.404 Since 1971, liberation movements have been represented in the ECA by observers.405 In the meetings of the UN Council for Namibia, representatives of the South West Africa People’s Organization (SWAPO) have participated as observers since

398

See UN Doc. S/PV.4164, at 3-6. CoE, Parliamentary Assembly, Doc. 6060 (1989), at 4. 400 Information Document AK 42, GEN (93) 5 rev.2, of the North Atlantic Assembly (1993). 401 See also Sybesma-Knol, op. cit. note 374, Chapters IX and X. 402 See E. Klein, Nationale Befreiungskämpfe und Dekolonisierungspolitik der Vereinten Nationen: Zu einigen völkerrechtlichen Tendenzen, 36 ZaöRV 618-653 (1976). 403 ECA Res. 194(IX). 404 GA Res. 2795(XXVI); see also GA Res. 2621(XXV). 405 UNJY 1974, at 154. 399

§183

participants

137

1972.406 In 1976, the General Assembly granted observer status to the SWAPO.407 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.408 In August 1974, 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.409 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 that related to their countries. It also accepted the principle that the costs of such representation were to be borne by the UN.410 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).411 Since then, the representatives of national liberation movements have become an accepted group of observers. They have participated in many conferences organized under UN auspices,412 and in the activities of most specialized agencies.413 §183 Originally, invitations were limited to liberation movements recognized by the OAU. Later, however, several organs extended the invitations to include national liberation movements recognized by the League of Arab States,414 which actually meant an invitation to the PLO. The UN General Assembly invited the

406

UNJY 1974, at 152. For the financing of SWAPO, see also GA Res. 32/9/F4. Res. 31/152. See also UNJY 1983, at 227. 408 UNJY 1974, at 150. 409 ECOSOC Res. 1892(LVII), subsequently affirmed by the General Assembly, Res. 3300(XXIX). 410 GA Res. 3280(XXIX); see also UN Doc. A/7775. 411 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. 412 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). 413 Specialized agencies have generally adopted the policies with respect to observers embodied in the General Assembly resolutions; see Suy, op. cit. note 374, at 113-114, 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. 414 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). 407

138

chapter two

§184

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”.415 The issuing of 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, or still less as their lawful governments.416 There may be several authorities claiming to represent the territory. The criteria national liberation movements should fulfil in order to be accepted as the lawful government of a territory have never been discussed.417 §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 that 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.418 Similar resolutions were adopted by the General Assembly in the following years, despite severe criticism from Western states419 pointing to the fact that the 1975 Vienna Convention had not entered into force and had in fact been ratified by only a limited number of states, and not by principal host states of international organizations.420 3. Public international organizations421 §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.422 These agreements all provide for a reciprocal right to propose agenda items (for the specialized agencies on the agendas of 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 Gen-

415 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). 416 UNJY 1974, at 168, para. 9. 417 Lazarus, op. cit. note 413, at 197. 418 GA Res. 35/167. 419 E.g. Res. 47/29 (1992); adopted with 103 votes in favour, 9 votes against and 36 abstentions (28 states were absent). 420 See e.g. YUN 1986, at 1004; YUN 1992, at 1011. 421 See also Suy, op. cit. note 374, at 96-99, 123-131; Sybesma-Knol, op. cit. note 374, Chapters IV-VIII. 422 Art. 70 UN Charter.

§186

participants

139

eral 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”.423 The definitions of what may be of concern to the specialized agency differ from agreement to agreement. In its rules of procedure, ECOSOC allows the specialized agencies to be represented at all meetings of 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”.424 The specialized agencies may even request that a special session of 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 EU, the Council of Europe, the Organization of the Islamic Conference and the Caribbean Community are also permitted to send observers to UN organs.425 For observers in the UN General Assembly, neither the UN Charter nor the Assembly’s rules of procedure provide for specific rules. In practice, ad hoc decisions have been taken when international organizations applied to become an observer to the Assembly. In 1994, the General Assembly decided that the granting of observer status in the General Assembly “should in the future be confined to states and to those intergovernmental organizations whose activities cover matters of interest to the Assembly”.426 However, in practice the General Assembly has not been able to comply with this self-imposed standard. It has also admitted as observers entities that are not intergovernmental organizations, thereby clearly departing from its 1994 decision.427 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 intergovernmental 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.428

423

UN Repertory of Practice, Vol. 3, at 545. ECOSOC Rules of Procedure, Rule 75. 425 For a survey of the practice of the UN see UNJY 1971, at 197-199 and UNJY 1975, at 164-167; 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 EEC in UNCTAD see UNJY 1970, at 181. 426 Decision 49/426, adopted 9 December 1994. See also UN Docs. A/49/747 and A/C.6/49/ SR.40; UNJY 2000, at 349-350 and 363-364. 427 E.g., the Inter-Parliamentary Union in 2002 (Res. 57/32) and the International Olympic Committee in 2009 (Res. 64/3). 428 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 2008/2009, Vol. I, at 698. 424

140

chapter two

§187

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.429 Sometimes one organization can propose agenda items to the other.430 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.431 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 (for example, 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 Union has concluded a number of agreements on the mutual exchange of documents and information, and the mutual admission of observers.432 In addition to its representatives in UN organs, the EU also sends representatives to several closed organizations, such as the OAS433 and the OECD, as well as to most Commodity Councils.

§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.434 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.435 Sometimes, however, an organization will send a government representative (see below, §1834-1839).

429 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. 430 Agreement between UNESCO and WHO, Art. 3. 431 Robertson, op. cit. note 365, at 217. 432 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). 433 Exchange of letters of 19 Dec. 1970 and 26 Feb. 1971. 434 Exceptions can be found in the agreements between the UN and the IMF and the World Bank. 435 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 469475.

§188

participants

141

4. Private organizations §188 The activities of international organizations traditionally took place “on the surface of social reality”.436 Traditionally, international organizations were indeed frameworks for cooperation ‘inter (between) governments’, and therefore the name ‘intergovernmental organization’ was pertinent. Only rarely were private citizens and private organizations involved in their work. This situation has gradually changed during the past few decades. Many organizations are now trying to find appropriate ways to better structure their relationship with non-governmental organizations that are relevant for their work. This is far from easy, since the international order continues to be organized ‘state-wise’. Nevertheless, it is necessary. In many fields of international cooperation, it is of interest to private organizations to be more closely involved in the work of public international organizations. The processes of globalization result in a declining ability of the state to perform its functions alone. International cooperation is imperative. Parallel to these developments, in order to be effective many NGOs have had to target their activities not only towards national governments, but have also had to operate at the international level, and increasingly have needed to address international organizations. International organizations have, therefore, become more relevant for private organizations. Vice versa, private organizations have become more important for international organizations in the exercise of their functions. 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 for Science may also provide valuable information.437 Within the framework of international organizations or treaty organs, non-governmental organizations have also played and are playing an important role in the creation and implementation of rules dealing with, for example, the environment, human rights, international criminal justice, child soldiers, landmines, and so forth. Through their expertise, mobilization of public opinion and ability to ‘link the local and the global’, non-governmental organizations have become much more important for an increasing number of international organizations. 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. Having

436 A.J.P. Tammes, Hoofdstukken van internationale organisatie (1951), at 1 (“de werkzaamheid van internationale organisaties, in het huidige stadium van haar ontwikkeling, [speelt zich af ] aan de oppervlakte van de sociale werkelijkheid”). 437 See e.g. W.S. Wooster, Interactions between Intergovernmental and Scientific Organizations in Marine Affairs, 27 International Organization 103-113 (1973).

142

chapter two

§189

an opportunity to present proposals to an international organization may help to 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.438

Almost seventy years later, the report by the Cardoso panel explained why it is crucial for the UN to strengthen its relations with civil society: Engaging with civil society, parliaments and other actors helps the United Nations to identify global priorities, become more responsive and accountable and strengthen its support base – making it more able to tackle those challenges. It helps the United Nations to become an organization belonging to “We the peoples”. . . . Enhancing civil society relations can also keep the United Nations in tune with global public opinion – the ‘second super-power’ – and enhance its legitimacy.439

§189 Against this background, international organizations have come closer to social reality than in earlier days. Many public international organizations nowadays allow private organizations to participate in their work.440 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. While the dominant position of governments in public international organizations has not fundamentally changed, it seems justifiable to conclude that, in general, the position of private organizations within public international organizations has become more prominent, both in formal arrangements and in practice.441 Mecha-

438

A. Zimmern, The League of Nations and the Rule of Law 1918-1935 (1936), at 324. UN Doc. A/58/817 (We the peoples: civil society, the United Nations and global governance, Report of the Panel of Eminent Persons on United Nations – Civil Society Relations (Cardoso report)), at 27. 440 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 NGOs: 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 Nongovernmental Organizations: Guarding the Entrance to a Politically Divided House, in 12 EJIL 943-962 (2001); S. Ripinsky and P. van den Bossche, NGO Involvement in International Organizations: A Legal Analysis (2007); N. Hachez, The Relations Between the United Nations and Civil Society: Past, Present, and Future, 5 IOLR 49-84 (2008); N. McKeon, The United Nations and Civil Society – Legitimating Global Governance – Whose Voice? (2009). 441 Cf. P. Willetts, Introduction, in Willetts, op. cit. note 440, at 3: “[a]lmost all intergovernmental organizations now accept, as a norm of world politics, that they must have working relationships with NGOs”. See for an extensive historical analysis of the role of NGOs in international conferences and organizations S. Charnovitz, Two Centuries of Participation: NGOs and International Governance, 18 Michigan Journal of International Law 183-286 (1997). 439

§189

participants

143

nisms for consultation have been improved, and in some areas (for example, 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,442 and have specific sections on their websites for these organizations (‘civil society’ or ‘NGOs’, as they are usually called).443 Strengthening the role of NGOs within international organizations and improving relationships with them is not without difficulties. What has been written about this with respect to the UN in the Cardoso report holds true for many other organizations as well: Governments do not always welcome sharing what has traditionally been their preserve. Many increasingly challenge the numbers and motives of civil society organizations in the United Nations – questioning their representativity, legitimacy, integrity or accountability. Developing country governments sometimes regard civil society organizations as pushing a “Northern agenda” through the back door. At the same time, many in civil society are becoming frustrated; they can speak in the United Nations but feel they are not heard and that their participation has little impact on outcomes.444

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 that are concerned with matters within its competence and satisfy several conditions.445 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

442 E.g., the World Bank adopted a new approach in 2002 “involving more than 120 civil society engagement staff working across the institution, with a global Civil Society Team, a network of civil society specialists working in various units at World Bank headquarters, and civil society staff in some 70 country offices” (McKeon, op. cit. note 440, at 124). The ILA Committee ‘Accountability of International Organizations’ adopted recommendations on the relationship between NGOs and international organizations, e.g. “IOs should establish appropriate relationships with NGOs active within their field of competence” and “IOs should as a matter of practice establish at least an ngo liaison service in order to facilitate ngo involvement in their activities”. See ILA, Berlin Conference (2004), Accountability of International Organizations, Final Report (Part One, Section Three), reproduced in 1 IOLR 221-293 (2004), at 242. 443 On the terms NGOs and civil society, see the Cardoso report, op. cit. note 439, at 13; McKeon, op. cit. note 440, at 11-16. 444 UN Doc. A/58/817, at 7. 445 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); for most recent information, see www.un.org/en/civilsociety/index (December 2010). 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 440; Hachez, op. cit. note 440. Special rules for consultation with NGOs 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 originally introduced for the Commission on Sustainable Development in 1993.

144

chapter two

§190

made. First of all, while the previously existing arrangement provided for consultation with private international organizations only, at present private national organizations (in other words, single-country NGOs) are covered as well. This change, also taking place in other organizations,446 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).447 Secondly, the 1996 amendment introduced general rules for participation of NGOs in international conferences convened by the UN and their preparatory process.448 Under the present arrangement, private organizations must, for example, have an established headquarters with an executive officer, democratically adopted constitutions and the authority to speak for their members. This form of consultation with private organizations differs from the right of participation without vote that is granted to observers from non-members, liberation movements and specialized agencies. It had to be restricted in order to avoid an overburdening of ECOSOC or a transformation of ECOSOC into a general discussion organ. In establishing consultative relations, ECOSOC divides private organizations into three groups.449 §190 The first group comprises “organizations in general consultative status”.450 These organizations are concerned with most of the activities of 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 socio-economic 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”.451 In December 2010, this category consisted of 137 organizations of rather general competence, such as the world organizations of trade unions and employers, the International Chamber of Commerce and Parliamentarians for Global Action, but also included organizations of less general competence, such as Greenpeace International, Médecins sans Frontières (International) and the World Federation of United Nations Associations.452 §191 The second group comprises “organizations in special consultative status”.453 These organizations have special competence in, and are concerned specifically with, only a few of the fields of activity covered by ECOSOC and its subsidiary

446 E.g. the WIPO, that on 27 September 2002 for the first time admitted national NGOs as permanent observers (previously this was only done on ad hoc basis). 447 P. Willetts, Consultative status for NGOs at the United Nations, in: Willetts, op. cit. note 440, at 31-62 (in particular at 54-55). 448 ECOSOC Res. 1996/31, Part VII. 449 See M.M. Gunter, Toward a Consultative Relationship Between the United Nations and Non-Governmental Organizations, 10 VJTL 557-587 (1977). 450 Before 1996, this category was named Category I. 451 ECOSOC Res. 1996/31, para. 22. 452 See UN website http://esango.un.org/civilsociety (December 2010). 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). 453 Before 1996, this category was named Category II.

§192

participants

145

bodies. In December 2010, consultative status in this category was granted to 2209 private organizations with restricted tasks such as Amnesty International, the International Air Transport Association, the International Bar Association, the International Commission of Jurists and the International Union of Architects.454 Indeed, some of them cover more than one specific field, as in the case of the Salvation Army and the Junior Chamber International. In general, however, these organizations are less closely linked with economic and social life than the organizations of the first group. §192 Organizations that are not admitted into either of these categories may be placed “on the Roster”. These organizations are not closely related to the work of 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 Seed Crushers, the International Association of University Professors and Lecturers, the International Federation of Air Line Pilots Associations and the World Hypertension League. In December 2010, 990 organizations were on the Roster.455 §193 ECOSOC consults with all these organizations through its Committee on Non-Governmental Organizations. This Committee is composed of 19 government representatives and decides on applications for consultative status and reclassification within the three categories.456 Observers from the organizations with general or special consultative status may sit at the public meetings of ECOSOC and of its commissions and committees.457 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.458 All organizations receive the provisional agenda of ECOSOC and its commissions; the organizations with general consultative status may propose additional items to the agenda.459

Organizations with general or special consultative status may submit written statements of limited size to ECOSOC,460 and sometimes also to other organs of the UN.461 Organizations on the Roster may do so only at the request of the SecretaryGeneral. All organizations in such a consultative relationship may be heard by the commissions and committees of ECOSOC. In some specific cases, observers from

454 See UN website http://esango.un.org/civilsociety (December 2010). The number of organizations in this group has tripled between 1993 and 2001 and doubled between 2001 and 2010. 455 See UN website http://esango.un.org/civilsociety (December 2010). 456 For examples of such decisions see UN Doc. E/2009/32 (Part II) (Report of the Committee on NGOs on its resumed 2009 session). 457 ECOSOC Rules of Procedure, Rule 81. 458 GA Res. 606(VI) and ECOSOC Res. 455(XIV). 459 ECOSOC Res. 1996/31, para. 28. 460 Id., para. 30-31. 461 See e.g. YUN 1973, at 502, 693.

146

chapter two

§194

the organizations in Categories I and II may also speak in ECOSOC itself.462 The organizations of all three groups may consult the UN Secretariat. Once every three years, NGOs in consultative status meet in the general assembly of CONGO (the Conference of NGOs in Consultative Relationship with the UN) to exchange information about their experiences and to coordinate their positions vis-à-vis the UN.463 ECOSOC Resolution 1996/31 requires organizations with general or specific consultative status to submit a brief report of their activities every fourth year, specifically regarding 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.464 This Committee may also recommend to ECOSOC suspension of or exclusion from consultative status of organizations that have not met the requirements for consultative status.465

§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 NGOs are applicable only to NGOs with consultative status with ECOSOC. Other organizations, therefore, often may not be invited to meetings or conferences without the prior approval of ECOSOC.466 §195 Other international organizations have developed their own arrangements for their relationships with NGOs. Most specialized agencies grant consultative status to NGOs in much the same way as ECOSOC.467 The WTO Constitution (1994) provides that “[t]he General Council may make appropriate arrangements for consultation and cooperation with non-governmental organizations concerned with matters related to those of the WTO”.468 Based on this provision, in 1996 the WTO General Council adopted a set of guidelines “which recognizes the role NGOs can play to increase the awareness of the public in respect of WTO activities”.469 This demonstrates that the WTO has a rather

462

For further details, see ECOSOC Res. 1996/31, para. 32. See www.ngocongo.org; E. Ballantine, K. Waltheim, V. Saurwein, G. Gallon, 14th General Assembly Conference, Transnational Associations 403-414 (1979). 464 ECOSOC Res. 1996/31, para. 61. See e.g. E/C.2/1991/2 and Addenda (reports by NGOs) and E/1991/20, at 6 (recommendations for reclassification). 465 ECOSOC Res. 1996/31, para. 55. See also UNJY 2005, at 455-457 (NGO representatives who are subject to requests for arrest or detention by Interpol; ECOSOC Res. 1996 “does not provide a basis . . . to consider the suitability of a representative of an NGO on the basis of a security risk. . . . the focus of the resolution is on the organization, and not the individuals”). 466 UNJY 1972, at 175; UNJY 1978, at 181-183; UNJY 1980, at 193-194. 467 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 440, 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 NGOs, in: Willetts, op. cit. note 440, at 63-97; Uvin and Weiss, op. cit. note 440, in particular at 226-228; McKeon, op. cit. note 440. Complete lists of NGOs having relations with international organizations are included in the Yearbook of International Organizations. 468 Art. V.2. 469 WTO Doc. WT/L/162. 463

§195

participants

147

limited view of the role that NGOs can play in relation to its work (NGOs as entities explaining the work of the WTO to the public), rather than a more ‘twoway traffic’ relationship, in which it is recognized that NGOs may also inform the WTO about views of the public concerning world trade and the role of the WTO. This limited perception of the role of NGOs is confirmed in paragraph VI of the 1996 guidelines, which states that it would not be possible for NGOs to be directly involved in the work of the WTO or its meetings. Closer consultation and cooperation with NGOs can also be met constructively through appropriate processes at the national level where lies primary responsibility for taking into account the different elements of public interest which are brought to bear on trade policy-making.

In practice, the WTO involves NGOs in its work through arrangements for attending Ministerial Conferences, symposia, briefings and so forth.470 In 2005, the WTO for the first time opened its dispute settlement panel proceedings to the public. This happened in the hormones dispute between the EU on the one hand, and Canada and the US on the other. The panel decided, after a request by the parties, to open the proceedings to the public. Journalists, NGO representatives, scholars and others watched the proceedings from a separate room at the WTO headquarters, via closed-circuit broadcast. On this occasion, the Canadian ambassador made the following comments: “the closed process leaves the public, even parliamentarians and interested non-governmental organizations to imagine the worst of the process, and to question its legitimacy”.471

The Council of Europe introduced a consultative status for NGOs in 1952.472 Since then, the arrangements for its relationship with NGOs have further developed. In 2003, the consultative status was changed into the so-called participatory status.473 Through this status, NGOs contribute to decision-making in the Council of Europe and to the implementation of its programmes. In 2010, some 400 NGOs had this status. These NGOs are represented within the Conference of International Non-governmental Organizations of the Council of Europe (Conference of INGOs), which meets three to four times a year during the ordinary sessions of the Parliamentary Assembly of the Council of Europe.

470

See the relevant part of the WTO website: www.wto.org/ngos (December 2010). See www.wto.org/english/news_e/news05_e/openpanel_12sep_e.htm (December 2010). 472 This paragraph is based on information given in the relevant part of the website of the Council of Europe (www.coe.int/T/NGO/ (December 2010)). 473 Committee of Ministers Resolution (2003)8. This replaced the earlier arrangements on the consultative status of NGOs laid down in Committee of Ministers Resolution (93)38. Resolution (2003)8 considered “that it is indispensable that the rules governing the relations between the Council of Europe and NGOs evolve to reflect the active participation of international nongovernmental organisations (INGOs) in the Organisation’s policy and work programme, and to facilitate INGO participation and access to such bodies as the steering committees and governmental expert committees, and other subsidiary bodies of the Committee of Ministers. This participation will allow the INGOs to continue to draw the Council of Europe’s attention to the effects of changes in European societies and the problems facing them”. 471

148

chapter two

§196

Over the years, the Council of Europe has developed a legal framework for civil society in Europe. In 1985, the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organizations was adopted.474 In 2007, the Committee of Ministers adopted a recommendation providing for minimum standards for the creation, management and activities of NGOs.475 These recommendations are aimed at both the governments of the member states and NGOs themselves. They deal with, for example, the formation, membership and legal personality of NGOs, transparency and liability of NGOs, as well as supervision of their activities. The European Commission often consults interest groups; these groups offer valuable information, particularly in technical fields.476 If possible, the Commission channels these consultations through organizations at EU level, in which NGOs of the member states cooperate. However, Commission and Council relations with ‘private’ social and economic life in the EU are mainly organized through the Economic and Social Committee of the EU, representing in particular producers, farmers, carriers, workers, dealers, craftsmen, professional occupations and also the general public.477 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, §267-274) 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 of whether member states have fulfilled their obligations toward the organization. Petitions will therefore be discussed with the issue of enforcement (see below, Chapter Ten, 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.478 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, however, this restriction is not very important. Representatives of private agencies have even become

474

Council of Europe Convention No. 124. Committee of Ministers (2007)14. For the purpose of this recommendation, NGOs are defined as “voluntary self-governing bodies or organisations established to pursue the essentially non-profit-making objectives of their founders or members. They do not include political parties” (para. 1). 476 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. 477 Arts. 301-302 TFEU. 478 Art. 19 ITU Convention. 475

§197A

participants

149

chairmen of study groups.479 One study on the ITU notes: “While the logic of including manufacturers and private users of telecommunication equipment in the search for acceptable standards is strong, government entities are rarely willing to share international decision-making responsibilities so openly”.480 In the International Energy Agency, a permanent framework is provided for consultation with international oil companies.481 These companies must be consulted on certain matters.482 §197A Since the beginning of the 21st century, numerous international organizations have intensified cooperation with the private sector, as it was increasingly recognized that the private sector could contribute to their work. In 2000, the UN Global Compact was launched.483 This contains ten principles in the area of human rights, labour, the environment and anti-corruption. Businesses are invited to support these principles in their operations. Within the UN system and elsewhere, a wide variety of so-called public-private partnerships exists.484 A number of organizations have elaborated guidelines for such cooperation with the private sector. There is much variety between these guidelines, but one of the principles they usually share is that such cooperation may not affect the independence, integrity, neutrality and intergovernmental character of the organization.485

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

479 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). 480 G.A. Codding, Jr. and A.M. Rutkowski, The International Telecommunication Union in a Changing World 99-100 (1982). 481 Arts. 37-40. 482 E.g. Arts. 19(6) and 35. 483 See www.unglobalcompact.org/AboutTheGC/index.html; J. Braun and I. Pies, United Nations Global Compact, in C. Tietje & A. Brouder (eds.), Handbook of Transnational Economic Governance Regimes (2009), at 253-265. 484 For examples relating to the WHO, see G.L. Burci, Public/Private Partnerships in the Public Health Sector, 6 IOLR 359-382 (2009). 485 See further S. Tully, The Opportunities and Challenges of Private Sector Engagement by UN Secretariats, 3 IOLR 225-266 (2006); UNGA Resolutions 55/215 and 64/223.

150

chapter two

§199

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 (for example, liberation movements or governments in exile) its function has often remained the same: the anticipation of (and preparation for) full membership. Affiliate membership only exists in a few organizations, in particular in the World Tourism Organization. The position of affiliate members comes close to that of observers. The category of observers is a ‘mixed bag’, consisting of states, NGOs, and other entities. These entities all 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 vary greatly. For political reasons, a state might not wish to join an organization as a full member (the Holy See and the UN; Switzerland before it became a UN member in 2002), 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 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 drew 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: that is, 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 often 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.486 Another example is the discussion concerning “mini-members” (above, §72-73), which has been dominated by the principle of sovereign equality.

486

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

§200

participants

151

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: the rule ‘emitter’ and the rule ‘receiver’ are more or less the same. This situation may be considered as one example of what has been called dédoublement fonctionnel.487 §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 they once created: they remain the Herren der Verträge. In addition, states have felt free to withdraw from organizations that did not recognize such a right, but that 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 and the growing need to cooperate explain why states have established international organizations to pursue certain objectives, to perform certain tasks that they could not longer carry out effectively alone. The simple 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 returning 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 that 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 when the member 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 shall comprise, under

487 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, M. Forteau, A. Pellet, Droit International Public (8th ed. 2009), at 102; 689.

152

chapter two

§202

the title of the Universal Postal Union, a single postal territory for the reciprocal exchange of letter-post items”.488 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”.489 A final example is the euro area or euro zone, a reference to the EU members that use the euro as official currency. In these and other cases, a fictitious functional territory (or sky) is created, in which the organization has jurisdiction.490 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’ (for example, that have their own postal or telecommunication services, see above, §76-78).491 §202 Thus, the 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 that are 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 that 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). §203 The pragmatic attitude adopted by organizations towards membership problems partly explains these differences. Hence, 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

488

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). 490 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 136, at 309-312. 491 In this context Brownlie refers to “the functional concept of membership” (I. Brownlie, Principles of Public International Law (7th ed. 2008), at 688). 489

§204

participants

153

become partial members, or why they may partially withdraw from (and return to) organizations while the constitution of these organizations does not mention such 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. In the next chapter, a general survey of organs of organizations will first be presented: the powers of international organs and rules governing their composition and functions will form the focus of that analysis. Subsequently, we will analyze specific types of organs: policy-making and administrative organs in Chapter Four; advisory and supervisory organs in Chapter Five.

CHAPTER THREE

RULES FOR INTERNATIONAL ORGANS

§205 For any organization to function effectively, organs are needed in which 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 founding fathers deem fit for pursuing the organization’s objectives. Subsidiary organs are created subsequently by a decision of one of the organs mentioned in the constitution.1 Some institutional issues are common to all, or at least to most, international organs. The majority of such issues concern 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 specific types of organs: policy-making and administrative organs in Chapter Four, and 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 Sections 2 and 3 below) 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 latter can be found particularly in the area of human rights, but also in other fields. For example, within the ILO: such allegations range from early claims that this organization had no competence to deal with agricultural questions to the South

1

See UNJY 2000, at 354-358. 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 (2nd ed. 2005), at 87 (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. 2

156

chapter three

§207

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 more secure 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 these organizations 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 that 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 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”. The Soviet Union in particular was opposed to this resolution, which it suggested renaming “Disuniting for War”: it did not question the power of the UN in this area, but the power of the Assembly to undertake such actions. The Soviet Union’s opposition to the new ambitions of the Assembly stemmed from its minority position in that organ at the time, whereas in the Security Council it could control decision-making by using its veto power.6 In the 1990s, the Security Council adopted a number of decisions establishing a compulsory mechanism for individual reparation claims against Iraq and applying

3 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 E. Osieke, Unconstitutional acts in international organizations: the law and practice of the ICAO, 28 ICLQ 1-26 (1979); 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). 4 Certain expenses of the United Nations, Advisory Opinion, ICJ Rep. 1962, at 168. 5 J.S. Watson, Autointerpretation, competence, and the continuing validity of Article 2(7) of the UN Charter, 71 AJIL (1977), at 60. 6 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).

§209

rules for international organs

157

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 (referred to as attributed competence, or compétence d’attribution).8 International organizations may not generate their own powers: put another way, they are not competent to determine their own competence.9 Whereas under international law the presumption is that states 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 given to them (normally in the constitution, but exceptionally also in another instrument of international law).10 States are sovereign in the sense that their powers are not dependent on any other authority. By distinction, the powers of international organizations are limited to whatever is necessary to perform the functions that their constitutions have defined.11 Therefore, Reuter has referred to the

7

B. Graefrath, Iraqi Reparations and the Security Council, 55 ZaöRV 1-68 (1995). See further D. Sarooshi, International organizations and their exercise of sovereign powers (2005); N. Weiß, Kompetenzlehre internationaler Organisationen (2009). 9 In the well-known German expression: they have no Kompetenz-Kompetenz; or, in the expression by Böhlau, they have a Competenz-Incompetenz (quoted in Weiß, op. cit. note 8, at 361). 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 2009, the Bundesverfassungsgericht came to the same conclusion in its Lisbon Urteil (judgment of 30 June 2009, www.bverfg.de/entscheidungen/es20090630_2bve000208en.html (March 2011)). 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 (now Art. 352 TFEU). 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 (now: Art. 114 TFEU) attributes a factual Kompetenz-Kompetenz to the EC. The Court of Justice 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. 10 Sarooshi, op. cit. note 8, at 19-27 (referring at 26-27 to the example of the case of Cambodia, “where there were ad hoc conferrals of broad powers of internal governance on the UN through the Paris Peace Accords”). 11 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 8

158

chapter three

§209

“functional” nature of the competence of international organizations. This means both that organizations have no sovereign power – that is, no unlimited power unconnected to the pursuance of specific objectives – and that their competences stretch far enough to include all acts indispensable for the performance of the functions of the organization.12 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.13

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.14 The ‘principle of speciality’ to which the Court refers – for the first time in its case law15 – is synonymous with the principle of attributed powers (or 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). 12 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 e.g. J.A. Barberis, Nouvelles questions concernant la personnalité juridique internationale, 179 RdC (1983 I), at 219. 13 ICJ Reports 1996, at 78 (para. 25). 14 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 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 restrictive application of it in this case, see below, §232 ff. 15 C.F. Amerasinghe, The Advisory Opinion of the International Court of Justice in the WHO Nuclear Weapons Case: A Critique, 10 LJIL 525-539 (1997); J. Klabbers, Global Governance before the ICJ: Re-reading the WHA Opinion 13 Max Planck UNYB 2009, at 1-28.

§209A

rules for international organs

159

attribution principle). The French text of this Advisory Opinion refers to both the “principe de spécialité” and to “compétences d’attribution”.16 This principle has also been referred to as the principle of conferred powers (or the principle of conferral, in French “le principe d’attribution”).17 Sarooshi has distinguished between three types of conferrals of powers to international organizations, which depend on the degree to which powers have been given away by states: conferrals that establish an agency relationship (“a principal empowering an agent to act on its behalf to change certain of its rights and duties”);18 delegations of powers (in contrast to agency, members may not “exert direct control over the way in which conferred powers are being exercized by the organization”); and transfers of powers (in contrast to delegations of powers, transfers of power are generally not revocable and concern exclusive powers of the organization). In practice, specific conferrals of powers do not often belong exclusively to one of these three types, but will often have elements of two of them. §209A In theory, it may be clear that international organizations are only competent to act as far as the powers attributed to them permit, and that they may not use these powers for purposes other than those for which the powers have been given. However, as is often the case, practice is more complex. This can be illustrated as follows. The 1996 Comprehensive Nuclear-Test-Ban Treaty (CTBT), which has not yet entered into force,19 provides for the establishment of a new international organization (the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO)). The aim of the CTBT is to prevent the proliferation of nuclear weapons by prohibiting the testing of such weapons or any other nuclear explosions. The organization has to verify that no such tests are carried out. Pending the entry into force of the CTBT, a Preparatory Commission (PrepCom) has been established to make the necessary preparations, so that a verification regime is operational when the Treaty enters into force.20 This PrepCom – itself an international organization – is responsible for building or establishing 337 facilities (321 monitoring stations and 16 laboratories) around the world to verify compliance with the Treaty.21 These installations make use of sophisticated technology: seismic, hydroacoustic,

16 See also Ch. Chaumont, La signification du principe de spécialité des organisations internationales, in Mélanges offerts à Henri Rolin 55-66 (1964). 17 E.g. European Court of Justice Opinion 2/94, ECR 1996, at I-1787, and Opinion 1/08, 30 November 2009, not yet reported (paras. 110, 131). 18 Sarooshi admits that this type of conferral will in practice not often occur, as there is “a general presumption against the establishment of an agency relationship between an international organization and its member states” – “an international organization with separate legal personality acts on its own behalf and not on behalf of its member states” (op. cit. note 8, at 43). 19 The Comprehensive Nuclear Test-Ban Treaty, concluded in 1996. As of February 2011, 182 states had signed this Treaty, 153 had ratified it. For entry into force it is required that the 44 states holding nuclear power or research reactors in 1996 have ratified the Treaty (Art. XIV and Annex 2 to the Treaty). Nine of these ratifications (China, Egypt, India, Indonesia, Iran, Israel, North Korea, Pakistan, US) are still lacking. 20 Established by Resolution CTBT/MSS/RES/1, adopted 19 November 1996. 21 See www.ctbto.org/the-organization/ctbto-preparatory-commission/standing-asan-international-organization/page-1-status-as-an-international-organization/ (December 2010).

160

chapter three

§209A

infrasound and radionuclide stations are used to monitor vibrations in the earth, the oceans and the atmosphere, as well as to detect the presence of radionuclides in the air. The information gathered by these installations is directly sent to an international data centre at the headquarters in Vienna where it is transmitted to the state signatories, processed, analyzed and reported.22 It is clear that the collection and analysis of these data serve the purpose of verifying compliance with the prohibition to carry out nuclear weapons test explosions or any other nuclear explosion. But could they serve other purposes as well? The doctrine of attributed competences would suggest a negative answer to this question. Powers given for a purpose A cannot be used for a purpose B. While it is likely that states, when signing the CTBT in 1996, would agree to such a negative answer, another answer was given in practice following the devastating tsunami of December 26, 2004, caused by an earthquake of the coast of Indonesia, killing over 230,000 people in fourteen countries. It appeared that the existing CTBT facilities generate data about earthquakes that could be made available to tsunami warning centres more rapidly than other sources of information. As a result, populations could be warned two to two-and-a-half minutes earlier in the event of a tsunami.23 In 2005, the CTBTO PrepCom decided to make its facilities available for these purposes, which are clearly unrelated to the prohibition of the testing of nuclear weapons.24 Since March 2005, it provided data on a test basis to four tsunami warning centres approved as such by UNESCO in Australia, Hawaii, Japan and Malaysia. This proved to be successful, and subsequently the PrepCom concluded tsunami warning agreements and arrangements with a number of member states.25 The data are provided on a strictly confidential basis and can only be used for tsunami warning purposes.26 This demonstrates that, in extreme cases such as this one, strong societal needs can prevail over a strict interpretation of the powers of an international organization that would normally be followed. While in theory this could be considered an example of ‘mission creep’ of international organizations, in practice such mission creep should be welcomed. The formal adaptation of the constitution of the organization is of course the regular way to expand the organization’s activities, but this is usually a process that takes years. In the meantime, it would be overly formalistic if the organization were prevented from acting. In such cases, there should be broad consensus amongst the members about the choices to be made, and the use of the powers of the organization should not violate the rules of the organization. In the case of the CTBTO PrepCom, the ‘tsunami use’ of the powers of the organization should not hamper the use of these powers for their original

22 Information taken from www.ctbto.org and obtained from the CTBTO PrepCom Secretariat (February 2011). 23 See www.ctbto.org/press-centre/press-releases/2008/new-tsunami-arrangements/ (December 2010). 24 In a Special Session held on 4 March 2005, see CTBTO PrepCom Doc.CTBT/PC-24/1. See also Doc. CTBT/PC-24/3/Annex II. 25 See www.ctbto.org/verification-regime/potential-civil-and-scientific-applicationsof-ctbtverification-data-and-technologies/page-1/ (December 2010). 26 UNJY 2006, at 256.

§210

rules for international organs

161

purposes. Moreover, since the PrepCom is carrying out preparatory work pending the entry into force of the CTBT, the arrangements made should ultimately be approved by the CTBTO once it has started functioning. §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 should still be classified as an international organization. The EU has no general power to adopt any measures or any legislation in any field. It only has those powers that the member states have attributed to it.27 Like other international organizations, in accordance with the principle of attributed powers, it always needs to have a legal basis for its activities. As the European Court of Justice has observed with regard to the legal basis for the conclusion of an international agreement by the EC: “the choice of the appropriate legal basis has constitutional significance. Since the Community has conferred powers only, it must tie the agreement that it seeks to conclude to a Treaty provision which empowers it to approve such a measure”.28 The legal basis must lie in a Treaty provision: a reference to practice does not suffice. The European Court of Justice has stated on several occasions that “a mere practice on the part of the Council cannot derogate from rules laid down in the Treaty and cannot therefore create a precedent binding on the Community institutions with regard to the correct legal basis”.29 In the course of the development of European integration, the principle of conferral (as it is usually called within the EU) has been made more and more explicit in the Treaties. It is now emphasized more in the EU Treaties than in any other constitution of an international organization. The principle of conferral is mentioned in Article 1, first sentence, of the TEU: “By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN UNION, herinafter called ‘the Union’ on which the Member States confer competences to attain objectives they have in common”. According to Article 5.1 TEU, first sentence, “[t]he limits of Union competences are governed by the principle of conferral”. The conferral principle is furthermore laid down in Article 13.2 TEU and in a number of other provisions (for example, Article 3.6 TEU, and Articles 7 and 19.1 TFEU). It is defined in Article 5.2 TEU: “[u]nder the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences

27 See D. Wyatt and A. Dashwood, European Community Law (3rd ed. 1993), at 19; Kapteyn & VerLoren van Themaat, The Law of the European Union and the European Communities (4th rev. ed., edited by P.J.G. Kapteyn, A.M. McDonnell, K.J.M. Mortelmans, C.W.A. Timmermans and the late L.A. Geelhoed, 2008), at 138-139 and 218-220; A. Dashwood, The Limits of European Community Powers, 21 ELR 113-128 (1996). See Opinion 1/08, 30 November 2009 (not yet reported), para. 131: “the Community has, as is clear from Article 5 EC [– now Art. 5 TEU –], conferred powers only”. See also Case C-550/07 P, Akzo Nobel v. European Commission and others, 14 September 2010 (not yet reported), para. 116; Opinion of Advocate General Kokott in this case, para. 175. 28 Opinion 1/08, 30 November 2009 (not yet reported), para. 110. 29 Id., para. 172; earlier: Opinion 1/94, ECR 1994, at I-5267, para. 52.

162

chapter three

§211

not conferred upon the Union in the Treaties remain with the Member States”. This ‘non-conferral principle’ in the last sentence of this paragraph must have been fundamental for the members, as it is repeated both in Article 4.1 and in Declaration 18.30 In addition to the ‘non-conferral principle’, the Lisbon Treaty also has provisions in which on the one hand a new competence is given to the Union, but in which on the other hand a sentence is added stating that this shall not “extend in any way” or “affect” the competences of the Union as defined in the Treaties.31 As a result, the EU not only has more extensive competences than other international organizations, it also has more ‘counterbalancing’ provisions such as those containing the ‘non-conferral principle’. This ‘power paradox’ is more visible in the EU Treaties than in any other constitution of an international organization. The abovementioned ‘non-conferral principle’, which emphasizes the sovereignty of the member states, is not unique to the European Union. A somewhat lighter version of it can be found in the statutes of administrative tribunals of international organizations. For example, the UN General Assembly resolution creating the UN Dispute Tribunal and the UN Appeals Tribunal explicitly “affirms” that these tribunals “shall not have any powers beyond those conferred under their respective statutes”.32 3. The concept of domestic jurisdiction §211 The existence of the principle of attributed powers would seem to imply a guarantee for 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 guarantees to ensure that powers would not be interpreted in such a way as to permit intervention by the organization 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’:33

30 Annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon. 31 See e.g. TEU, Art. 6.1, Art. 6.2 and Art. 48.6. See also Protocol 8, Art. 2, and Declarations 1 and 24 annexed to the Treaty of Lisbon. 32 GA Res. 63/253, para. 28. Another example is Art. III, first sentence, of the Statute of the IMF Administrative Tribunal. 33 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, e.g., the OAS Secretary-General 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).

§212

rules for international organs

163

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 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 UN 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.34 In 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.35 Another example is Resolution 688 (1991) of the Security Council, which denounced the repression of the Kurds by Iraq and called 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 intervention in their own reserved domains.36

34 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, A. Pellet and M. Forteau (eds.), La Charte des Nations Unies (3rd ed. 2005), at 485-508; Watson, op. cit. note 5. 35 See Guillaume, op. cit. note 34, at 490-508. 36 See UN Doc. S/PV.2982, at 31-32, 54-56, 62-63.

164

chapter three

§213

§213 A few other constitutions contain similar clauses.37 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 African Union, and the OSCE.38 §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, such clauses provide possible escape routes. Examples can be found in the WTO: Article XII (balance of payments restrictions) and Article XIX (emergency action to protect domestic producers against competitive imports) of the GATT 1994.39 Safeguard clauses have the same endemic danger as domestic jurisdiction clauses: they may be invoked too often, and frequently in situations for which they were not written. In this respect, there is a crucial difference between organizations which have and organizations which 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 EU Court has been strict in supervising the use of safeguard clauses, emphasizing that exceptions should be interpreted restrictively.40 Organizations with no judicial organ face the danger that members, in balancing the goals of the organization and their own short-term interests, will prefer to give priority to the latter: there is no built-in safeguard for the organization.

37 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”, that is, also to organizations the constitutions of which do not contain 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. 38 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). 39 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). 40 This is standing case law of the Court. See e.g. 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.

§215

rules for international organs

165

§215 The European Union has no domestic jurisdiction clauses similar to those of the League of Nations or the UN. Like constitutions of international economic organizations, the EU Treaty and the Treaty on the Functioning of the EU have a number of safeguard clauses, such as Articles 36 and 143 TFEU. Nevertheless, given what has been said above, it is not surprising that, parallel to the expanding 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 1992 Treaty founding the European Union provided that the objectives of the Union shall be achieved “. . . while respecting the principle of subsidiarity as defined in Article 5 of the Treaty establishing the European Community”.41 The 2007 Lisbon Treaty has moved this definition – with some minor changes – to Article 5.3 TEU: Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member states, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

The function of the principle of subsidiarity is comparable to that of domestic jurisdiction clauses: to preserve the reserved domain of the member states and ensure that existing powers 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 . . .”.42 Nevertheless, this interpretation has left the precise content, nature, and scope of this principle as uncertain as before.43 What is clear, however, is that the scope of this principle

41

TEU, Art. 2, last sentence. 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), 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 101. 43 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 42

166

chapter three

§216

is limited. It is not applicable to areas in respect of which the Union has exclusive competence (for example, the common commercial policy, and most parts of the agriculture, fisheries and transport policies), or in which it has no competence at all. It only applies to areas where there is a concurrent competence of the Union and the member states. In these areas, this principle obliges the Union legislator to justify why, when legislation is proposed, “a Union objective can be better achieved at Union level”.44 National parliaments of the member states may question this by sending a reasoned opinion to the Presidents of the European Parliament, the Council and the Commission.45 Although such questioning is not binding, it may of course trigger resistance against the proposed legislation. The justification for Union legislation may be reviewed by the Court of Justice. However, it seems that the wording of Article 5.2 TEU leaves considerable room for interpretation for the Union legislator (in particular, the words “sufficiently”, “better”), and therefore more limited room for review by the Court. This has been confirmed in the few cases in which the observance of the principle of subsidiarity was at issue.46 At the end of the day, it may very well be that the principle of subsidiarity is much more important as a political principle, facilitating the opening of the window to more activities and powers by the Union, than as a legal principle, curbing the exercise of powers by the Union. §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 effective 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 the inclusion of such clauses members would have been more reluctant to attribute powers to organizations.47 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 (for example, the ‘Kurds’ Resolution 688 of the Security Council, referred to above, §212). Domestic jurisdiction clauses are symbols of

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). 44 Protocol on the application of the principles of subsidiarity and proportionality, see OJ 2008, C 115/206 (Art. 5). 45 Id., Arts. 6-7; Art. 12(b) TEU. See on this role for national parliaments (the ‘early warning’ or ‘orange card’ mechanism) J.-V. Louis, National Parliaments and the Principle of Subsidiarity – Legal Options and Practical Limits, 4 EUConst 429-452 (2008). 46 C.W.A. Timmermans, in Kapteyn & VerLoren van Themaat, op. cit. note 27, at 143. 47 Cf. Sarooshi, op. cit. note 8, at 31, 121 (“. . . as a state confers powers to a greater degree on an organization, there will often be more pressure exerted by the state – often as a result of increased domestic political pressures – to try and control the organization’s decisions”).

§217

rules for international organs

167

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”.48 Generally, these clauses have rarely prevented international organizations from carrying out their activities, despite the fact that such provisions have often been invoked.49 This is partly due to the wording used. 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 International 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”.50 As is so often the case, it is useful to be aware of the experience of 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 Union and the member states is concerned. One of the important findings of the Court has been that, in delimiting whether the EU is competent, to the exclusion of the member states, to participate in an international agreement in the area of 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”.51 In general, the work of the Court of Justice has shown the importance of having a judicial organ within the institutional structure of an international organization. It has been of particular use in delimiting the scope of safeguard clauses and in resolving 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 interference in what remains of their reserved domain, this experience might prove useful for other organizations as well. 4. Attribution of powers to organs of the organization §217 Sometimes all the powers of the organization are vested in its general congress.52 Most organizations, however, within their general competence, give more

48 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. 49 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. 50 Nationality Decrees Issued in Tunis and Morocco, PCIJ Rep. 1923, Series B, No. 4, at 23. 51 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. 52 E.g. 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”.

168

chapter three

§218

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”.53 The drafters of the UN Charter decided to lay down a true division of tasks between the Assembly and the Security Council. However, as has been seen in relation to 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.54

§218 The definition of the competences of organs is sometimes vague because the organ may only issue recommendations, and has no power to take decisions that are binding on the member states. As soon as organs have the competence to take binding decisions, however, their powers will usually be defined more strictly. Within the EU, the Economic and Social Committee “may issue an opinion on its own initiative in cases in which it considers such action appropriate”;55 the Committee of the Regions has the same competence.56 The areas where EU institutions 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 in relation to 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.57 In most international organizations, there is no possibility of judicial 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.58

53

LoN Covenant, Art. 3.3 and Art. 4.4. UN Charter, Art. 10. 55 TFEU, Art. 304. Opinions “shall have no binding force” (TFEU, Art. 288). 56 TFEU, Art. 307. 57 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. 58 Id. See also the WHO Nuclear Weapons Advisory Opinion of the ICJ, ICJ Rep. 1996, at 82-83. 54

§220

rules for international organs

169

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 of 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”.59

§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, which governs the relations between Parliament, Commission and Council.60 According to this principle, these institutions, in exercising their competences, have to respect each other’s competences. It enables the Court of Justice “to ensure that one institution does not undertake an act of institutional ‘self-aggrandizement’ so as to ‘deprive the other institutions of a prerogative granted to them by the Treaties themselves’ ”.61 In 1990, the Court for the first time specified its own role in 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. . . .62

§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 it is nevertheless different. The rise of the separation of powers principle in the 18th and 19th centuries was essentially 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 dangers posed

59 UNJY 1982, at 180. The UNJY provides many other examples of such questions; see e.g. UNJY 1992, at 440-443. 60 See G. Guillermin, Le principe de l’équilibre institutionnel dans la jurisprudence de la Cour de Justice des Communautés européennes, 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); J.-P. Jacqué, The principle of institutional balance, 41 CMLRev. 383-391 (2004); A. Fritzsche, Discretion, scope of judicial review and institutional balance in European law, 47 CMLRev. 361-403 (2010), in particular at 381-387. 61 D. Curtin, Executive Power of the European Union – Law, Practices, and the Living Constitution (2009), at 57 (referring to Case 149/85, Wybot, ECR 1986, at 2391). 62 Case C-70/88, Parliament v. Council, ECR 1990, at 2073; see also Case C-133/06, European Parliament v. Council of Ministers, ECR 2008 I-3189, para. 57.

170

chapter three

§222

by 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 EU Treaties and has not been considered subsequently to be implied in the Treaties by the Court.63 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,64 although it has been referred to within the context of a WTO dispute settlement procedure.65 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 EU. 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, and qualifying all kinds of conflicts (some almost exclusively internal) as “threats to international peace and security”.66 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 fact that the Council is 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 itself has observed on numerous occasions: “[b]oth organs can therefore perform their separate but complementary functions with respect to the same events”.67 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).68 Nevertheless, some of

63 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. 64 On principles governing the relations between organs of international organizations, see also Monaco, op. cit. note 63, at 119-128. Cf. also §1243. 65 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. 66 See G. Gaja, Réflexions sur le rôle du Conseil de Sécurité dans le nouvel ordre mondial, 97 RGDIP 297-319 (1993). 67 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). 68 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 Jus-

§223

rules for international organs

171

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”.69 This is essentially what the EU principle of institutional balance (§220-221) is about. §223 Apart from the specific relationship between the International Court of Justice and the Security Council, reference is made only occasionally to the concepts of institutional balance and separation of powers in organizations other than the EU. 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. 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.70

tice 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). 69 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 63, 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. 70 UNJY 1982, at 190-191.

172

chapter three

§224

In subsequent legal opinions, the UN’s Office of Legal Affairs has further analyzed this relationship, referring to the General Assembly as a “quasi legislative body” and the Secretary-General as a “quasi executive body”. The Office criticized the General Assembly for ‘micromanaging’ the Secretariat too much, stating that the Assembly “should more properly concern itself with the reasonableness of the overall budgetary envelope, rather than a detailed line item analysis, and should leave the Secretary-General a margin of managerial discretion within which to effectively implement the work programme”. “In general constitutional terms, it appears more proper for the General Assembly to only direct the Secretary-General on broad and general issues, leaving the specifics of administration to the Secretary-General”.71

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.72 Even when constitutions contain no such provisions, subsidiary organs are still created to which powers are delegated.73 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,74 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 proliferation. In 1973, 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.75 In 1974, the General Assembly took a similar decision.76 The International Energy Agency reserved the power to create new organs to its principal organs.77 In 1991, the Office of Legal Affairs of the UN Secretariat concluded in a legal opinion that

71

UNJY 2006, at 458-466 (quotations at 463, 466). 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. Cf. also UNJY 2008, at 437 (“normally, a body established by an entity first reports to the establishing entity, unless otherwise decided”). 73 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). 74 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. 75 ECOSOC Resolutions 54th session, UN Doc. E/5367, at 34; YUN 1973, at 593. See also UNJY 1973, at 157. 76 GA Res. 3351 (XXIX)1,5, YUN 1974, at 920, 922. See also GA Res. 31/140, para. 6d. 77 IEA, Art. 49. 72

§225

rules for international organs

173

“[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”.78

§225 To what extent may the powers of organs be delegated to other, inferior, organs?79 Apart from possible constitutional limitations, 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;80 and (2) responsibility may not normally be transferred. §226 Both restrictions were illustrated by the European Court of Justice in the First Meroni Case.81 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 decisions, the duty to publish annually a general report, and the possibility of judicial review by the EC Court). The Court therefore considered the delegation contrary to the ECSC treaty. It stated: [T]he 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. 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.

78

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. 80 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. 81 Case 9/56, Meroni, ECR 1957-58, at 151-152. See Schermers and Waelbroeck, op. cit. note 40, at 361-363. 79

174

chapter three

§227

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 a 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 that organ should protect. Those 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, which is applicable in other international organizations as much as in 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 lawful 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,82 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. With the agreement of the state concerned, the UN has sometimes created subsidiary organs which could deal more directly with individuals than the delegating organ itself.83 §227A The two general restrictions to the power of delegation – illustrated by the European Court of Justice in Meroni – will often become relevant in cases in which a (parent) organ actively uses 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 abovementioned restrictions (§225). Two examples may be given, dealing with these restrictions.

82 83

UN Charter, Art. 29. P. Manin, L’Organisation des Nations Unies et le maintien de la paix (1971), at 157-159.

§227B

rules for international organs

175

§227B In 1993, the Security Council established the Ad Hoc Tribunal on War Crimes in the Former Yugoslavia.84 One of the key issues surrounding the Tribunal was the question of whether it was established lawfully. In this context, one of the principal queries was the question of whether 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,85 in literature86 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”.87 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.88

The Appeals Chamber therefore took the view that the Council could establish a subsidiary organ to perform functions the Council could not itself exercise.89 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.90 §227C The second general restriction on the power of delegation is the prohibition against transfer of responsibility. A parent organ may not ‘delegate away’ its responsibility. Again, the Security Council practice of the 1990s offers an example.

84

Resolutions 808 and 827. See §608 below. 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). 86 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). 87 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). 88 Id., para 38. 89 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, 92 AJIL 66-70 (1998). 90 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). 85

176

chapter three

§228

In numerous resolutions, it authorized ‘coalitions of the able and willing’ to use force.91 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 being maintained by the Council over the implementation of the authorization by the coalition.92 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.93 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 against transferring responsibility, it comes down to the same rejection of attempts to ‘delegate away’ responsibilities. The question considered 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”.94 (Emphasis added.)

§228 Within the European Union, issues relating to the delegation of powers have emerged in different contexts. For example, it has been questioned 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.95 This is different in cases in which a legislative act delegates to the Commission the power to adopt “non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act”.96 This provision, introduced in the 2007 Lisbon Treaty, explicitly requires

91 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. 92 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”. 93 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). 94 UNJY 1991, at 286. 95 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. 96 TFEU, Art. 290.1.

§228

rules for international organs

177

that “[t]he essential elements of an area shall be reserved for the legislative act and accordingly shall not be the subject of a delegation of power”.97 The legislative acts concerned must explicitly define the objectives, content, scope and duration of the delegation of power, as well as the conditions to which the delegation is subject.98 Therefore, although decision-making power is delegated, delegation is limited to the “non-essential elements” of legislative acts, and must take place within limits laid down in the legislative act concerned. Questions concerning the delegation of powers and the balance of power have 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: at the end of 2009 there were more than thirty,99 employing more than 3,800 statutory staff and disposing of a total annual budget of €1.1 billion.100 Examples are the European Environment Agency, the European Medicines Agency, the Community Plant Variety Office, the European Defence Agency, the European Chemicals Agency, the European Institute for Gender Equality, and the European Union Agency for Fundamental Rights. These agencies are independent legal persons and have a wide variety of tasks: from limited tasks in very specific policy fields (the first group of agencies created in the 1970s) to more far-reaching and regulatory tasks (those established since 2000).101 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”.102 By creating agencies, more – and often rather specific – tasks can be carried out within the EU, making greater use of scientific and technical expertise. They “form an alternative to both national sovereignty, which in the face of globalization in many areas is increasingly unrealistic, and the centralization of power in supranational organizations, which often is undesirable in view of the subsidiarity principle”.103 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 when compared with cases in which the Commission itself is performing such functions? To what extent are decisions

97

Id. TFEU, Art. 290, paras. 1 and 2. See further the Communication from the Commission to the European Parliament and the Council on the implementation of Art. 290, Doc. COM(2009)673 final. 99 See Curtin, op. cit. note 61, in particular at 146-150; M. Groenleer, The Autonomy of European Union Agencies (diss. Leiden, 2009), with a list of EU agencies in Appendix I (both with extensive references to further literature). Curtin and Groenleer speak of accelerating ‘agencification’ in the EU. Groenleer’s dissertation offers an empirical study of six agencies, focussing on the development of their autonomy after they were created. 100 S. Griller and A. Orator, Everything under control? The ‘way forward’ for European agencies in the footsteps of the Meroni doctrine, 35 ELR 3-34 (2010). 101 Curtin, op. cit. note 61, at 148. 102 E. Vos, Reforming the European Commission: what role to play for EU Agencies?, 37 CMLRev. 1113-1134 (2000), at 1116. 103 Groenleer, op. cit. note 99, at 377. 98

178

chapter three

§228

by agencies subject to judicial review? To what extent must the abovementioned Meroni principles (§226) be strictly applied?104 Another delegation issue in the EU has been the question of 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.105 The principle of collective responsibility of the Commission as a whole must always be respected.106 The Court has always been strict in relation 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.107 The power to sign letters on behalf of the Commission could be delegated to individual Commissioners and to their high officials.108 Powers may also be delegated by the EU to another international organization. In this context, the Court has stated that the Union 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”.109 This includes the possibility of the Union 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 [Union] institutions, including the Court of Justice”.110

104 Vos, op. cit. note 102. 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). According to Curtin, op. cit. note 61 (at 145-146), until now there has not been a “full-scale delegation by the Commission of its own discretionary decision-making power [. . .]”; “[a] clear breach of Meroni in this manner does not, in my view, exist yet in the existing topography of EU agencies. Yet what remains problematic – at the very least constitutionally fuzzy – is the continued creation and operation of agencies that are not formally ‘delegated’ existing treaty-based powers as such by a specific EU institution but rather by the Union legislator, including powers previously held by the Member States”. See also Griller and Orator, op. cit. note 100, who are in favour of a “cautious reassessment of the Meroni doctrine which would allow for more flexibility while, at the same time, respecting the mentioned constitutional limits. [. . .] The essential element is that, on an overall assessment, policy-shaping must remain with the legislative organs, and implementation must remain with Union institutions (and Member States)” (at 31). 105 Commission, Rules of Procedure (OJ 2000, L 308/26), Rule 13. 106 Id. 107 See Case C-137/92 P, Commission v. BASF and Others, ECR 1994, I-2555, concerning a decision finding an infringement of the 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 27, at 228-229. 108 See Commission, Rules of Procedure, Rules 25-27; Case 48/69, ICI, ECR 1972, at 649-650. See further: Schermers and Waelbroeck, op. cit. note 40, at 372-373 (with references to case law). 109 Opinion 1/76 of the EC Court, Laying-up Fund, ECR 1977, at 755-756. 110 Opinion 1/91, EEA Agreement, ECR I-6106 (1991).

§229

rules for international organs

179

§229 May powers be delegated to member states? This question has arisen several times in the European Union. 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.111 But in another case, dealing with a situation in which 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.112 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 the tasks of the organization to one or more 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.113 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 organ,114 and it may usually revoke its decisions.115 A delegation of powers does not normally include a sacrifice of powers (however, see below, §231). C. Sacrifice of powers §231 The reasoning in 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.

111

Case 30/70, Scheer, ECR 1970, at 1207-1208. Case 23/75, Rey Soda, ECR 1975, at 1302, 1306. 113 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”. 114 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). 115 See e.g. UNJY 2004, at 340-341 (on the power of ECOSOC to override decisions of the Commission on Human Rights). 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. 112

180

chapter three

§232

(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.116 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 within 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, for example 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”.117

(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 powers118 §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

116

Effect of Awards, ICJ Rep. 1954, at 61. UNJY 1985, at 138-139. 118 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; 117

§232

rules for international organs

181

possible to lay down an exhaustive list of powers of the organization in a constitution, inter alia because any organization needs to respond to developments in practice which cannot be foreseen when it is created.119 Therefore, other foundations for the organization’s activities exist: 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 and scope of such powers. Implied powers should be distinguished from customary powers. The basis for the former category are powers or functions 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 the creation of new powers for it.120 Thus implied powers are founded on powers or functions 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

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. (eds.), Law of Nations, 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 ZŐR 353-388 (1997); V. Engström, Implied Powers of International Organizations: On the Character of a Legal Doctrine, XIV Finnish Yearbook of International Law 2003, at 129-157. On their national constitutional roots, see also J. Becker, Die Anwendbarkeit der Theorie von den Implied Powers im Recht der Europäischen Gemeinschaften (1976). 119 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 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). 120 See also Weiß, op. cit. note 8, at 368-369; J.E. Alvarez, International Organizations as Law-makers 92 (2005). White refers to “the practice of the organization, which creates ‘customary constitutional law’ that gradually fills in the legal framework created by the constitutive document” (N.D. White, The Law of International Organizations 71 (2nd ed. 2005)). Earlier, E. Lauterpacht has observed that it must be assumed that members accept this when joining an international organization: “[i]t is probably necessary to recognize that recourse to the practice of international organizations now stands on an independent legal basis; that is to say, that there exists a specific rule of the law of international organization to the effect that recourse to such practice is admissible and that states, on joining international organizations, impliedly accept the permissibility of constitutional development in this manner” (E. Lauterpacht, The Development of the Law of International Organization by the Decisions of International Tribunals, 152 RdC 460 (1976)). On the relevance of the ‘practice of the organization’ for the interpretation of the law of international organizations, see below, §1347.

182

chapter three

§233

to the constitutional treaty”.121 Implied powers will usually be more controversial than customary powers, because the passage of time might change the scope of powers members want to “read into the organization’s statute”. 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 the existence of 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. It may be difficult, however, to establish the origin and extent of the powers implied. Occasionally, a distinction is made between powers implied from explicit powers, and 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.122 To determine the extent of the powers implied, another question is generally posed: is the power in question necessary or essential for the organization to perform its functions?123 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 the relevant implied powers. This has been proved by the case law of the ICJ and of the European Court of Justice. The International Court of Justice accepted the theory of implied powers in its Reparations for injuries suffered in the service of the United Nations Advisory Opinion, which in a way was 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

121 Skubiszewski, op. cit. note 118, at 856-857; quotation at 860. As stated by Weiß: “[b]ei impliziten Kompetenzen geht es aber [. . .] nicht um eine Erweiterung der Kompetenzen einer Organisation, sondern darum, ihr bereits zustehende – sozusagen verdeckt mitgeschriebene – Kompetenzen sichtbar zu machen” (op. cit. note 8, at 363). 122 Id., at 857-859. Cf. also the dissenting opinion by Judge Hackworth in the Reparations for Injuries case, ICJ Rep. 1949, at 196-204. 123 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.

§233

rules for international organs

183

has been explicitly attributed to the UN in the Charter. In its advisory opinion of 11 April 1949, 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.124 The Court concluded that UN agents, in carrying out their functions, must be ensured of effective protection by the UN: 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.125 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 international tribunal. The Court answered this question in the affirmative.126 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 of the UN Charter clearly indicated that it should be the General Assembly. In its 1996 WHO Advisory Opinion, the ICJ – referring to the abovementioned 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”).127 However, unlike in 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.128 This restrictive application should probably be

124 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. 125 ICJ Rep. 1949, at 184. 126 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 118, at 185-195. 127 ICJ Rep. 1996, at 79. 128 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.

184

chapter three

§233A

understood in the specific context of this case and in the light of the other ‘Nuclear Weapons’ Advisory Opinion delivered on the same day, in which the Court had the opportunity to deal with questions similar to those requested in the WHO case.129 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. The EU Court has accepted the theory of implied powers in a number of cases,130 and 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”.131

§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 such limits.132 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 imposed, potentially, by the existence of certain explicit powers in the area concerned.133 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”.134 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 of whether “the negotiation of ‘special agreements’ is, according to the spirit of the Charter,

129 Cf. however J. Klabbers, An Introduction to International Institutional Law (2nd rev. ed. 2009), at 69-71. 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: “[w]hile it is clear that the doctrine played a useful role when organizations were still in development, and 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 69). 130 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 40, at 374-375; Lenaerts and Van Nuffel, op. cit. note 2, at 92-94. 131 Case 8/55, Fédéchar, ECR 1954-56, at 299. 132 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. 133 See in particular A.I.L. Campbell, The Limits of the Powers of International Organizations, 32 ICLQ 523-533 (1983). 134 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.

§233A

rules for international organs

185

such a basic one that, if such agreements are not concluded, the action ordered should not be undertaken”.135 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, except perhaps its finding in the Wall Advisory Opinion that the General Assembly could meet in Emergency Special Session at a time when a regular session was in progress: while this “may not have been originally contemplated [. . .], no rule of the Organization has been identified which would be thereby violated”.136 Campbell’s conclusion is correct: “the exercise of powers would have to be such as would not substantially encroach on, detract from, or nullify other powers”.137 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 restriction would result in the organization being unable to perform its functions. Thirdly, the use of implied powers may not violate fundamental rules and principles of international law.138 As an example, Gill refers to the 1971 Namibia Opinion.139 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”.140 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”.141 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.142 This limitation was important in the Certain Expenses case, in which one of the core questions was the scope of the powers of

135

ICJ Rep. 1962, at 298. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, at 136 (quotation at 152). 137 Campbell, op. cit. note 133, 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). 138 Gill, op. cit. note 137, 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). 139 Id., at 71-72. 140 ICJ Rep. 1971, at 55. 141 Id. 142 Campbell, op. cit. note 133, at 529-532. Cf. also Sarooshi, op. cit. note 90 [BYIL 1996], at 458-477. 136

186

chapter three

§234

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 the exercise of this waiver power in practice.143 The notion of implied powers has also sometimes found its way into explicit constitutional provisions. 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”.144 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”.145 Such explicit implied powers provisions are not limited to technical organisations such as these two. For example, the 1994 Agreement on Implementation of the Seabed Provisions of the Convention on the Law of the Sea provides the following, in relation to the powers of the International Seabed Authority: “[t]he powers and functions of the Authority shall be those expressly conferred upon it by the Convention. The Authority shall have such incidental powers, consistent with the Convention, as are implicit in, and necessary for, the exercise of those powers and functions with respect to activities in the Area”.146

§235 The most well-known explicit implied powers provision is Article 352.1 TFEU: [i]f action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures.147

143 J. Gold, Dispensing and Suspending Powers of International Organizations, 19 NedTIR 169200 (1972), at 179. 144 Convention establishing the European Centre for Medium-Range Weather Forecasts, Art. 4. (Trb. 1974, No. 7 at 43). 145 Convention establishing EUMETSAT, Art. 5.1. 146 Annex, Section I, paragraph 1. 147 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 & VerLoren van Themaat, op. cit. note 27, at 220-224; I.E. Schwartz, in: H. von der Groeben and J. Schwarze (eds.), Kommentar zum Vertrag über die Europäische Union und zur Gründung der Europäischen Gemeinschaft (6th ed. 2003), Band 4, at 1665-1743 (with extensive references to further literature); A. Dashwood, The Limits of European Community Powers, 21 ELR 113-128 (1996), in particular at 123-126; V. Engström, How to Tame the Elusive: Lessons from the Revision of the EU Flexibility Clause, 7 IOLR 343-373 (2010).

§235

rules for international organs

187

This provision contains the essential elements of the implied powers doctrine: it applies where the explicit powers are considered insufficient for the organization, and additional powers may be considered implied as far as necessary to enable the organization 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.148 However, the preferable point of view seems to be that Article 352 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 no explicit power, there can be no implied power. On the basis of Article 352, however, new powers may be created.149 Article 352 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 TFEU. As the EU 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 [Union] 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 [Union]. On any view, Article [352] 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.150

If a particular goal (for example the creation of an Economic and Monetary Union) cannot be attained by creating new powers under Article 352, the list of objectives has to be expanded by amendment of the Treaty, through a more extensive procedure (which would require, inter alia, ratification by all member states) than the procedure laid down in Article 352. The latter is still a weighty procedure, but extension of the powers of the Union 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 352. However, in a number of cases, the Court has emphasized the subsidiary function of Article 352. Recourse

148 See for references to literature: C. Denys, Impliciete bevoegdheden in the Europese Economische Gemeenschap, (1990), at 307-308. 149 See Denys, op. cit. note 148, at 307-316; Kapteyn & VerLoren van Themaat, op. cit. note 27, at 224-226. 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). 150 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)).

188

chapter three

§236

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”.151 The implied powers doctrine is therefore applicable within the Union.152 Nevertheless, it has been of limited importance in practice, outside the area of external relations. An explanation for this is that the existing powers in the Treaties, from which implied powers have to be derived, are carefully defined and not very broad.153 Furthermore, due to the very existence of Article 352, which allows 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.154 However, international organizations are not federal states. The ICJ and the European Court of Justice operate in an environment different from that of the US Supreme Court: as a result, these courts are more likely to confront the limits of the implied powers doctrine than is the US 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.155 The General Assembly apparently considered the awarding of service distinctions to be 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 . . .”.156 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.157

151 E.g. Case 45/86, Commission v. Council, ECR 1987, at 1520. Also, e.g.: Opinion 2/94, ECR 1996, at 1787 (para. 30); Joined Cases C-402/05 P and C-415/05 P, Kadi v. Council and Commission; Al Barakaat v. Council and Commission, ECR 2008, at (para. 203). 152 Denys, op. cit. note 148; D. McGoldrick, International Relations Law of the European Union (1997), in particular chapter three; M. Nettesheim, Kompetenzen, in A. von Bogdandy, Europäisches Verfassungsrecht – Theoretische und dogmatische Grundzüge (2003), in particular at 433-439; Lenaerts and Van Nuffel, op. cit. note 2, at 92-94; Weiß, op. cit. note 8, at 367. 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). 153 Kapteyn & VerLoren van Themaat, op. cit. note 27, at 224-226. 154 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. 155 Seyersted, op. cit. note 154, at 153. 156 UN Charter, Art. 73(e). 157 R. Zacklin, The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies, (1968), at 188-195.

§237

rules for international organs

189

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, in particular those with 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: (1) Non-plenary organs should be small to enable efficient decision-making and to keep their costs at a reasonable level (the ‘efficiency’ factor). (2) In order to have expert knowledge regarding all relevant aspects for the organization’s work, and to maintain 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 need to take decisions, 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 presented is more important than fast and efficient decision-making. Parliamentary organs are therefore usually large. The Parliamentary Assembly of the Council of Europe has 318 representatives, the European Parliament 736. Judicial organs usually try to operate with fewer 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 1973.158 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

158 See R. Lagoni and O. Landwehr in Simma (ed.), op. cit. note 34, 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).

190

chapter three

§238

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”.159

B. 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, in the same way as member states of international organizations, which 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.160 1. Representation by a delegation161 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.162 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 differ-

159 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. 160 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). 161 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. 162 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.

§240

rules for international organs

191

ent 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 Members of delegations do not act in their personal capacity: they represent the member states of the organization. Therefore, member states instruct their delegations as to how they 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.163

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 from arising within a delegation between people belonging to different departments; national governments can be confident that their policies will be carried out; and other delegations are certain that the points of view expressed by 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 that 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.164 §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

163 E. Hambro, Some notes on parliamentary diplomacy, in: W. Friedmann et al. (eds.), Transnational Law in a Changing Society 280-297 (1972), at 287. 164 H.G. Schermers, Integratie van Internationale Organisaties, inaugural address at Leiden, 30 June 1978, at 12-14.

192

chapter three

§242

reluctance on the part of a government to make early concessions.165 In practice, further briefing during sessions is only sought in exceptional cases.166 c. 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”.167 The organization is principally interested in the presence of a delegation that 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”.168 Some delegations number more than fifty members.169 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.170 In the general congresses of other organizations, the prescribed number of representatives varies from one (for example, FAO, WIPO, OPCW), “not more than three” (WHO) to “not more than five” (UNESCO, World Tourism Organization). Some constitutions do not specify the number of delegates (for example, 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.171 On many occasions, especially when compromises had to be reached,

165 J.N. Hyde, United States Participation in the United Nations, 10 International Organization (1956), at 25. 166 UN Doc. E/4844, at 9. 167 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. 168 Rule 25 of the rules of procedure of the UN General Assembly. 169 Baehr, op. cit. note 161, at 10. 170 Art. 16 TEU and Art. 5.3 of the Rules of Procedure of the Council. 171 Europa van Morgen (1973), at 224. This rule is still followed.

§243

rules for international organs

193

this number was gradually reduced until the ministers finally negotiated among themselves. d. Composition of delegations (i) 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.172 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, who may commit the government of the member state in question and cast its vote”.173 The European Council is composed of “the heads of state or government of the member states together with its president and the president of the Commission”.174 Several other regional organizations also require their members to appoint members of government in their delegations to the organization’s main organ. For example, in the African Union the Assembly, the supreme organ, is composed of “heads of states and government or their duly accredited representatives” (Article 6.1).175

§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

172 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). 173 Art. 16.2 TEU. 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, who may to commit the government . . .”. 174 Art. 15.2 TEU. 175 Art. 6.1 of the Constitutive Act of the AU.

194

chapter three

§245

within the different governments. The Statute of the Council of 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 adequate 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, when in some countries the competence for integration matters is assigned to a minister or secretary of state other than the minister of foreign affairs, member countries may be represented at the Council, with full powers, by the respective minister or secretary”. Article 14 of 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).176

§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 problem 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. 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).177

176 See further G. De Vel, Le Comité des Ministres du Conseil de l’Europe (1994), at 15-16 and 116-122. 177 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.

§247

rules for international organs

195

§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, on 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, for example at the first ministerial meeting of the Security Council on the situation in Africa, on 25 September 1997, and at the adoption of the Security Council Declaration on the global effort to combat terrorism, on 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.178 Subsequently, the Security Council met on this highest level on 7 September 2000,179 on 14 September 2005,180 on 23 September 2008,181 and on 24 September 2009.182 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”). Twice a year it meets at the level of Foreign Ministers and at the level of Ministers of Defence. On occasion, it meets at “summit level” (Prime Ministers, Heads of Government or State).183 The same is true for other organs, for example the EFTA Council.184

§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).185 The ILO constitution (Article 3.2) requires at

178

See UN Doc. S/23500. See UN Doc. S/PV.4174 and SC Res. 1318. 180 See UN Doc. S/PV.5261 and SC Resolutions 1624 and 1625. 181 See UN Doc. S/PV.5979 and Presidential Statement 2008/36. 182 See UN Doc. S/PV.6191 and SC Res. 1887. 183 See www.nato.int/cps/en/natolive/topics_49763.htm (December 2010). 184 See www.efta.int/about-efta/efta-council/stucture-of-the-efta-council.aspx. (December 2010). 185 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 179

196

chapter three

§249A

least one of the advisers to the delegation to 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 of the BIS Statutes).

§249A If the constitution does not contain specific requirements for the composition of delegations, it is for the members to decide how their delegations are composed. In 1997, the government of Saint Lucia included two specialist legal advisers (not fulltime government employees of Saint Lucia) in its delegation for the oral hearings in a case before the Appellate Body of the World Trade Organization. The complaining parties in the dispute were opposed to this inclusion, arguing that “the law of diplomatic representation does not give states carte blanche as to whom they may appoint to their delegations” and that participation of outside counsel in delegations is only permitted in the practice of other international organizations and tribunals in accordance with specific written rules to this effect. The WTO Appellate Body decided that it could find nothing in WTO law, customary international law or the prevailing practice of international tribunals “which prevents a WTO member from determining the composition of its delegation in Appellate Body proceedings”. It therefore ruled “that it is for a WTO member to decide who should represent it as members of its delegation in an oral hearing of the Appellate Body”.186

(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 non-government delegates in agreement with industrial organizations – if such organizations exist – that 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 (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 non-government 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

Commissions. The text of this Charter is included in a publication by UNESCO, Basic Texts (2010 edition), at 147-153. 186 See WTO Doc. WT/DS27/AB/R, at 5-6.

§251

rules for international organs

197

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.187 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 developing countries. In 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”.188 In this 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 the problem was 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 keeping their parliament involved in the work of the organization in this way, 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.189

187 Prepared by the ILO Committee on Freedom of Employers’ and Workers’ Organizations (the “McNair Committee”). 188 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). 189 The Provisional List of Delegations to the 64th Session of the General Assembly contains the names and positions of members of the delegations of 182 member states (see www.un.int/ protocol, December 2009). From this list, it appears that at least 24 delegations include members of parliament (e.g. delegations from Australia, Bhutan, Denmark, Ghana, India, the Philippines and South Africa). 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.

198

chapter three

§252

§252 It may be doubted whether the inclusion of parliamentarians in 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 unwilling 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.190

(iv) Foreign delegates191 §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.192 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.193 Even if they grant such approval, host states often refuse or restrict privileges and immunities to delegates of their own nationality.194 Sometimes privileges and

190 191 192 193 194

Information obtained from the Dutch Ministry of Foreign Affairs (October 1994). See also Kaufmann, op. cit. note 161 [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.

§254

rules for international organs

199

immunities are also denied to nationals of a third state.195 The UN Secretariat has (rightly) objected to the latter practice (followed in the US).196 The use of nationals of a third state may be of interest to the state that sends them and to the organization, but it 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.197 (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 from doing 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 be 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 does not serve any purpose. Sometimes states share a particular interest in the work of an organization. Such an interest might justify the sending of a common delegation. Denmark, Finland, Norway and Sweden agreed to appoint a joint negotiating delegation to the Kennedy Round trade negotiations, within the framework of the GATT.198 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.199

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

195 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). 196 UN Doc. A/CN.4/L.118, paras. 82-86. 197 For objections, see Statement of the UN office of Legal Affairs, UNJY 1973, at 156-157. 198 The agreement for such a joint delegation has been reproduced in 36 NorTIR (1966), at 128-129. 199 J. Syz, International Development Banks (1974), at 30; information from www.caribank .org.

200

chapter three

§256

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 follow an approach also used elsewhere, for instance in national parliaments.200 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 get to know each other. In larger organizations, this is often impossible. Delegates will then have to prove that they are representing their states. Such proof is given by way of ‘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 must 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.201 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 for technical organizations.202 When a Head of State or Government, or a Minister of Foreign Affairs represents his country, no credentials are required.203 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.204 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

200 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). 201 1975 Vienna Convention, Art. 44. 202 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. 203 See UNJY 2005, at 460-461. 204 ECSC, Art. 21; EC, Art. 138; Euratom Art. 108.

§258

rules for international organs

201

of a parliamentarian.205 The Consultative Interparliamentary Council of Benelux follows the same procedure as the European Parliament did before its direct election.206

A particular problem arose in relation to the representation of Iraq in the UN following the military invasion in 2003. In the absence of a sovereign government in Iraq, there was no recognized authority to issue credentials. On 12 July 2003, the UN Office of Legal Affairs (OLA) issued its views on the matter in a Note to the Secretary-General. OLA stated that, Iraq’s Governing Council was not a sovereign government but an entity instituted by the occupying powers. “[I]n order to avoid a political and legal crisis, every effort should be made . . . to ensure that the Governing Council does not attempt to claim the Iraqi seat in the General Assembly”.207 It is not entirely clear how this issue was resolved.208 The report of the Credentials Committee concerning the credentials of representatives to the 58th session of the General Assembly does not refer to any discussion on the representation of Iraq. It only mentions that Iraq had submitted formal credentials in accordance with Rule 27 of the Rules of Procedure of the General Assembly.209 Some media sources quote Mr. Sumaidaie, the Permanent Representative of Iraq to the UN who presented his credentials to the Secretary-General in September 2004, as stating that he was the first delegate to represent Iraq at the United Nations after the ouster of Saddam Hussain’s government.210 This claim is supported by the lack of any UN press release on the presentation of credentials by an Iraq representative, in the period between the presentation of credentials by Mr. Sumaidaie in September 2004 and the presentation of credentials by his predecessor Mr. Aldouri in February 2001.211

§258 A special commission of each session of the main organ of an international organization (the “credentials committee”) verifies the credentials.212 On the basis of this committee’s report, the organ itself will decide whether or not to accept the delegation.

205 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. 206 Art. 23 and Art. 1 of the 1955 Convention establishing this Interparliamentary Council. 207 UNJY 2003, at 531-533 (quotation at 532). 208 See the transcript of a UN press briefing of 24 September 2003, where a spokesperson for the Secretary-General refers to the situation as “a little complicated” (at www.un.org/News/ briefings/docs/2003/db092403.doc.htm (January 2011)). See also the media report of AP Online, 23 September 2003, ‘Iraq’s Governing Council Takes UN Seat’, in which a spokesperson for the Secretary-General is quoted as stating that the participation of Iraqi representatives “does not mean that the General Assembly has already recognized the Governing Council as the legitimate government of Iraq” (at www.highbeam.com/doc/1P1-81383900 (January 2011)). 209 UN Doc. A/58/625, adopted by the GA in Res. 58/125. 210 18 September 2004, ‘Iraq’s first post-war UN envoy presents credentials’, People’s Daily/ Xinhua, at http://english.peopledaily.com.cn/200409/18/eng20040918_157499.html (January 2011); 18 September 2004, ‘Iraq’s Ambassador joins UN’, TVNZ/Reuters, at http://tvnz.co.nz/ view/news_world_story_skin/448460?format=html (January 2011). 211 See UN Press Release BIO/3615 (17 September 2004) at www.un.org/News/Press/docs/2004/ bio3615.doc.htm (January 2011), and UN Press Release BIO/3346 (8 February 2001) at www .un.org/News/Press/docs/2001/bio3346.doc.htm (January 2011) on the presentation of credentials of Mr. Sumaidaie and Mr. Aldouri respectively. 212 Cf. on the need for a credentials committee: UNJY 1971, at 219.

202

chapter three

§259

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 to reject his credentials is taken, he may participate with full powers in all activities.213 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 (for example, 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 that 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.214 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 (Montreux 1965)” as well as those appended to several other texts adopted at the same session of the general congress.215

§259 Usually, approval of credentials is a formality. Normally, a fake delegation – that is, one not actually representing the government of the member state – 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.

213 E.g. UN General Assembly, Rule 29; FAO, General Rules of the Organization, Rule III.5; WHO, Rules of Procedure of the World Health Assembly, Rule 23; UNESCO, Rules of Procedure of the General Conference, Rule 25; WMO, General Regulation 21; OPCW, Rules of Procedure of the Conference, Rule 28. 214 15th UPU Congress, Doc. 136, adopted on 8 July 1964. 215 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.

§260

rules for international organs

203

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.216 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.217 It would be most unfortunate if only some of the organs of an organization were to accept the credentials of a delegation of the purported government of a member, and other organs were to accept the credentials of a delegation sent by the rival government. Therefore, the UN General Assembly has recommended that whenever more than one authority claims to be the government entitled to represent a member state in the UN, this issue 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.218 In General Assembly discussions about these situations, members have resorted to arguments based on effectiveness (which government has effective control over the territory of the member) as well as arguments relying on legitimacy (which government has the legitimate right to represent the member state). The arguments concerning effectiveness now seem to be more predominant than the arguments concerning legitimacy: once governments have been recognized by the Assembly as the representative of a member state, they will not lose this position until a competing government has clearly come to power, without assistance from another country.219 In practice, political factors seem to prevail when a choice has to be made; this is not surprising, since politics has always dominated the issue of the recognition of governments in general.

216 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 188, at 125-141. 217 D. Ciobanu, Credentials of delegations and representation of member states at the United Nations, 25 ICLQ 351-381 (1976), in particular at 360-368. 218 GA Res. 396(V). This resolution was applied, e.g., 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; UNJY 2003, at 531533 (at 531: “. . . as has invariably been the case since 1950, the General Assembly’s decisions on representation are followed by the organizations of the United Nations system”). 219 S. Magiera in Simma (ed.), op. cit. note 34, at 254. See also Ciobanu, op. cit. note 217, at 368-371.

204

chapter three

§260

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 to power in mainland China, and the previous nationalist Chiang KaiShek 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.220 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.221 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),222 and Afghanistan (1997-2001).223 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

220 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 15261527 (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); T.D. Grant, Admission to the United Nations – Charter Article 4 and the Rise of Universal Organization (2009), at 170-186. 221 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). In 2007, another application was made that Taiwan should join the UN. However, according to the UN Secretary-General this proposal was “unreceivable” and it was not included as an item of the agendas of the Security Council and the General Assembly (see UN Docs. GA/10617). See Grant, op. cit. note 220, at 176. In 2009, for the first time since 1993, Taiwan did not seek UN membership (Economist, 24 September 2009). 222 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. 223 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.

§261

rules for international organs

205

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.224 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”.225 In 1998, credentials for Cambodia were only presented on behalf of King Norodom Sihanouk; these were accepted.226 In 1965, two delegations from 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.227 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. Not only policy-making organs of international organizations may be confronted with the abovementioned problems. In 2009-2010, the International Court of Justice received official correspondence by two competing governments from Honduras, in relation to a dispute between Honduras and Brazil. On 28 October 2009, the Application in the name of the government of Honduras was made by its Ambassadors in the Netherlands and France allegedly acting as Agents and Co-Agents. However, the Court also received another letter of the same date, in the name of the Minister of Foreign Affairs of Honduras, in which it was stated that the two aforementioned ambassadors had been relieved of their duties. Nevertheless, subsequently the Court received a letter dated 2 November 2009, signed by one of the aforementioned alleged Agents, informing the Court that the government of Honduras had appointed the other alleged Agent to act as the Agent of Honduras in this case. The ICJ decided not to take any action in this case, in the absence of any certainty regarding who was acting on behalf of Honduras. A few months later, the Court received a letter dated 30 April 2010, in which the Minister of Foreign Affairs of Honduras informed the Court that Honduras wanted to discontinue proceedings in this case. Thereupon, the Court ordered the removal of the case from its list of cases.228

§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 congress), before the General Assembly would usually be confronted with the issue (in September).

224

See e.g. YUN 1979, at 271-279 and 290-293; YUN 1983, at 230. 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). 226 UN Doc. A/53/726 and UNGA Res. 53/23B. 227 International Labour Conference, 49th session, Records of Proceedings (in the French text, at 521 and 229). 228 Information taken from a speech by Judge Owada, President of the ICJ, to the General Assembly (28 October 2010). 225

206

chapter three

§261

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 a variety of reasons. Moreover, the specialized agencies are independent organizations that 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).229 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”.230 Finally, on 29 October 1993, the UN General Assembly also decided by consensus to accept the credentials of the Mobutu government.231 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”.232 Some Western countries (for example, 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 . . .”.233

229

See WHO Documents A46/41, A46/44 and A46/51. 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). 231 See GA Res. 48/13 A and UN Doc. A/48/512. 232 UN Doc. A/48/512, at 2 (1993). 233 Id. 230

§262

rules for international organs

207

§262 Once international organizations became familiar with recognizing governments by approving the credentials of their delegations, the next issue to consider was how best to judge 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 non-recognition 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 (for example, Hungary in the 11th-17th sessions of the UN General Assembly), 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 to cooperation with the apartheid government of that state, since this government was not considered to be lawfully representing the entire population. In practice, one of the ways to prevent cooperation with such governments is to reject credentials signed by them. Rejection of credentials for such reasons exceeds the original purpose of the credentials procedure 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.234 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 of Hungary”.235 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.236 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

234 See the UN Report of the Special Committee on the Problem of Hungary, UN Doc. A/3592. 235 See e.g. YUN 1956, at 82. 236 UN Doc. A/5676/Rev.1 and GA Res.1977(XVIII) no longer mention the Hungarian credentials.

208

chapter three

§262

so-called Hambro formula, named after the 1970 President of the General Assembly).237 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.238 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.239 The same happened in 1981.240 Another state whose credentials caused problems is Israel. From 1980 to 1989, a number of – usually Arab – countries favoured 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.241 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.242 This clearly illustrates the political function which the approval of credentials has

237 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. 238 The report of the Credentials Committee was adopted on 30 September 1974. On the same day, 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; Ciobanu, op. cit. note 217; 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 225, at 654-656. 239 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”. 240 UNGA, Resumed 25th session, 103rd plenary meeting. This time there was no statement by the President. 241 See e.g. 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). 242 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).

§263

rules for international organs

209

obtained in practice. Only in 1993 were the reports by the Credentials Committee adopted again by the General Assembly.243 In addition, in the 1980s, objections were made in the UN to the credentials of the delegations of Afghanistan, Chile and Grenada.244 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.245

§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.246 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: that is, 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 and is supported by the UN Secretariat.247 The view 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”.248 In practice, there is general agreement on one exception to this limited examination: the situation in which two governments, both claiming to be the sole legitimate government of the member state, both send 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 abovementioned political function also in circumstances in which 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 constitute a majority in universal organizations, the credentials procedure has been used in such organizations for this purpose. Nevertheless, from a legal point of

243

GA Res. 48/13. See also Magliveras, op. cit. note 238, at 223-229. Afghanistan: see e.g. GAOR 36th session, 103rd plenary meeting, at 1871-1872. Chile and Grenada: see e.g. A/41/727, at 4. 245 See Osieke, op. cit. note 216, at 57-59. 246 See e.g. UN General Assembly Rules of Procedure, Rule 28. 247 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 . . .”. 248 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 217, at 364. 244

210

chapter three

§263

view, this practice 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 be acting ultra vires. To use the credentials procedure for the purpose of suspending a state from the exercise of the rights and privileges of membership is an illegal circumvention of special procedures such as those laid down in Article 5 of the UN Charter.249 It was therefore correct that, in September 1992, the delegation from Serbia and Montenegro, claiming to represent UN member state Yugoslavia, was prevented from participating 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, and resolution by the General Assembly; see above, §107-110). If members need to decide on the credentials of a delegation of a government they do not recognize, they can “explain their position”, following “limited” examination of the credentials. For example, in 1981, after 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.250

In addition, an organ may even reject the credentials of a delegation representing a government that 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 abovementioned 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.251

249 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. 250 GAOR, 36th session, 103rd plenary meeting, at 1872. 251 See Ciobanu, op. cit. note 217, at 380.

§264

rules for international organs

211

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;252 and sometimes for two members each.253 In other organizations, a member may act by proxy for only some of the other members, not for all.254 Again, other international organizations forbid representation by proxy.255 In the UN General Assembly and in some specialized agencies, majorities are taken from the members “present and voting”, which also excludes proxies.256 There are several arguments in favour of representation by proxy. Proxy representation permits otherwise absent members to be represented at meetings; and, by reducing the number of delegations, facilitates efficient procedure at meetings. It is particularly useful for groups of members with a common interest (for example, customs unions in customs conferences). The sixth international tin agreement provided (in 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 might also lead to multiple voting and concentration of power.

252 Art. 239 TFEU; the International Agreement on Olive Oil and Table Olives 2005, Art. 7.2. See also the memorandum of the UN Secretariat to UNCTAD, UNJY 1967, at 317-320. 253 Intergovernmental Organization for International Carriage by Rail, Art. 6, para. 4; Convention establishing the European Telecommunications Satellite Organization “EUTELSAT” (1982), Arts. VII.b and X.b (EUTELSAT was privatized in 2001). 254 In some commodity councils proxy is only permitted within each of the interest groups (exporters and importers): e.g. the International Tropical Timber Agreement 2006 (Art. 11.2); the International Coffee Agreement 2007 (Art. 13.2); the International Cocoa Agreement 2010 (Art. 11.2). In other commodity councils proxies are permitted for any other member: the International Sugar Agreement 1992 (Art. 12.2) and the International Agreement on Olive Oil and Table Olives 2005 (Art. 7.2), under which any party may authorize any other party to represent its interests and to exercise its voting rights. 255 E.g. FAO, Art. 3.3; UNESCO, Rules of Procedure of the General Conference, Rule 83.11. 256 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 entered into force, this provision will no longer exclude voting by proxy); WHO, Art. 60; UNESCO, Art. IV.C.8(a).

212

chapter three

§265

§265 Could a member act by proxy for another member when the law of the organization concerned contains no rules?257 On the one hand, an affirmation of the position that proxy representation is generally possible in international organizations could be found in the express exclusion of proxy representation by some organizations. However, the express recognition of proxy representation in other organizations does not prove, on the other hand, that such an express provision was considered necessary to permit the use of proxies. The provisions of these organizations also constitute restrictions on the use 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 in the rules of procedure of the particular body.258 Customary international law also 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 (in 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 only 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.259 C. Use of individual experts §267 Government representatives are not always the most suitable members 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

257 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 133-134. 258 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. 259 UNJY 1967, at 319-320.

§267

rules for international organs

213

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,260 in other cases by specific members empowered by the organization to do so.261 But after a few years, a tendency 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. In the WHO the same development took place, gradually and without an amendment of the constitution. 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.262 In the WHO, the World Health Assembly elects member states entitled to designate “a person” to serve on the Executive Board; this person is required to be “technically qualified in the field of health”.263 The drafters of the WHO constitution wanted the members of the Board to be experts, not government representatives. In 1950, a proposal to change the status of these members into government representatives was rejected by the Assembly.264 However, in the course of time, Board members increasingly acted as persons representing their governments. This practice was codified in 1998, when the Assembly decided that member states “entitled to designate a representative to the Executive Board should designate them as government representatives, technically qualified in the field of health”.265 The Assembly did not consider it necessary to realize this codification by an amendment of Article 24 of the constitution, which would have taken much more time. Where the English text of Article 24 refers to a “person”, the French text uses the word “délégué” (‘delegate’, normally interpreted as meaning a government representative). The Assembly referred to “the ambiguity which results from the difference in the authentic languages of the Constitution concerning the status in which persons serve as members of the Executive Board”, and considered it “important to clarify the provisions of Article 24 of the Constitution”. It was

260

E.g. the board of UNESCO before 1954 (UNESCO, Art. 5.1, original text); UNITAR, Art.

3.1. 261

E.g. WHO, Art. 24. ILR 1949, at 331 (Case 113). 263 WHO, Art. 24. 264 C.H. Vignes, Mythe et réalité: le statut des membres du conseil executif de l’organisation mondiale de la santé, 103 RGDIP 685-696 (1999), at 687. 265 Res. WHA51.26. See for more details Vignes, op. cit. note 264; G.L. Burci and C.-H. Vignes, World Health Organization 45-46 (2004). 262

214

chapter three

§268

“bearing in mind the provision in Article 75 of the Constitution which allows for the Health Assembly to settle questions of interpretation of the Constitution”, apparently considering Article 75 as the legal basis for its power to take this decision.266

§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).267 §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.268 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.269 The most important arguments in favour are as follows: (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 suggestions they see fit. Government representatives may have to take into account interests other than those of the organization. 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 intended 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).270

The value of this argument depends on the task of the organ concerned. It is of considerable value if the organ works in opposition to the member states, if it has to supervise them or if it prepares decisions that will bind them. But the argument

266

The quotations are from the three final preambular paragraphs of Res. WHA51.26. ECOSOC Res. E/1985/17. 268 See M. Virally, l’Organisation mondiale (1972), at 58. 269 Many of these arguments were used in the debates preceding the abovementioned 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, 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). 270 BIS Statutes, Art. 30. 267

§269

rules for international organs

215

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 greater prestige. They are selected from among 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 this is public opinion, prestige will be more important than if the organ only 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 that 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. The requirement of prestige was also important for the composition of the International Commission of Inquiry for Darfur created in 2004 by the UN Secretary-General, on the basis of Security Council Resolution 1564.271 In its interim advice to the Secretary-General of the UN, the Office of Legal Affairs stated that “[t]o command respect and credibility, in particular in the characterization of the crime of genocide, the members of the Commission would have to be eminent personalities known and recognized for their impartiality, objectivity, competence, and their authority and expertise in human rights law, international humanitarian law and criminal law”.272

(3) The organ as a whole may be stronger if the appointing organ can select the members individually.273 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 of these members must be financial experts of recognized standing.274 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

271 272 273 274

See UN Doc. S/2004/812. This Commission was chaired by Antonio Cassese. UNJY 2004, at 374-376 (quotation at 375-376). Cf. A. Loveday, Reflections on International Administration (1956), at 217. GA Rules of Procedure, Rule 155.

216

chapter three

§270

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 Secretary-General, in order to ensure a balanced representation.275 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.276 (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.277

§270 The most important arguments against composing organs of individual experts are the following: (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 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 to rely on its regional partners to express its opinions in the organ. This may be an additional reason for taking observations of other states into account. (2) Government representatives are more likely to promulgate and pursue consistent policy positions in different organizations. This is important in two respects. 275

See P.J.G. Kapteyn, De Verenigde Naties en de international economische orde (1977),

at 35. 276 277

ECOSOC Res. 1913 (LVII), YUN 1974, at 485 (see also below, §273). YUN 1966, at 80-81.

§270

rules for international organs

217

In the first place, the development of an international legal order will be better served if the same question arising 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 they clarify the views of the member states than when mere personal opinions 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 that pay the largest share of the organization’s budget usually have a seat in secondary organs. Unlike individual experts, the government representatives in these organs can commit their states to provide 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 most competent 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 greater the variety of items under discussion, the stronger this argument will be. The engagement of a government institution also means 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. In 2004, it was proposed to amend the rules of procedure of the Executive Board created by the Customs Convention on the International Transport of Goods (TIR Convention, a convention concluded within the framework of the UN Economic Commission for Europe (UNECE)). The proposal was to introduce the possibility to elect replacement members of this Board, in order to fill vacancies arising out of the resignation of members, their removal by the respective governments and/or their lack of regular participation in the work of the Board. However, the members of this board are elected as experts, in their personal capacity, not as representatives of governments. When the UNECE sought legal advice on this proposal, the UN’s Office of Legal Affairs (OLA) wrote that “[t]he concept of replacement members is relatively unheard of in the United Nations system”. It would require an amendment of the abovementioned Convention. In the case of a resignation, a new member would have to be elected. The Board members cannot be removed by their governments as they are experts, not government representatives. Finally, OLA advised that “[t]he proposal

218

chapter three

§270

to remove a member for lack of regular participation is unprecedented in the practice of the United Nations system and, as such, raises serious concerns. . . . While we understand the concerns and frustrations expressed in respect of those who do not fully perform their obligations as members of [ – the Board – ], given the relatively short term of office [ – two years – ], it is preferable to deny such members re-election than to amend the Convention and rules of procedure in such an unprecedented manner”.278

(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 subsequently 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.279

(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.280 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”.281 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

278 279 280 281

UNJY 2004, at 346-347. FAO Doc. C 47/1 (1947). J. David Singer, Financing International Organization (1961), at 176. G. Schwarzenberger, Power Politics (1951), at 683.

§271

rules for international organs

219

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 semi-independent 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 may well be better than one involving representatives of governments that 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.282 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.283

§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.284 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 (in 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 (as in the International Civil Service Commission).

282 Cf. G. Malinverni, Le règlement des différends dans les organisations internationales économiques (1974), in particular at 16-22, 99-101 and 204-209. 283 N. Valticos, International Labour Law (1979), at 239-242; Osieke, op. cit. note 216, at 171-177. 284 UNJY 1986, at 277-280.

220

chapter three

§273

Second, since the experts will often be nominated by member states, compliance with the abovementioned 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 must be 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 (that is, after receiving their nominations) and other organs.285 Third, once expert members are selected, it is important to ensure that they cannot be replaced on a casual basis. 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 should 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 abovementioned elements with other elements to strengthen the influence of the member states: (1) The electing organ may elect certain governments, each of which may 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.286 In this case, the elected governments should coordinate their individual appointments in order to reach a balanced composition of the organ. (2) 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.

285 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. 286 E.g. WHO, Art. 24 (composition of the Executive Board).

§274

rules for international organs

221

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.287 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.288 Their governments may replace them only in exceptional circumstances.289

(3) 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.290 In 2000, ECOSOC established as a subsidiary organ the Permanent Forum on Indigenous Issues. This organ’s task is “to discuss indigenous 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 indigenous 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 indigenous organizations”.291

§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 that 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.

287 FAO General Rules of the Organization, Rules XXVI and XXVII. See also Report of the 19th Session of the FAO Conference, Doc. C77/REP, at 54. 288 UNESCO 92 EX Decision 3.1.1., Part II, UNJY 1973, at 55. 289 UNESCO, Art. V.A.4; UNESCO Res. 17.2, see UNJY 1976, at 106. 290 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). 291 ECOSOC Res. 2000/22.

222

chapter three

§275

D. 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 the relevant 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 the ranks of national civil servants, they act in a private capacity. A third possibility is to compose organs of civil servants acting 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 that 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 decision-making. This weight will be greatly increased when he also speaks on behalf of his colleagues from other states.292 Organs of civil servants are common in Benelux. Most of the work of this organization is done in Committees and Special Committees.293 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, and so forth). The reports of the Committees and Special Committees are subsequently discussed in the Council of the Economic Union, which is composed of the heads of national delegations to the Committees (with a maximum of ten for each member). In this

292 H.G. Schermers, Integratie van Internationale Organisaties, inaugural address at Leiden University, 30 June 1978, at 12-16. 293 Treaty establishing the Benelux Economic Union (1958), Arts. 28-32; Treaty revising the Treaty establishing the Benelux Economic Union (2008), Arts. 12 and 32.2.

§275

rules for international organs

223

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 EU decisions facilitates approval by the national governments, and therefore also by the Council, but the task of these civil servants is purely advisory.294 (2) Other committees of national civil servants perform a different function in the decision-making process. Originally in the field of agriculture, predominantly, but subsequently in many more areas, the Council and the European Parliament have delegated important powers to the Commission for the implementation of legally binding EU acts.295 They did not want, however, to completely remove governmental influence from decisions to be taken in the future. Therefore, committees composed of government officials were created, and these committees must be consulted by the Commission. This system of consultation is usually referred to as ‘comitology’.296 It has been criticized for being “a fairly undemocratic structure where uncontrolled experts make decisions about technical details which may have far-reaching impact”.297 Examples of such decisions are the ban on British beef and the approval of genetically modified foodstuffs in the 1990s.298 The decision-making procedures involving these committees have been laid down in EU decisions, most recently in 2011.299 At present, a distinction is made between two types of

294 See H. Schmitt von Sydow, Die Zusammenarbeit nationaler und europäischer Beamter in den Ausschüssen der Kommission, 9 EuR 62-75 (1974). 295 On the basis of Art. 291 TFEU. 296 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 DecisionMaking 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; Kapteyn & VerLoren van Themaat, op. cit. note 27, at 342-346; 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). 297 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 296, at 25. 298 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”. 299 Regulation (EU) No.182/2011 of the European Parliament and of the Council, laying down the rules and general principles concerning mechanisms for control by member states of the Commission’s exercise of implementing powers, OJ 2011, L55/13. On the development of comitology, see G. Haibach, The History of Comitology, in Andenas and Türk (eds.), op. cit. note 296, 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; G. Schusterschitz & S. Kotz, The Comitology Reform of 2006 – Increasing the

224

chapter three

§276

procedures. Most powers are given to the Commission under the advisory procedure, which only obliges the Commission to take the utmost account of the conclusions drawn from the discussions within the committee and of the opinion delivered: the committee has a strictly advisory role. The position of the Commission is weaker under the examination procedure; if this procedure is applied, the Commission can only adopt a draft implementing act if the relevant committee delivers a positive opinion. If the relevant committee adopts a negative opinion or no opinion, further detailed procedures apply.300 The examination procedure applies, in particular, for the adoption of a) implementing acts of general scope, and b) other implementing acts relating to, inter alia, programmes with substantial implications, the common agricultural and common fisheries policies, and taxation.301 In the field of agricultural policy, in respect of 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.302 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 only three cases, all in 2000.303 Somewhat less detailed, general information on the functioning of these committees is given in annual Commission reports.304 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.305

E. Equitable representation of interests 1. Equitable geographical representation a. Need for regional representation §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 non-plenary 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

Powers of the European Parliament Without Changing the Treaties, 3 EuConst. 68-90 (2007); T. Christiansen, J.M. Oettel, B. Vaccari (eds.), 21st Century Comitology – Implementing Committees in the Enlarged European Union (2009). 300 See Regulation (EU) No. /2011, Art. 5. 301 Id., Art. 2. 302 See for these figures: European Commission, General Reports on the Activities of the European Communities 1991 (at 180), 1992 (at 182), and 1993 (196). 303 General Reports on the Activities of the European Union (1999, Chapter IV, Section 19; and 2000, Chapter III, Section 13). 304 E.g. the report from the Commission on the working of committees during 2009, Doc. SEC (2010) 806 (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0354:FIN: EN:PDF (February 2011)). 305 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 296, at 217-253.

§277

rules for international organs

225

interests of states of the same region are similar, and that therefore 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.306 Bodies that advise on technical issues need a composition that is in its totality the most expert in the field. This does not necessarily mean that only the most learned individuals are required as members, for they might all come from only one region of the world. Although the expertise of individual members from other regions may be less, their participation in the organ increases its representativeness. Members of the organization that 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 that may be made. Finally, it is also important for the organization that the 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.307 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.308 Prior to the 1976 amendment, two Executive Directors of the IMF were to be elected by American states other than the US.309

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).

306 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. 307 See e.g. UN Charter, Art. 23.1; WHO, Art. 24; UNESCO, Art. V.3; ICAO, Art. 50; WMO, Art. 13; IAEA, Art. VI.a; FAO, General Rules of the Organization, Rule XXII.3. 308 ILO, Art. 7.4 (original text). 309 IMF, Art. XII, Section 3b.

226

chapter three

§278

The words “region” and “regional” should not necessarily be understood in their strict geographical sense.310 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.311 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.312 Due to this complexity, 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 influenced by (former) differences in the political systems of its members; Eastern and Western Europe are separate regions.313 §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.314 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 actually intended for an Eastern European state belonging to the Socialist group. The

310 For different types of groups, see Kaufmann, op. cit. note 161 [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). 311 The regions are: Africa; Asia; South America; North America, Central America and the Caribbean; South-West Pacific and Europe. See WMO General Regulations, Annex II. 312 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 United Nations Handbook 2010-2011, at 302-307). 313 UPU’s five regions are: Western Hemisphere; Eastern Europe and Northern Asia; Western Europe; Southern Asia and Oceania; Africa. See United Nations Handbook 2010-2011, at 313316. 314 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.

§278

rules for international organs

227

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 (for example, consultations and negotiations, and the distribution of elected places in a number of organs). The regional group system was developed during the 1950s and “was first reflected in indirect form in General Assembly Resolution 1192 (XII) of 12 December 1957 concerning the composition of the General Committee of the General Assembly”.315 For many years, Israel was not invited to become part of any regional group. Geographically in Asia, it was not invited by the Asian Group (having numerous muslim states opposing membership by Israel). It could therefore not participate in many consultations within the UN, and could not be elected in a number of non-plenary organs. In 2000, it was admitted to the Western European and other states group (WEOG). However, this membership is limited to WEOG activities in New York. 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 WEOG.316 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 abovementioned group, is used for the election of the chairmen of the Main Committees of the General Assembly. In the Security Council, the seats for non-permanent members have been distributed, since 1965, between the following four groups: African and Asian states, Eastern European states, Latin American and Caribbean states, and Western European and other states, in the proportion 5:1:2:2.317 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, and 6 from Eastern European states.318 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). Talmon has analyzed and criticized the present regional group system in the UN. On the basis of an analysis of the election of non-permanent members of the Security Council and of the election of members of three other non-plenary organs (ECOSOC, the Human Rights Council and the International Law Commission), he concludes that there are “significant inequalities between and within the existing regional groups. The WEOG is markedly over-represented and developing as well

315

See UNJY 2003, at 528-529. See United Nations Handbook 2010-2011, at 14-16; UNJY 2003, at 528-529. 317 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. 318 GA Res. 2847 (XXVI). 316

228

chapter three

§279

as small states are under-represented in the UN’s non-plenary organs”.319 While Talmon does not suggest radical changes in the present regional group system, he suggests ten general principles “that should guide the thinking on the formation of regional groups and their internal organization”. One of these principles is that “geographical affiliation should be just one of several criteria for determining group membership. Others may be language, culture, religion, economic or legal system, history, or membership of a political or economic integration organization”.320 §279 As the composition of the regions depends on the function of the organ concerned, it may well be the case that a particular state belongs to different regions for different purposes. Disputes may often arise as to who is to decide on the affiliation of a state to a particular region.321 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 that are merely geographical must be represented on an equitable basis. Such interests may be conflicting, or simply 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 interests of different importance, a balance in which the interests are represented proportionally should be the objective. 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

319 S. Talmon, Participation of UN Member States in the Work of the Organization: A Multicultural Alternative to Present-Day Regionalism?, in S. Yee and J.-Y. Morin, Multiculturalism and International Law – Essays in Honour of Edward McWhinney 239-275 (2009), quotation at 272. 320 Id., at 273. 321 Berkov, op. cit. note 312, at 129 ff.

§281

rules for international organs

229

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 5 for Latin American and Caribbean countries) and 16 for developed states (12 for Western European and other countries, and 4 for Eastern European countries).322 The members of some UN organs are selected “on the basis of their demonstrated interest”, which means that states that voluntarily contribute to the programme concerned will obtain a greater influence.323 Many specialized agencies attribute greater representation to states that are particularly involved in their fields of operation.324 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.325 The Executive Board of IFAD is composed of 8 Western states, 6 developing states and 4 members of OPEC.326

§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 that 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 non-government representatives form part of the national delegations (see above, §250) although they vote independently. In other organs, they are chosen in their own capacity.327 It may be quite possible for a Dutch worker representative to sit on a board that contains no delegate from his government. 3. 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.

322

GA Res. 48/162. See E.H. Buehrig, The UN and the Palestinian Refugees, A Study in non-territorial Administration (1971), at 55. 324 See e.g. ILO, Art. 7; IAEA, Art. VI.A; ICAO, Art. 50; IMF, Art. XII, Section 3: World Bank, Art. V, Section 4; IMO, Art. 17. 325 See e.g. UN Charter, Arts. 23 and 86. See also below, §500-505. 326 Art. 6, Section 5a; Schedule II.3(b). 327 In committees dealing with the items on the agenda, it is the 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). 323

230

chapter three

§282

(1) 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). (2) 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 each of whom enjoys 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, for example, the Parliamentary Assembly of the Council of Europe than the smaller states do (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. 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) each send 87 representatives, Spain 64, and the smaller member states 31 to 6.328 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 EU, and to the EU’s Committee of the Regions, the largest member states send 24 members, the smallest (Malta) 5.329 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 each of the Belgian and the Dutch parliaments, and 7 members appointed by the Luxembourg Parliament.330

(3) 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 identified states (for example, 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

328 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). 329 Arts. 258 and 263 EC. See also Arts. 301, 305 TFEU. 330 1955 Convention setting up a Benelux Interparliamentary Consultative Council, Art. 1.

§282

rules for international organs

231

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.331

Usually, however, specific seats in non-plenary organs are not attributed to expressly identified states: instead, 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 whom 28 represent 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).332 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)).

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”, and so forth. 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.333 When the US withdrew from the ILO in 1977, it was decided that Brazil should fill the vacant seat in the Governing Body, as a member of chief industrial importance. When the

331 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. 332 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 675768 (1962). 333 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. A similar representation issue has emerged more recently in relation to the IMO Council; see Ademun-Odeke, From the ‘Constitution of the Maritime Safety Committee’ to the ‘Constitution of the Council’: Will the IMCO Experience Repeat Itself at the IMO Nearly Fifty Years On? The Juridical Politics of an International Organization, 43 Tex.Int’L.J. 55-113 (2007-2008).

232

chapter three

§283

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.)334

§283 The effect of the various means of strengthening representation is not quite identical in each situation. Extra votes are fully controlled by the states concerned, and thus constitute a powerful method of attributing greater 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 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, in which interests were better balanced.335 F. Election of non-plenary organs §285 The interest of members in some types of commissions may be so limited that a commission that 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 will want to ensure that it is comprised of members in which they have

334

See Osieke, op. cit. note 216, at 103-107. See J. Dutheil de la Rochère, Une institution spécialisée renaissante: la nouvelle Organisation maritime internationale, 22 AFDI 434-473 (1976). 335

§287

rules for international organs

233

the utmost confidence. Usually, all members will take part in the elections on an equal footing, even those that 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 EU 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 ‘Union function’, they must be appointed by the European Council (in respect of the Commission) or by mutual agreement of the governments of the member states (in respect of the Court).336 §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. For example, Article 50(b) of the ICAO constitution provides: “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.337 §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

336

TEU Arts. 17 (Commission) and 19 (Court). M.R. Singer and B. Sensenig III, Election within the United Nations: an Experimental Study Utilizing Statistical Analysis, 17 International Organization 901-925 (1963). 337

234

chapter three

§289

meeting of the Assembly on this matter. He noted that a failure by the General Assembly 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 still 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.338 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. This system is found in part of the membership of the board of the WMO. On this board, inter alia, sit the Presidents of the Regional Organizations, who are elected by the regions.339 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.340

§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.341 The regional development banks use the same system for forming their boards.342 The IMF’s Executive Board, a non-plenary organ, is the permanent decision-making body of this organization. In 2010, it was composed of 24 Executive Directors. Of these 24, 5 were appointed by the members having the largest quotas:343 US, Japan, Germany, France, UK. In addition, 19 Executive Directors were elected by the Board of Governors, the IMF’s general

338 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). 339 WMO, Arts. 13 and 18(e). 340 OPCW, Art. VIII.C.23. 341 IFC, Art. IV.4; IDA, Art. VI.4. 342 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. 343 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).

§291

rules for international organs

235

congress.344 Each elected Executive Director can be regarded as the representative of the members who elected him. In 2010, 19 elected Executive Directors represented 187 member states. For example, the Italian Director represented, apart from Italy: Albania, Greece, Malta, Portugal, San Marino and Timor Leste. The Indian Director represented India, Bangladesh, Bhutan and Sri Lanka.345 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.346 In practice, a close relationship has developed between the Executive Directors and the members they represent.347

§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 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 having been properly constituted and able to proceed with its work if the group in question indicated that it does not wish to participate in it. The Office of Legal Affairs of the UN Secretariat answered the first question by stating that the ECOSOC President may proceed to appoint the persons who 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”.348

344 Rules on the election of these Executive Directors are laid down in Schedule E annexed to the constitution. 345 See www.imf.org/external/np/sec/memdir/eds.htm (December 2010). 346 J. Gold, Legal and Institutional Aspects of the International Monetary System, Selected Essays: Volume II, (1984), at 386-390, 451. 347 J. Gold, Voting and Decisions in the IMF (1972), at 65. 348 UNJY 1984, at 167-168.

236

chapter three

§293

§293 The main advantage of the 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. The elected person 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.349 The close liaison between the person elected to 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.350 This proposal may be useful for groups of states like the EU, 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 (for example, the Scandinavian states). The proposal, however, failed to obtain the required majority.351

§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 between the states concerned, which will therefore be difficult to amend. This will impede the negotiation of compromise solutions (see above, §240-241).352 3. Election or rotation? §295 Elections often take a considerable amount of time, and they may antagonize delegations at the beginning of meetings. Therefore, some organizations prefer a form of rotation of posts (see for example, 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 secretar-

349 See E.P. Hexner, The Executive Board of the International Monetary Fund: A DecisionMaking Instrument, 18 International Organization 74-96 (1964). 350 UN Doc. E/AC.62/9. 351 R.H. Mankiewicz in 20 AFDI (1974), at 638. 352 See e.g. UN Doc. A/7214, at 13.

§296

rules for international organs

237

iat 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.353 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 affect the ability of [the Credentials Committee and other expert bodies] to carry out their responsibilities expeditiously and effectively”.354 4. Co-option §296 Any system of election makes an organ to some extent dependent on the organ that elects its members. In some cases, a hierarchy between organs is avoided by appointing the total membership as the electoral college (for example, the judges of the EU Court, appointed by common accord of the governments of the member states).355 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.356 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.357 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).

353 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. 354 UNJY 1983, at 173-174. 355 Art. 19.2 TFEU. Originally the European Commission was also appointed in this way. However, with the entry into force of the 2007 Lisbon Treaty, the Commission is appointed by the European Council, thus creating a formal hierarchy between these institutions of the Union (Art. 17.7 TEU). 356 E.g. 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 296, at 10. 357 ECSC, Art. 10 (original text).

238

chapter three

§297

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 factor supporting long-term appointments. (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 the 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.358 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 scenario, the term of appointment should be longer than in the second. (4) The organization may want to ensure a rotation of the seats, especially if a non-plenary organ is composed of government representatives. It may be useful to have all governments participate in the organ in turn. 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.

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

§298

rules for international organs

239

§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, for example, only once every 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 (for example, ECOSOC, and the executive boards of ILO, 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 prohibiting359 or limiting360 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.361 Judicial organs (see below, §597 ff.) usually employ longer terms. The judges of the International Court of Justice, the International Tribunal for the Law of the Sea, the International Criminal Court, and the European Court of Human Rights are appointed for nine years,362 those of the Court of Justice of the EU and the Inter-American Court of Human Rights for six years.363 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.364 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 most administrative tribunals of the UN family (ILO, World Bank, and IMF). Members of these tribunals are only appointed for two or three years.365 Some other administrative tribunals or boards of appeal use the same terms of office while others employ different terms (for example, the OAS Administrative Tribunal, with six years).366 A two or three year term is rather short, and it is a positive development that the new UN system of ‘administration of justice’ that started to function in 2009 provides for a (non-renewable) term of seven years for the members of the UN Dispute Tribunal and the UN Appeals Tribunal.367

359

IAEA, Art. VI.A.2 (for 20 seats only). UPU General Regulation 102, para. 3 (“no member may be chosen by three successive congresses”). 361 UNESCO, Art. V.A.4.(b). 362 ICJ Statute, Art. 13; ITLOS Statute, Art. 5.1; ICC Statute, Art. 36.9(a); European Convention on Human Rights, Art. 23.1 (until 1 June 2010: six years). The term of office of the judges of the European Court of Human Rights was increased to nine years (and the possibility of reelection was deleted) “to reinforce their independence and impartiality” (Explanatory Report to Protocol No. 14 to the European Convention, para. 50). 363 TEU, Art. 19.2; American Convention on Human Rights, Art. 54. 364 Benelux Court of Justice, Art. 3, para. 2. 365 Three years: UNAT (Statute, Art. 3.2), ILOAT (Statute, Art. 3.2), WbAT (Statute Art. 4.3). Two years: IMFAT (Statute, Art. 7). 366 See for the statutes or other texts establishing administrative tribunals C.F. Amerasinghe, Documents on International Administrative Tribunals (1989). 367 Statute of the UN Dispute Tribunal, Art. 4.4; Statute of the UN Appeals Tribunal, Art. 3.4 (both statutes are attached to UN General Assembly Res. 63/253). 360

240

chapter three

§299

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’s members annually if the members sit for three years, or one half if they only sit for two years. One of the few amendments made to the provisions of the Statute of the Permanent Court of International Justice when they were incorporated into the Statute of 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 a staggered election, to constantly maintain a group of experienced members, can only be fully realized if the groups elected every time are of approximately 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 needed to be included in the Commission and in the Court from the date that such new parties entered the organization.368

§300 A consequence of holding staggered elections is that the possibility of reviewing the entire organ at the same time is diminished. For this reason, the members of the European Commission are all elected together.369 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.370 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 that 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

368

Fifth Protocol to the European Convention on Human Rights. Apart from the President, who is proposed by the European Council and elected by the European Parliament. See TEU, Art. 17.7. 370 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. 369

§302

rules for international organs

241

immediately following their election”.371 Thus, the old members stay in office until a session of UNCITRAL can organize the work for the new members. G. Quorum372 §302 Not all members of an organ need to be present for the organ to be capable of acting. Most international organs can be validly formed by a certain percentage of their membership: the quorum. Often the quorum is a simple majority of the members,373 sometimes it is a qualified majority,374 but it may also be a minority.375 In determining the quorum, only members should be counted, and not other participants without the right to vote (for example, associate members; see above, §166).376 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 40 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.377 The commodity agreements usually require a double quorum, both of the membership of each category (importers/consumers and exporters/producers) and of the total voting power of the relevant organ. See, for example, Article 13 of the 2006 International Tropical Timber Agreement: 1. The quorum for any meeting of the Council shall be the presence of a majority of members of each category referred to in Article 4 [producers and consumers], provided that such members hold at least two thirds of the total votes in their respective categories.

371

GA Res. 31/99, para. 10. See also H.G. Schermers, The quorum in international organs, in: K.-H. Böckstiegel et al., op. cit. note 118, at 527-535; R. Sabel, Procedure at International Conferences – A study of the rules of procedure at the UN and at intergovernmental conferences 96-103 (2nd ed. 2006). 373 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). 374 IFAD, Art. 6, Section 2(g) (two-thirds); Art. 25.3 Statute of the ICJ (9 of the 15 judges of the Court). 375 UN General Assembly Rule 67 (for meeting and debating, one third of the members is sufficient); WIPO, Art. 7.3(b). 376 See UNJY 1991, at 301-302. Members that are counted in determining the quorum include members that are not eligible to vote because they have not discharged their financial obligations – see UNJY 2001, at 403-404. 377 Parliamentary Assembly CoE, Rule 40 of the Rules of Procedure (text September 2010); European Parliament, Rule 155 of the Rules of Procedure (text November 2010). 372

242

chapter three

§303

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 subsequent days of the session shall be the presence of a majority of members of each category referred to in Article 4, 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 one quarter of the members of a main committee are present.378 In 1972, the ECOSOC took a similar decision, enabling the chairman to proceed when at least one quarter of the members are present.379 In both organs, the presence of a majority of the members is required for any decision to be taken. §304 The presence at the meeting of an organ of only a bare majority of the members may mean that majority decisions of that organ are not supported by a majority of the total members of the organ. The General Assembly of the United Nations (which has 192 members) can be legally formed by a quorum of 97 members. In such an instance, majority decisions could be taken by 49 votes in favour and 48 votes against (and 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 within the session 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.380 If, on the other hand, the organ wishes to discuss items that 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 of the members would be insufficient to take action. Some organs that 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

378 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/65/1, at 5). 379 ECOSOC Resolutions 53rd session (UN Doc. E/5209), at 24. 380 Some rules of procedure expressly forbid the addition of items to the agenda when members are absent (see below, §339).

§305

rules for international organs

243

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 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.381

III. Functioning382 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”.383 In accordance with current opinion, we shall consider the principal organs as permanent bodies, institutionally in existence even when not in session.

381

Two thirds: e.g. WHO Executive Board, Rule 26; IAEA Board of Governors, Rule 22. For an early study of the functioning of international organs, see M. Prélot, Le Droit des Assemblées Internationales, 104 RdC 471-527 (1961 III). 383 E.g. the WHO. The 63th World Health Assembly (WHA62) met in Geneva from 17-21 May 2010. 382

244

chapter three

§307

§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 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” (that is, the European Parliament).384 The European Parliament meets many times a year for approximately one week. Nonetheless, it formally holds only one session per year which is opened in March and closed almost a year later.385 During this period the session is merely interrupted. The Luxembourg Court requested a preliminary ruling of the European Court of Justice 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.386 The European Parliament subsequently waived the immunity on 15 June 1964.387

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 in which they should have been closed.388 An organ

384

Protocol on the privileges and immunities of the European Communities, Art. 10. See Art. 299 TFEU; Arts. 133-134 Rules of Procedure of the European Parliament. 386 Case 101/63, Wagner, ECR 1964, at 195. Confirmed in Case 149/85, Wybot v. Faure, ECR 1986, at 2391. 387 After a report of its legal committee (Doc. 27). See Handelingen Europees Parlement, IX/64, at 5-15. 388 The General Assembly of the UN usually 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. In recent years, following the conclusion of the main part of its regular session (normally on 23 or 24 December), the General Assembly has resumed in January of the next year until it has dealt with all issues on its agenda, which is often in September, shortly before the opening of the next session. See for details www .un.org/en/ga/sessions/ (December 2010). 385

§308

rules for international organs

245

will be less tempted to interrupt its sessions for long periods if it can freely decide when it wants to hold its next session.389 §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 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.390 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.391 It was not questioned whether this Special Session could be held simultaneously with the regular session. It has also been disputed whether an emergency special session of the UN General Assembly could be held simultaneously with a regular session. In the Wall case before the ICJ, Israel claimed that this was improper. The Court, however, concluded that, while this “may not have been originally contemplated [. . .] no rule of the Organization has been identified which would be thereby violated”.392 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 that 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 frequency later decreases.

389

See e.g. UNESCO, Art. IV.9. UNJY 1967, at 321-325. 391 Following the terrorist attacks of 11 September 2001, the General Assembly decided on 12 September to postpone this special session (Decision 56/401), which finally took place from 8 to 10 May 2002. 392 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, at 136 (quotation at 152). 390

246

chapter three

§310

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; and 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.393 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 1953.394 But the World Health Assembly has not, so far, wanted to reduce its sessions.395 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 (1993), technical discussions would take place in even-numbered years only, when there is no proposed programme budget to consider.396 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.397 The EFTA Council usually meets once a month at the level of officials (Heads of Permanent Delegations to EFTA) and twice a year at ministerial level.398 The EEA Council normally meets twice a year.399

§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 useful to assemble more frequently for short periods. (1) 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. (2) 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. (3) Experts often cannot leave their principal functions for long periods. Prolonged sessions might dissuade the most renowned experts from attending.

393

FAO in 1949, UNESCO in 1952, ICAO in 1954 (entry into force 1956). WHO, EB 11, R. 69. E.g. Resolutions WHA 6.57, WHA 11.25 and WHA 12.38. 396 WHO, The Work of the WHO 1990-1991, at 2 (1992). 397 D. Thiam, Le Fédéralisme Africain, 126 RdC (1969 I), at 353-354; YIO 2000-2001, Vol. 1B, at 1863. 398 See www.efta.int (December 2010). 399 Art. 91.2 of the EEA Agreement. 394 395

§311

rules for international organs

247

§311 Some organizations require a specific person to represent his state at a meeting of a particular organ, usually the general congress (see above, §243-247). 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 2008, the Council held 117 meetings.400 A session often takes two or even three days, and even if we take into account that the Council meets in different compositions (“configurations”), 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 EU Treaties permit.401 In practice, however, much of the preparatory work of the Council has been taken over by the Committee of Permanent Representatives (see below, §393), which may prepare Council decisions in such a way that they occupy very little of the Council’s own time.402 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, ECOSOC has held an annual organizational session, usually in early February (not exceeding four days), and a substantive session to take place in July, in alternate years in New York and Geneva.403 The substantive session consists of a number of “segments”: the High-level Segment, the Coordination Segment, the Operational Activities Segment, the Humanitarian Affairs Segment and the General Segment. “The High-level segment serves as a forum for Ministers and executive heads of international institutions and high-ranking officials, as well as civil society and private sector representatives to discuss key issues on the international agenda in the area of economic, social and environmental development. A new feature of the ECOSOC, mandated by the 2005 World Summit, are the Annual Ministerial Review and the Development Cooperation Forum. At the end of the High-level segment, a Ministerial declaration is adopted, which provides policy guidance and recommendations for action”.404

4. Costs §313 The costs of meetings of international organs (see below, §957-959) should be divided into two categories:

400

General Report 2008 on the Activities of the European Union, at 229. TEU, Art. 17.1. 402 TFEU, Art. 240. 403 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). 404 See www.un.org/ecosoc/about (December 2010) and GA Res. 61/16. 401

248

chapter three

§314

(1) The administrative costs of the secretariat, the conference rooms, the translations, and so forth. The administrative costs of large conferences are considerable. The ILO Director-General estimated the expenditure for two general congresses (2006 and 2007) at $10,110,203.405

(2) 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 productive, competent delegations are needed from all members. (2) Most budgets divide costs according to the members’ capacity to pay. Since participation in organs is an activity of the organization, costs relating to participation should be distributed in the same way as other costs of the organization. Payment of costs of delegations by the sending 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, as their travelling takes more time and is more expensive. 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

405 International Labour Organization, The Director-General’s Programme and Budget Proposals for 2006-2007, Information Annex No. 1.

§316

rules for international organs

249

budget of the organization is affected, there is no substantial difference in the total costs borne by the members. They will ultimately pay for 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 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 abovementioned 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 nonplenary 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 non-plenary organs, even when they do not do so for plenary organs. This 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.406 The UN originally paid the travel expenses for five delegates from each member in the General Assembly.407 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,408 reimbursement of travel costs was limited to delegates from the least developed countries. For 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 in an individual capacity and not 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”.409

406 See e.g. 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. 407 GA Res. 1798 (XVII), para 3(a)(i), replacing Res. 1075 (XI). 408 GAOR, 41st session, Suppl. no. 49, (recommendation 6); GA Res. 41/213. 409 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.

250

chapter three

§317

The financial agencies provide subsistence allowances for delegates to their general congresses.410 The WHO,411 UNESCO,412 the ITU,413 and the IFAD,414 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 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.415 The FAO only pays travelling expenses of not more than one member of the delegation of each member state on the Council.416 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 reimburse members of the general congress, whereas it does reimburse members of the executive council (the “Board of Directors”).417

5. Place §317 Usually, organs are required to meet at the headquarters of the organization.418 Some organs meet elsewhere for practical reasons, at a location related either to their task (for example, fact-finding commissions), or to their composition (small organs that 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.419 In some international organizations, the main organ (general congress) meets regularly420 or occasionally421 away from the seat of the organization.

410 IMF, Art. XII, Section 2h; World Bank, Art. V, Section 2g; IFC, Art. V, Section 8; IDA, Art. VIII, Section 8. 411 Decision of the first session of the World Health Assembly, see Official Records WHO, No. 13, at 100 and 317. 412 UNESCO, Rules of Procedure of the Executive Board, Rule 61. 413 ITU Convention, Art. 4.6. As of 2004, only the expenses of board members from developing countries are borne by the organization. 414 IFAD, Bylaws Sections 3 and 5. 415 Statute Council of Europe, Art. 38.a. 416 FAO, General Rules of the Organization, Rule XXV, para.6. 417 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”. 418 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. 419 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, 1990, 1993 and 2003). 420 UPU, ITU, WTO, 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. Further sessions of the UPU Congress took place in Tokyo (1969), Lausanne (1974), Rio de Janeiro (1979), Hamburg (1984), Washington D.C. (1989), Seoul (1994), Beijing (1999), Bucharest (2004) and Geneva (2008). The WTO Ministerial Conference met in Singapore (1996), Geneva (1998), Seattle (1999), Doha (Qatar, 2001), Cancún (2003), Hong Kong (2005) and Geneva (2009). 421 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

§318

rules for international organs

251

The relevant rules for the UN Security Council provide for a balanced legal framework. As a rule the Security Council should meet in New York.422 Nevertheless, Article 28.3 of the Charter of the UN explicitly allows the Council to meet “at such places other than the seat of the Organization as in its judgment will best facilitate its work”. In practice, the Council has only exceptionally met outside New York.423 A legal issue that arose in practice was the question whether in case of an emergency while the Security Council is in or en route to and from a meeting place other than the seat of the UN, meetings of the Council could be held in New York at a level other than permanent representatives. The UN Office of Legal Affairs gave a negative answer to this question. It advised that as an organ, the Council cannot meet simultaneously in two locations, not even at different levels of representations: Article 28.3 of the Charter foresees the relocation of the Council as an organ. “Any emergency situation which may arise at any time must be dealt with by the Council at its location at the time the question arises”.424 §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.425 (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

Assembly’s debate on Palestine (see GA Res. 43/49 and §1690 below). 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), San Diego (1959), Rome (1962), Buenos Aires (1968) and Vienna (1971); and that of IAEA in Tokyo (1965), Mexico (1972), Rio de Janeiro (1976) and New Delhi (1979). 422 According to Rule 5 of the Council’s Provisional Rules of Procedure, “[m]eetings of the Security Council shall normally be held at the seat of the United Nations”. 423 See below, §319. 424 UNJY 2004, at 347-349 (quotation at 349). 425 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.

252

chapter three

§319

contacts with local experts improve mutual understanding which will also be especially beneficial to the organization.426 (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 for if some sessions are held in their vicinity.427 §319

There are also strong disadvantages:

(1) The costs of the session will be considerably higher.428 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, 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).429 (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’ sources of information during the session. Library and archive services will be less comprehensive than at the headquarters. (4) The personnel of an international organization benefit from close contact with the delegates to an organ of the organization. The presence of such delegates provides necessary stimulation for 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.

426 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. 427 The International Secretariat of the Future, Royal Institute of International Affairs (London, 1944), at 48. 428 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). See more recently, UN Doc. A/BUR/65/1, at 11. 429 Mankiewicz, op. cit. note 419, at 626-627.

§320

rules for international organs

253

(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). Moreover, it may be difficult to conclude in time a host country agreement (providing for the necessary privileges and immunities for these and other persons, as well as for the organization). This was demonstrated when the Security Council met in Addis Ababa (29 January4 February 1972) and in Panama (15-21 March 1973).430 Since then, the Security Council has almost always met in New York, exceptions being its 2923rd meeting (25 May 1990) and its 5063rd meeting (18-19 November 2004). The 2923rd 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. The 5063rd meeting took place in Nairobi, in order to stimulate peace efforts in neighbouring Sudan.431

(6) Finally, the possibility of meeting elsewhere may lead to long debates on where to locate the meeting.432 §320 The value of these arguments varies from organization to organization and from organ to organ. Organs of a regional organization that require strong support from the secretariat should not meet outside the headquarters. Universal organizations with small secretariats, such as the Universal Postal Union, can easily hold meetings elsewhere. In most cases, it would normally be preferable to meet at the organization’s headquarters.433 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.434 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.

430 See J. Mourgeon, Les réunions du Conseil de Securité hors du Siège, 19 AFDI 564-578 (1973); Bailey and Daws, op. cit. note 314, at 335-338; UN Doc. S/PV.1684-1686 of 16 and 26 Jan. 1973. 431 See UNJY 2004, at 330-332 (letter by the UN Office of Legal Affairs to a permanent representative of a UN member state regarding the legal framework for the holding of a UN meeting away from headquarters). See also UNJY 2004, at 347-349. 432 See B. Boutros-Ghali, Les difficultés institutionnelles de panafricanisme (1971), at 24-26. 433 See C. Wilfred Jenks, The Headquarters of International Institutions (1945), at 11. 434 See in general: Kaufmann, op. cit. note 161 [Conference Diplomacy], at 73-95.

254

chapter three

§321

Most meetings of modern international organizations are held in public. This is even true for the UN Security Council, which often has to deal with politically sensitive issues concerning the maintenance of international peace and security.435 The Council only exceptionally meets in private. This is always the case when a recommendation to the General Assembly regarding the appointment of the Secretary-General is discussed and decided upon.436 It may also happen on other occasions.437 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.438 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.439 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 sixth months.440 Although this meeting was indeed transparent, it was rightly commented that this also “makes for very dull television”:441 ministers only read out prepared speeches and no discussions took place.442 In May 2001, an EC regulation was adopted regarding public access to European Parliament, Council and Commission documents.443 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

435 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). 436 Rule 48 of the Council’s Provisional Rules of Procedure. 437 See Bailey and Daws, op. cit. note 314, at 53-60. 438 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). 439 Art. 5 of the Rules of Procedure of the Council (OJ 2004, L 106/22); exceptions are laid down in Article 8 (mainly: Council deliberations on acts adopted in accordance with the codecision procedure). 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). 440 See Europe No. 5878BIS (Sp.Ed.). 441 S. Weatherill and P. Beaumont, EU Law 75 (3rd ed. 1999). 442 See Europe No. 5910, at 7-8. 443 Regulation (EC) No. 1049/2001 of the European Parliament and the Council, OJ 2001, L 145/43.

§321

rules for international organs

255

within 15 working days. A definite refusal to provide access may be challenged before the European Court of Justice.444

Since 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 access as possible 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’.445 Within the WTO, a distinction has been made between ‘internal’ and ‘external’ transparency. Internal transparency refers to the policy of including 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 participation 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”.446 External transparency on the other hand refers to WTO openness towards the outside world. In 1996, Guidelines were adopted on relations with NGOs.447 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 NGOs. At the same time, however, the intergovernmental nature of the WTO was underlined, limiting the extent to which NGOs could be involved more directly in WTO activities.448 One aspect of publicity is the 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.449

444 See for case law with respect to challenges of decisions of the institutions taken on the basis of earlier legislation in the field of public access to documents Lenaerts and Van Nuffel, op. cit. note 2, at 516-519. 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. 445 This is reflected in some of the “recommended rules and practices” concerning accountability of international organizations prepared within the ILA (“transparency in both the decisionmaking process and the implementation of institutional and operational decisions”; “participatory decision-making process”; “access to information”). See the Final Report of the ILA Committee on Accountability of International Organizations, adopted by the ILA at its Berlin conference (2004); reproduced in 1 IOLR (2004), at 221-293 (see in particular at 229-232). 446 WTO Newsletter ‘Focus’, November 2000, at 4-5. 447 WTO Doc. WT/L/162. E.g. it was agreed that WTO documents would be made public more promptly. 448 WTO Newsletter ‘Focus’, November 2000, at 5-6. See also above, §195. 449 See ECOSOC Decision 65 (ORG-75). See also GA Res. 31/96 II, §2; IFAD, Rule 25.

256

chapter three

§322

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.450 The costs of translation, 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.451 Since 1981, the General Assembly has repeatedly requested subsidiary organs to strive at keeping their reports within this 32 pages limit.452 In practice, compliance with this rule has improved over the years.453 More recently, the General Assembly has invited all intergovernmental bodies to consider reducing the length of their reports from 32 to 20 pages.454 In addition, a limit of 16 pages has been established for reports originating in the UN Secretariat.455 For documents exceeding the page limit, a waiver from the Assistant Secretary-General for General Assembly and Conference Management is required in order to proceed with complete translation and distribution.456 In the UN Human Rights Council, a problem arose in relation to the abovementioned documentation rules. In its decision 11/117 of 18 June 2009, the Human Rights Council decided that reports of its Working Group on the Universal Periodic Review were to be issued as official documents in all official languages and recalled that the Working Group was entrusted with the authority to decide on the adoption of reports that exceptionally exceeded the word limits. On 24 June 2009, the UN Office of Legal Affairs was requested to give a legal opinion on this issue. It concluded that “the rules of the General Assembly, including those relating to the length of documents, were applicable to the Human Rights Council and that indeed the Council as a subsidiary organ itself did not have the authority to adopt a decision containing such wording”. Subsequently a request for a waiver of the

450

UN Doc. A/57/289, at 9. Report of the Committee on Conferences 1978, UN Doc. A/33/32, at 12, para. 76. Res. 36/117 A. Also, e.g., Res. 45/238 B; Res 51/211 B. See for a general overview on the work by the General Assembly in this area: Doc. A/INF/47/1 (1992). 453 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 per cent 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. However, in June 2009 the overall compliance with submission guidelines (including timely submission and page limits) for pre-session documentation had risen to 71 per cent, which is higher than in 2007 (61 per cent) and on a par with 2008. At the same time, overall compliance with issuance time frames increased to 73 per cent, up from 66 per cent in 2007 and 72 per cent in 2008 (see UN Docs. A/59/159, III.B (paras. 36-46), A/62/161 (para. 67), A/64/136 (para. 61), A/64/484 (para. 14)). 454 E.g. GA Res. 53/208 B, para. 15. See further UN Doc. A/57/228 (in particular at 15-19); GA Res. 59/265 III (para. 4). 455 See e.g. GA Res. 52/214 B; 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”. 456 See e.g. E/CN.4/Sub.2/2004/39, where such a waiver was granted concerning a final report of the Special Rapporteur on terrorism and human rights. 451 452

§323

rules for international organs

257

relevant documentation obligations was rejected by the Under-Secretary-General for General Assembly and Conference Management, and the documents concerned were discussed and adopted by the Council on the basis of the English language text only.457 A few months later, the General Assembly gave the necessary authorization, emphasizing the importance of the equality of the six official UN languages and the authority of the Fifth Committee of the General Assembly to deal with these matters.458

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 ECOSOC to keep control of its documentation.459 Furthermore, 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.460 As a rule, documentation required by the Security Council has to be distributed at least forty-eight hours in advance of the meeting at which they are to be considered.461 In the General Assembly, official documentation has to be issued six weeks in advance in all official languages.462 When a document is circulated before the deadlines mentioned, but not in all official languages (for example, only in English), can the document concerned be considered as formally submitted? The UN Secretariat’s Office of Legal Affairs has indicated that, according to a strict interpretation of the rules, a negative answer must be given to this question. However, it has also indicated that there is no uniform practice on this issue. In the Security Council, unofficial working documents have been considered on the basis of an English text only, and have been submitted for translation and circulation at the final stage of the negotations. In the General Assembly, some main committees conduct informal consultations on the basis of informal papers (mostly in English).463 8. Privileges and immunities at sessions464 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

457

UN Doc. A/64/136, at 17-18 (quotation at para. 69). See also UN Doc. A/64/484, at 5. GA Res. 64/230, in particular at IV, paras. 1-7. 459 ECOSOC Res. 1894 (LVII). 460 ECOSOC Res. 1770 (LIV). 461 SC Provisional Rules of Procedure, Rule 26. 462 GA Res. 47/202; A/BUR/65/1, at 8. 463 UNJY 2005, at 447-450. 464 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 458

258

chapter three

§324

privilege. We shall use the word “privilege” for all cases in which local legislation is not, or is differently, applicable, and the word “immunity” for the immunity from jurisdiction (unless indicated otherwise).465 This is the most basic distinction: in the case of immunity from jurisdiction, local legislation is fully applicable and 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 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. Equally, 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 that participated in the NATO air campaign during the Kosovo crisis. One of those 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.466 It has often been stressed that privileges and

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 118, 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); A.J. Miller, United Nations Experts on Mission and their Privileges and Immunities, 4 IOLR 11-56 (2007); A.J. Miller, United Nations Officials and their Privileges and Immunities, 4 IOLR 169-257 (2007); A.J. Miller, The Privileges and Immunities of the United Nations, 6 IOLR 7-115 (2009). 465 On the concepts of jurisdiction and immunity, and how these are linked, see the joint separate opinion of judges Higgins, Kooijmans and Buergenthal in the Yerodia case before the ICJ (Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium)), Judgment, ICJ Rep. 2002, at 3 (in particular paras. 3-5 of the joint separate opinion, ICJ Rep. 2002, at 65). 466 This doctrine has found general acceptance in literature (see previous footnote) and legal practice. See various multilateral and bilateral conventions and agreements (e.g. Art. 38.1 of the Agreement between the WTO and Switzerland, which 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

§325

rules for international organs

259

immunities are accorded for this reason, and not for the personal benefit of the persons in question.467 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 guidance for 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 agreement468 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 family, two general agreements have been concluded concerning privileges and immunities: one for the UN,469 and the other for the specialized agencies.470 These agreements also cover the privileges and immunities necessary for delegations to meetings

of this agreement WTO Doc. WT/GC/1)), as well as advisory opinions by the International Court of Justice (e.g. Mazilu Case, Advisory Opinion, ICJ Rep. 1989, at 177, in particular paras. 44-55) and judgments of the EU Court of Justice (e.g. Case C-2/88, Zwartveld, Order of the Court, ECR 1990, at I-3365; Case T-345/05, Mote v. European Parliament, 15 October 2009, para. 27). 467 See, e.g., 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, C 99/44); Art. XIII.1 of the Agreement between the United Nations High Commissioner for Human Rights and the Government of the Kingdom of Nepal concerning the establishment of an Office in Nepal, reproduced in UNJY 2005, at 118-127 (“The privileges and immunities accorded under the present Agreement are granted in the interests of OHCHR, and not for the personal benefit of the persons concerned”). 468 The term “agreement“ is used for treaties concluded by international organizations (see below, §1744). 469 Convention on the Privileges and Immunities of the United Nations, adopted by the UN General Assembly in 1946, 1 UNTS, at 15. 470 Convention on the Privileges and Immunities of the Specialized Agencies, approved by the UN General Assembly in 1947, 33 UNTS, at 261.

260

chapter three

§325

of the organizations. Comparable agreements are concluded for other international organizations.471 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).472 When meetings are convened away from the seat of the organization, ad hoc agreements must be made with the host state.473 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) and the international security presence in Kosovo (KFOR) have been laid down in UNMIK Regulation 2000/47.474 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 headquarters 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”.475 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.476

471 E.g. the 2002 Agreement on the Privileges and Immunities of the International Criminal Court (published in Doc. ICC-ASP/1/3, at 215). 472 See A.S. Muller, International Organizations and Their Host States – Aspects of Their Legal Relationship (1995). 473 See e.g. the Exchange of letters constituting an agreement between the United Nations and the Government of Uzbekistan regarding the hosting of the United Nations Expert Group Meeting on the draft Central Asian Nuclear-Weapon-Free Zone Treaty, to be held in Tashkent from 7 to 9 February 2005, reproduced in UNJY 2005, at 19-22; Exchange of letters constituting an agreement between the United Nations and Egypt regarding the arrangements for the United Nations seminar on Assistance to the Palestinian People, 20 April 2006, reproduced in UNJY 2006, at 31-34. 474 In 2001 the Ombudsman for Kosovo concluded that this regulation was incompatible with recognized international human rights standards (see further below, §1611). 475 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). 476 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 nationals 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 as to 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 nationals 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).

§326

rules for international organs

261

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 members. The main difference is the temporary nature of their engagement, which often leads to the restriction of their fiscal privileges.477 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 a 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, the Advisory Committee on Administrative and Budgetary Questions; defense counsels at international criminal tribunals).478 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”.479 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.480

477 See e.g. Art. 6 of the Convention on the Privileges and Immunities of the United Nations, 1 UNTS, at 26. 478 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); UNJY 2000, at 350-352 (members of the Advisory Committee on Administrative and Budgetary Questions); UNJY 2004, at 323-324 (on the status of UN civilian police officers as experts on mission); K. Gibson, The Arrest of ICTR Defense Counsel Peter Erlinder in Rwanda (ASIL Insight, August 11, 2010). See for a comprehensive general study: A.J. Miller, United Nations Experts on Mission and their Privileges and Immunities, 4 IOLR 11-56 (2007). 479 Mazilu Case, Advisory Opinion, ICJ Rep. 1989, at 196; Cumaraswamy Case, Advisory Opinion, ICJ Rep. 1999, in particular paras. 42-45. 480 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,

262

chapter three

§327

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 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 (1964)), considering itself bound by that decision.481 In 2005, the Attorney General of England and Wales asked the European Parliament to waive the immunity of Mr. Mote, elected to the European Parliament in 2004. Criminal proceedings were pending against Mote in the UK (on the ground that he had received various State benefits on the basis of false declarations). On 5 July 2005, the European Parliament decided to waive Mote’s immunity. Subsequently, Mote requested the Court of First Instance to annul the waiver decision, but this was rejected by the Court.482 In 2007, Mote was found guilty and was sentenced to nine months’ imprisonment.

(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 in which they operate. The privileges and immunities usually granted to them include 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 in which the organ meets.483 The extension 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 set of privileges and immunities necessary for the proper functioning of the organization.484 §328 Problems concerning privileges and immunities of delegates have arisen in three circumstances.

perform duties of a special character and whose requirements are consequently different from those of the other organs of the United Nations. 481 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. 482 Case T-345/05, 15 October 2008. 483 Cf. also UNJY 1986, at 327-328. 484 Cf. UNJY 1976, at 224-229.

§328

rules for international organs

263

(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 that 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 a delegation from undue influence from its own government, and therefore no need for privileges and immunities to be provided.485 If the sending state were to tax its own delegates 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 the delegate has no need for privileges and immunities from the sending state, he should receive some protection against undue interference by his own state, which has to respect the relationship between the sending state and its delegates. In such a situation, there is a functional necessity for the grant of 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.486 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 by them in the exercise of their official functions.487 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

485

See, e.g., Section 15 of the Convention on Privileges and Immunities of the UN. Vienna Convention 1975, Art. 68. Cf. Vienna Convention on Diplomatic Relations 1961, Art. 39. 487 Vienna Convention 1975, Art. 60(1). 486

264

chapter three

§332

caused by a vehicle, vessel or aircraft, used or owned by the person in question, where those damages are not recoverable from insurance.488 (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,489 while others only provide that the host state should admit to the seat of the organization all persons invited by that organization.490 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.491 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.492 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 that has sent the representatives and is party to an agreement which allows privileges and immunities 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.493 There are no provisions on

488

Id., Art. 60.4. 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). 491 For a survey of practice, see Yb ILC 1967 II, at 190-191 (UN), and 203-204 (specialized agencies). 492 Art. 72. Cf. UNJY 1983, at 227. 493 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, 489 490

§334

rules for international organs

265

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 §188-196). 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.494 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.495

§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. 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.496 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.497

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. 494 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. 495 See Yb ILC 1967 II, at 285-288 and 318-319. 496 See L.K. Tobiassen, The Reluctant Door: The Right of Access to the United Nations (1969), at 375-395. Cf. also above, §331. 497 Yb ILC 1967 II, at 285-288; UNJY 1963, at 164-168. For the text of the inquiry, see UNJY 1964, at 219-220.

266

chapter three

§336

§336 A number of agreements of specialized agencies make provision for individuals, offering some immunity in addition to a right of passage.498 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 that 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.499 Cover may also extend to private international organizations. 9. Procedure §337 While most international organs have their own rules of procedure, many of these rules are similar. There is unity within diversity. As Sabel has observed, “certain rules of procedure have achieved near universal application and may well by now have the status of customary international law”.500 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.501 On the binding force of rules of procedure see below, §1205. Many constitutions of international organizations explicitly provide that organs shall or may adopt their own rules of procedure.502 If this is not done, it is an implied power of organs to adopt their own rules of procedure, as this is essential for their functioning.503 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 that were not incorporated in the agenda.

498

For examples, see Yb ILC 1967 II, at 318. Headquarters Agreement IAEA-Austria, Art. 16, Section 42. 500 Sabel, op. cit. note 372, at 6. 501 As observed by J. Kolasa, Rules of Procedure of the United Nations General Assembly (1967), at 111: these rules are “the fullest and the best developed system of procedural norms of international organizations”. See for an overview of the functioning of the UN General Assembly during a regular session: Peterson, op. cit. note 161, at 265-297; see also, e.g., the Memorandum by the Secretary-General on the organization of the 65th regular session of the General Assembly, adoption of the agenda and allocation of items (A/BUR/65/1). 502 E.g. UN Charter, Arts. 21 (General Assembly), 30 (Security Council), 72.1 (ECOSOC), 90.1 (Trusteeship Council); APSCO, Art. 12(c); IRENA, Art. IX.H.2; 2010 International Cocoa Agreement, Art. 7.3. 503 See UNJY 2005, at 479-488, in particular at 482-483. See also below, §1201. 499

§339

rules for international organs

267

Many international organs provide that the agenda should be communicated to the members a reasonable time before the opening of a session.504 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.505 Most of the items usually come from previous sessions of the organ that 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.506 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 the 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”?507 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,508 but most have no specific limitation and should decide for themselves.509 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 well-briefed secretaries from their local embassies, should make no additions to its agenda.

504 See e.g. GA Rule 12 (at least 60 days), Rule 14 (at least 20 days); OPCW Rules of Procedure of the Conference, Rule 12 (at least 60 days); OPCW Rules of Procedure of the Executive Council, Rule 17 (in principle at least seventy-two hours before the meeting); European Investment Bank, Board of Governors (the general congress) at least 20 days, Board of Directors at least 15 days (Arts. 3 and 12, EIB Rules of Procedure). 505 See UNJY 1978, at 180. As the UN’s Office of Legal Affairs has observed, the UN Secretariat does not interfere with the sovereign right of member states to circulate any document they deem appropriate, “including when requesting a supplementary agenda item [. . .] provided that the document is submitted by a duly accredited representative, that it does not exceed the page limitations established by the General Assembly, and that it is not blatantly inflammatory or potentially libellous”. If the last mentioned condition is not fulfilled, the Secretariat will approach the member state concerned with a request that it be withdrawn or revised in order to omit such language (UNJY 2009, at 396-397). 506 GA Rules 12-24. 507 See UNJY 1983, at 166-167. 508 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. 509 GA Rules 15, 19.

268

chapter three

§340

The addition of an item for discussion will usually meet with little objection. If necessary, the discussion may lead to the incorporation of the item on the 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 the major aspects of that problem. It would be difficult to identify these aspects 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 65th session of the General Assembly spent from 23 to 30 September 2010 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. There is no formal time limit for speeches during the general debate, but only a voluntary guideline of up to 15 minutes for each statement.510 The level of compliance with this guideline varies. During the 2009 general debate, Libyan leader Gadaffi spoke for over an hour and a half.511 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 has been reduced considerably over time and is now 10 minutes in the ILO, 6 in UNESCO and 5 in the WHO.512 A rather original way of ensuring compliance with such time-limits has been introduced by UNESCO: after the 6 minutes time limit speakers are interrupted by music, the crescendo of which in the end makes speaking impossible, as well as listening (at least to the speaker). In the WTO Ministerial Conference, prepared statements may take no longer than 3 minutes: “[a] so-called traffic light system will be in operation to facilitate adherence to the allotted time period”; longer statements may be circulated on paper.513 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.514

510 GA Res. 57/301 and decision 63/553; see also UN Doc. A/BUR/65/1, at 5. See on the dates of the general debate for the period 2010-2014, UN Doc. A/INF/64/1/Rev.1. 511 See The Guardian, 23 September 2009, mentioning also that the all time record is still held by Cuban leader Castro, who in 1960 spoke for four and a half hours. 512 Standing Orders of the ILO, Art. 14 (6); UNESCO, Guide 2009, at 10; WHO Doc A63/ DIV/2 (22 April 2010), Guide for Delegates to the World Health Assembly. 513 WTO Doc. WT/MIN09/INF7. 514 Z. Cervenka, The Organization of African Unity and its Charter (1968).

§341

rules for international organs

269

§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 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. In addition, during the first part of a session informal consultations on items on the agenda of the General Assembly require a considerable amount of time. 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.515 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. For example, he may declare that his state 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

515

GA Rule 68 leaves the president no room to deviate from this order.

270

chapter three

§344

members, that is to say, of persons delegated by their respective governments, from whom they received instructions and whose responsibility they engage”.516 This opinion of the Court is equally valid for other organs of government delegates.517 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”.518

§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.519 Preferably, the opportunity to reply should be obtained during the same meeting in which such criticism was levelled.520 e. Limits to freedom of speech §346 Time limits.521 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. Normally 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] . . .”.522

516

PCIJ Rep., Ser.B., No. 12, at 29, See also PCIJ Rep., Ser.A/B, No. 53 (Ihlen-declaration). G. Schwarzenberger, International Law as Applied by International Courts and Tribunals, Vol. I (3rd ed., 1957), at 160. 518 ICJ Rep. 1974, at 267. 519 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. See Sabel, op. cit. note 372, at 120-132. 520 See e.g. GA Rule 73; FAO Document C77/Rep. §19. See also UNJY 1982, at 160-161. 521 GA Rule 72. See Sabel, op. cit. note 372, at 111-114. 522 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 the participation by members and non-members: (1) the right to vote; (2) the right to require that proposals be voted on”. 517

§347

rules for international organs

271

§347 Closure of the list of speakers.523 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.524 This is to the disadvantage of delegations that 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.525 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.526 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.527 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 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.

523

GA Rule 73. See Sabel, op. cit. note 372, at 117-120. See e.g. 20 AFDI (1974), at 494-495. GA Rule 75. See Sabel, op. cit. note 372, at 188-200. 526 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. 527 GA Rule 75. 524 525

272

chapter three

§350

§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.528 (1) (2) (3) (4)

Motions to suspend the meeting. Motions to adjourn the meeting. Motions to adjourn the debate on the item under discussion. 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.529 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 mover of the motion, one speaker against the motion and the rapporteur or the chairperson of the committee concerned will be heard.530 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 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.531

528 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. See in general on procedural motions and points of order: Sabel, op. cit. note 372, at 245-262. 529 GA Rules 71, 74, 75. 530 CoE Parliamentary Assembly, Rule 36.3 (text September 2010). 531 UN Doc. A/937, para. 37; UN Doc. A/5423, para. 53; see also UN Docs. A/2206 and A/2402.

§353

rules for international organs

273

§353 Apart from the possibility of abusing points of order by making remarks of substance, procedural motions may also 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.532 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. Officers533 1. Chairman534 a. Appointment §354 To ensure that an organ functions smoothly and speedily, it is of great importance to have a determined, tactful yet not overly 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. The President of the European Commission is elected by the European Parliament on the basis of a proposal by the European Council.535 In other organs, chairmen are usually elected by and from among its members. The President of the European Council is elected by the European Council, for a term of two and a half years, renewable once.536 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.537 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.

§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

532 For examples of abuse of procedure, see Bailey and Daws, op. cit. note 314, 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). 533 S.E. Werners, The Presiding Officers in the United Nations (1966); see also Peterson, op. cit. note 161, at 279-284, with references to further literature. 534 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); Sabel, op. cit. note 372, at 68-93. 535 TEU, Art. 17.7. 536 TEU, Art. 15.5. 537 GA Rule 63.

274

chapter three

§355

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 presidency. This is particularly true for the presidency of the Council of the European Union.538 Examples of organs in which the members preside in turn are the Security Council,539 the Council of the European Union,540 and the Council for Arab Economic Unity.541 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.542 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, and so forth, the order of the second cycle was: Denmark, Belgium, Greece, Germany, and so forth. This system was changed by the Treaty concerning the Accession of Norway, Austria, Finland and Sweden to the European Union (1994), 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.543 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 27 members as compared to the original Communities having 6 member states. In particular, for smaller member states these responsibilities are difficult to shoulder. Moreover, the need is felt to have more continuity than a six-month 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 of

538 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. 539 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. 540 TEU, Art. 16.9; TFEU, Art. 236. See W. Hummer and W. Obwexer, Die “EU-Präsidentschaft”, 34 Europarecht 409-451 (1999). 541 Agreement for Economic Unity among Arab League States, Art. 4, para. 3. 542 OPEC, Art. 21. 543 See 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.

§356

rules for international organs

275

the other members generally fear that this would make the position of the large members too dominant. Since the entry into force of the Lisbon Treaty, on 1 December 2009, the European Council has a President for a term of two and a half years.544 However, the Presidency of the Council continues to rotate for periods of six months, except for the Council in its configuration as Foreign Affairs Council, which is chaired by the High Representative of the Union for Foreign Affairs and Security Policy.545

§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.546 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 non-ministerial level.547 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.548 Several organs follow the rule of the UPU whereby the chief delegate of the host country presides over some organs.549 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.550 In 1990, however, this Convention was amended; any member state may now become the chairman of the Administrative Committee.551

544 TEU, Art. 15.5. Herman van Rompuy was elected as the European Council’s first President on 1 December 2009, following political agreement on his election at the informal meeting of EU Heads of State or Government of 19 November 2009. See European Council Decision 2009/879/ EU, published in OJ 2009, L 315/48. 545 TEU, Art. 18.3. For the list of Presidencies of the EU Council until June 2020, see Council Decision 2007/5/EC, Euratom, OJ 2007, L 1/11, Annex. 546 For two early studies, 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). 547 OECD, Art. 10, para. 2. 548 R. Barents, Het Internationale Monetaire Fonds, Studies over internationaal economisch recht, Vol. I. 3(a) (1977), at 67-68. See also below, §460. 549 UPU General Regulations, Art. 102(2); Benelux, Council of the Union, Rules of Procedure, Art. 8 (Bulletin Benelux Publikatieblad 1960-3, at 46). 550 Art. 7, para. 1 of this Convention. 551 Switzerland 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).

276

chapter three

§358

§358 Elected presidents sit in their personal capacity and not as delegates of particular states.552 This means that, in the event of their absence, a vice-president will take over, rather than 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.553 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.554

§359 The term of office of a president normally lasts until his successor has been appointed.555 Therefore, presidents usually open the session subsequent to the one over which they presided. This may cause problems when, in a non-plenary organ, the president comes from a state which is no longer a member of the organ at the next session. To prevent this problem from arising, the Legal Committee of the ICAO elects its chairmen and vice-chairmen at the end of a session for the next two sessions.556 In other organs, it may be wise to provide that presidents and vicepresidents 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.557

552 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 and Rule 19.2 of the Rules of Procedure. 553 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. 554 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. 555 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 14.5). 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. 556 Legal Committee ICAO, Rules of Procedure, Rule 6. 557 UN Office of Legal Affairs, UNJY 1973, at 151-156.

§360

rules for international organs

277

§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 decide not to preside when his state is directly concerned with the question under consideration. The next president will then take over.558 This rule has been applied ten times between 1945 and 1996.559 b. Powers and obligations §361 Presidents have considerable powers. Their influence and authority will 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.560

§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 that are mainly of interest to only a few delegations, he may considerably ease the pressure on meetings. Some organs expressly charge their presidents with the task of initiating consultations both before and during sessions for the purpose of facilitating their tasks.561 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,562 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

558

Security Council, Provisional Rule 20. Bailey and Daws, op. cit. note 314, at 125-126; P. Tavernier, in: 36 AFDI (1990), at 541, and in: 39 AFDI (1993), at 690. 560 See K. van Miert, The Appointment of the President and the Members of the European Commission, 10 CMLRev. (1973), at 264-267. 561 See e.g. ECOSOC Res. 1768 (LIV), VII. 562 E.g. in the IMF (Rules and Regulations, C-5(b)), but there it has never been used, see J. Gold, Voting and Decisions in the IMF (1972), at 115. In the former European Commission of Human Rights this power was used regularly. The President of the ICJ also has this power, see ICJ Statute, Art. 55.2 (it was used e.g. in the Court’s Advisory Opinion in Legality of the Threat or Use of Nuclear Weapons case, ICJ Rep. 1996, at 266). 559

278

chapter three

§364

official occasions or in other organs. This duty may occupy a considerable amount of their time. 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).563 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.564 The Security Council has charged its president, for instance, with the task of seeking conciliation on Kashmir.565

§364 The views 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.566 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 and so forth, are decided by the bureau. Many universal organizations strive for equitable geographical distribution in the bureau.567 This may lead to the establishment of a rather large bureau. Appointment as vice-chairman is an honour to the person concerned. As the function of vice-chairman 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.568 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.569

563

ECSC, Art. 78, para. 3 (original text). GA Res. 1133 (XI); UN Doc. A/3774; Publication No. 51 of the Netherlands Ministry of Foreign Affairs. 565 Mission of Mr. Jarring; SC Res. 123 (1957). 566 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. 567 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. 568 The General Assembly of the UN has 21 vice-presidents (Rule 30). 569 See YUN 1974, at 1069 and 20 AFDI (1974), at 493. 564

§366

rules for international organs

279

3. Rapporteurs §366 Secondary organs report to a superior organ. They often appoint a rapporteur to prepare reports on the basis of their discussions.570 In such a report, recommendations are made to the superior organ and are 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. Languages571 §367 Most organizations have members using different languages. This causes both 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, while still presenting a semblance of consensus to the outside world. In Rosenne’s words: treaties may be the product of disagreements reduced to writing.572 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 that 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”.573

§368 Before the First World War, French was the diplomatic language par excellence, and was used in most international organizations existing at the time. The creation of the League of Nations meant the breakthrough of the English language. To the regret of France, it was agreed that English should also be an official language of the new organization.574 Nevertheless, due to a number of factors (the US

570

GA Rule 103. See Sabel, op. cit. note 372, at 93-94. 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). 572 Quoted in Tabory, op. cit. note 571, at 228. 573 See UN Doc. S/PV.2938, at 54-55. 574 See D. Hunter Miller, The Drafting of the Covenant, Vol. 1 (1928), at 505 ff. 571

280

chapter three

§369

did not become a member; the League Secretariat was based in Geneva), in practice French became its most important language.575 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, with only a nonauthentic 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”.576

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.577 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 is appropriate for large meetings or meetings involving several languages. Organs of the UN system rely mainly on simultaneous interpretation.578 §369 Translation is costly. The UN Joint Inspection Unit has pointed out that a section with ten translators or interpreters for 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.579 In 1973, the cost of adding Chinese as a working language was estimated at $1,050,000 (for the bien-

575

See Tammes, op. cit. note 34, at 190-192. 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-94-AR72, paras. 2, 18). 577 YUN 1946-47, at 223-224. 578 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 interpreters, etc. 579 UN Documents A/8158 and A/33/108. 576

§370

rules for international organs

281

nium 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.580 §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 (such as 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.581 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.582 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.583 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 sufficient basis for meetings to be conducted by a presiding officer entirely or even partially in a language other than one of the official languages . . .”.584 §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.585 Since 1974, the General Assembly uses six languages: Arabic, Chinese, English, French, Russian

580 YUN 1973, at 836. See also GA Res. 34/226. More examples are given in the second edition of this book, §314. 581 See Tabory, op. cit. note 571, at 6-7. 582 See Tabory, op. cit. note 571, 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. 583 See e.g. UN General Assembly, Rule 53; CoE Parliamentary Assembly, Rule 28.2; Standing Orders of the International Labour Conference, Art. 24.4. 584 UNJY 1985, at 133. 585 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 2011 lists 311 conferences and meetings. At least 225 of these use all six official languages (for some conferences and meetings the language regime had not yet been determined) (UN Doc. A/65/32).

282

chapter three

§372

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.586 The language rules of the specialized agencies are influenced by UN practice, but vary from one organization to another.587 §372 In the Council of Europe, English and French are the official languages.588 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.589 §373 The European Union has 23 official and working languages.590 All languages are equally authentic. Each of the institutions has its own rules on languages. The Court of Justice has very elaborate rules in this respect, laid down in its rules of procedure.591 A distinction is made between translation (relating to written texts) and interpretation (relating to speech). In 2006, the costs of translation in all EU institutions amounted to €800 million; in 2005, total costs for interpretation were almost €190 million.592 Each institution has its own translation department (the largest being that of the Commission). The European Commission has separate Directorates General for Translation and for Interpretation.593

586 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 34, at 1382. 587 See for an overview: Tabory, op. cit. note 571, at 21-22 and 237-259. 588 Statute of the Council of Europe, Art. 12. 589 Rules 27 and 28 of the Rules of Procedure of the Assembly. 590 See Arts. 342 TFEU 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. 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 Rights (1992), at 277300. Cf. also K. Armbrüster, Rechtliche Folgen von Übersetzungsfehlern oder Unrichtigkeiten in EG-Dokumenten, Europäische Zeitschrift für Wirtschaftsrecht 246-248 (1990); R. L. Creech, Law and Language in the European Union – The Paradox of a Babel “United in Diversity” (2005). 591 See for a concise overview A. Weber in Von der Groeben and Schwartze (eds.), op. cit. note 147, Band 4, at 1451-1460. 592 See www.europarl.europa.eu/sides/getDoc.do?language=EN&type=IM-PRESS&reference= 20071017FCS11816 (December 2010). 593 See http://ec.europa.eu/dgs/translation/index_en.htm; http://scic.ec.europa.eu/europa/ jcms/j_8/home (December 2010).

§374

rules for international organs

283

The Commission’s Directorate for Translation has a permanent staff of around 1750 linguists and 600 support staff. The Directorate for Interpretation has 500 staff interpreters and 300-400 freelance interpreters per day.594 The European Parliament employs almost 700 translators and 430 staff interpreters; in addition, it has a considerable number of freelance interpreters.595 Plenary sessions of the European Parliament require 800-1000 interpreters, who should be able to make 506 language combinations (interpreting the 23 official languages; 23 × 22).596

§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”.597 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”.598 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”.599 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 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

594

Id. See www.europarl.europa.eu/parliament/public/staticDisplay.do?id=155&pageRank=3&lan guage=EN; www.europarl.europa.eu/parliament/public/staticDisplay.do?id=155&pageRank=4&l anguage=EN (December 2010). 596 See www.europarl.europa.eu/parliament/public/staticDisplay.do?id=155&pageRank=4&lan guage=EN (December 2010). 597 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. 598 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. 599 Case 80/76, Kerry Milk v. Minister for Agriculture and Fisheries, ECR 1977, at 435. 595

284

chapter three

§375

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”. 600

§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”.601 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 EU legislation is directly applicable, containing rights and obligations which may be invoked before the courts by individuals, such as 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.602 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.603 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 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.604 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

600

See UNJY 1987, at 234-235 (para. 3). 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 571, at 47. 602 Rules of Procedure of the Court, Rule 29.2. 603 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 January 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). 604 Council Regulation (EC) 40/94, OJ 1994, L 11/1. See Lenaerts and Van Nuffel, op. cit. note 2, at 515; Vos, op. cit. note 102, at 1128-1129. 601

§376

rules for international organs

285

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 differing 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.605 The Board of Directors of the European Bank for Reconstruction and Development is responsible for the direction of the general operations of the Bank.606 The International Coffee Council, inter alia, “shall perform the functions necessary to carry out the provisions of this [the 2007 International Coffee] Agreement . . .”.607 The Court of Justice of the European Union “shall ensure that in the interpretation and application of the Treaties the law is observed”.608 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. The 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, to govern their composition and functioning. For example, provisions are required on the composition of delegations, on the credentials of delegations, the quorum, the frequency and duration of meetings, privileges and immunities, procedure, languages, and so forth. §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 concerning 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 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

605 606 607 608

LAIA Constitution, Art. 35. EBRD Constitution, Art. 27. 2007 International Coffee Agreement, Art. 9(1). Art. 19.1 TEU.

286

chapter three

§378

differences between institutional rules of international organs that are highly comparable. For example, it has been shown in this chapter that in some commodity councils proxy representation is permitted only within the respective exporters or importers groups, 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 that seem routine, can nevertheless sometimes be better understood within the context 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 (for example, 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 of the host state, have to be taken into account. A similar rule is laid down in Article 14 of the 1975 Vienna Convention, which deals with permanent missions accredited to the organization.609 §379 A second example relates to the status of the people who comprise 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

609 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).

§380

rules for international organs

287

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.610 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.611 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 that are not considered to be in the member state’s interest. In other cases, compromises are reached between the two extremes. The function of the organ may favour the use of individual experts, while state sovereignty may prefer government representatives. For example, the members of the Textiles Monitoring Body – which operated until 2005 within the WTO to supervise the implementation of the textiles and clothing agreement of the GATT Uruguay Round – were government representatives who had to discharge their function on an ad personam basis.612 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 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

610 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. 611 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. 612 Art. 8.1 of the textiles and clothing agreement. This body was 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.

288

chapter three

§381

used to define which states may occupy these seats: these include 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), and so on. These are criteria that 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.613 Otherwise, the law of the jungle may have to determine the solution; and 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, with the doctrine of functional necessity explaining why and what privileges and immunities should be granted to whom, when they should be waived, and related questions. State sovereignty, however, explains why states might come to rather un-functional interpretations of privileges and immunities, as has been demonstrated in the Mazilu and Cumaraswamy cases. It also explains why they may at times bluntly violate their privileges and immunities obligations, for example when UN Special Rapporteur on Torture Nowak was detained for one night and then expelled from Zimbabwe in 2009.614 The Mazilu and Cumaraswamy cases again demonstrate the important role of judicial organs in preventing states from abusing their sovereignty, and enabling international organizations to perform their functions. §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

613 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. 614 See New York Times, 29 October 2009, mentioning the following comment by a former Information Minister from Zimbabwe that denied the special status of the UN Special Rapporteur: “We are talking about a normal visitor, not Jesus”.

§382

rules for international organs

289

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 was 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 increased 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.615 This permanent tension between sovereignty and interdependence, and between the notions of state sovereignty and function, is also visible within any international organization in relation to the issue of powers. While it is reflected in most constitutions of international organizations, it is nowhere as strong as in the EU Treaties (as amended by the 2007 Lisbon Treaty). As discussed above (§210), the 2007 Lisbon Treaty has, in accordance with the principle of conferral, attributed new competences to the EU. However, at the same time a parallel ‘principle of non- conferral’ has developed, as the Lisbon Treaty almost overemphasizes that ‘competences not conferred upon the Union remain with the member states’. In this context, a good example is also offered by Article 6.2 TEU. On the one hand, the competence has been explicitly conferred upon the EU to accede to the European Human Rights Convention (following Opinion 2/94, in which the Court concluded that such a competence could not be implied). On the other hand, according to the second sentence of Article 6.2 TEU, “such accession shall not affect the Union’s competences as defined in the Treaties”. This ‘power paradox’ is probably so strong within the EU because the Union has more extensive competences than other international organizations: these have consequently triggered more extensive countervailing forces than those of other organizations. 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 that 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

615 See e.g. the Agenda for Peace, prepared by UN Secretary-General Boutros Ghali, UN Doc. A/47/277 and S/24111 (1992).

290

chapter three

§382

(partly) determine the extent to which member states can control this process. But before we examine these rules (Chapter Six), we should first have a closer look at policy-making and administrative organs (Chapter Four), and then at supervisory and advisory organs (Chapter Five), in order to become more familiar with the institutional apparatus created to substantiate the functions of international organizations.

CHAPTER FOUR

POLICY-MAKING AND ADMINISTRATIVE ORGANS

§383 In the previous chapter we discussed in some detail rules concerning the institutional aspects of international organs in general. It appeared that organs of international organizations 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 different 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 also a pattern of resemblance between organs of different organizations. There is unity within 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 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 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

1 See more extensively on the problem of classification: Z.M. Klepacki, The Organs of International Organizations 1-18 (1978).

292

chapter four

§385

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, and so forth. The International Telegraph Union, established in 1865, had a similar structure.3

The institutional structure of international organizations became more complex when, alongside the plenary policy-making organ and the secretariat, it was felt necessary to create a third, non-plenary organ having a policy-making function but meeting 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. The need for such an organ exists particularly in universal organizations. Here decision-making is usually slow due to the size of membership. For reasons of effectiveness and efficiency it is therefore often decided to create a third, non-plenary organ to carry out the two abovementioned – and possibly other – functions. And thus we come to the

2 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 that one must use different criteria at the same time. Therefore, it is not surprising that this is, in fact, done by Klepacki too. 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). 3 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.

§385

policy-making and administrative organs

293

elementary triad which remains the basic institutional structure of most universal international organizations.4 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.5

The rationale of creating a third, non-plenary organ having the abovementioned functions is also demonstrated if we analyze organizations that lack such an organ. An example is the World Trade Organization, in which these functions are carried out by plenary organs. In the 1990s, during the travaux préparatoires for this organization, it was proposed that a non-plenary organ should be created. These proposals were rejected however, “mainly because of concerns about the limited membership of the proposed Management Board and its broad functions”.6 Nevertheless, while such proposals may be rejected, the underlying need for the performance of the abovementioned functions in an effective and efficient way does not simply disappear. It is no surprise, therefore, that in recent years suggestions have again been made for the establishment of a non-plenary organ within the World Trade Organization.7 A second example relates to the Intergovernmental Panel on Climate Change (IPCC), a subsidiary body of the World Meteorological Organization and the UN Environmental Programme. This Panel presents regular assessments of climate change.8 Following severe criticism of the Panel’s Fourth Assessment Report, the UN and the IPCC requested the InterAcademy Council (IAC) to prepare a review of the IPCC procedures and make recommendations for change. One of the findings of this review was that IPCC can only take main decisions at annual plenary sessions, and lacks a mechanism to respond to criticism of its work in between such sessions. One of the recommendations was therefore to establish a limited

4 See e.g. Art. II, para. 38(b) of the 1996 Comprehensive Nuclear Test-Ban Treaty (creating the Comprehensive Nuclear Test-Ban Treaty Organization (CTBTO)): “The Executive Council shall . . . supervise the activities of the Technical Secretariat”. 5 G.J. Mangone, A Short History of International Organization 83-84 (1954); see also www.bipm .org (December 2010). 6 D.P. Steger, The Future of the WTO: the Case for Institutional Reform, 12 JIEL 803-833 (2009), at 818. 7 Such suggestions vary from a modest proposal to create a senior consultative body (the 2004 Sutherland Report: The Future of the WTO – Addressing institutional challenges in the new millennium, report by the Consultative Board to the Director-General Supachai Panitchpakdi, in particular paras. 321-327) to the more far-reaching idea of introducing into the WTO structure an Executive Body or Management Board having real decision-making powers and the function to supervise the Secretariat (Steger, op. cit. note 6; M. Matsushita, T.J. Schoenbaum and P.C. Mavroidis, The World Trade Organization: Law, Practice and Policy 15 (2nd ed. 2006). 8 See www.ipcc.ch (January 2011).

294

chapter four

§386

membership Executive Committee.9 IPCC has accepted this recommendation and is preparing its implementation.10 These two examples illustrate the need, particularly for universal organizations, to have a non-plenary organ as a third element of their institutional set-up. A further development came with the creation of parliamentary and judicial organs, performing advisory and supervisory functions. In particular, since 1945 such organs have sometimes been included in the structure of newly-created organizations. The first truly international judicial organ was the Permanent Court of International Justice, created in 1920.11 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 that have 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.12 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 organizations”,13 or “international organizations manquées”.14 There are some specific problems connected with the establishment and functioning of such organs.

9 InterAcademy Council, Climate Change Assessments – Review of the Processes and Procedures of the IPCC (2010), in particular at 40-41 (prepublication copy). 10 IPCC agreed at its 32nd session in Korea (October 2010) “to work toward establishing a formal body to provide governance functions that are necessary between sessions of the panel, strengthen coordination activities, and have oversight of the organization’s administration and communications” (see www.ipcc.ch/meetings/session32/ipcc_IACreview_decisions.pdf, at 9 (January 2011)). 11 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. 12 See memoranda of the UN Office of Legal Affairs, inter alia UNJY 1969, at 207-210 and UNJY 1976, at 200-201. 13 See the Final Report of the ILA Committee on Accountability of International Organizations, adopted by the ILA at its Berlin conference (2004); reproduced in 1 IOLR 221-293 (2004), at 241. 14 P.C. Szasz, The Complexification of the United Nations System, in 3 Max Planck UNYB (1999), at 18.

§387

policy-making and administrative organs

295

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;15 the Committee on the Elimination of Racial Discrimination, established by the International Convention on the Elimination of All Forms of Racial Discrimination;16 the Human Rights Committee, created by the International Covenant on Civil and Political Rights;17 the Preparatory Commission for the International SeaBed Authority and for the International Tribunal for the Law of the Sea;18 the Preparatory Commission for the Organization on the Prohibition of Chemical Weapons;19 the Preparatory Commission for the International Criminal Court;20 and the Meeting of the States Parties to the Convention on Cluster Munitions.21

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 One. 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 that are incorporated in the treaty cannot be set aside. Until such a treaty is amended, resolutions of the organization that conflict with them have no legal effect in respect of the treaty organ concerned.22 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.23 In addition, there is another caveat: treaty organs cannot benefit in a way similar to the organization’s ‘own’ organs from the general rules concerning the legal status, privileges and immunities of the organization. After all, they are not organs of the organization. Therefore, individuals serving on expert bodies such as those established

15

520 UNTS 151, Art. 11(2). Adopted by GA Res. 2106 (XX). Adopted by GA Res. 2200 (XXI). 18 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. 19 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. 20 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). 21 Created by the Convention on Cluster Munitions. See Final Document of the Diplomatic Conference for the Adoption of a Convention on Cluster Munitions, Dublin, 19-30 May 2008 (CCM/78), Part II. See www.clustermunitionsdublin.ie/convention.asp (January 2011). 22 UNJY 1976, at 200-201. See for a specific example UNJY 1981, at 164-165. 23 See UNJY 1976, at 200-201. 16 17

296

chapter four

§388

under the Kyoto Protocol to the UN Framework Convention on Climate Change cannot have the status of “experts on missions for the UN”, pursuant to Article VI of the Convention on the Privileges and Immunities of the UN, as they “are neither appointed by the Secretary-General, nor ‘perform missions for the United Nations’ ”.24 This illustrates the sort of technical problems that 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 to it, 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.25 To prevent too great an increase in the number of international organizations, it is certainly useful if treaties that create such organs should place them 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 that 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, of course, these distinctions are 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 the institutional rules of organs within different organizations that perform 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 of its special character, very different from both policy-making and administrative organs, the Commission will

24

UNJY 2006, at 447-449. See for questions and 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; UNJY 2005, at 443-444; UNJY 2008, at 417-420; UNJY 2009, at 450-453. 25

§389

policy-making and administrative organs

297

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 of which 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 refer to this organ as 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 wide variety of terms for their general congress. For the UN it is General Assembly, for other organizations General Conference,26 Conference,27 Congress,28 or Assembly.29 In closed organizations, Council30 or Committee of Ministers31 is often used. Financial organizations usually employ the term Board of Governors.32 We avoid “Assembly” for the general congress since 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.

26

ILO, UNESCO, IAEA. FAO, OAS. 28 WMO, UPU. 29 ICAO, IMO, WHO, AU, IRENA. 30 NATO, League of Arab States, OECD, European Union (Council of Ministers and European Council), EFTA, Cartagena Agreement, LAIA, many commodity agreements (e.g. the 1992 International Sugar Agreement), APSCO. 31 CoE, Benelux. 32 IMF, World Bank, EBRD, EIB; an exception is MIGA (“Council of Governors”). 27

298

chapter four

§391

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,33 or expressly reserve important powers to it.34 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 (for example, as in 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 Union, 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.35 In some organizations, the general congress is reluctant to delegate powers to other organs.36

33 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; ASEAN, Art. 7.2(a); IRENA, Art. IX.A.1. See also K. Zemanek, Das Vertragsrecht der internationalen Organisationen 35-36 (1957). 34 See J. Gold, Voting and Decisions in the International Monetary Fund 10-14 (1972). 35 R. Barents, De Wereldbank, in P. VerLoren van Themaat, Studies over internationaal economisch recht, Vol. 1, 3(b) (1977), at 37-38. 36 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).

§392

policy-making and administrative organs

299

§392 Within the European Union there are two general congresses: the Council and the European Council. Originally, each of the three European Communities had its own Council, originally called the Council of Ministers. These three general congresses were merged with the entry into force of the 1965 Merger Treaty. At present, the Council (as it is now named) is one of the principal decision-making bodies of the EU.37 In the event, the need was felt to create a higher body to decide on the most difficult political issues and for consultation on and coordination of foreign policy matters. Created in 1974 (at the Paris Summit), a new body, the European Council, was superimposed on the existing institutional structure.38 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. With the entry into force of the 2007 Lisbon Treaty, it became one of the seven EU institutions.39 It is separate from and superior to the Council. The European Council is composed of the heads of state or government of the member states, together with its President and the President of the Commission.40 Its task is to “provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof ”.41 It is “an intergovernmental organ par excellence with no supranational features”,42 which has become “a focal point for the major political decisions on the unification of Europe”.43 The EU does not, however, provide the only example of such a high-level council. 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.44

37 M. Westlake (ed.), The Council of the European Union (1995); F. Hayes-Renshaw and H. Wallace, The Council of Ministers (1996); M. Westlake and D. Galloway, The Council of the European Union (3rd ed. 2004). 38 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). 39 TEU, Art. 13.1. 40 TEU, Art. 15.2. 41 TEU, Art. 15.1. 42 D.M. Curtin, The Constitutional Structure of the Union: a Europe of Bits and Pieces, 30 CMLRev. 26 (1992). 43 Glaesner, op. cit. note 38, at 113. 44 YIO 2008-2009, Vol. 1, at 103.

300

chapter four

§393

2. Junior congress §393 Some constitutions require that the general congress be composed of cabinet ministers (see above, §243-247), despite the fact that this may prevent frequent meetings. For items on the agenda that are not of primary importance, therefore, the organization 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 usually established by a later mutual agreement between the member states.45 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.46 We shall refer to such plenary organs (secondary, and possibly tertiary) as 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).47 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 has been used by the Benelux Committee of Ministers.48 The Latin American Integration Association (LAIA) has a committee of permanent representatives operating as a junior congress. Its powers are specified in the constitution.49

45 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, The Committee of Ministers of the Council of Europe (1995), at 18-23; F. Benoît-Rohmer and H. Klebes, Council of Europe law – Towards a pan-European legal area (2005), at 48-50. 46 OPEC, OAPEC, CIPEC. See G. Fischer, Les associations de pays exportateurs de produits de base, 22 AFDI 548 (1976). 47 On this committee see E. Noël, The Committee of Permanent Representatives, 5 JCMS 219251 (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. 48 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). 49 LAIA, Art. 35.

§394

policy-making and administrative organs

301

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.50 The constitutions of the International Energy Agency and of the Economic Community of West African States also provide for junior congresses.51 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.52 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. ASEAN has a junior congress named Committee of Permanent Representatives. It is composed of the permanent representatives of the member states to ASEAN based in Jakarta.53

§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.54 They themselves 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 an inability to comply with 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.55 The Interim Committee was originally intended to function until the opening of the third session. At this session it was renewed.56 During the fourth session it became a permanent organ.57 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

50

Agreement on Andean Subregional Integration. Arts. 19-21, Peaslee I, at 52. IEA, Art. 53; ECOWAS, Arts. 4-6. 52 OAS, Art. 61; CMEA, Arts. 7 and 8. 53 ASEAN, Art. 12. 54 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. 55 GA Res. 111 (II). 56 GA Res. 169 (II). 57 GA Res. 295 (IV). 51

302

chapter four

§396

of a mere “study” committee.58 The Interim Committee is authorized to request advisory opinions from the International Court of Justice,59 and to utilize, with certain limitations, the Peace Observation Commission.60

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 that 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 upon the powers of the Security Council.61 Regular sessions of the General Assembly normally take place between the third Tuesday of September62 and Christmas. However, in the absence of a junior congress the Assembly now usually decides not to close, but rather to suspend, its annual session in December and to resume deliberations in the new year (originally for a few days, now mostly for a few weeks), between January and the opening of the next regular session.63 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 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 telecom-

58

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. 61 See B. Simma (ed.), Charter of the United Nations (2nd ed. 2002), at 378. 62 In recent years often earlier: e.g. 9 September 1998, 5 September 2000. See the overview in Simma, op. cit. note 61, 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/64/1 for the list of opening dates from 2010 to 2014. See for details also www.un.org/en/ga/sessions/ (December 2010). 63 See the table with precise dates of sessions of the General Assembly in Simma, op. cit. note 61, at 391-395. 59 60

§397

policy-making and administrative organs

303

munications. 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.64 In respect of these technical 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 (for example, agriculture ministers are sent to Council meetings devoted to agricultural policies). Although formally there is one Council, in practice there are meetings of, for example, the ‘Agriculture Council’ or the ‘Budget Council’. In its different compositions (“configurations”) 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.65 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.66 However, these commissions never met.67 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.68 Several other international organizations have specialized congresses.69 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 the Ministers of Justice of the member states.70 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.71 The same

64

ITU Constitution, Arts. 13.4, 22.4, 25.2. OAU, Art. 20. A.N. Wachuku, Decision-making in the principal organs of the OAU (Univ. of Michigan Law School, 1969 (not published)), at 2. 67 Borella, op. cit. note 36, at 239; J. Woronoff, Organizing African Unity 168-175 (1970). 68 OAS, Arts. 127-128. 69 See e.g. ECOWAS Art. 9; Caricom, Art. 10; IEA, Arts. 54-58. 70 See De Vel, op. cit. note 45, at 116-122 and Annex V. 71 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. 65 66

304

chapter four

§398

happened to the Technical Assistance Board of the United Nations Conference on Trade and Development in 1977.72

§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 difference there is in substance. 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.73 4. 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 that 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, preparations must be made in two areas. First, the organ requires information on the issue involved. It

72 73

GA Res. 31/2. E.g. the 27th Special Session (May 2002), devoted to children.

§402

policy-making and administrative organs

305

wants to know the possible solutions to a problem. Larger organizations usually refer this sort of preparation to non-plenary organs (see below, §404, 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 particular 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 that 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.74 This 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 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):75 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).76

74 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 that session, the organization of the work of the whole session, and the problem of participation of smaller delegations”. See also GA Res. 51/241, Annex, paras. 31 and 36; UN Doc. A/BUR/64/1, at 3-4; UN Doc. A/BUR/65/1, at 4. 75 GA Rules of Procedure, Rule 98; United Nations Handbook 2010-2011, at 22. At times, joint meetings of two main committees have been held. See UNJY 1978, at 166-167. 76 See M. Ahsen Chaudhri, Origin, Composition and Function of the Sixth Committee, 29 REDI 211-232 (1973).

306

chapter four

§403

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”).77 Other general congresses follow a similar pattern, which was originally developed by the League of Nations.78 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 timesavings they offer. For the sake of efficient decision-making it is useful to adopt a procedure with two consecutive stages. In the first stage, the opinions of the different delegations are brought to life and the proposals’ chances of success can be evaluated. Congressional commissions close their proceedings by submitting a report to the general congress. All projects for decisions are voted upon or adopted without voting (by consensus). Before discussion in the general congress, the delegations know how many extra votes are required or how much additional support is needed 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 working on a single topic sometimes create one congressional commission (commission of the whole) rather than starting discussion immediately in the plenary organ.79 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 nonplenary 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 at 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.80 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.

77

GA Res. 47/233. M. Burton, The Assembly of the League of Nations 135-174 (1974). 79 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. 80 See United Nations Handbook 2010-2011, at 54-55. 78

§405

policy-making and administrative organs

307

§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 in respect of 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.81 Special types of functional commissions are the Management Committees of the EU (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).82 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.83 §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.

81 Benelux, Arts. 28-29. These commissions are no longer explicitly mentioned in the 2008 Treaty revising the Treaty establishing the Benelux Economic Union. 82 SELA, Art. 20 (15 ILM 1092 (1976)). 83 Borella, op. cit. note 36, at 235.

308

chapter four

§408

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 EU 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 policy-making organ: a board. 2. The board §409 Using different names such as “Executive Board”,84 “Council”,85 “Governing Body”86 or “Executive Council”,87 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

84 85 86 87

E.g. WHO. E.g. FAO, IRENA. ILO. E.g. WMO, OPCW.

§411

policy-making and administrative organs

309

session, subject to the final authority of the general congress. An example of such an executive board is the board of the UPU, established in 1964.88 The constitution may indicate which powers the general congress may confer upon an executive board.89 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,90 others – particulary those that have governing as well as executive tasks – meet more often, or may even stay permanently in session.91 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, which meets less frequently, may then be needed.92 (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 composed 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 the bond between the general congress and the executive

88

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. 90 E.g. the board of WMO. 91 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 34, at 85-87. 92 See the 1976 amendment of the IMF constitution, 22 AFDI 625 (1976). The amendment entered into force in April 1978. 89

310

chapter four

§414

board actually was, 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. In the World Tourism Organization, board membership is one-fifth of total membership.93 The Economic and Social Council of the UN (192 members) has 54 members; the executive board of the FAO (192 members) has 49 members; that of UNESCO (193 members) 58; ITU (192 members) 46; ICAO (190 members) 36; WHO (193 members) 34; and WMO (183 members) 37.94 The board of ILO (183 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.95 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 that 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,96 these boards operate in a narrow field of activity. The Radio Regulations Board of the ITU (previously the Frequency Registration Board) performs an important independent governmental duty in the assignment and utilization of radio frequencies.97

93 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, but it is applied on a provisional basis pending its entry into force (see www.unwto.org). 94 Data taken from the websites of these organizations (November 2010) and from the United Nations Handbook 2010-2011. 95 In 1986, an amendment was adopted, increasing the number of members of the board to 112. This amendment has not entered into force. 96 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. 97 ITU Constitution, Art. 14.

§416

policy-making and administrative organs

311

The International Narcotics Control Board performs an independent role within the UN system in the field of narcotic drugs. Its main task is to monitor and support implementation of the international drug control conventions. It has its own secretariat, which is an administrative entity of the UN Office on Drugs and Crime (UNODC) that reports solely to the Board on matters of substance.98 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.99 The Board has thirteen members, who serve in their personal capacity and do not represent governments.100

§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,101 are in practice made by the Council. A majority of ICAO members can collectively veto such rules within three months; this has never happened in practice.102 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.103

All boards that 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.104 §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.105 Several specific powers are granted to the Security Council in fields relating to its principal task.106 The Charter empowers the Security Council to act on behalf of the member states, which have pledged to 98

United Nations Handbook 2010-2011, at 368. ECOSOC Res. 1196 (XLII), YUN 1967, at 474-476. 100 United Nations Handbook 2010-2011, at 369. 101 ICAO, Art. 12. 102 ICAO, Art. 90(a); J. Huang, Aviation Safety and ICAO (dissertation Leiden University, 2009), at 55. On the legislative powers of ICAO see E. Yemin, Legislative Powers in the UN and Specialized Agencies 114-160 (1969) (at 130-131 on the ‘veto power’ of the majority of ICAO members). 103 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). 104 See Lino di Qual, Les effets des résolutions des Nations Unies 36-40 (1967). 105 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 61, 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); ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, at 148-152. 106 UN Charter, Chapters VI, VII, VIII, XII. 99

312

chapter four

§418

accept and carry out its decisions.107 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.108 However important the task of the Security Council may be, it is limited to an area that 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 the Frequency Registration Board) is composed of twelve independent members (“custodians of an international public trust”) elected for at least four years, and is assisted by a specialized Secretariat.109

§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 spe-

107

UN Charter Arts. 24, 25. 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 – 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 157158. 109 ITU Constitution, Art. 14.3 (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. 108

§420

policy-making and administrative organs

313

cial position would make little sense if the superpowers could not have their own representatives on the Council. §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 in the number of members of the Security Council. In 1963, an amendment of the Charter was adopted to enlarge the Council to fifteen members.110 Subsequently, repeated calls have been made to further adjust the composition of the Security Council,111 due to the fact that 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.112 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.113 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.114 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”.115 A large number of member states presented their views on this matter.116 Some countries were in favour of a small increase in membership,117 while others favoured more fundamental changes.118 Generally, developing countries favoured a more substantial increase of Council members than developed countries, which emphasized the need for the Council to operate effectively.119 As opposed to the

110 This amendment entered into force in 1965; as of 1 January 1966, the Council met in its new composition. 111 E.g. UN Doc. A/35/L.34/Rev. 2. 112 Cf. Art. 24.1 of the Charter: “[i]n 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). 113 UN Charter, Art. 108. 114 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. 115 GA Res. 47/62. 116 See UN Doc. A/48/264 and Add. 1-10. 117 E.g. Belgium, which proposed to add two permanent members and one non-permanent member (id., at 12). 118 E.g. Malaysia, which proposed to abolish the veto power in the long term (id., at 58-59). 119 A number of developing countries (e.g. Antigua and Barbuda; Chile; Costa Rica; India) proposed that the enlarged Council should have 25 members. Developed countries such as Denmark,

314

chapter four

§420

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”.120 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”.121 The subsequent annual reports of this working group demonstrate how difficult it is to agree.122 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. The difficulty of reaching agreement was demonstrated even more when the 2005 UN Summit meeting was unsuccessful in this respect. In preparing for this meeting, a High-level Panel had given recommendations. The Panel proposed two alternatives.123 According to Model A, there should be six new permanent seats (without a veto right) and three new two-year term non-permanent seats. According to Model B, there should be no new permanent seats, but a new category of eight four-year renewable-term seats and one new two-year non-permanent (and non-renewable) seat. Therefore, under both models, the Security Council would have 24 members. This would clearly be in line with the trend of increasing membership of non-plenary organs in universal organizations within the UN family during the past decades.124 The Panel considered it unrealistic to propose abolishing the right of veto. However, “the institution of the veto has an anachronistic character that is unsuitable for the institution in an increasingly democratic age”, and the Panel therefore recommended that under any reform proposal there should be no expansion of the veto.125 Subsequently UN Secretary-General Kofi Annan urged the member states to consider these two models, “or any other viable

France, and the Netherlands emphasized the need to operate effectively, as laid down in Art. 24.1 of the Charter (“[i]n order to ensure prompt and effective action...”). 120 GA Res. 48/26. 121 UN Doc. A/48/47, at 2. 122 See e.g. UN Docs. A/53/47, A/54/47, A/55/47 and A/56/47; see also B. Fassbender, All Illusions Shattered? Looking Back on a Decade of Failed Attempts to Reform the UN Security Council, Max Planck UNYB Vol. 7 (2003), at 183-218. 123 A More Secure World: Our Shared Responsibility, Report of the High-level Panel on Threats, Challenges and Change, UN Doc. A/59/565 (2004), paras. 250-253. 124 See N. Blokker, Towards a Second Enlargement of the Security Council? A Comparative Perspective, in N. Blokker and N. Schrijver (eds.), The Security Council and the Use of Force – Theory and Reality – A Need for Change? (2005), at 253-260. 125 Id., para. 256. The Panel also urged that the use of the veto “be limited to matters where vital national interests are genuinely at stake”. Also, it asked “the permanent members, in their individual capacities, to pledge themselves to refrain from the use of the veto in cases of genocide and large-scale human rights abuses”.

§421

policy-making and administrative organs

315

proposals in terms of size and balance that have emerged on the basis of either model”.126 In September 2005, the UN Summit meeting, bringing together heads of state and government of the member states, could not agree on this delicate and thorny issue.127 In more recent years, this was discussed further but still without any final result.128 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.). a. 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 could exert more control if the task is less specialized, as in the case of 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

126 In Larger Freedom: Towards Development, Security and Human Rights for All, UN Doc. A/59/2005 (2005), para. 170. 127 GA Res. 60/1 (2005 World Summit Outcome), in particular paras. 152-154. On this failure to reach agreement and the preceding negotiations, see B. Fassbender, On the Boulevard of Broken Dreams, 2 IOLR 391-402 (2005). 128 See e.g. UN Doc. A/63/47.

316

chapter four

§424

the specific subjects concerned. If, however, the function is very specialized, and therefore subject to minimum control from higher organs, governments may wish to obtain 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 ensures the organization obtains 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. An example is the Economic and Social Committee of the EU, composed of representatives of organizations of employers, of the employed, and of other parties representative of civil society, notably in socio-economic, civic, professional and cultural areas.129 The Economic and Social Committee may be consulted by the European Parliament, 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 in which it considers such action appropriate.130 The 1992 Treaty on European Union created a new consultative commission for the EU: the Committee of the Regions, composed of representatives of regional and local bodies. Its powers are similar to those of the Economic and Social Committee.131 Since 1961, the EFTA has had a consultative committee comparable to the Economic and Social Committee of the EU.132

129 TFEU, Art. 300.2. On the Economic and Social Committee see: G. Zellentin, Der Wirtschaftsund 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: S. Siebeke, in: H. von der Groeben and J. Schwarze (eds.), Kommentar zum Vertrag über die Europäische Union und zur Gründung der Europäischen Gemeinschaft (6th ed. 2003), Band 4, at 870-900. 130 TFEU, Art. 304. 131 TFEU, Arts. 300.3, 305-307. 132 EFTA, Third Annual Report, at 15; www.efta.int (December 2010).

§425

policy-making and administrative organs

317

§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 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 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).133 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

133 See the websites of these commissions: www.unece.org; www.eclac.org; www.uneca.org; www.unescap.org; www.escwa.un.org.

318

chapter four

§429

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 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.134

§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 interested member states from other regions may be members as well.135 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.136 The first such approved agreement was the agreement of 16 August 1967 between Colombia, Chile, Equador, Peru and Venezuela.137 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 Union. Examples are the Andean Common Market and MERCOSUR.138

§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 a degree of duplication in headquarters and regional offices are appa-

134 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. 135 See UNJY 1971, at 206-211. 136 LAFTA Res. 202 (CM-II/VI-E) published by M.S. Wionczek, Economic Co-operation in Latin America, Africa and Asia 88 (1969). 137 LAFTA Res. 203 (CM-II/VI-E) published by Wionczek, op. cit. note 136, at 89. See also Instruments of Economic Integration in Latin America and the Caribbean, InterAmerican Institute of International Legal Studies (1975). 138 See for the Andean Common Market: YIO 2008-2009, Vol. I, at 103; for MERCOSUR (establishing a common market between Argentina, Brazil, Uruguay and Paraguay), see 30 ILM 1041 (1991).

§431

policy-making and administrative organs

319

rent, 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.139 §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 that are present at a meeting of a larger organ. Usually, regional groups are not instituted as organs of the organization: they meet only informally.140 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 the head of the secretariat.141 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.142 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 board143 and, together with their chairmen, also those of the regional associations.144 Together with the two vice-presidents of the organization, he may convene an extraordinary session of the board.145 He supervises the Secretariat146 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.147 This could even include matters of a legislative character.148 Other specific duties may be attributed to him.149 His power to invite any director of a meteorological service or any other person to the general congress was of political importance.150 Using this power, he could invite directors of the meteorological service of countries such as former Eastern Germany or China, which were

139 Jackson Report, A Study of the Capacity of the United Nations Development System, UN Doc. DP/5, Vol. II, at 456-462. 140 See R.O. Keohane, Political Influence in the General Assembly, 557 Int. Conc., at 6-11; M. Virally, L’Organisation mondiale 280-293 (1972). 141 See e.g. World Bank, Art. V, Section 5. 142 WMO, Art. 4(b). 143 WMO, Art. 15(a). 144 WMO, Art. 18. 145 WMO, Art. 15(b). 146 WMO, Art. 22(a). 147 General Regulation 9. 148 Yemin, op. cit. note 102, at 170. 149 General Regulation 9. 150 WMO (1959), Art. 6b.

320

chapter four

§433

at the time not recognized as states by most member states. The 1963 session of the general congress curtailed this power.151 A comparable function exists in the ICAO. In this organization, the president of the board (Council) has somewhat wider powers.152 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.153 All International Fisheries Councils have elected presidents, competent to perform tasks between sessions.154

§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 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.155 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

151

WMO, Art. 7c. ICAO, Art. 51. F. Rouhani, A History of OPEC 122 (1971). 154 A.W. Koers, International Regulations of Marine Fisheries 133-134 (1973). 155 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. 152 153

§435

policy-making and administrative organs

321

World Intellectual Property Organization.156 Until then, all staff appointments, including the Director, were made by the Swiss government. They were mostly of Swiss nationality. Of the directors, only the last (the Dutchman Bodenhausen) was not.157

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.158 The Association of South East Asian Nations (ASEAN) originally lacked an international secretariat, and only 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”.159 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.160 The 2007 ASEAN Charter has consolidated what has been developed over the years. It provides a constitutional basis both for the ASEAN Secretariat and for ASEAN national secretariats. While the ASEAN Secretariat has the normal functions of an international secretariat, the national secretariats serve as national focal points for ASEAN matters, coordinate the implementation of ASEAN decisions at the national level, coordinate and support national preparations for ASEAN meetings, and so forth.161 §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.162 However, they were not appointed without prior approval of their governments163 (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. 156 A. Bogsch, Brief History of the First 25 Years of the World Intellectual Property Organization 7-10 (1992). 157 WIPO, The Paris Convention for the Protection of Industrial Property, from 1883 to 1983 (1983), at 86-96. 158 See Koers, op. cit. note 154, at 144-147. 159 ASEAN Declaration Art. 7(d), 6 ILM 1235 (1967); (Peaslee I, at 146). 160 See YIO 2008-2009, Vol. 1, at 141; www.aseansec.org (December 2010). 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. 161 ASEAN Charter, Arts. 11, 13. 162 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). 163 International Institute of Agriculture, Statute, Art. 27.

322

chapter four

§436

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.164 Loveday compares them with national ministries, an analogy which 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.165 Supervisory bodies of the secretariats of international organizations are less concerned with the political supervision of the secretariats than with administrative control. §436 Most of the larger international organizations have one unified secretariat, subdivided in Departments or Directorates and Offices or Services, such as the Legal Service.166 The UN Secretariat consists of various offices and departments, which are organized into divisions, services, sections, branches, and units.167 Within the UN Secretariat, the Office of Legal Affairs is the central legal service of the Organization.168 Inter alia, it “provides legal advice to the Secretary-General, Secretariat departments and offices and United Nations organs in the field of public and private law, and represents the Secretary-General in legal conferences and in judicial proceedings”.169 §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.170 The International Development Association uses the Secretariat of the World Bank for which the Bank is remunerated.171

In the European Union, each of the institutions has its own staff.172 The same is true of the ITU, in which the Radiocommunication Sector, the Telecommunication

164 See in general J. Schwob, Les organes intégrés de caractère bureaucratique dans les organisations internationales. Essai de typologie des organes administratifs et exécutifs (1987). 165 A. Loveday, Reflections on International Administration 23-30 (1956). 166 On the legal services of a number of international organizations, see H.C.L. Merillot (ed.), Legal Advisors and International Organizations 51-113 (1966). 167 See Simma, op. cit. note 61, at 1194. See for a brief overview of the structure of the UN Secretariat: United Nations Handbook 2010-2011, at 185-202. For a more detailed description of the organization of the UN Secretariat and how it has developed over time, see T. Myint-U and A. Scott, The UN Secretariat – A Brief History (1945-2006) (2007). 168 This Office was established by the General Assembly in Res. 13(I). 169 See UN Doc. ST/SGB/2008/13 (Secretary-General’s Bulletin, Organization of the Office of Legal Affairs), quotation at para. 2.1. 170 YUN 1992, at 1146. 171 Barents, op. cit. note 35, at 33. 172 All staff members are, however, members of the Union personnel. Though the Commission is an independent political organ there is no reason why its administrative staff should not be

§438

policy-making and administrative organs

323

Sector and the Development Sector have specialized secretariats (“Bureaux”) of their own. It has been questioned whether this decentralization in the ITU is efficient.173 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 in view of the risk of divided loyalties, undesirable rivalry and the danger of an overlapping of spheres of responsibility among the individual secretariats.174 §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 secretariat175 §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.176 (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

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. 240.2 TFEU), see A. Egger, Das Generalsekretariat des Rates der EU (1994). 173 See UN Doc. A/7765 (Report of the ACABQ on the ITU), GA 24th session, Agenda item 81, at 4-6, 10, 16. 174 Simma, op. cit. note 61, at 1194. 175 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 SecretaryGeneral: 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; S. Chesterman (ed.), Secretary or General? The UN Secretary-General in World Politics (2007); L. Gordenker, The UN Secretary-General and Secretariat (2nd ed. 2010). 176 B. David Meyers, The OAU’s Administrative Secretary-General, 30 International Organization 509-520 (1976).

324

chapter four

§440

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 usually for five years.177 In the FAO, appointment was originally for four years which could be extended for a maximum of two two-year periods.178 In 1971, this was changed into one fixed appointment of six years which could not be extended.179 A few years later this was amended: since 1977 re-election was again possible.180 However, subsequently this was changed, first into appointment for six years and reappointment only for one more term of four years, most recently into appointment for four years and reappointment only once for a further term of four years.181 The frequent changes demonstrate the continuous tension between the wish for stability and that for change and political influence.182

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”.183 The Secretary-General of ASEAN is appointed for a non-renewable term of office of five years, “selected from among nationals of the ASEAN Member States based on alphabetical rotation …”.184 The Executive Secretary of the Shanghai Cooperation Organization is also appointed on the basis of rotation among the members, for a non-renewable period of three years.185 §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.186

177 The term of office is not mentioned in the Charter. For an overview of the practice, see Simma, op. cit. note 61, at 1199-1205; C. Keating, Selecting the World’s Diplomat, in Chesterman, op. cit. note 175, at 47-66, in particular at 55-56. 178 FAO, Art. 7 para. 1. 179 FAO Res. 12/71. 180 FAO Res. 17/77. Director-General Jacques Diouf benefited from this amendment: he was first elected in 1993, and re-elected in 1999 and 2005. 181 Art. VII.1 FAO Constitution. 182 See also F.W. Hoole, The appointment of executive heads in UN treaty-based organizations, 30 International Organization 91-108 (1976). 183 Rouhani, op. cit. note 153, at 124; OPEC Statute, Art. 28.A.; information obtained from the OPEC Secretariat. 184 ASEAN Charter (2007), Art. 11.1. 185 Charter of the Shanghai Cooperation Organization, Art. 11. 186 See UNJY 1973, at 159-160.

§442

policy-making and administrative organs

325

Particularly during the last decade, increasing attention has been given to what is usually named the ‘accountability’ of secretariats. The UN General Assembly has defined this as “the obligation of the Secretariat and its staff members to be answerable for all decisions made and actions taken by them, and to be responsible for honouring their commitments, without qualification or exception”.187 The UN Secretary-General has given a broader definition, referring to “the obligation of the Organization and its staff members to be answerable for delivering specific results that have been determined through a clear and transparent assignment of responsibility, subject to the availability of resources and the constraints posed by external factors”.188 This broader definition implicitly refers to the role of the members. In any international organization, there are two sides to this ‘accountability coin’. On the one hand, the secretariat should perform its functions (as mentioned in the paragraphs below) and should be accountable for this, usually to the board and the general congress. On the other hand, the members should, through the board and the general congress, enable the secretariat to do what they ask it to do, by giving it the necessary means and resources. For example, secretariats should have the necessary qualified staff and budget to perform the assigned functions. In addition, tasks given to the secretariat, but also mandates for operations such as peace-keeping operations, should be clear and realistic. This may be difficult to achieve, since such tasks and mandates are often the results of hard-won compromises among the members. 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. The performance of these – as well as other – functions by the secretariat is supervised by policy-making organs of international organizations. These two types of organs have to respect their distinctive functions. While it is for the policy-making organs to determine the general policies and to lay down general rules, it is for secretariats to do the detailed executive work. Within the UN, there

187 188

GA Res. 64/259, para. 8. UN Doc. A/64/640 (with references to earlier UN documents about this issue).

326

chapter four

§442

is sometimes the criticism that the General Assembly is too much involved in ‘micromanagement’ of the Secretariat.189 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.190 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.191 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.192 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 board states that

189 See e.g. UNJY 2006, at 458-466, where the example is given of the General Assembly’s request that there should be one printer for every four computers (at 465). As stated by the UN’s Office of Legal Affairs: “The intergovernmental organ should more properly concern itself with the reasonableness of the overall budgetary envelope, rather than a detailed line item analysis, and should leave the Secretary-General a margin of managerial discretion within which to effectively implement the work programme” (at 466). See also above, §223. 190 See YUN 1968, at 859-864, for an example and for objections against this policy. 191 YUN 1964, at 556-557. 192 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.

§443

policy-making and administrative organs

327

the conference was adjourned on 19 October.193 In 1965, the general congress of ITU adopted a resolution excluding South Africa from the regional conferences for Africa.194 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.195

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 that controls the spending of funds. It has some power to transfer funds from one article of the budget to another (see below, §1097).196 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).197 The European Union has a central information service.198

(2) Information to the outside world regarding the field covered by the organization. Information is collected concerning such fields and officials of international secretariats become experts. This expert knowledge is often used for the benefit of the member states. The opinions of the legal department of the UN Secretariat

193

Report by the Administrative Council to the Plenipotentiary Conference, Montreux (1965),

at 12. 194

ITU Res. No. 44 (1965), UNJY 1965, at 143; YUN 1965, at 775. Regional Agreement for the African Broadcasting Area, Protocol, Final Protocol, Resolutions, published by ITU (1966). 196 See on the budgetary functions of the UN Secretary-General UNJY 1982, at 194-196. 197 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). 198 See the annual General Reports on the Activities of the EU, published online at http://europa. eu/generalreport/en/welcome.htm. The obligation for the European Commission to publish this annual report is laid down in Art. 249.2 TFEU and in Art. 125 EAEC Treaty. 195

328

chapter four

§445

carry great weight in the development of international law.199 Some international organizations send out members of their staff to disseminate know-how. For example, the Organization for Economic Cooperation and Development (OECD) has a Programme for International Student Assessment (PISA).200 PISA regularly prepares high quality and very influential reports on the performance of secondary school students in OECD member states and increasingly also in countries that are not OECD members. These reports “have become an important factor for educational policy-making in the developed world”. This way of shaping policies by providing information has been called “governance by information”.201 Another example is the use of internet by the World Health Organization to disseminate information about diseases and epidemics such as SARS (Severe Acute Respiratory Syndrome). By collecting all available information, by making it available on its internet site, and by giving advice (such as advice not to travel to specific areas), WHO has influenced decision-making by health authorities and governments. It has been observed that “the impact of such formally non-binding guidance has been dramatic”.202 It assists in the fight against the international spread of diseases and, in relation to the outbreak of SARS, it has helped the WHO Secretariat to “overcome China’s initial lack of collaboration”.203 (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.204 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

199 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. 200 See www.pisa.oecd.org (December 2010). 201 A. von Bogdandy & M. Goldmann, The Exercise of International Public Authority through National Policy Assessment – The OECD’s PISA Policy as a Paradigm for a New International Standard Instrument, 5 IOLR 241-298 (2008); quotations at 241 and 243. 202 G.L. Burci, Institutional Adaptation without Reform – WHO and the Challenges of Globalization, 2 IOLR 437-443 (2005), at 443. 203 Id. 204 See Bhattacharya, op. cit. note 175.

§446

policy-making and administrative organs

329

done, but principally to record it in order to enable the organization to build on previous achievements. Recording should be as accurate as possible.205 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 the reports must be written by the member states themselves, the secretariat has no influence over their content. 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 that 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.206 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.207 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.208 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.209

205

Deletion of statements from the records is undesirable, see UNJY 1969, at 212-213. See e.g. ECOSOC Res. 624 B.l (XXII) of 11 August 1956. 207 See UNJY 1973, at 162-163; see further E. Fromageau, Collaborating with the United Nations : Does Flexibility Imply Informality? 7 IOLR 405-439 (2010). 208 In November 2005 this procedure was used get information about illegal detention of terrorist suspects and ‘rendition flights’. This was the 8th time that this procedure was used since the entry into force of the European Convention. See CoE Press Release 636 (2005). 209 See S. Rabiller, Le pouvoir d’enquete du secretaire general du Conseil de l’europe, RGDIP (2001), at 965-984. See also below, §1402. 206

330

chapter four

§448

g. Coordination §448 In large organizations many organs discuss related subjects. Well over 100 commissions operate within the UN.210 The secretariat serves all of them. This makes it the appropriate organ to advise on the division of labour.211 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 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 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, §1723). In 1964, the ACC was of the opinion that the UN ad hoc Committee on Coordination of Technical Assistance Activities had made recommendations that 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 ECOSOC. The UN Secretary-General even submitted two draft resolutions to ECOSOC.212

h. Representation of the organization §450 In many cases the secretariat represents the organization. This will be so particularly in private law matters. The secretariat will buy, rent, borrow and pay on behalf of the organization. It will appear in court, if necessary. The secretariat also has representative functions in public law. The SecretaryGeneral may bring an international claim against a government on behalf of the

210 See for overviews of the most important commissions the annual publications YUN (Appendix III) and United Nations Handbook (published by the New Zealand Ministry of Foreign Affairs and Trade). 211 This has been explicitly recognized in Benelux (Art. 36 of the 1958 Benelux Union Treaty; Art. 21 of the 2008 Treaty revising the 1958 Treaty). 212 YUN 1964, at 230-231.

§451

policy-making and administrative organs

331

organization.213 Furthermore, it may represent the organization in appearing as amicus curiae before a domestic court.214 Within the UN, the Office of Legal Affairs usually represents the Secretary-General in these private and public law matters.215 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 relating to peacekeeping forces have been concluded by the Secretary-General of the UN or under his authority.216 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 SecretaryGeneral usually receives the credentials of members of such missions.217 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.218 For the same reason, this may be useful when the secretariat develops close links with outside institutions operating in the field of the organization.219 §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”.220

213 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). 214 See e.g. UNJY 1980, at 224-242. 215 UN Doc. ST/SGB/2008/13, para. 2.1. 216 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). 217 The Secretary-General may delegate the competence to accept credentials; see UNJY 1986, at 272. 218 I. Seidl-Hohenveldern and G. Loibl, Das Recht der Internationalen Organisationen, einschliesslich der Supranationalen Gemeinschaften 124-126, No. 1005 (7th ed. 2000). 219 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. 220 UNJY 1982, at 197-198.

332

chapter four

§454

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 organizations 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.221 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.222 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.223 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”.224 The Secretary-General may participate in such monitoring activities only if the Security Council and/or the General Assembly authorize him to do so.225 k. Depositary of treaties226 §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,

221

ECOSOC Res. 51 (IV), UN Doc. E/423. 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). 223 See UNJY 1990, at 284-285. 224 UNJY 1990, at 254-255. 225 Id. See also UNJY 1982, at 188-189. 226 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); M. Tabory, Recent Developments in United Nations Treaty Registration and Publication Practices, 76 222

§458

policy-making and administrative organs

333

but are gradually being taken over by the secretariats of the organizations involved in the drafting of the texts of multilateral conventions. This is illustrated by the fact that the Secretary-General of the UN acted as depositary for the amendments of the UN Charter and for the declarations of acceptance of the obligations contained in the Charter, even though the Charter itself and the ratifications by the signatory states are deposited with the Government of the US.227 By the end of 2009, more than 530 treaties were deposited with the Secretary-General of the UN. The depositary functions of the Secretary-General of the UN are performed by the Treaty Section of the Office of Legal Affairs.228

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.229 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.230 In executing the function of depositary, secretariats are usually guided by rules of the organization,231 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 submits them for registration with

AJIL 350 (1982); Treaty Handbook (published in 2002 by the UN, prepared by the Treaty Section of the Office of Legal Affairs); UN Secretariat, Multilateral treaties in respect of which the SecretaryGeneral performs depositary functions (also published online, at http://treaties.un.org/Pages/ ParticipationStatus.aspx (March 2011)). 227 UN Charter, Art. 111. 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. The original text of the UN Charter is at the National Archives (Washington DC). Each of the 51 signatory states has a certified copy. On 2 January 2008, a certified copy was also given to the UN, at the request of the UN Secretary-General. For the UN acting as depositary for the constitutions of specialized agencies, see UNJY 1964, at 249-250. 228 Information obtained from the UN Secretariat in December 2009. For the sort of treaties involved, see the UN publication Multilateral Treaties Deposited with the Secretary-General (available at http://treaties.un.org/Pages/Publications.aspx?pathpub=Publication/MTDSG/Page1_en.xml (December 2010)). 229 See UNJY 1972, at 186-188. 230 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; UNJY 2003, at 545-546 (on the need to distinguish between depositary functions and administrative functions related to the implementation of agreements); UNJY 2003, at 550-553 (depositary cannot make a determination whether EU Council decision to become party to the 2001 International Cocoa Agreement can also express the will of the individual EU member states); UNJY 2004, at 356-358 and 360-362. 231 See GA Resolutions 97 (I), 364 B (IV), 482 (V), 33/141 A.

334

chapter four

§459

the Secretariat of the UN.232 The Secretariat of the UN performs a specific function with regard to all treaties concluded between states.233 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 League of Nations took it over.234 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.235 In NATO he presides over the North Atlantic Council at the ministerial level as well.236 He is president of the board in the IMF and the World Bank.237 In all the abovementioned 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.238 §460 The ILO Secretariat may collect and distribute information on all subjects relating to the international adjustment of conditions of industrial life and labour.239 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.

232 See ICAO Doc. 9813, Aeronautical Agreements and Arrangements, Tables of Agreements and Arrangements Registered with the Organization (2003). For the ICAO database where these agreements and arrangements are published, see www.icao.int/applications/dagmar/main.cfm (permission required). 233 UN Charter, Art. 102. On the application of this article, see Simma (ed.), op. cit. note 61, 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). 234 The best known publication is that by De Martens. 235 OECD, Art. 10, para. 2. 236 See www.nato.int/cps/en/natolive/topics_49763.htm (December 2010). 237 IMF, Art. XII, Section 4; World Bank, Art. V, Section 5. 238 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). 239 ILO, Art. 10, para. 1.

§461

policy-making and administrative organs

335

This may be illustrated by the growing resistance of the USSR to Dag Hammarskjöld as SecretaryGeneral of the UN,240 and perhaps even more by the curtailing of the powers of the SecretaryGeneral of the OAU.241 Although the European Commission 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.242 In some organizations, the SecretaryGeneral is empowered to make proposals.243 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 has 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 1925,244 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 systems,245 and to declaring the 1970s to be a decade for disarmament.246 On some issues in the IMF decisions can be taken only at the initiative of the Secretariat.247

n. Good offices, inquiry, mediation, conciliation, arbitration §462 Its multinational composition and its independence of national governments qualify the secretariat for good offices, inquiry, intermediary, conciliatory and arbitration functions. “Impartiality is . . . the heart and the soul of the office of the Secretary-General.”248 In some instances, a secretariat has been charged with

240 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). 241 J. Woronoff, op. cit. note 67, at 183-192. 242 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. 243 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); Art. 21.1(e) of the 2008 Treaty revising the Treaty establishing the Benelux Economic Union. 244 GA Res. 2603 (XXIV). 245 GA Res. 2602 A (XXIV). 246 GA Res. 2602 E (XXIV). See also publication No. 96 of the Netherlands Ministry of Foreign Affairs, at 39. 247 Gold, op. cit. note 34, at 179-180. 248 J. Pérez de Cuéllar, The Role of the UN Secretary-General, in A. Roberts and B. Kingsbury (eds.), United Nations, Divided World 70 (1988).

336

chapter four

§463

conciliation.249 Even without express authorization, secretariats fulfil intermediary and conciliatory functions. When important meetings cannot 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 that 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.250 In order to facilitate this dispute settlement role, the suggestion has often been made – though it has not materialized – to authorize the UN Secretary-General to request advisory opinions of the International Court of Justice, on the basis of Article 96.2 of the UN Charter.251 In carrying out good offices, conciliatory tasks and so forth, the UN Secretary-General has sometimes created ‘groups of friends’ to assist him.252 In addition, in a number of cases the UN Secretary-General has established a commission of inquiry, either on the basis of a mandate of the Security Council or the General Assembly, or on the basis of its own inherent powers (either at his own initiative or at the initiative of a state).253 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.254 Only the USSR contested the competence of the Secretary-General 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

249 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). 250 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). 251 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 Boutros-Ghali Amicorum Discipulorumque Liber – Peace, Development, Democracy (1998), at 451-474. 252 See T. Whitfield, Good Offices and “Groups of Friends”, in Chesterman, op. cit. note 175, at 86-101. 253 See UNJY 2008, at 434-436. 254 UN Doc. S/7462; YUN 1966, at 162-163.

§463

policy-making and administrative organs

337

new expenditure on behalf of the organization. In the case of Cambodia and Thailand, both states had agreed to share the expenses. Another case of mediation by the UN Secretariat was in the dispute between Bahrain and Iran in 1970.255 Arbitration by the UN Secretary-General took place in the “Rainbow Warrior” dispute between New Zealand and France. Secretary-General Pérez de Cuéllar played an important role in finding a solution to this conflict.256 A further 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.257 A final example is the mission to Myanmar carried out by UN Secretary-General Ban-Kimoon from 3 to 4 July 2009. This mission was seen as a success by only some of the Security Council members (for example, China). It took place in the context of the trial against opposition leader (and Nobel peace price winner) Daw Aung San Suu Kyi and the preparations for the 2010 elections. While the mission was able to fulfil some of its objectives, the Secretary-General’s request to meet with Daw Aung San Suu Kyi was rejected by the authorities. According to the Secretary-General, this refusal “was not only a deep disappointment but also a major lost opportunity for Myanmar”. He urged Myanmar to cooperate more with the international community and with the UN: “[l]ike all other member states, the more Myanmar works in partnership with the United Nations, the more it affirms its sovereignty”.258 In other cases, the UN Secretary-General has established a commission of inquiry. In 2009, for example, at the request of the Pakistani government, he appointed a three-member commission of inquiry to determine the facts and circumstances of the assassination of Benazir Bhutto, Pakistan’s former prime minister.259 Earlier, the Pakistani government had indicated that it did not want Security Council involvement on this issue. The UN’s Office of Legal Affairs had advised that, in the absence of a mandate from the Security Council or the General Assembly, the Secretary-General is under no obligation to comply with a government’s request to establish a commission of inquiry, but the power to do so is amongst his inherent powers.260 The Commission’s report was published in April 2010.261

255 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). 256 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 209, 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. 257 YUN 1998, at 240, 252-253; UN Doc. S/1998/166; SC Res. 1154. 258 See the records of the meeting of the Security Council in which the Secretary-General reported on his visit to Myanmar: UN Doc. S/PV.6161 (quotations at 2, 3). 259 See UN Doc. S/2009/67 (letter in which the Secretary-General informed the Security Council of his intention to establish this Commission of Inquiry); see also UN Doc. S/2009/68, in which the President of the Security Council informed the Secretary-General that the members of the Security Council “took note, with appreciation” of this intention. 260 UNJY 2008, at 234-236. 261 Text of this report: www.un.org/News/dh/infocus/Pakistan/UN_Bhutto_Report_ 15April2010.pdf (January 2011). See also Fromageau, op. cit. note 207, at 417-421.

338

chapter four

§464

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.262 Secretariats are often instructed to prepare for 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.263 By virtue of this duty he has registered 6209 objects (as at September 2009).264

2. Power and accountability §465 In many of the abovementioned functions the secretariat may exert power. It can influence the functioning – or non-functioning – of an international organization to a great extent. The secretariat’s position is particularly strong in large, technical organizations. By using 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 substantial the vested interests of international organizations are, 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.265 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 (for example, the Council of Europe), other tasks are discovered. On the one hand, the development of centres of power in international secretariats creates an international force to balance national forces. It represents a 262 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). 263 GA Resolutions 1721B (XVI) and 3235 (XXIX), Art. II(I). 264 YUN 1987, at 105; see for the most recent data: www.oosa.unvienna.org/ (December 2010). 265 UN Doc. DP/S.

§466

policy-making and administrative organs

339

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 risks in creating such new centres of power. International secretariats are bureaucracies subject to no direct parliamentary supervision. As mentioned above (§441), in recent years increasing attention has been given to the accountability of secretariats. Within the UN, the Secretariat has submitted a number of reports on this issue. As indicated in these reports, a number of measures have been taken to improve the accountability of the UN Secretariat. For example, management systems have been improved (accountability for delivering results, better performance reporting), the internal oversight mechanisms have been strengthened, a whistleblower protection policy has been promulgated and a financial disclosure programme is implemented.266 Similar measures have been taken in other international organizations.267 Improved control mechanisms have been introduced, involving “closer checks on book-keeping and accounts”, integrity policies and measures against fraud and corruption. In addition, codes of conduct for staff have been enacted, and a number of larger organizations now have ethics officers or advisers.268 These developments do not take place in isolation, as similar developments in public administration have taken place at the national level.269 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.270 These experts 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

266

See UN Doc. A/64/640 (with references to earlier reports). E.g. FAO; the Director-General announced FAO’s Whistleblower Protection Policy in 2011 (see Administrative Circular No. 2011/05). 268 See C. de Cooker, Ethics and Accountability in the International Civil Service, in C. de Cooker (ed.), Accountability, Investigation and Due Process in International Organizations 1-51 (2005), quotation at 5. 269 Id., at 1-4. 270 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). 267

340

chapter four

§468

members, as there is less pressure for equitable geographical distribution271 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.272 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 (Secretary-General 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 Secretary-General 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 19741975. It requested the Secretary-General to achieve savings in this expenditure.273 In more recent resolutions, the General Assembly has expressed similar concerns, “in particular in areas where in-house expertise is available”.274 At the same time, according to a report by the Joint Inspection Unit, the proportion of the total regular budget of the UN appropriated for consultants and experts “has fallen from 1.1 per cent in the 1984-1985 biennium to some 0.6 per cent in the 1998-1999 biennium”. However, this report also indicates that “there has been a sharp increase in extra budgetary expenditures in consultants and experts combined, at least since the 1994-1995 biennium. This increase has to be seen in the context of the constraints facing the Organization in this period, particularly the reduction in regular budget resources, as well as the need to address new mandates”.275

§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.276

271

There is some pressure: see UN Doc. A/C.5/31/10, para. I(C) and Add. 1, Annex II. Morpurgo, op. cit. note 270, at 56. 273 GA Res. 32/209. 274 See e.g. Res. 52/220, Section II, para. 19; Res. 53/214, Section IV, para. 21. 275 The Use of Consultants in the United Nations (2000), UN Doc. JIU/REP/2000/2 (quotations at 8, paras. 33, 35). 276 See UN Doc. A/C.5/31/10/Add. I para. 2. 272

§469

policy-making and administrative organs

341

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.277 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 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 and there may be no building on or near the borderline.278

§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”.279 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.280 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

277

C. Wilfred Jenks, The Headquarters of International Institutions 9 ff. (1945). 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). 279 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. 280 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). 278

342

chapter four

§471

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.281 Such facilities may be offered in the process of competition between states to become the host state of a new organization. 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).282 The Netherlands had 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.283 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.284 In July 1994, it became clear that about 90 per cent of the GATT members preferred Geneva, and Germany withdrew its candidacy.285 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.286 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.

281 Apart from the examples given below, see Doc. ICC-ASP/4/25, for an overview of the financing methods for the premises of a number of international organizations (relating to land, buildings, loans, subsidized costs and donations). Various kinds of support are given by the host states of these organizations. 282 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. 283 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). 284 NRC-Handelsblad, 16 June and 16 July 1994. See the WTO headquarters agreement, reproduced in WTO Doc. WT/GC/1, at 21. 285 Europe No. 6279, at 15 (23 July 1994). 286 H. Kelsen, The Law of the United Nations 98 (1964). See on this question also UNJY 1969, at 217-218.

§472

policy-making and administrative organs

343

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.

§472 In order to prevent jealousy between their members, several international organizations have established their seat within the territory of a non-member.287 §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.288 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.289 §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.290 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.291 §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 and no time would 287 An examples is OPEC which has its headquarters in Vienna (Austria). See Fischer, op. cit. note 46. 288 The International Secretariat of the Future, published by the Royal Institute of International Affairs (1944); see also Jenks, op. cit. note 277. 289 The International Secretariat of the Future, op. cit. note 288, at 47-49. 290 See also Loveday, op. cit. note 165, at 81. For another consideration of the advantages and disadvantages for establishment on the territory of a major power, see YUN 1946-47, at 41-42 (deliberation on the headquarters of the UN). 291 IMF, Art. XIII, Section 1; World Bank, Art. V, Section 9.

344

chapter four

§476

be lost in the daily travelling of long distances.292 Ranshofen Wertheimer prefers a large city.293 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:294 (1) The host state must be willing to grant all necessary privileges and immunities. Delegations, officials, and also 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.295 In 2003, the US warned Belgium that it was risking its status as host state of the North Atlantic Treaty Organization (NATO) in permitting criminal investigations of leaders and former leaders of other states who might need to visit Belgium. Belgium immediately amended its relevant law. However, this amendment did not solve the problem in the view of the US. Secretary of Defense Rumsfeld stated that the US “would refuse to fund a new headquarters building for NATO in Belgium and consider barring its officials from travelling to meetings there”. Within days the Belgian government proposed further amendments, which entered into force in early August 2003.296

(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.297

292

Jenks, op. cit. note 277, at 34. E.F. Ranshofen Wertheimer, The International Secretariat 424 (1945). 294 The International Secretariat of the Future, op. cit. note 288, at 47-49; Jenks, op. cit. note 277, at 22-35; Ranshofen Wertheimer, op. cit. note 293, 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. 295 Z. Mikdashi, The Community of Oil Exporting Countries 98 (1972). 296 S.R. Ratner, Belgium’s War Crimes Statute: A Postmortem, 97 AJIL 888-897 (2003), in particular at 890-891 (quotation at 891). 297 See e.g. UN Doc. A/8856. 293

§476

policy-making and administrative organs

345

(4) The existence of adequate office space. Not only accommodation for the organization’s secretariat is needed but also hotel accommodation for delegates to meetings, observers and journalists. 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.298

(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 expenditures (transport and printing costs, for example) 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 Second World War was the difficulty in converting members’ contributions into dollars.299 (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.300 A racially prejudiced population, or one which discriminates against non-nationals, 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.301 These problems are continuously discussed in the Committee on Relations with the Host Country.302 The US changed its laws to meet some of these problems.303

298 299

See UN Doc. A/C.2/276 of 27 October 1972. Chapter 5 of the report of the fifth session of the FAO congress; Jenks, op. cit. note 277, at

33. 300

Loveday, op. cit. note 165, at 8. 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. 302 For its reports see YUN and e.g. UN Doc. A/47/26. 303 See UNJY 1974, at 11-17. 301

346

chapter four

§477

§477 The abovementioned 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.304 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”.305 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.306 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 and information technology experts. 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 that houses many international organizations would specialize in international activities. More hotels would be built, contacts all over the world would improve as more newspapers establish agencies,307 and extra telecommunications 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.308 §479 Many people regret the geographical distribution of the UN and the specialized agencies. When the UN was established centralization was con-

304

Jenks, op. cit. note 277, at 35-44. J. Lorimer, The Institutes of the Law of Nations, Vol. II 266 (1884); quoted in Jenks, op. cit. note 277, at 90. 306 Letter of the Secretary-General to the WMO Records of the 27th meeting of the first WMO congress; Annual Report of the WMO 1956, WMO Doc. No. 57, RP 22, at 12. 307 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. 308 Loveday, op. cit. note 165. See also Ranshofen Wertheimer, op. cit. note 293, at 419. 305

§480

policy-making and administrative organs

347

sidered desirable.309 Many delegates to the first session of the Economic and Social Council of the UN insisted on concentrating the headquarters of the specialized agencies.310 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.311 When the WMO hesitated in choosing between Switzerland and France the Secretary-General of the UN intervened urging it to choose Geneva (the largest European office of the UN) as its seat.312

§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.313 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.314 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.315 While Geneva fulfils nearly all the abovementioned requirements, New York has considerable disadvantages. New York is situated in the territory of the member which contributes 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.316 Some organs of the UN are established elsewhere, for example UNCTAD and the High Commissioner for Refugees in Geneva, UNEP in Nairobi. 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 ceased to strive for centralization. Since the late 1960s there has been a clear wish to decentralize, and to transfer activities of the

309 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 155, at 262-263. 310 Official Records of the first session of ECOSOC, at 48 ff. 311 Report of the fourth session of the Conference of FAO, at 75. 312 Documents First Congress WMO, Final Report, Volume III (WMO Publication No. 1, III RC, 1), annex AV-VIII. 313 For the reasons for the choice in favour of New York, see Lemoine, op. cit. note 155, at 261. 314 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. 315 Loveday, op. cit. note 165, at 9. 316 On the political disadvantages of New York, see above, §476(9), and also S. Hazzard, Defeat of an Ideal 81-82 (1973).

348

chapter four

§482

UN to other continents.317 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.318 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, the Special Tribunal for Lebanon, the PCA and 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 that have been most antagonistic in the past. 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 Europe could be used and a link could be maintained with that organization. The ECSC itself would be seated provisionally in Luxembourg.319 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 It was also impossible to reach agreement upon the seat for the European Economic Community and Euratom. 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

317 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). 318 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. 319 D. Vignes, La Communauté du Charbon et de l’Acier 20-21 (1956); European Parliament Doc. No. 13 (1958).

§484

policy-making and administrative organs

349

Luxembourgers were not enthusiastic about accommodating 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.320 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.321 §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 European Court of Justice, 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 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”.322 The Court has dismissed a number of applications by France and Luxembourg, and has annulled some decisions of the European Parliament.

320 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. 321 Id., Art. l; see P.H.J.M. Houben, The Merger of the Executives of the European Communities, 3 CMLRev. 67-70 (1965-66); Protocol no. 6 (on the location of the seats of the institutions and of certain bodies, offices, agencies and departments of the European Union), annexed to the TEU, the TFEU and the EAEC Treaty, para. (b). 322 See e.g. 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.

350

chapter four

§486

§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.323 Subsequently, its substance was annexed to the EU and EC Treaties.324 As a result, the European Parliament has its seat in Strasbourg where 12 periods of monthly plenary sessions are held. Additional plenary sessions as well as committee meetings are in Brussels. The General Secretariat of the European Parliament and its departments are in Luxembourg. The Council and the Commission have their seat in Brussels (Council meetings during the months of April, June and October are in Luxembourg; some Commission departments are in Luxembourg). The Court of Justice, the Court of Auditors and the European Investment Bank are in Luxembourg. The Economic and Social Committee and the Committee of the Regions have their seat in Brussels. Even more European seats were created when the European Central Bank was established in Frankfurt, and Europol in The Hague.325 §487 The distribution of EU seats to Brussels, Luxembourg, Strasbourg, Frankfurt and The Hague is a handicap for the Union.326 It disunites the Union and 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 Union if these organs would share their 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. This was 15 per cent of the 1993 budget of the Parliament.327

§488 The American states expressly agreed not to concentrate the secretariats of inter-American organizations, preferring an equitable geographic distribution.328

323 See for the text of this decision, Europe No. 5878BIS (Sp. Ed.; second part), at 9. See further N. Brown, The Grand Duchy fights again: comment on joined cases C-213/88 and C-39/89, 30 CMLRev. 599-611 (1993). 324 Protocol no. 6 (on the location of the seats of the institutions and of certain bodies, offices, agencies and departments of the European Union), annexed to the TEU, the TFEU and the EAEC Treaty. 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. 325 Protocol no. 6 (on the location of the seats of the institutions and of certain bodies, offices, agencies and departments of the European Union), annexed to the TEU, the TFEU and the EAEC Treaty. 326 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. 327 Data obtained from the Information Office of the European Parliament in The Netherlands. 328 OAS, Art. 130.

§489

policy-making and administrative organs

351

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 few decades a clear trend is visible in the direction of decentralization. It has been estimated that the number of employees of organizations within the UN family working not at the headquarters but “in the field” has risen from 10 per cent to 60 per cent over the past 40 years as a proportion of total personnel of the UN family.329 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 45 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.330 The World Bank has six regional offices (Africa; East Asia and Pacific; Europe and Central Asia; Latin America and the Caribbean; Middle East and North Africa; South Asia) which are all situated at headquarters in Washington.331

§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 servants332 §491 The backbone of every international organization is its civil service, the staff working for the organization.

329 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 (2009). 330 For further information see the Jackson Report, UN Doc. DP/5, Vol. II, at 455-470; www .undp.org. 331 YIO 2008-2009, Vol. I, at 1549; www.worldbank.org. 332 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 293; G. Langrod, op. cit. note 162; M. Bedjaoui, Fonction publique 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);

352

chapter four

§492

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 of such staff create problems that national administrations do not encounter. Although the variety of backgrounds 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.333 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,334 by its board,335 by congress and board together,336 or by the parliamentary organ and congress.337 This election is normally for a limited period.338 In a number of cases an informal agreement has been made about the nationality of the Secretary-General and his deputies. For example, there is the understanding that the President of the World Bank is a US national, while the Managing Director of the IMF is from Europe. The President of the Asian Development Bank has always been a Japanese national. The Legal Counsel of the UN has always been someone from the Western European and Other Group (WEOG). The Secretaries-General of the Hague Conference on Private International Law and the Permanent Court of Arbitration have always been nationals of the Netherlands.339 Such informal agreements have been criticized because they may sometimes prevent better candidates from becoming available for these top positions and because they may at least give the impression of favouring one member of the organization over the others. On the other hand, in practice it will probably

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); 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 155; 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; A. Plantey and F. Loriot, Fonction Publique Internationale – organisations mondiales et européennes (2005 (original edition by Plantey: 1977)); J. Mathiason, Invisible Governance: International Secretariats in Global Politics (2007); M.R. Sharma and A.M. Banerjee, United Nations International Civil Service (2009); De Cooker (ed.), op. cit. note 329. 333 See C. de Peretti, Institutions Internationales et bureaucratie, 74 RGDIP 988-1011 (1970). 334 E.g. FAO, Art. 7; WMO, Art. 21; OAS, Art. 113; APSCO, Art. 16.2; ASEAN, Art. 11.1; IRENA, Art. XI.B. 335 E.g. ILO, Art. 8; IMF, Art. XII, Section 4. 336 E.g. UN, Art. 97; UNESCO, Art. 6; WHO, Art. 31; IMO, Art. 22; IAEA, Art. 7; UNIDO, Art. 11 (2). 337 CoE, Art. 36(b) (appointment by the Parliamentary Assembly on the recommendation of the Committee of Ministers). See the Joint Interpretative Statement relating to the rules and procedures for the future elections of the Secretary-General, Doc. CM(2009)195 final. 338 See e.g. UNIDO, Art. 11 (2). 339 See for more examples and analysis J. Katz Cogan, Representation and Power in International Organization: the Operational Constitution and its Critics, 103 AJIL 209-263 (2009).

§492

policy-making and administrative organs

353

be impossible to always avoid favouring the most important member states in this way. In addition, such arrangements make the election process shorter and easier than in cases in which candidates from different countries have to engage in extensive and sometimes divisive campaigns. Another advantage is that these arrangements are informal and may therefore be changed more easily than a formal agreement (laid down in the constitution or elsewhere), should changes in power relationships or other circumstances so require. 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.340 In case members are dissatisfied with the 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.341 An exceptional case of ‘premature dismissal’ (a decision to oust a Secretary-General before his term is completed) was the 2002 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”.342 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.343 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

340 But there are exceptions, see e.g. regional development banks (such as ADB, Art. 34.2; Trade and Development Bank of the Economic Cooperation Organization, Art. 20.2; African Development Bank, Art. 29.2.d); ESA, Art. XII.1.a; IFAD, Art. 6, Section 8(a); OAS, Art. 116; 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; APSCO, Art. 16.2; Benelux, Art. 34.3 (also: the 2008 Treaty Revising the Treaty Establishing the Benelux Economic Union, Art. 19.4). 341 See Simma, op. cit. note 61, at 1204; Boutros-Ghali’s own detailed analysis of this episode has been published in his Unvanquished – A US-UN Saga (1999), see in particular chapter 8. 342 See 96 AJIL (2002), at 711-712. 343 Id.

354

chapter four

§493

the 1965 constitution eight officials, apart from the Secretary-General, were elected.344 Since the entry into force of 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).345 In the European Space Agency, “senior management staff, as defined by the Council, shall be appointed and may be dismissed by the Council on the recommendation of the Director General”.346 In this way, the Director General plays an important role in the selection of the senior staff of the organization (without his recommendation no decision can be taken by the Council), but his role is not decisive (final decisions are taken by the Council).

§493 Most international organizations are free to recruit their staff directly. Approval or consultation of the national governments concerned is not required.347 Governments often try to promote appointment of their nationals by international organizations, in particular in higher positions.348 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.349 This provision, unique in the history of international organizations and subject to severe criticism,350 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 (dissolved in 1991) was the most important international organization appointing its staff upon recommendation of the member governments.351

§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.352 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.

344 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). 345 ITU Constitution, Art. 8.2 (g and h). 346 ESA, Art. XII.3.a. See for a similar provision: the constitution of the ITER International Fusion Energy Organization, Art. 6.7.d. 347 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 SecretaryGeneral’s exclusive authority to appoint his staff under Art. 101 of the Charter). 348 See e.g. M. David, Les stratégies d’influence des états membres sur le processus de recrutement des organisations internationales: le cas de la France, Revue française d’administration publique no. 126 (2008), at 263-277. 349 IIA, Art. 27. 350 Basdevant, op. cit. note 332, at 153. 351 E. Ustor, Decision-making in the Council for Mutual Economic Assistance, 134 RdC (1971 III), at 255. 352 See e.g. EU Staff Regulations, Art. 29; UN Staff Regulation 4.4.

§495

policy-making and administrative organs

355

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.353 Since 1974, the UN has recruited young professionals through competitive examinations which are held in different towns.354 The European Union institutions also organize periodic competitive examinations.

2. 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 1,500.355 A very rough estimate is that there are now between 150,000 and 200,000 international civil servants, of whom between a third and a half work in policy-making functions (the professional category, see below, §506-507).356 To put these figures in some perspective: in 1996, the city of Amsterdam had some 15,000 civil servants.357 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 websites of the organizations mentioned. As at 30 June 2010 the total number of UN Secretariat staff was 44,134.358 The total number of staff employed in the UN common system in 2009 was 82,737, including ILO, 2,389; FAO, 3,433; UNESCO, 2,100; WHO, 5,552; ICAO, 705; UPU, 186; ITU, 751; WMO, 286; IMO, 284; WIPO, 983; IFAD, 509; UNIDO, 710; IAEA, 2,168; World Tourism Organization, 95.359 The staff figures for other organizations of the UN family are: IMF, 2,400; World

353 See in general Pellet and Ruzié, op. cit. note 332, at 31-36. For further details of the recruitment procedure in individual international organizations, see Getz and Juttner, op. cit. note 332, at 245-261; Plantey, op. cit. note 332 [1977], at 304-311; M. Bertrand, The Recruitment Policy of United Nations Staff, in De Cooker (ed.), op. cit. note 329, at II.2./1-9. 354 YUN 1974, at 879. See also UN Documents A/C.5/40/39, A/C.5/47/5 and GA Res. 47/226. 355 Ranshofen Wertheimer, op. cit. note 293, at 240. 356 For example, as at 30 June 2010 the total number of UN Secretariat staff was 44,134. Of these, 12,159 were in the Professional and higher categories, 4,438 were in the Field Service Category, and 27,537 were in the General Service and related categories (UN Doc. A/65/350). 357 See www.inoverheid.nl/artikel/nieuws/1429573/gemeenteraad-adam-minder-ambtenaren.html (December 2010). 358 UN Doc. A/65/350. 359 See UN Doc. CEB/2010/HLCM/HR/24, at 1 (also available at www.unsceb.org/ceb/stats/hr/ ps/years/2009 (December 2010)).

356

chapter four

§497

Bank and IDA, 10,000; WTO, 629. It should be emphasized that these are rough estimates, since the way of calculating the number of staff varies from organization to organization. The European Union has some 40,000 staff (of whom 26,179 work for the Commission; 3,572 for the European Council and the Council; 5,235 for the European Parliament; 1,927 for the Court of Justice; and 889 for the Court of Auditors).360 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 Organization, 6,800; 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). At the same time, however, members usually wish to keep secretariats, and therefore also their financial contribution to international organizations, as small as possible. The 2010 Multilateral Agreement for the Establishment of an International Think Tank for Landlocked Developing Countries provides in Article VII.1 that “The Secretariat of the Think Tank . . . shall consist of a small team . . . . Its small size shall be kept to the minimum number necessary for the proper execution of the Think Tank’s activities”.

3. Qualifications §498 For the position of Secretary-General, an experienced politician and administrator, acceptable to the vast majority of the member states, is needed.361 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.362 §499 The function of an international civil servant requires personal qualifications and an international attitude.363 For the professional posts (the adminis-

360

Figures taken from the 2010 General budget of the EU, OJ 2010, L 64, at 111. See also Cox and Jacobson, op. cit. note 344, 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 Secretary-General 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). When in 2006 a successor for Kofi Annan had to be elected, Asian countries claimed that there is a principle of rotation for the post of UN Secretary-General, and that “ . . . under that principle, it was Asia’s ‘turn’ for a Secretary-General”. The existence of such a principle was however denied by others (e.g. the US). See Keating, op. cit. note 177, in particular at 58-60. 362 Mikdashi, op. cit. note 295, at 99. 363 See T.G. Weiss, International Bureaucracy 49-105 (1975). 361

§500

policy-making and administrative organs

357

trative ranks), a university degree is normally required.364 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.365 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.366 Apart from professional qualifications, nationality plays an important role (see also below). The UN does not recognize more than one nationality for each staff member (for the purpose of the application of the UN staff regulations and rules). In the case of dual nationals the Secretary-General decides with which nationality the staff member concerned is most closely associated.367 In addition, most international secretariats have been urged to recruit more women.368 Further schooling is provided within most international organizations particularly in languages.369 In the past, the Secretary-General of the UN has made several proposals for the creation of a UN Staff College. In 1971, the General Assembly approved in principle the creation of such a college, but the necessary finances could not be found.370 It took until the mid-1990s before this idea was brought into practice. In 2001, the UN General Assembly approved the Statutes of the UN System Staff College.371 This College started functioning in 2002 and is based in Turin, Italy.372 4. Geographic distribution373 §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, 364

Getz and Juttner, op. cit. note 332, at 331. Id., at 333-338. 366 For a survey of the languages required in practice, see Getz and Juttner, op. cit. note 332, at 344-346. 367 UN Staff Rule 104.8. See UNJY 1983, at 207-208; UNJY 2004, at 369-371; UNJY 2006, at 409-410. 368 See e.g. GA Res. 3352(XXIX), YUN 1974, at 667, GA Resolutions 32/17, 47/93 and 47/226, UN Docs. A/47/30, at 81-88, and A/49/587. I. Bantekas, United Nations Employment Law and the Causes for its Failed Senior Female Appointments Record, 6 IOLR 225-256 (2009). For the European Communities, see Rogalla, op. cit. note 332, at 250-252. 369 See further UN Doc. A/C.5/47/9 (training programmes in the UN Secretariat). 370 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 661663. 371 GA Res. 55/278 (the Annex to this resolution contains the Statute of this College). 372 See www.unssc.org (November 2010); UN Handbook 2010-2011, at 247. 373 See Meron, op. cit. note 332 [1977], at 666-675; M.J. Peterson, The General Assembly in World Politics 165-173 (1986). For the geographical distribution of UN officials, see UN Documents 365

358

chapter four

§501

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.374 It is partly for this reason that the UN has established a policy under which persons in permanent residence at the organization’s seat are generally ineligible for appointment in that city 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.375 A memorandum of the UN’s Office of Legal Affairs analyzed this policy and referred to “the view of the General Assembly that international officials should be true representatives of the cultures and personality of the country of which they were nationals, and that those who elect to break their ties with that country can no longer claim to fulfil the conditions governing employment in the United Nations”.376 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”.377

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.378 §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: A/6860 and A/7334; YUN 1967, at 781-782, YUN 1968, at 867; UN Doc. A/33/176; YUN 1991, at 891-892; UN Doc. A/64/352. For the European Union, see Rogalla, op. cit. note 332, at 66-68. 374 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. 120; IRENA, Art. XI.C. 375 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. 376 UNJY 2005, at 468-471 (quotation at 471). 377 C. Wells, The UNESCO Secretariat ‘decolonized’? Geographical distribution of the staff, 19721984, in D. Pitt and T.G. Weiss (eds.), The Nature of United Nations Bureaucracies 137-164 (1986), at 152-153. 378 See further Lemoine, op.cit. note 155, at 54-60.

§502

policy-making and administrative organs

359

(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”.379 (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 that offer better prospects of advancement.380 When those who are less qualified are appointed as heads of departments, they will be resented by staff within 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.381 (Excluded, inter alia, are staff who serve 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 2010, 2,886 of the 44,134 staff from the Secretariat and other entities fell within this system.382

§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.383 Alternatively, there may be a provision that no post may be designated for nationals of a particular member state.384 The organ competent to appoint the staff (in most cases the Secretary-General) may use such provisions to counteract government pressure for the appointment of their nationals. The European Court of Justice annulled an appointment based on nationality in the Lassalle case.385

379

Quoted from Jackson Report, UN Doc. DP/S, Vol. II, at 345. 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). 381 This system was introduced by GA Res. 42/220 A. 382 UN Doc. A/65/350, at 12 and 49-60. 383 See e.g. UN Charter, Art. 101; UNESCO, Art. 6, para. 4; IAEA, Art. 7 D; OAS, Art. 120. 384 Staff Regulations of the European Communities, Art. 27. 385 Case 15/63, Lasalle, ECR 1964, at 31-59. 380

360

chapter four

§503

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.386 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.387 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 obligation 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 SecretaryGeneral” 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).388 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 other countries possessing the required qualifications would be objectionable …”.389 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 European Court of Justice in the abovementioned Lasalle case. In 1993, the EU Court of First Instance 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”.390

386

Id., at 38. Case 62/65, Serio, ECR 1966, at 569. Cf. also Case 17/68, Reinarz, ECR 1969, at 72. 388 UNJY 1992, at 445-446. 389 Id., para. 4. 390 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. Other cases are Case T-158/01, Tilgenkamp, judgment of 9 July 2002, and Case T-73/01, Pappas, judgment of 18 September 2003 (both judgments published in French only). The judgment in Pappas was welcomed by the trade union federation as a judgment against the system of ‘jobs for the boys’ (see Europe No. 8545, at 17). 387

§504

policy-making and administrative organs

361

§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.391 Civil servants from third countries may be useful for information and documentation or for language departments (before UK accession the European Communities employed some people from the UK for linguistic purposes). Rules of international organizations often provide that Secretariat staff must have the nationality of one of the member states. For example, according to Article II, paragraph 50 of the Comprehensive Nuclear Test-Ban Treaty (establishing the Comprehensive Nuclear Test-Ban Treaty Organization (CTBTO)), “[o]nly citizens of States Parties shall serve as the DirectorGeneral, as inspectors or as members of the professional and clerical staff ”. Another example is the IMF: 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.392 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 available 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 candidate claimed that there is no such binding rule. The Commissie Gelijke Behandeling however concluded differently.393 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.394 The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) employs nearly 30,000 staff, of whom more than 99 per cent are locally recruited Palestinians, mostly Palestinian refugees. No rules of geographical distribution are applied with regard to these employees.395

391

UN Doc. A/32/146, Annex, at 11. See J. Gold, Membership and Nonmembership in the International Monetary Fund 397 (1974). 393 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. 394 See UNJY 1974, at 199-203. 395 See www.unrwa.org (December 2010). See E.R. Buehrig, The UN and the Palestine Refugees. A Study in Nonterritorial Administration 89 (1971). 392

362

chapter four

§506

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 and so forth, 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,396 they have to some extent succeeded in obtaining uniformity.397 That is no small achievement, when taking into account that the UN common system covers some 83,000 staff members at over 600 duty stations in some 180 countries and territories.398 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”.399 Within the scope of these agreements, the Chief Executives Board for Coordination (see §1723) 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.400 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.401 Currently, the UN and 14 other organizations of the UN family participate in this common system, covering some 83,000 staff.402 IMF and the World Bank family 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

396 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. 397 Nevertheless, sometimes organizations depart from norms of the common system. See e.g. UN Doc. A/46/30, at 4-11. 398 D.J. Goossen, The International Civil Service Commission, in De Cooker (ed.), op. cit. note 329, at II.1; icsc.un.org (December 2010). 399 Art. XI.1 of the Agreement between the UN and the FAO (UN Doc. A/78). The agreements with most of the other specialized agencies contain a more or less similar provision. See for the text of these agreements www.unsceb.org/ceb/about/un (December 2010). 400 UN Doc. A/5599, at 13. 401 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 329, at I.1/3-20; UNJY 2006, at 490-491. 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. 402 See icsc.un.org (December 2010).

§507

policy-making and administrative organs

363

states.403 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 1999.404 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, and so forth.405

§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. 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 the 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, administrative planning or research duties, for which an education of university standard is usually 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; and 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.406 There are differences, however, particularly in the classification of function for which each rank is

403 Cf. J. Tassin, Administrative Coordination in the United Nations Family, in De Cooker (ed.), op. cit. note 329, at I.2/5. 404 WTO Focus, October 1998, at 2. 405 Final Act of the Governmental Conference on the European Civil Service (Strasbourg, 6 July 1967). 406 UN Doc. A/5599, at 16.

364

chapter four

§509

used.407 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 Union, each institution has its own staff, by far the largest of which is the Commission (see above, §496).408 Originally there was one category of professional officers (Category A) in the staff of the Commission. The grade within this category was indicated by a number. These numbers, however, were in reverse order to those employed in the UN and the coordinated organizations such as the Council of Europe. A.1 was the highest professional staff number (DirectorGeneral) and A.8 the lowest. In 2004, this system was replaced by a system consisting of 16 levels, grade 16 being the highest level (Director-General) (see below, §510).

§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 ”.409 The European organizations other than the EU distinguish between three further categories, apart from Category A (professional officers): 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. The EU used this grading structure from categories A to D until 2004, when it was changed to a continuous ‘ladder’ of 16 levels, essentially divided into two function groups, the Administrator Grade (AD) and the Assistants’ grade (AST).410 In the UN in particular there has been considerable criticism of too rigid 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.411 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.

407 For further details see T. 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. 408 See Rogalla, op. cit. note 332, at 32-41. 409 UN Doc. A/5270, at 14. 410 See http://europa.eu/epso/discover/careers/grades_system/index_en.htm (December 2010). 411 Hazzard, op. cit. note 316, at 87-114.

§511

policy-making and administrative organs

365

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. In the 1970s, 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 monthly salary of 10,643 Euro, a member from the Netherland 6,708 Euro, and a member from Ireland 4,025 Euro.412 This situation only changed in 2009, when the Statute for members of the European Parliament entered into force. According to Article 10 of this Statute, the amount of the salary of members of the European Parliament shall be 38,5 per cent of the basic salary of a judge at the European Court of Justice.413 As a result, in 2010 the salary of members of the European Parliament amounted to €7,807 gross (€6,084 net) per month.414

§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.415 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, §1070-1072). 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.416

412 Information obtained from the Information Office of the European Parliament in the Netherlands. 413 For the text of the Statute, see OJ 2005, L 262/1. 414 See www.europarl.europa.eu/parliament/expert/staticDisplay.do?id=39&pageRank=1& language=EN (December 2010). 415 See the annual reports of the Civil Service Commission to the General Assembly, e.g. UN Doc. A/33/30, at 16, A/44/30, at 22-45, A/47/30, at 28-29, A/48/30, at 24-47, A/64/30, at vi, 15-16. See further Lemoine, op. cit. note 155, at 278-281. Georges Noblemaire was the 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. 416 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.

366

chapter four

§513

§513 In 2010, the annual salaries for professional staff in the UN ranged from US$201,351 gross (net between $143,878 for dependents and $129,483 for singles) for an Under Secretary-General to US$47,968 gross (net between $38,854 for dependents and $36,651 for singles) for P1.417 In 2010, the annual salary of the WHO Director-General was US$247,523 (net $173,890 (dependents) and $154,641 (single)).418 In the European Union, this range varied from €16,601 per month for Grade 16 (Director General level) to €2,604 per month for Grade 1. These are basic monthly salaries, not including (often considerable) allowances.419 §514 Of increasing importance with regard to salaries is the problem of the currency in which they are to be 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 exchange 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 in relation to 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.420

To a large extent, increases in salaries have protected the remuneration of international civil servants against currency devaluation, but in the past it has happened that 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.421 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 ser-

417 UN Doc. A/64/30, Annex IV. For the conditions of service and compensation for members of the International Court of Justice, see UN Doc. A/62/538 and GA Res. 63/259; see also UN Doc. A/C.5/53/11, in which 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 European Court of Justice, the European Court of Human Rights and the Iran-US Claims Tribunal. 418 Res. WHA63.9. 419 Figures as of July 2009. See http://ec.europa.eu/civil_service/docs/salary_officials_en.pdf (December 2010). 420 Judgment No. 385, UNJY 1976, at 157-158. 421 See Report of the International Civil Service Commission, UN Doc. A/33/30, para. 35.

§516

policy-making and administrative organs

367

vant received a grant, the amount of which depended on the rank and often on the number of years of service. This grant was to compensate the civil servant for the absence of further provisions.422 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;423 the Council of Europe followed suit in 1966 and created a pension system to which other organizations (including NATO and the OECD) subsequently adhered.424 A third large pension system is that of the European Union.425 Under all of these pension systems, the civil servants and also the participating organizations pay contributions. The UN Administrative Tribunal (see below, §642) has observed that, in complex matters relating to pensions, the organization must be especially careful and transparent.426 In case an international organization is dissolved, the organization and its member states must ensure that the pension obligations of the organization vis-à-vis its staff and former staff are honoured.427 Apart from pensions, social security schemes of international organizations also cover medical care.428 Usually, these schemes do not cover risks of unemployment and partial invalidity, but this has not caused much difficulty in practice.429 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.430 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 (for example, 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 (for example, Austria and the Netherlands).431 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

422

Plantey, op. cit. note 332 [1977], 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’Aixen-Provence 1985), at 379-412; Y. Beigbeder, Management Problems in United Nations Organizations 95-109 (1987). 424 Plantey, op. cit. note 332 [1977], at 366. 425 See Rogalla, op. cit. note 332, at 190-199. 426 UNAT Judgments 1091 (2003), 1185 (2004) and 1495 (2009); UNJY 2009, at 335-339. 427 B. Conforti, Ch. Dominicé and G. Ress, Les obligations des États membres d’une organisation internationale à l’ égard du système de pensions du personnel, 107 RGDIP 801-834 (2003). 428 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. 429 F. Morgenstern, Social Security Problems in International Organizations, in De Cooker, op. cit. note 329, at IV.1/1-31. 430 See UNJY 1986, at 339-340. 431 Morgenstern, op. cit. note 429. 423

368

chapter four

§516

rules.432 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.433 In the organizations of the UN family they are required to take an oath or make a solemn promise to this effect.434 Some regional organizations lay down the same requirement,435 whereas others do not.436 For the legal position of the civil servant this makes no difference.437 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, the administration would be obliged to consider any objections of a staff member to such an assignment”.438 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.439 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 for prior authorization. The requirement that staff members may not publish books or articles without prior authorization is a usual requirement in international organizations.440 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 also 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, the European Commission removed Connolly from his post, considering that he “could not have failed to be aware that the publication of his book reflected a

432 E.g. UN Charter, Art. 100.1; UN Staff Regulations and Rules. See C.F. Amerasinghe, Principles of the Institutional Law of International Organizations 285-288 (2nd ed. 2005). 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/2002/13. See also the Standards of conduct for the international civil service, prepared by the International Civil Service Commission (originally in 1954, revised and updated in 2001), welcomed by the UN General Assembly (Res. 56/244) and also introduced in other organizations (e.g. UNESCO). 433 Plantey, op. cit. note 332 [1977], at 104-107; Pellet and Ruzié, op. cit. note 332, at 63-71; UN Staff Regulation 1.2(e). See also De Cooker (ed.), op. cit. note 329. 434 For the text, see Getz and Juttner, op. cit. note 332, at 152; Amerasinghe, op. cit. note 332, at 1049; UN Staff Regulation 1.1(b). 435 E.g. Council of Europe, Art. 36(e); for the text see Pellet and Ruzié, op. cit. note 332, at 63. 436 E.g. European Union. Cf. Rogalla, op. cit. note 332, 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. 437 Getz and Juttner, op. cit. note 332, at 153; Plantey, op. cit. note 332 [1977], at 107. 438 UNJY 1992, at 446. 439 Information taken from two judgments of the EU Court: Case 273/99 P, ECR 2001, at I-1575, 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. 440 See e.g. for the UN: UNJY 1992, at 449-451.

§517

policy-making and administrative organs

369

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”.441 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”.442 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”.443 Connolly did not accept the decision to remove him from his post and initiated proceedings before the Court of First Instance and – on appeal – the Court of Justice. His claims were rejected. Subsequently he lodged a complaint against the EU member states before the European Court of Human Rights, where his application was declared inadmissible.444 Another case in which obligations of staff of international organizations are at stake is the case against Florence Hartmann, spokesperson for the former Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) between 2000 and 2006. After she left the ICTY, Hartmann published a book on the functioning of the ICTY, ‘Paix et Châtiment’ (2007). In this book, and in an article published subsequently, she disclosed confidential information relating to ICTY decisions in the case against Slobodan Milošević. The ICTY charged Hartmann with contempt of court, claiming that she had violated Rule 77(A) (ii) of the Tribunal’s Rules of Procedure and Evidence, according to which “The Tribunal in the exercise of its inherent power may hold in contempt those who knowingly and wilfully interfere with its administration of justice, including any person who . . . (ii) discloses information relating to those proceedings in knowing violation of an order of a Chamber”. In 2009, a specially appointed Chamber of the ICTY found Hartmann guilty and sentenced her to pay a fine of €7000. It considered that “[t]he disclosure of protected information in direct contravention of a judicial order serves to undermine international confidence in the Tribunal’s ability to guarantee the confidentiality of certain information and may deter the level of cooperation that is vital to the administration of international criminal justice”.445

§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.446 They may vote in national elections; they may belong to a political party and they may pay contributions to political parties;447 but they may not actively campaign in national elections.448 In general they should abstain from active political involvement.449 Usually, they may not accept honours, decorations, awards, and so forth.450 The rules of the

441

Case 274/99 P, para. 19. Id. 443 Id. 444 Appl. No. 73274/01, decision of 9 December 2008. 445 Case IT-02-54-R77.5, Judgment on allegations of contempt, 14 September 2009 (quotation at para. 74), reproduced in 48 ILM 1427-1447 (2009). Appeal is pending. 446 Plantey, op. cit. note 332 [1977], at 110 (No. 294); Rogalla, op. cit. note 332, at 134-137. 447 Plantey, op. cit. note 332 [1977], at 109 (No. 290); Getz and Juttner, op. cit. note 332, at 154155. 448 Plantey, op. cit. note 332 [1977], at 109 (No. 291). 449 See for specific examples UNJY 1976, at 207-208; UNJY 1979, at 177-178; UNJY 1986, at 337-339; UNJY 1990, at 282-284. 450 UN Staff Regulation 1.6; see UNJY 1982, at 202-204, UNJY 1984, at 179, UNJY 1990, at 269270, UNJY 2009, at 470-471; UNJY 1987, at 194 (a UN staff member can only accept the nomination 442

370

chapter four

§518

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.451 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.452 In addition, there have been cases of sexual or other harassment. In such cases, the organization has to take the necessary measures (for example disciplinary sanctions). It is under a duty “to provide a safe and adequate environment for its staff ”.453 Harassment claims have also been made against leaders of international organizations. An example is a case brought against the (then) UN High Commissioner for Refugees, Ruud Lubbers, who in 2005 stepped down from this post following much media attention for this case.454 e. Permanent or temporary employment §518 Each international organization attaches great value to maintaining 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, and 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

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 155, at 50-54. 451 See e.g. UNJY 1992, at 433-435 and 449-451. For example, the UN Office of Legal Affairs has advised that UN staff members cannot at the same time be a member of the International Law Commission or of the Human Rights Committee, as this is inconsistent with their status as international civil servants under the staff regulations and rules, in particular regulation 1.2(f ) (UNJY 2009, at 453-457). 452 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 (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. 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. See in general W. Münch, Wrongdoing of International Civil Servants – Referral of Cases to National Authorities for Criminal Prosecution, 10 Max Planck UNYB 2006, at 71-88. In 2010 the UN General Assembly requested the Secretary-General “to strengthen efforts to increase recovery actions by those convicted of fraud in the Organization” (Res. 64/259, para. 17). 453 ILOAT Judgments 2524 (2006), paras. 6 and 30, and 2706 (2008), para. 5. See also UNAT Judgment 1032 (summarized in UNJY 2001, at 356-358). 454 The claims were examined by the UN Office of Internal Oversight Services (OIOS). The OIOS report supported the allegations and recommended “that appropriate actions be taken accordingly. The Secretary-General reviewed the report and the responses of the High Commissioner and the senior manager to the report, and decided that the complaints could not be substantiated by the evidence and therefore closed the matter” (UN Doc. A/59/359, para. 87). Subsequently the claimant initiated proceedings before US courts, which were dismissed (see below, §535).

§519

policy-making and administrative organs

371

the proper framework for an efficient UN development staff. “Development planning and administration demand skill which can best be acquired by sustained, inservice training and development by long practical experience. Any other approach would lead to waste and inefficiency.”455 The example of the League of Nations, which created an independent staff in permanent employment,456 was followed by most international organizations. 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 (‘tenure policy’). A similar seven-year tenure policy is used by the Preparatory Commission for the Comprehensive Nuclear-Test-ban Treaty Organization. In various judgments the ILO Administrative Tribunal has accepted this policy, while at the same time it has carefully reviewed the way it is implemented in individual cases.457 In 2003, the OPCW decided that the starting date for this seven-year period would be 2 July 1999.458 In the period in between 2003 and 2009, some fifty staff members had to be replaced each year. It was expected that the implementation of this policy would negatively affect, inter alia, staff morale; that it would encourage qualified staff to accept employment elsewhere (possibly well before the end of the seven-year period); and that it would 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”.459 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:460 (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 often return to their country after having acquired extensive knowledge of the 455

UN Doc. DP/5, Vol. II, at 346. Ranshofen Wertheimer, op. cit. note 293, at 80. ILOAT Judgments 2315 (in particular: paras. 18-19), 2407 (in particular: para. 21) and 2763 (in particular: para. 15). 458 See decision EC-M-22/DEC.1 of the Executive Council (28 March 2003) and decision C-SS-2/DEC.1 of the Conference of the States Parties (30 April 2003). 459 Decision C-SS-2/DEC.1 of the Conference of the States Parties (30 April 2003), para. 1(b). 460 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). 456 457

372

chapter four

§520

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 seek to ensure that loyalty obligations do not become an unwanted complication in the relationship between the civil servant and his national authorities. (3) Temporary appointments result in 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 detached 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 available 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.461 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.

461

R.S. Jordan, The Nato Staff/Secretariat 1952-57 (1967), at 116.

§521

policy-making and administrative organs

373

(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.462 (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 Originally 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.463 In 1966, about 30 per cent of the UN staff was appointed on temporary contracts.464 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 2010, 11 per cent of the staff of the UN Secretariat was employed on the basis of a permanent contract.465 §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 from national governments than other temporary staff (see below, §525-526). Moreover, problems arise in practice: for example, when “seconded” agents wish 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 issues. 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

462 463 464 465

Reymond, op. cit. note 460, at 760. Staff rule 104.12(b). UN Doc. A/6487, at 7. UN Doc. A/65/350, at 29-31 (also containing more specific figures).

374

chapter four

§522

international administrative jurisprudence”.466 The UN General Assembly, not surprisingly, has stated that secondment does not conflict with the Charter.467 Another way in which international organizations may employ personnel outside the normally available staff positions is to accept so-called gratis personnel.468 This refers to staff offered ‘for free’ by member states, international organizations or NGOs. One of the advantages of gratis personnel is that it enables the organization to do more without extra costs. One of the disadvantages is that it usually affects the equitable geographical distribution of staff, as in practice gratis personnel is usually offered by a limited number of richer members. Gratis personnel is used by, for example, the International Criminal Court (ICC). According to Article 44.4 of the ICC Statute, the Court “may, in exceptional circumstances, employ the expertise of gratis personnel offered by States Parties, intergovernmental organizations or nongovernmental organizations to assist with the work of any of the organs of the Court”.469 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, making a maximum of eight years. The short terms of office have been a handicap for the proper functioning of the secretariat.470 For the OPEC Secretary-General, see §440. The Secretariat of EFTA borrows, in principle, all professional higher level staff (P3 to P5) on secondment for terms of four to six years.471 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.472 Originally, in ASEAN all staff members were on secondment from the members for a period of three years. At the time the constitution of ASEAN expressly provided that during this period they would not lose their seniority or promotional prospects in the home service.473 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.474

466 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. 467 GA Res. 45/239 (A II); see also the subsequent report by the Secretary-General, UN Doc. A/C.5/46/9. 468 For details about gratis personnel within the UN Secretariat, see UN Doc. A/63/310/ Add. 1. 469 In 2005, the Assembly of States Parties to the ICC adopted “Guidelines for the selection and engagement of gratis personnel at the International Criminal Court” (see Res. ICC-ASP/4/ Res. 4, Annex II). Section 2 of these guidelines states that gratis personnel may only be accepted by an organ of the ICC “on an exceptional basis to provide expertise not available within the organ, for very specialized functions”, and that such personnel may not be sought or accepted as a substitute for regular staff. 470 Mikdashi, op. cit. note 295, at 98-99. Information obtained from the OPEC Secretariat (Sept. 1994). 471 J.S. Lambrinidis, The Structure, Function and Law of a Free Trade Area 58 (1965); information obtained from the EFTA Secretariat (September 1994). 472 Jordan, op. cit. note 461, at 115-116; NATO Handbook (1998), Chapter 10. Further information obtained from NATO (Sept. 1994). 473 ASEAN, Art. 4 (4). 474 Information obtained from the ASEAN Secretariat (October 1994).

§523

policy-making and administrative organs

375

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 and 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.475 Many international organizations have followed this example and created an opportunity for outsiders to become acquainted with the work of the secretariat. The UN and the main specialized agencies offer training courses,476 most of which are designed for specialists. For students or those who have just graduated, the UN, the specialized agencies and many other international organizations have their own programmes for interns. The UN does not have one centralized internship programme. Individual UN offices, funds and programmes have their own internship arrangements. For example, the internship programme of UN headquarters in New York has three two-month internship sessions throughout the year. For each of these sessions, some 200 students are admitted. Preference is given to candidates from developing, underrepresented or unrepresented UN member states. The programme is open only to students enrolled in a graduate programme. There are no fees; travelling and subsistence expenses must be paid by the participants themselves.477

6. Independence §524 The independence of the international civil service, together with the principles of impartiality and loyalty to the organization, are fundamental for the functioning of international organizations.478 This principle of independence is not absolute, but functional. The independence of staff members must be protected in the performance of their official tasks.479 As stated by the ILO Administrative Tribunal in the Bustani case, “the independence of international civil servants is

475

Ranshofen Wertheimer, op. cit. note 293, at 342. See UN Doc. UNITAR/BT/3. 477 See www.un.org/Depts/OHRM/sds/internsh/htm/internship.htm (December 2010). 478 Cf. the Standards of conduct for the international civil service, prepared by the International Civil Service Commission (2001), para. 8: “If the impartiality of the international civil service is to be maintained, international civil servants must remain independent of any authority outside their organization; their conduct must reflect that independence. . . . It cannot be too strongly stressed that international civil servants are not, in any sense, representatives of governments or other entities, nor are they proponents of their policies”. 479 See S. Tarassenko & R. Zacklin, Independence of International Civil Servants (Privileges and Immunities), in De Cooker (ed.), op. cit. note 329, at III.1/13; G. Grabowska, Independence of the international civil servants, 17 PYIL 61-73 (1988); F. Finck, L’indépendance statutaire des agents du Conseil de l’Europe, Revue française d’administration publique no. 126 (2008), at 279-291; P. Sands and P. Klein, Bowett’s Law of International Institutions (6th ed. 2009), at 314-319. 476

376

chapter four

§524

an essential guarantee, not only for the civil servants themselves, but also for the proper functioning of international organizations” (see below, §544). It is very difficult – perhaps even impossible – but also not necessary to make international civil servants fully independent. They usually have their roots in one of the member states of the organization, and very often they will return, sooner or later, to their home country. They usually have social, economic, cultural and other ties with their home country. This reality, this fact of life is recognized by the requirement of equitable geographical distribution of staff members (see above, §500-505). It has the advantage that the organization, and more importantly the men of flesh and blood who give life to its secretariat, will stay more in touch with underlying social reality. At the same time, however, these ties with home countries should not lead to staff favouring their own country in their work for the organization. It is in the common interest of all members that the professional loyalty of international civil servants be exclusively towards the organization. But how can this common interest be translated into specific obligations? Such a goal can only be achieved if two conditions are met. Firstly, staff should not be open to undue outside influence or pressure. Secondly, the members should abstain from influencing staff of the organization. These two negative obligations, two sides of the same coin, have been included in the constitutions of many international organizations. The (by now) classic elaboration of these twin obligations is contained in Article 100 of the UN Charter: 1. In the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization. They shall refrain from any action which might reflect on their position as international officials responsible only to the Organization. 2. Each Member of the United Nations undertakes to respect the exclusively international character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities.

These provisions did not come out of the blue. The roots of the modern, independent international secretariat can be found in the early days of the League of Nations and the International Labour Organization. These organizations decided to compose their secretariats of staff who were independent from the member states, rather than of personnel representing national governments. This choice was not made in the constituent instruments of these two organizations, but only in their early practice following establishment. The classic provisions of Article 100 of the UN Charter are essentially a codification of the relevant League of Nations and ILO experience. The two key obligations in Article 100 are an essential precondition for the independence of the secretariat of any international organization. It is therefore no surprise that they have been copied in many constitutions of other international organizations.480 However, as always when constitutions of new international orga-

480 E.g. UNESCO (Art. VI.5); WHO (Art. 37); WTO (Art. VI.4); OPCW (Art. VIII.D, paras. 46-47); EU (European Commission, Art. 17.3 TEU and Art. 245 TFEU); ESA (Art. XII.4); ASEAN

§525

policy-making and administrative organs

377

nizations are drafted, often small changes have been introduced. Also, in a number of cases, states creating a new international organizations decided to only copy the obligation for the staff of the organization and leave out the other crucial obligation (obliging the members not to influence staff );481 for some reason, member states found it difficult in these instances to wholeheartedly subscribe to the goal of an independent secretariat. 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 member governments, which was entirely responsible for them, even if some of the staff came from other member states.482 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, which until 1985 was under the auspices of one of the members (Switzerland).483 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.484 In 1992, this link with the member states was abolished: the Secretary-General was “appointed by the Heads of Government on the basis of merit” for a period of five years.485 However, the original requirement of rotation among the member states was re-introduced in the 2007 ASEAN Charter. According to Article 11.1 of this Charter, the Secretary-General of ASEAN is appointed “for a non-renewable term of office of five years, elected from among nationals of the ASEAN member states based on alphabetical rotation, with due consideration to integrity, capability and professional experience, and gender equality”. During the 1970s, in the East African Common Market 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.486 This Common Market became inactive in the late 1970s. A new regional cooperation effort was

(Art. 11.8-9); SCO (Art. 11); APSCO (Art. 17.2); IRENA (Art. XI.F); ITER International Fusion Energy Organization (Art. 7.6). 481 E.g. ECO (Art. IX.5); Asian Productivity Organization (Art. 23). 482 Langrod, op. cit. note 162, at 38. 483 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. 484 Art. 3 of the Agreement on the Establishment of the ASEAN Secretariat (1976). In 1985 the term of office was extended to three years. 485 Art. 3.1 of the 1992 Protocol Amending the Agreement on the Establishment of the ASEAN Secretariat. 486 A. Kiapi, Distributing the Gains From Integration in East Africa, 7 JWTL (1973), at 342-343.

378

chapter four

§526

made when in 1999 the Treaty for the Establishment of the East African Community was signed.487 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.488 NATO recruits part of its staff from national civil services, often on appointment by the member states.489

§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 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.490 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; and this is true as much for the European Commission as it is for the secretariat of other international organizations.491 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

487

See www.eac.int (December 2010). See I. Seidl-Hohenveldern, Die Abstellung nationaler Beamter zu Internationalen Organisationen, in: Festschrift für Rudolf Kirchschläger 211-220 (1990), at 212. 489 Id. 490 Ranshofen Wertheimer, op. cit. note 293, at 343. 491 See H. Herzog, Doppelte Loyalität. Ein Problem für die zur Europäischen Gemeinschaft entsandten Beamten der Mitgliedstaaten (1975). 488

§528

policy-making and administrative organs

379

service on the order of the government.492 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).493 The German Nazi regime never went this far, but de facto it exercised a similar influence on its nationals.494 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.495 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.496 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.497 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 (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).498

§528 States may not require staff members or advisors loaned to international organizations to sign declarations under national state security acts.499 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.500 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.501

492 M.O. Hudson, The Permanent Court of International Justice 1920-1942, A treatise (1943), at 331. 493 J. Gascon y Marin, Les fonctionnaires internationaux, 41 RdC (1932 III), at 771. 494 Ranshofen Wertheimer, op. cit. note 293, at 246. 495 Id., at 57. 496 See Meron, op. cit. note 332 [1977], at 9-10; Lemoine, op. cit. note 155, at 111-112. 497 On the damage thus caused to Secretariat morale, see Hazzard, op. cit. note 316, at 14-69. See further Lemoine, op. cit. note 155, Chapter 7; Myint-U and Scott, op. cit. note 167, at 22-23. 498 See A.N. Shevchenko, Breaking with Moscow (1985), at 132, 218 and 221. See also Lemoine, op. cit. note 155, at 107-109. 499 UNJY 1973, at 166-167. 500 UN Staff Regulation 1.2(i). 501 The UNGA made this provision for the Secretary-General in Res. 11 (I). For the personnel of the EU see Staff Regulations of the EU, Art. 16.

380

chapter four

§529

b. Privileges502 §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.503 Several questionnaires and two studies prepared by the UN Secretariat give an impression of the practice followed by organizations of the UN family and by regional organizations.504 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 who may fall outside the statute.505 Often, for example in the UN, it also includes those who are recruited locally, with the exception of local staff assigned to hourly rates.506 Furthermore, privileges and immunities are accorded to so-called experts on mission.507 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.508 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 period. These and other differences are now generally recognized, as is reflected in many ways in the conventions, headquarters agreements and other

502 For the definition used for privileges and for references to treaties, agreements and literature, see above, §323. 503 E.g. 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 the Privileges and Immunities of the EU (annexed to the TEU, the TFEU and the EAEC Treaty). 504 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 Union, see Rogalla, op. cit. note 332, at 48-52. 505 See GA Res. 3188 (XXVIII), YUN 1973, at 794; UNJY 1990, at 282. 506 GA Res. 76(I). See also UNJY 1990, at 306-307 and 309-310. 507 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; A.J. Miller, United Nations Experts on Mission and their Privileges and Immunities, 4 IOLR 11-56 (2007). 508 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.

§530

policy-making and administrative organs

381

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.509 Further, in practice, host states do not always recognize the different status of diplomats and international civil servants. 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”.510

(i) Exemption from taxation511 §530 There are at least three reasons for exempting the remuneration of civil servants from all national taxes.512 (1) Independence of international civil servants. This independence would be jeopardized if a government were able to impose an arbitrary tax on his salary.513 This danger is insignificant in a state that 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.

(2) 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

509 Often this is done for officials of the P5 rank (UN) and higher. E.g. 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”. See also UNJY 2005, at 441. 510 See UNJY 1991, at 331-333. 511 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); R.S.J. Martha, Tax Treatment of International Civil Servants (2010). 512 See also UNJY 2005, at 445-447. 513 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”.

382

chapter four

§531

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. (3) 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. 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 Faso 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 per cent of their indemnities as a special contribution in 1985. The UN Legal Office informed Burkina Faso that application of this provision to UN staff members would violate Section 18(b) of the UN Convention on Privileges and Immunities.514 If this provision were to be applied to UN officials from Burkina Faso, 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 are usually exempt from tax, the exemption for staff is generally confined to “salaries and emoluments”.515 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.516 Taxes that 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.517 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;

514

UNJY 1985, at 153-154. Muller, op. cit. note 511. See for the rules and practice of regional organizations UN Doc. ST/ LEG/17, at 222-228. 516 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”. 517 Muller, op. cit. note 511. See for the practice of regional organizations UN Doc. ST/LEG/17, at 242-249. 515

§532

policy-making and administrative organs

383

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 European Court of Justice decided differently in the Humblet case when it held that the Protocol on privileges and immunities of the Coal and Steel Community prohibited taking of the tax free income of the international official into account when the tax rate is determined.518 The Secretariat of the UN takes the same position.519 However, in some 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.520

§532 Problems may arise when international civil servants perform their functions outside the territory of the member states. Before the UK 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 Euratom under their conditions of service. Under the terms of the agreement governing the project for which the officials were in the UK, Euratom could in turn claim reimbursement from the UK authorities.521 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 organization522 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; their personal baggage may be immune from inspection and search for customs or security purposes.523 In the

518 Case 6/60, Humblet, ECR 1960, at 559-593. In the subsequent Van Leeuwen case the 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 European Court of Justice: Muller, op. cit. note 511. See also UNJY 1966, at 10. 519 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. 520 Muller, op. cit. note 511. 521 Commission of Euratom v. UK Atomic Energy Authority, Hambro sole Arbitrator, 25 Feb. 1967, 44 ILR 409 (1972). 522 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. 523 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 on the Privileges and Immunities of the EU, Arts. 11-14; 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; UNJY 2003, at 536-538; UNJY 2006, at

384

chapter four

§534

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.524 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.525 This was one of the main issues in the 1999 Advisory Opinion of the International Court of Justice in the Cumaraswamy case.526 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 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

449-456. 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 organizations UN Doc. ST/LEG/17, at 250-281. See also on EU practice: H. Henrichs, Die Vorrechte und Befreiungen der Beamten der Europäischen Gemeinschaften, in 22 Europarecht (1987), at 82-88. 524 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; UNJY 2009 (policy of the UN not to provide formal testimony in parliamentary hearings). 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 EU practice Henrichs, op. cit. note 523, at 78-82. On the notion of official act, see J. Salmon, Immunités et actes de la fonction, 38 AFDI 1992, at 314-357; Miller, op. cit. note 507; A.J. Miller, United Nations Officials and their Privileges and Immunities, 4 IOLR 169-257 (2007). 525 E.g. UNJY 2009, at 434-437. 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). 526 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.

§535

policy-making and administrative organs

385

their mission”.527 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 Secretary-General, as the chief administrative officer of the organization, has the authority and the responsibility to exercise the necessary protection where required”.528 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”.529 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”.530

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.531 Since 1981, the Secretary-General has submitted such reports annually.532 Increasingly these reports also deal with the safety and security of UN personnel. (ii) Immunity for other acts §535 If an international official could be prosecuted for private acts, the host country or other states would hold special powers over him. In the first place, they might interpret the concept of private acts broader than the official himself or his organization. In this way states might influence his ability to perform some semiofficial activities. In the second place, they may harass an official who displeases the host government by arresting him for some alleged offence or other. In order to avoid such risks, the heads of secretariats have usually been granted the same immunity as that bestowed on the diplomatic service. Secretaries-General and other high officials generally enjoy complete immunity for non-official and official acts during the period in which they are in office. After they have left the office, they no longer enjoy immunity for private acts, but only for official acts. While the

527

Section 22 (b) of Art. VI of this convention. Para. 50 of the Advisory Opinion. 529 Para. 56 of the Advisory Opinion. 530 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”. 531 GA Res. 35/212. 532 See e.g. UN Documents A/C.5/46/4, A/C.5/52/2, A/53/501, A/55/494, A/64/336. These reports contain lists of staff members under arrest and detention, missing or killed. Many of the arrest and detention cases relate to locally recruited staff members of the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). 528

386

chapter four

§535

distinction between private and officials acts is clear in theory, in practice it may be difficult to draw the line. In a case brought against the former UN High Commissioner for Refugees, Ruud Lubbers, as well as against the UN, former UN Secretary-General Kofi Annan and others, US courts dismissed the claims for lack of subject matter jurisdiction, since the defendants enjoyed absolute (UN) and functional (Lubbers, Annan and others) immunity. In this case, Lubbers and Annan no longer enjoyed absolute immunity, but only functional immunity as they were no longer in office. The alleged acts against which the complaints were directed were covered by this functional immunity. As the District Court correctly held, what is decisive is “whether the acts alleged occurred in the course of an official’s exercise of functions, and not on the nature of the underlying conduct”.533

Immunity for non-official acts is generally open to objection, and is contrary to the functionality principle which underlies all international immunities. It may be acceptable for diplomats to be protected against illegal pressure from the receiving states in cases in which 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 also 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.534 The case of IMF staff member Hong Yang illustrates the difficulties that may arise from the absence of immunity for non-official acts.535 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

533 US District Court, Southern District of New York, 29 April 2008 (Brzak v. United Nations, 551 F.Supp.2d 313, 318 (S.D.N.Y.2008)); US Court of Appeals, 2 March 2010 (597 F.3d 107 (2010); published in 49 ILM 1016-1020 (2010)). An appeal was rejected by the Supreme Court in October 2010. See also above, §517. 534 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. 535 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.

§536

policy-making and administrative organs

387

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 non-official 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 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. They have to comply with local laws and must honour their private legal obligations.536 The impossibility of bringing them before a national court may impede the application of the law. Immunity should therefore be invoked only when the interests of the organization so require. If an international civil servant violates the law by committing an act in respect of which he enjoys immunity, the state in question may ask the organization to waive the immunity. Such a waiver 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.537 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.538 International officials have sometimes been invited to appear before national parliaments. In the case of the UN, it is long-standing policy that such invitations “may only be accepted upon a specific authorization by the Secretary-General, which is granted if in his opinion such authorization is in the interests of the Organization”. It may be agreed that

536 As is often stated in internal rules of international organizations; see e.g. UN Staff Regulation 1.1(f ), UN Staff Rules 101.2(c), 201.2(c), 301.3(c) and Administrative Instruction ST/ AI/2000/12. See for specific examples: UNJY 2003, at 536-538. 537 See Europe, 2 March 1995, at 8. See also Europe, 6 January 1996, at 11; Europe, 14 November 1997, at 14. 538 See NRC Handelsblad, 15 February 2000. In June 2004 the Belgian authorities decided not to prosecute Ms. Cresson. Subsequently, the European Commission brought an action before the European Court of Justice, requesting the Court to declare that there was conduct amounting to favouritism or, at least, gross negligence constituting a breach of obligations and, consequently, to order that Ms. Cresson be deprived in whole or in part of her right to a pension. The Court gave the requested declaration, but considered this, of itself, an appropriate penalty, and therefore decided not to deprive her of her pension rights. Case C-432/04, ECR 2006, at I-6387.

388

chapter four

§537

the information will be given through private briefings, on an informal basis. If a formal testimony is requested, this may not be given without a waiver of immunity.539

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 Secretary-General can waive the immunity of the staff. When an act of the Secretary-General 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.540 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 accidents. Many international organizations require their staff to be insured against third party liability,541 but some insurance companies only pay when their clients have been found guilty before a court.542 In 1946, in Westchester County on Complaint of Donnely v. Ranollo,543 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 immunity for traffic violations is.544

§537 The UN refuses to make a general waiver for traffic violations.545 In some other organizations, these violations may be excluded from the immunity.546

539

UNJY 2006, at 457-458. 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 EU practice Henrichs, op. cit. note 523, at 88-91. 541 See e.g. GA Res. 22 (I) E of 13 February 1946. 542 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. 543 ILR 168-171 (1946); 67 NYS 2d.31. 544 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. 545 See UNJY 1974, at 144-145; UNJY 1992, at 481-483. 546 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 e.g. 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). 540

§538

policy-making and administrative organs

389

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 more vulnerable position of the personnel involved which developed as a result. 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 by the state parties under their national laws (Article 9); alleged offenders must be prosecuted or extradited (Articles 13-15).547 Increased attention is now paid to issues relating to the safety and security of UN personnel following the bomb attack on the UN headquarters in the Canal hotel in Baghdad (19 August 2003), in which 22 UN staff and visitors were killed, including UN Special Representative Sergio Vieira de Mello,548 and following an attack on the UN offices in Algiers (11 December 2007) which killed 17 UN personnel.549 8. Legal position a. Law governing the service550 §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. The League of Nations soon drafted “Staff Regulations” which included 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, or sometimes in other

547 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. 548 See the report by the Independent Panel on the Safety and Security of UN Personnel in Iraq (2003), published at www.un.org/News/dh/iraq/safety-security-un-personnel-iraq.pdf (January 2011). 549 See the report by the Independent Panel on Safety and Security of UN Personnel and Premises Worldwide (2008), published at www.un.org/News/dh/infocus/terrorism/PanelOnSafetyReport .pdf (January 2011). 550 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); Amerasinghe, op. cit. note 432, at 271-314. On the law applicable when a function had ended, see J. Salmon, La “Beneficiary Form”, 7 AFDI 524-535 (1961).

390

chapter four

§539

decisions of the organization.551 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 ”.552 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 abovementioned provision in the headquarters agreement. The UN Joint Appeals Board unanimously found that the UN was bound by this provision and recommended the 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”.553 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.554 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.555 In his contract the official submits himself to the statute and the staff regulations. Difficulties may arise if a contract pre-dates the applicable staff regulations. In general, it is assumed that the contract prevails in that case. Staff regulations that are drafted subsequently cannot affect rights already acquired.556

551 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 Union. See in general Amerasinghe, op. cit. note 432, at 286-294. 552 UNJY 1992, at 455-458 (emphasis added). 553 Id. 554 See Akehurst, op. cit. note 550, at 72-93. 555 Id., at 80. 556 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; UNJY 2005, at 471-476. 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

§540

policy-making and administrative organs

391

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,557 a conclusion which subsequently met with a considerable amount of criticism.

§540 In the 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.558 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 that 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.559 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.560 §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

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 466, at 239-254 (1994). 557 League of Nations, Official Journal, Special Suppl. No. 194, at 262. See also Jenks, op. cit. note 550, at 65-66. 558 Kaplan Case, UNAT Judgment No. 19, at 71-75; Jenks, op. cit. note 550, at 67; Baade contests the correctness of the distinction, op. cit. note 556, at 298-299. 559 Plantey, op. cit. note 332 [1977], 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 332, at 58-62. 560 For a survey, see YUN 1973, at 171-174. See also UNJY 1978, at 192-195; UNJY 1987, at 191193; UNJY 2008, at 450-453 (staff representatives are not exempt from the duties and obligations applicable to staff, including the obligation to report misconduct and comply with the confidentiality provisions applicable to investigations). 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).

392

chapter four

§542

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.561 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 quite a common phenomenon. Almost 87 per cent of the staff of the OECD participated in the first two strikes organized by its staff association.562

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 be able 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.563 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.564 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.565 It is elected for a period of two years by a secret vote of an assembly of the civil servants of the institution.566

§543 As a rule there are other organs for the solution of conflicts, such as the Appeals Board in UNESCO, the Joint Committee in the ILO,567 and the joint committees in the EU.568 These are composed of representatives of the Secretary561 See A. Pellet, La grève des fonctionnaires internationaux, 79 RGDIP 932-971 (1975). See also Ruzié, op. cit. note 332, 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); European Court of Justice, Cases 44, 46, 49/74, ECR 1975, at 383; GA Res. 31/193 BII; Plantey, op. cit. note 332 [1977], at 150-156; Rogalla, op. cit. note 332, 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 ; UNJY 2006, at 419-421. 562 H.J. Hahn and A. Weber, Die OECD Organisation für wirtschaftliche Zusammenarheit und Entwicklung 153 (1976). 563 See C. de Cooker, Pre-Litigation Procedures in International Organizations, in De Cooker (ed.), op. cit. note 329, at V.6/1-21. 564 Akehurst, op. cit. note 550, at 11. On the standing of staff associations before ILOAT, see UNJY 2005, at 494-496. 565 Staff Regulations, Art. 9, para. 3. Cf. Rogalla, op. cit. note 332, at 232 ff. 566 Id., Annex II, Art. 1. 567 Akehurst, op. cit. note 550, at 11-12. 568 Staff Regulations, Annex II, Art. 2.

§544

policy-making and administrative organs

393

General and the staff. The UN originally also had a Joint Appeals Board, but this was abolished in 2009, when a new UN system for dealing with staff complaints was introduced.569 All of the abovementioned 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 only accept – 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 the organization) usually cannot meet this need (it has nevertheless been tried, but in most cases unsuccessfully).570 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.571 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.572 §544 The League of Nations created a judicial organ to resolve conflicts between the organization and its staff. Many international organizations have followed suit and have either created their own judicial organ for staff disputes, often named ‘administrative tribunal’, or use an existing administrative tribunal such as the ILO Administrative Tribunal (see below, judicial organs, especially §602, 642-647). In the European Union, the Court of Justice has jurisdiction over staff cases.573 In 1988, it was decided to create a Court of First Instance, which started to function in 1989 and is now named the General Court; one of its tasks was to deal with staff cases at first instance, appeals from which could be brought to the Court of Justice.574 In 2004, in view of the overload of staff cases and the need to have a more specialized tribunal to deal with these cases, the Council decided to create the European Union Civil Service Tribunal, which was installed in October 2005.

569 See UN Doc. ST/SGB/2009/11 and Ph. Hwang, Reform of the Administration of Justice System at the United Nations, 8 The Law and Practice of International Courts and Tribunals 181-224 (2009). 570 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. 571 Assembly Res. of 17 December 1920. Acts of the first Assembly, Plenary sessions, at 663-664; Akehurst, op. cit. note 550, at 13. 572 Akehurst, op. cit. note 550, at 13. 573 Art. 270 TFEU. 574 See D. O’Keeffe, The Court of First Instance of the European Communities, in De Cooker, op. cit. note 329, at V.5/1-20. Until the creation of the Court of First Instance, staff cases represented 16 per cent 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 332, in particular at 209-227.

394

chapter four

§544

In most cases appeal is possible to the General Court; in exceptional cases, judgments by the General Court may be reviewed by the Court of Justice.575 It appears from an early comparative study by Schechter576 that three important administrative tribunals (those of the ILO and the UN and the EU 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.577 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’ 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.578 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.579 In nomination procedures problems may arise when, at the instance of an applicant for a post, the appointment of someone else is annulled. The EU Court in particular has done this repeatedly.580 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,581 and the right not to be dismissed without good cause,582 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 2003 judgment in the Bustani case.583 This exceptional case of the dismissal of

575 See OJ 2004, L 333/7. On this Tribunal, see P. Mahoney, The European Union Civil Service Tribunal, in De Cooker, op. cit. note 329, at V.13 (1001-1037); H. Kraemer, The European Union Civil Service Tribunal: A New Community Court Examined After Four Years of Operation, 46 CMLRev. 1873-1913 (2009). 576 A.H. Schechter, Interpretation of ambiguous documents by international administrative tribunals (1964). 577 Cf. Amerasinghe, op. cit. note 432, at 503-504. 578 Akehurst, op. cit. note 550, at 210-214. 579 Effect of Awards of compensation made by the UNAT, Advisory Opinion, ICJ Rep. 1954, at 62. 580 See e.g. Cases 29/74, De Dapper, and 77/74, Küster, ECR 1975, at 35 and 949. 581 See EU 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. 582 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. 583 ILOAT judgment no. 2232, 16 July 2003. On this judgment, see J. Klabbers, The Bustani Case before the ILOAT: Constitutionalism in Disguise? 53 ICLQ 455-464 (2004); A, Stanič, Bustani

§544A

policy-making and administrative organs

395

the Director-General of the Organization for the Prohibition of Chemical Weapons (OPCW) has been mentioned above (§492). The US in particular had 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: it argued that 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 OPCW regarded the decision to dismiss Bustani as 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 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”.584 On substance the Tribunal concluded that the dismissal of Bustani “violated the terms of his contract of employment and contravened the general principles of law of the international civil service”.585 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 between staff and the organization. In such cases, therefore, do staff members 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 the jurisdiction of 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”.586 National courts have often followed this line of reasoning when confronted with complaints by staff of international organizations.587 v. Organization for the Prohibition of Chemical Weapons, 98 AJIL 810-814 (2004); C. Wickremasinghe, Casenote: the Bustani case before the ILOAT, 1 IOLR 197-207 (2004). 584 Id., para. 10. 585 Id., para. 16. 586 Case of Waite and Kennedy v. Germany, Appl. No. 26083/94, Judgment of 18 February 1999 (quotation at para. 68). 587 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

396

chapter four

§544B

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 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.588

§544B Even in cases in which an administrative tribunal is available to deal with staff conflicts, complaints have been brought before national courts and before the European Court of Human Rights, because of alleged deficiencies of the procedure of the administrative tribunal concerned.589 Generally, so far, such complaints have been rejected. §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. The UN established an Office of the Ombudsman in 2002, which was reformed a few years later. The current office, the UN Ombudsman and Mediation Services, has a Mediation Division

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). Other cases came before Belgian and French courts, see C. de Cooker and G. Süss, Immunity of International Organizations from National Jurisdiction in Staff Matters, in De Cooker (ed.), op. cit. note 329, Chapter III.4. See further A. Reinisch and U.A. Weber, In the Shadow of Waite and Kennedy, 1 IOLR 59-110 (2004); M. Di Filippo, Individual Right of Access to Justice and Immunity of International Organizations: an Italian Perspective, XVII The Italian Yearbook of International Law 2007, at 79-97; T. Henquet, International Organizations in the Netherlands: Immunity from the Jurisdiction of the Dutch Courts, LVII NILR 267-301 (2010); C. Ryngaert, The Immunity of International Organizations Before Domestic Courts: Recent Trends, in 7 IOLR 121-148 (2010). 588 Case of Waite and Kennedy v. Germany, Appl. 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). 589 E.g. the judgment of 23 October 2009 by the Supreme Court of the Netherlands, Case 08/00118, (X v. European Patent Organization); in this case the ILOAT practice of only exceptionally holding oral hearings was not considered a violation of the obligation to offer protection equivalent to Art. 6 of the European Convention on Human Rights); European Court of Human Rights, Boivin (Boivin v. 34 member states of the Council of Europe), Appl. No. 73250/01, Judgment of 9 September 2008 (the application was declared inadmissible). See further Reinisch and Weber, op. cit. note 587.

§546

policy-making and administrative organs

397

and seven regional branches.590 Experiences with ombudsmen seem to be positive.591 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”.592 In large bureaucracies in general, the creation of ombudsmen is useful for the purpose of confidential counselling and third-party 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.593 §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 replaced by a single Commission of the European Communities.594 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 EU treaties. These can be summarized under four headings:595 (1) The Commission is the watchdog, or guardian, of the Treaties. It has to ensure that EU law is applied.596 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.597 The significance of this task lies in the Commission’s ability to take the initiative. Other international organs charged with ensuring that

590

See UN Doc. A/64/640, at 41-42. See Y. Beigbeder, L’Ombudsman du personnel des Nations Unies, 21 AFDI 632-645 (1975). See also UN Doc. A/C.5/41/14. 592 Y. Beigbeder, Management Problems in United Nations Organizations 114 (1987). 593 Id. 594 Treaty establishing a Single Council and a Single Commission of the European Communities, 1965 (Merger Treaty). 595 See more extensively H. Schmitt von Sydow, in Von der Groeben and Schwarze (eds.), op. cit. note 129, Band 4, at 203-232; Kapteyn & VerLoren van Themaat, The Law of the European Union and the European Communities 193-199 (4th rev. ed., edited by P.J.G. Kapteyn, A.M. McDonnell, K.J.M. Mortelmans, C.W.A. Timmermans and the late L.A. Geelhoed, 2008). 596 Art. 17.1 TEU. 597 Art. 258 TFEU, Euratom, Art. 141. 591

398

chapter four

§548

the member states fulfil their obligations598 may normally take action only at the instigation of a member state. (2) The Commission enjoys the exclusive right of initiative in legislation: without its initiative there can be no legislation, and the Commission may always alter (or withdraw) its proposal, as long as the Council has not acted (see below, §744). Legislative acts of the Union may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise. Other acts shall be adopted on the basis of a Commission proposal where the Treaties so provide.599 (3) The Commission is the main executive body of the Union.600 In a number of fields, the Commission has an executive power by virtue of the Treaties.601 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 broad scope 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 with the Commission’s decisions (see above, §275). This is one of the (by now almost classical) bones of contention between the Commission and the Council (and, thus, the member states), since it prevents the Commission from becoming a true executive power of the Union. (4) The Commission is the Union’s negotiator in external relations (Article 218 TFEU).602 For example, it conducts trade negotiations within the framework of directives issued by the Council (Article 207.3 TFEU). “With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union’s external representation”.603 §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 and psychiatric institutions).604

598

E.g. organs of the ILO. Art. 17.2 TEU. 600 See C. Docksey and K. Williams, The European Commission and the Execution of Community policy, in G. Edwards and D. Spence (eds.), op. cit. note 332, at 125-154; D. Curtin, Executive Power of the European Union – Law, Practices, and the Living Constitution (2009), in particular at 61-66 and 91-100. 601 For example, with regard to the application of safeguard clauses such as Art. 143 TFEU. 602 See M. Smith, The Commission and external relations, in Edwards and Spence (eds.), op. cit. note 332, at 264-302. 603 Art. 17.1 TEU. 604 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 466, at 115-125. 599

§549

policy-making and administrative organs

399

Law making independently of the general congress of the organization is rare but occurs in some technical organs, such as the UPU.605 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 Secretary-General (see above, §462-463).

The European Commission is unique in holding 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 EU in which the national interests are represented. According to Article 17.1 TEU, “[t]he Commission shall promote the general interest of the Union and take appropriate initiatives to that end”. 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’.606

§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.607 For most activities, the Commission in fact needs the full support of the Council.608 The creation of the European Council (composed 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-seven members (‘Commissioners’), one national of each member state. Discussions have long been held to seek to reduce the number of Commissioners,609 in particular within the context of

605

See Chapter Eight, §1323. EEC Bulletin 1967, No. 7, at 7. 607 See also T.C. Hartley, The Foundations of European Community Law 16 (4th ed. 1998). 608 See further S. Rometsch and W. Wessels, The Commission and the Council, in Edwards and Spence (eds.), op. cit. note 332, 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”. 609 Reports of the Three Wise Men and of the Spierenburg Commission. 606

400

chapter four

§550

expansion of membership of the Union and the expected concomitant expansion of the number of Commissioners. However, the member states are very attached to having a national as a Commissioner, even though the Commissioners are independent and do not represent the member states. Therefore, it took considerable time before the compromise solution was agreed in the 2007 Lisbon Treaty: as from 1 November 2014, the Commission shall consist of a number of members corresponding to two thirds of the number of member states, unless the European Council, acting unanimously, decides to alter this number.610 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 1970.611 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, to twenty with the accession of Austria, Finland and Sweden, and to twenty-seven with the most recent accessions.

Commission members are chosen on the grounds of their general competence and European commitment; their independence must be beyond doubt.612 In carrying out its responsibilities, the Commission “shall be completely independent”: members of the Commission shall “neither seek nor take instructions from any government or other institution, body, office or entity”.613 In practice, the members of the Commission are chosen from different political groups.614 The Commission itself decides how to distribute the portfolios.615

610 Art. 17.5 TEU. See in this context Declaration No. 10, annexed to the Final Act of the Intergovernmental Conference which adopted the Lisbon Treaty. According to this Declaration, when the Commission no longer includes nationals of all member states, it “should pay particular attention to the need to ensure full transparency in relations with all member states”, and “liaise closely with all member states, whether or not they have a national serving as member of the Commission”. In addition, the Commssion should take measures to ensure that political, social and economic realities in all member states are fully taken into account; in these measures the position of member states that do not have a national as Commissioner has to be “addressed by appropriate organizational arrangements”. See also Curtin, op. cit. note 600, at 95-98. 611 Merger Treaty, Art. 32. 612 Art. 17.3 TEU. 613 Art. 17.3 TEU. 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. 614 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). 615 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 332, at 1-32, in particular at 36.

§551

policy-making and administrative organs

401

The 1997 Amsterdam Treaty and the 2001 Nice Treaty have strengthened the position of the President of the Commission. Since the entry into force of the 2007 Lisbon Treaty, the President of the Commission shall “(a) lay down guidelines within which the Commission is to work; (b) decide on the internal organization of the Commission, ensuring that it acts consistently, efficiently and as a collegiate body; (c) appoint Vive-Presidents, other than the High Representative of the Union for Foreign Affairs and Security Policy, from among the members of the Commission. A member of the Commission shall resign if the President so requests”.616 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.617 This provision emphasized that the Commission was not subordinate to the Council – an impression that 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 Commission.618 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 contained further amendments of the procedure for the appointment of the Commission.619 In particular, this Treaty provided that the Commission was to 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. New changes in this procedure were introduced in the 2007 Lisbon Treaty. The European Commission is now appointed by the European Council, acting by qualified majority (after the European Parliament has given its consent).620

V. Concluding observations §551 This and the following chapter aim to provide greater insight into the structure of international organizations. While there is no single basic structure that 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. Many organizations – in particular those having

616

Art. 17.6 TEU. Art. 214.2 EC. See e.g. the decision of 23 January 1995 appointing the President and the members of the Commission, OJ 1995, L 19/51. 618 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). 619 Art. 214.2 EC (as amended by the Treaty of Nice). 620 Art. 17.7 TEU; another change laid down in this paragraph 7 is the requirement that the European Council, in proposing to the European Parliament a candidate for President of the European Commission, has to take into account the elections to the European Parliament. 617

402

chapter four

§552

a large number of members – have a non-plenary, executive organ. These categories of organs 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: the general congress, a non-plenary executive organ and a secretariat. How can we explain the development of 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. The structures of these novel organizations resembled the existing structures for international cooperation. In fact, these organizations, with general congresses meeting only every five or six years, represented no real break with the past practice of diplomatic conferences. What has remained the same is that representatives of states meet and discuss matters they consider to be of common interest. What has changed is the institutional framework for these discussions. Thus, while there are some differences with the past, notably the periodicity of the general congresses, 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. 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 only 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 were undertaken in traditional diplomatic conferences. Gradually, the modern, independent international secretariat developed. It became the face of the international organization.621 Monnet always emphasized the importance of independent institutions. “Only institutions grow wiser: they accumulate collective experience”.622 This is particularly true for international secretariats.

621

Cf. I. Claude, Swords into Plowshares 191 (4th ed. 1971). J. Monnet, Memoirs 393 (1978; English translation of the original French edition, published in 1976). 622

§553

policy-making and administrative organs

403

§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 in respect of 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 policy-making in this organ, depending on their power and on the organ’s decision-making procedures. While no member state alone can determine policies as if they 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 to 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 which favours 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, more than 65 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. What these examples all have in common is that they represent the creation of organizations housing new centres of policy-making that 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, rather 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 and decisions taken by them 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 that are not members of such organs. The more powers these organs exercise, the stronger the requirement of representativeness becomes. 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

404

chapter four

§555

organ for the coordination of socio-economic policies is that 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, further accessions have led to institutional changes (for example limiting the size of the European Commission, and strengthening the role of its President). §555 Finally, beyond the control of every member state, at least in theory, is the international secretariat, with its staff that is usually required to be independent and that must be loyal to the organization alone. In practice, however, states have often viewed their nationals as being representatives of the national, not the common, interest.623 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 no matter the price.624 Rather, it has an independent responsibility to pursue the objectives of the organization.625 In this respect, international secretariats indeed have to belong “to all nations and to none”.626 As a result of their independent position and their expertise, secretariats of international organizations have become new centres of power, particularly in large, technical organizations. This power is not based on military or economic strength, but on expertise and experience in the performance of functions that

623 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 Shevchenkos of the UN (see above, §527) and the Cockfields of the EU. (Lord Cockfield became a member of the European Commission in 1984, as one of Prime Minister Thatcher’s protégés. But he soon ceased 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, 1979-1990 (1993), at 547; S. Weatherill and P. Beaumont, EU Law (3rd ed. 1999), at 48, footnote 9. 624 See in this context the judgment by the ILO Administrative Tribunal in the Bustani case (op. cit. note 583, para. 16): “[t]o 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”. 625 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.) 626 J. Lorimer, The Institutes of the Law of Nations, Vol. II 266 (1884); quoted in Jenks, op. cit. note 277, at 90.

§555

policy-making and administrative organs

405

can no longer be performed by the members individually. Usually these secretariats are answerable to the board and the general congress of the organization. In recent years, secretariats have regularly been requested to become more accountable. Many secretariats have introduced measures to meet this request: measures for better management and better performance reporting, codes of conduct for staff, oversight mechanisms, whistleblower protection policies, and so forth. At the same time, there can be no improved accountability of international secretariats without the full cooperation of the members. Through the policy-making organs of the organization, the members must make available the financial and other means to enable the secretariat to do what it is asked to do to pursue the objectives of the organization. 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 nothing more or less than any other, plenary or non-plenary, policy-making organ.

CHAPTER FIVE

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. However, it should not be forgotten 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 precondition 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 policy-making 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 prevent the adoption of decisions by making such an order. In such cases, control has to be exercised at the international level. Otherwise a “democratic deficit” emerges, to adopt the phrase used in the context of the European Union. §557 This chapter is divided into two sections. Section I is devoted to 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 (audit). These will be discussed below in the chapter on financing (Chapter Seven).

408

chapter five

§558

I. Parliamentary organs A. Need for parliamentary organs §558 A policy-making or administrative 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 matter 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 that 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 and administrative 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 decision-making 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, in four main 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. 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

1 “Government” is used in the sense of “executive branch of the government” (see above, §58).

§561

advisory and supervisory organs

409

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 for the country concerned 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 out of 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 from national parliaments in order to exert some influence on them. This pressure can be applied in several ways: (1) 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 is 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 that 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 311 TFEU). 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 informed of proposals for EU decisions and try to exert influence over their content.3

2 See the translation of this act by E. Stein and P. Hay, Law and Institutions in the Atlantic Area 211 (1967). 3 On the role of the national parliaments in decision-making in the European Union, 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

410

chapter five

§562

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 decision-making of international organizations, they cannot be persuaded by arguments brought up during the debates. (2) 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. (3) 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 while others are largely financed from their own financial resources.6 There is no parliamentary control by national parliaments 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 (now the UN system’s Chief Executives Board for Coordination) agreed that executive heads of organizations,

the European Parliament”, 14 RTDE 595-601 (1978); P. Kiiver, The National Parliaments in the European Union – A Critical View on EU Constitution-Building (2006). 4 The US Senate refused to approve the US contribution to the ILO in 1970. This delayed but could not prevent payment (see below, §1011). 5 See e.g. IAEA, Art. 14. 6 E.g. IMF and World Bank. 7 E.g. the 2010 budget of the WTO was 194 million Swiss francs (see further below, §928930).

§563

advisory and supervisory organs

411

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, but other national organs may also 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 having 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 1992 Treaty on European Union did not violate the German constitution. 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 In 2009, the German Constitutional Court came to a similar conclusion with regard to the 2007 Treaty of Lisbon, the Act Approving the Treaty of Lisbon and the amendments to the German constitution. Only a German implementing act relating to the rights of the German parliament (the Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters) did not comply with constitutional requirements and had to be amended before Germany could ratify the Lisbon Treaty (rights of participation of the Bundestag and the Bundesrat in the national decision-making relating to EU law-making and treaty amendment procedures had not been elaborated to the extent required).13

8

Annual Report of the ACC for 1978-79, UN Doc. E/1979/34, para. 33. 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. 12 The judgment has been published in 20 EuGrZ, No. 17 (1993); English translation in CMLR 57-109 (1994). 13 Judgment of 30 June 2009 (www.bverfg.de/entscheidungen/es20090630_2bve000208en.html (January 2011)), paras. 273 and 406-419. 9

412

chapter five

§564

B. International organizations with parliamentary organs14 §564 The creation of parliamentary organs to influence the decision-making process of international organizations was for a long time an almost exclusively European endeavour, and dates from the post-war years. The only significant, 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 even older still. On 30 June 1889, the InterParliamentary Union (IPU) was founded. IPU members are members of national parliaments. As at January 2011, the IPU has 155 members and 9 associate members.15 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.16 The IPU is a private international organization of members of parliaments that cannot bind its members. It is an instrument for cooperation between the UN and national and regional parliaments.17 The IPU is examining the possibility to conclude a convention on the IPU by which it would be transformed from a private into a public international organization. Such a transformation would make it possible to give privileges and immunities to delegates to IPU meetings and to IPU officials.18 A more recent non-governmental framework for cooperation amongst parliamentarians is Parliamentarians for Global Action (PGA). This is an international network of elected members of national parliaments. Some 1,300 members of

14 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; L.M. de Puig, Les parlements internationaux (2008). 15 See www.ipu.org. Associate members are the Andean Parliament, the Central American Parliament, the East African Legislative Assembly, the European Parliament, the Inter-Parliamentary Committee of the West African Economic and Monetary Union, the Latin American Parliament, the Parliament of the Economic Community of West African States, the Parliamentary Assembly of the Council of Europe and the Transitional Arab Parliament. 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). 16 Art. 1 of the Statutes (see www.ipu.org). 17 See the 2005 World Summit Outcome, GA Res. 60/1, para. 171. 18 See for example IPU Doc. www.ipu.org/cnl-e/186/rpt-convention.htm (January 2011).

§565

advisory and supervisory organs

413

parliament of some 130 countries and of two regional parliaments (the European Parliament and the ECOWAS Parliament) participate in this network.19 A form of cooperation comparable to the Inter-Parliamentary Union can also be found in the following organizations of members of parliaments:20 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 Bank21 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 created with the establishment of 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.22 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 based on the model of the Parliamentary Assembly of the Council of Europe, namely, the European Parliament (the parliamentary organ of the European Union),23 the Consultative Interparliamentary Council of Benelux24 and the Parliamentary Assembly of the Western European Union.25 The Nordic Council is only partly a parliamentary organization. It is composed of 87 members elected by and from national

19

See www.pgaction.org. J. Allan Hovey. Jr., The Superparliaments (1966); YIO 2002-2003, Vol. 1, at 166. See www.pnowb.org. 22 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). 23 TEU, Art. 14; TFEU, Arts. 223-234. 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); R. Corbett, F. Jacobs, M. Shackleton, The European Parliament (7th ed. 2007). 24 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. 25 WEU, Art. 9. Website: www.assembly-weu.org (January 2011). 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). This Assembly will cease to exist in 2011 due to the dissolution of the WEU. 20 21

414

chapter five

§566

parliaments and some 80 (non-voting) representatives of the governments. It has certainly been influenced by the experiences of the Parliamentary Assembly of the Council of Europe.26 Members of parliament from the member states of NATO27 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.28 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 instead resemble the powers of the other international parliamentary organs.29 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).30 The parliamentary bodies created by association agreements concluded between the EU and third countries are similar to this Joint Assembly.31 Parliamentary organs have been created in the context of a number of other regional organizations as well. Examples are: the ASEAN Inter-Parliamentary Assembly (AIPA, created in 1977);32 the Interparliamentary Assembly of the Community of Independent States (founded in 1992); the Parliamentary Assembly of the Black Sea Economic Cooperation (created in 1993);33 the Parliamentary Assembly of ECOWAS (founded in 1993); the Parliamentary Forum of the Southern African Development Community (officially launched in 1996); and the Pan-African

26 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 European Yearbook LV 2007, at NC 1-14; European Yearbook LVI 2008, at NC 1-6. Website: www.norden.org. 27 J. Harned, Atlantic Assembly – a Genesis, 3 JCMS 183-189 (1964); Hovey Jr. (op cit. note 17); 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); www .nato-pa.int. 28 Through a resolution adopted by delegations of the parliaments of countries participating in the CSCE (meeting in Madrid in April 1991). For the text of this resolution, see: 30 ILM 1344-1347 (1991). See for further information www.oscepa.org and the OSCE Handbook (2007), at 36-37. 29 Agreement on the EEA, Art. 95 and Protocol 36. See www.efta.int/eea/eea-institutions/ eea-joint-parliamentary-committee.aspx (January 2011). 30 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. 31 E.g. the Association Parliamentary Committee established in the 1991 association agreement concluded between the EC and Poland (Arts. 108-110). For the text of this “Europe Agreement”, see OJ 1993, L 348. 32 See www.aipasecretariat.org. 33 See www.pabsec.org.

§567

advisory and supervisory organs

415

Parliament (created in 2000).34 In 1979, the Andean Parliament was established.35 In 1987, the Treaty establishing a Central American Parliament (Parlacén) was concluded.36 A Latin American Parliament (Parlatino) which has been functioning since 1964, was given a treaty basis in 1987.37 In 1995, a Parliamentary Commission was created within the context of Mercosur.38 In addition, there are other more or less formal frameworks for parliamentary cooperation in other regions, such as the Baltic region, the Arab region and the Maghreb.39 Furthermore, the Commonwealth and the International Organization of La Francophonie have parliamentary bodies.40 These developments clearly 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”41 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”.42 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 possesses all the powers normally bestowed on a parliament, which may be an adequate reason for not permitting the use of these names. On

34 See Lindemann and Walter, op. cit. note 14, 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). See www.pan-african-parliament .org/. 35 19 ILM 269-272 (1980); www.parlamentoandino.org. 36 See Lindemann and Walter, op. cit. note 14, at 902; www.parlacen.org.gt. 37 Spanish text in Trb. 1990, No. 79. See www.parlatino.org. See further 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). 38 See Lindemann and Walter, op. cit. note 14, at 904; T.A. O’Keefe, Latin American and Caribbean Trade Agreements: Key to a Prosperous Community of the Americas (2009), in particular at 144-146; www.parlamentodelmercosur.org/. 39 See De Puig, op. cit. note 14, at 83-91. 40 The Commonwealth Parliamentary Association (www.cpahq.org) and the Parliamentary Assembly of La Francophonie (see www.francophonie.org/apf); see De Puig, op. cit. note 14, at 45-46 and 82-83. 41 Handelingen Europees Parlement (Proceedings of the European Parliament), No. I, at 92, 96. 42 Information obtained from the Council of Europe Secretariat.

416

chapter five

§568

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. A somewhat similar change of name took place when the ASEAN Inter-Parliamentary Organization in 2007 transformed itself into the ASEAN Inter-Parliamentary Assembly (or AIPA).43 C. Composition of parliamentary organs 1. Size §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 identically composed organs. 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 abovementioned 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.44 However, a few years later it was demonstrated how difficult it is to hold on to such an agreed maximum size, first of all 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, and subsequently when it was further increased to 750 in the 2007 Lisbon Treaty.45 §569 The Nordic Council pays little attention to balancing the number of members. Apart from Iceland, which sends only seven, each of the parliaments nomi-

43 44 45

See www.aipasecretariat.org. Art. 189 EC (before the Nice amendment). Art. 14.2 TEU: “. . . shall not exceed seven hundred fifty in number, plus the President”.

§569

advisory and supervisory organs

417

nates 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).46 The Council of Europe draws some degree of distinction between large and small states.47 As at January 2011, the Council’s Parliamentary Assembly had 318 members (representatives) and, in addition, 318 substitutes who play an important role in the work of the Assembly.48 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 120 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.49 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.50 Since June 1979, the European Parliament has been directly elected, and considerably enlarged. As at January 2011, it has 736 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 per cent of the seats, now has 3 per cent. 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 future enlargement. From the 1994 elections, France, Italy and the United Kingdom each had 87 seats, while Germany had 99.51 While at present Germany still has 99 seats, each of France, Italy and the United Kingdom now has 72.52

46 Protocol to the Treaty establishing the African Economic Community relating to the PanAfrican Parliament (adopted 28 June 2002), Art. 4.2. See also www.pan-african-parliament.org. 47 CoE, Art. 26. 48 See http://assembly.coe.int/. 49 ECSC (original text), Art. 21. 50 EC, Art. 190, 2; Euratom, Art. 108; ECSC (as amended from 1 January 1958), Art. 21.2. 51 Europe No. 5878 (Sp. Ed., 1992), at 7, para. 26; OJ 1993, L 33/15. 52 See www.europarl.europa.eu/members/expert/groupAndCountry.do?language=EN (January 2011).

418

chapter five

§570

The Parliamentary Assembly of the OSCE is composed of 320 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.53 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 by the EFTA or ACP states. The EEA parliamentary organ has 24 members; that of the Cotonou Agreement 156. 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.54 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.55 If international parliamentary organs are considered to be 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).

53

See www.oscepa.org. In 1996, the Andean Parliament decided that its members should be directly elected by 2001; however, this decision has not yet been implemented (see De Puig, op. cit. note 14, at 86). 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). 55 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. 54

§571

advisory and supervisory organs

419

§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.56 The first proposal for direct elections was made as early as 1960,57 but it was not until 20 September 1976 that the Council of Ministers was finally able to reach the required unanimity.58 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.59 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.60 These will be discussed below; and where appropriate, some comments from the perspective of today will be added. The main advantages were expected to be as follows: (1) The influence of the European Parliament would increase in its relations with the governments, as would its standing in the eyes of the general public. It is difficult to ascertain at present whether developments have in fact lived up to this expectation. To the extent that the European 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 into 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, 63 per cent of the electorate participated in the voting; in 1984 this figure was 61 per cent, and in 1989 it was 58.5 per cent. In 1994, the average turnout was 56.8

56

EEC, Art. 138.3; Euratom, Art. 108.3: ECSC, Art. 21.3. Report of October 1960 (Battista, Dehousse, Faure, Schuyt, Metzger). 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). 59 For the text see 20 CMLR 121 (1977). 60 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). 57 58

420

chapter five

§572

per cent. In 1999, it was 49.4 per cent (varying from 90 per cent in Belgium to 24.4 per cent in the UK). In 2004, the average turnout was 45.7 per cent (varying from 90 per cent in Belgium to 17 per cent in Slovakia).61 In 2009, it was 43 per cent.62 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.63 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.64 In November 1994, this number had been dropped to 20.65 Nevertheless, there are still voices supporting the arguments in favour of the dual mandate.66 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 were not in favour of a dual mandate, arguing that European democracy deserves fulltime members of parliament, and that the general public will only pay attention to a European Parliament with more extensive powers.67 In 2002, the European

61

Corbett, Jacobs and Shackleton, op. cit. note 23, at 28. NRC Handelsblad, 8 June 2009. 63 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 suggested that “the most likely explanation of European non-voting in 1999 is that of alienation from the Parliament and the electoral process” (A. Guyomarch, The June 1999 European Parliament Elections, 23 West European Politics 161-174 (2000), at 173). 64 Id., at 46-47. 65 8 members from Italy, 4 from Ireland, 3 from France, 3 from the UK, and 2 from Denmark. Data obtained from the European Parliament. 66 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 Labour Party (PvdA) 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. In 2005 – following the 2002 EU decision to abolish the dual mandate – a working paper by the Dutch Labour Party suggested that perhaps the dual mandate should be re-introduced (‘Europa: vertrouwen herwinnen’ (October 2005)). 67 Corbett, Jacobs, Shackleton, op. cit. note 23, at 21-22. See for the Dutch debate on double mandates: NRC Handelsblad, June 1992 and 24 November 1992; Trouw (16 July 2001); Het Parool (16 July 2001). 62

§572

advisory and supervisory organs

421

Parliament recommended to exclude the possibility of a dual mandate.68 Subsequently, it was agreed to abolish the dual mandate and since the 2009 elections there are no more members of the European Parliament who are, at the same time, member of a national parliament.69 (2) 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. (3) 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, §574-575). 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. (4) 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.70 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 European Parliament also had to keep themselves informed

68 With exceptions for the UK and Ireland until the 2009 elections (see EP Doc. A5-0212/2002). 69 See the Act of 20 September 1976 concerning the election of the members of the European Parliament by direct universal suffrage (as last amended by Council Decision 2002/772/EC, Euratom of 25 June and 23 September 2002), Art. 7.2. 70 K.H. Neunreither, Les rapports entre le parlement européen et les parlements nationaux, 15 European Yearbook (1967), at 63 (English summary, at 78).

422

chapter five

§573

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)). (5) 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 223.1 TFEU, Parliament is to draw up proposals for elections by direct universal suffrage in accordance with a uniform procedure in all member states, or in accordance with principles common to all member states. The Council has to adopt these proposals unanimously. Subsequently, the approved proposals shall enter into force following their approval by the member states in accordance with their respective constitutional requirements. (6) 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: (1) It is improper to mobilize citizens for the election of members to an organ that may not even be a real parliament. This disadvantage could be overcome by increasing the powers of the European Parliament. For a long time the European Parliament71 has itself proposed this, as 71 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

§573

advisory and supervisory organs

423

did national parliaments.72 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; or 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. (2) 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 at the time also served as members of the Assembly of the Council of Europe.73

This argument partly explains the interest of some in the dual mandate (see above, §573(1)). (3) The organization of European elections according to a uniform procedure or in accordance with principles common to all member states74 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 is insurmountable. They did not prevent direct elections taking place from 1979 onwards, in which every state used its own voting procedure. (4) 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

of Mrs. Stobel (OJ 1162/65), Mr. Nederhorst (OJ 1062/64), Mr. Vredeling (OJ 1179/64) and Mr. Martino (OJ 1782/65). 72 See, e.g.: debates in the Dutch Lower Chamber on 10, 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). 73 See 14th Annual Report on the activities of the Committee on Parliamentary and Public Relations (1970), Consultative Assembly Doc. 2783, at 6-9. 74 Required by TFEU, Art. 223.1; Euratom, Art. 108.3 (originally also by the ECSC, Art. 21.3).

424

chapter five

§574

having their own effective representation, the Act on direct elections ensured that these member states retain much of their original degree of representation.75 (5) 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, and Europe will not be either. Moreover, it would mean that, as long as there is no real government, important governmental powers would be exercised 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.76 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 (and again in recent years following the admission of new member states). From the time of 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 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 2009 elections, the Group of the European People’s Party (Christian Democrats) occupied 265 seats, the Group of the Progressive Alliance of Socialists and Democrats in the European

75 On the basis of an earlier draft, however, the French government raised objections. Debré in the French National Assembly in June 1965, Europese Documentatie, July 1965, No. 7, at 125. 76 Cf. Art. 10 TEU: “Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union”.

§575

advisory and supervisory organs

425

Parliament 184, the Group of the Alliance of Liberals and Democrats for Europe 84, the Group of the Greens/European Free Alliance 55, the European Conservatives and Reformists Group 54, the Confederal Group of the European United Left/Nordic Green Left 35, and the Europe of Freedom and Democracy Group occupied 32 seats. The 27 others were not attached to a political group.77 §575 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.78 Facilities are made available to political groups, including offices and other rooms, interpreters, translators and duplication services.79 As at January 2011, the following political groups were represented in the Assembly: Group of the European People’s Party (209 representatives and substitutes); Socialist Group (179); Alliance of Liberals and Democrats for Europe (94); European Democrat Group (conservatives, 100); Group of the Unified European Left (30); 18 representatives and substitutes were listed as not belonging to a political group.80 The European Parliament also grants various facilities to its political groups. The groups receive financial support and have rooms at their disposal. Their Chairmen are members of the Conference of Presidents, which has some influence on the content of the agenda and the proceedings,81 and they may speak out of turn.82 According to Rule 30.1 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 (now: Rule 30.1): “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:83

77 78 79 80 81 82 83

148).

See www.europarl.europa.eu. Council of Europe, The Parliamentary Assembly, Procedure and Practice (9th ed. 1990), at 51. Id., at 52. See http://assembly.coe.int/ASP/AssemblyList/AL_GroupsList_E.asp (January 2011). European Parliament, Rule 24. Id., Rule 121.3. Joined Cases T-222/99, T-327/99 and T-329/99, ECR 2001, at II-2823 (quotation at para.

426

chapter five

§576

“. . . the political groups contribute to the attainment of the political objective pursued by Article 191 EC [now repealed], 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, 17 members were required to form a political group in the European Parliament.84 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 17 at the expense of the other French parties. The required number was accordingly reduced to 14.85 In 1973, this number was reduced to ten for groups composed of representatives from at least three member states. For other groups it remained 14. 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. At present, a political group shall comprise members elected in at least one quarter of the member states; the minimum number of members required to form a political group is 25.86 Since 1999, it is no longer possible for members from only one member state to form a political group.

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 major exception: the European Parliament. The President proposed by the European Council is elected by the European Parliament. Subsequently, the elected President, the High Representative of the Union for Foreign Affairs and Security Policy and the other members of the Commission as proposed by the Council shall be subject as a body to a vote of consent by the European Parliament.87 Furthermore, Parliament has the power to censure the Commission, and must also approve the budget. The members of the Commission must resign if the European Parliament adopts (by two-thirds majority) a motion of censure. This 84 85 86 87

European Parliament, Rule 36.5 (original text). OJ 282/65. European Parliament, Rule 30.2. Art. 17.7 TEU.

§578

advisory and supervisory organs

427

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.88 One reason why such motions have never been adopted could be that it is usually difficult to blame the Commission for mistakes in the policy of the Union, since this policy is, for the most part, made by the Council. §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 organs. Usually members of governments fail to attend their meetings, perhaps because most 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.89 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.90 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 EU law.91 Most questions are put to the Commission, which has specialized knowledge. Council answers, on the other hand, are given by the Council’s Presidency, who 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.92 This is why the answers to such questions often take considerable time and are frequently evasive. §580 For many years after 1957, the European Parliament organized a colloquy with the Council nearly every year.93 This colloquy gave members of parliament an opportunity to make suggestions to the ministers and to elicit information from 88 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; Corbett, Jacobs, Shackleton, op. cit. note 23, at 279-280, 291. 89 J.J. Schwed, Les questions écrites du Parlement européen à la Commission, 14 RMC 365-368 (1970). 90 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). 91 See H.A.H. Audretsch, Supervision in European Community Law 146-148 (1978). For the repercussions of a parliamentary question on a national court decision, see 3 NYIL 270 (1972) or 12 CMLR 521 (1973). 92 Corbett, Jacobs, Shackleton, op. cit. note 23, at 284-286, with figures on parliamentary questions by type (written, oral) and by destination. 93 Houben, Les Conseils de Ministres des Communautés Européennes (1964), at 166 ff.; Patijn, op. cit. note 23, at 71-76.

428

chapter five

§581

them, but was not very efficient. As the subjects were arranged in advance (and most of the speeches were 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 for holding discussions 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 Tuesday 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 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.94 §581 The Treaty on European Union created an Ombudsman, to be elected 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 Union institutions, bodies, offices or agencies, with the exception of the Court of Justice of the European Union acting in its judicial role”.95 2. Control over the budget96 §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 created prior to the establishment of the Benelux Economic Union)97 has its own independent budget,98 the costs of which are shared by the parliaments of the Netherlands, Belgium and Luxembourg. §583 In the European Union, the role of the European Parliament – which was originally merely consultative – has gradually become much stronger. In 1971, the Council agreed not to modify the Parliament’s estimates for its own expenditure,

94 See e.g. the report of the 18th annual session of the OSCE Assembly, www.oscepa.org/ images/stories/documents/activities/1.Annual%20Session/2009_Vilnius/2009%20Vilnius%20 Report%20FINAL.pdf (January 2011). 95 Art. 228.1 TFEU; www.ombudsman.europa.eu. On the European Ombudsman, see E.A. Marias (ed.), The European Ombudsman (1994); K. Heede, European Ombudsman: redress and control at Union level (2000); A. Tsadiras, Unravelling Ariadne’s Thread: The European Ombudsman’s investigative powers, 45 CMLRev. 757-770 (2008). 96 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). 97 By the Treaty of 5 November 1955. 98 See Rules of Procedure of the Consultative Interparliamentary Council, Rule 35.

§583

advisory and supervisory organs

429

unless these failed to conform to the financial rules.99 In 1970, a first Treaty amending certain budgetary provisions of the Community Treaties was adopted, which gave the European Parliament some power to amend the budget.100 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.101 These 1970 and 1975 amendments were introduced when the income of the European Communities was changed from a system of contributions of the member states into a system of own resources (see below, §984-985). Whereas previously the parliaments of the member states could exercise control over these contributions, they could no longer do so when the EC had its own income. The EC could only introduce the system of own resources when this loss of control by the national parliaments was compensated for by giving budgetary powers to the European Parliament. Although the right of final approval of the budget gave considerable power to the European Parliament, the main budgetary decisions were still taken by the Council. This changed with the entry into force of the Lisbon Treaty (1 December 2009): the European Parliament now decides on the EU budget together with the Council. Until the entry into force of the Lisbon Treaty, the Council adopted the drafts for the budget, and the Parliament’s right to amend such drafts was curtailed by provisions imposing time limits and laying down requisite majorities. Additionally, a number of restrictions applied 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 could make proposals, but the final decision rested with the Council. The European Parliament could reject the entire budget but could not amend these items.102 The Lisbon Treaty abolished the distinction between compulsory and non-compulsory expenditure.

To date, the European Parliament has rejected the entire draft budget on two occasions (in 1979 and 1984), and a supplementary budget was once rejected (1982).103 Finally, while the abovementioned task relates to the budget for the following year, the European Parliament also has responsibilities in relation to the execution of the budget. Under Article 319 TFEU, it must give a discharge to 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 to give a discharge once (in 1984, for the 1982 budget).104

99

Druker, op. cit. note 96, at 270; Patijn, op. cit. note 23, at 131-165. OJ 1971, L 2. OJ 1977, L 359/1. 102 EC, Arts. 203 and 203 bis, as amended by the two Treaties amending certain budgetary provisions of the Community Treaties (before the entry into force of the Lisbon Treaty). On the system applicable before 1971, see Druker, op. cit. note 96, at 241-257. 103 See more extensively Corbett, Jacobs, Shackleton, op. cit. note 23, at 256. 104 Id., at 291. See also D. Strasser, The Finances of Europe 267-298 (1991). 100 101

430

chapter five

§584

3. Advisory functions §584 All parliamentary organs have important advisory functions. In performing these functions, they may exert some influence over 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”.105 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. 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.106 In general, members of international parliamentary organs bring their national parliament a broader outlook and more information, if not necessarily increased sympathy for international or regional cooperation. They are less dependent on national sources for their general information on international affairs.107 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.108 §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. However, since direct elections commenced in 1979, only a small minority of the members of the European Parliament had a dual mandate until the dual mandate was abolished in 2009, and new frameworks for cooperation have developed. For example, in November 1990, a conference of the European and the national par-

105

Art. 2.3 and Art. 11. Neunreither, op. cit. note 70, at 52-81. H.H. Kerz, Jr, Changing Attitudes through International Participation: European Parliamentarians and Integration, 27 International Organization 45-83 (1972). 108 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. 106 107

§587

advisory and supervisory organs

431

liaments 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.109 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”.110 The EU Treaty provides for a framework for cooperation between the national parliaments and the European Parliament. More generally, the amendments introduced in the 2007 Lisbon Treaty have strengthened the role of national parliaments in the functioning of the European Union.111 There has to be “effective and regular interparliamentary cooperation within the Union”; the modalities of “the organization and promotion” of such cooperation are left to the European Parliament and the national parliaments themselves.112 A role is given to a Conference of parliamentary committees for Union affairs (COSAC), which may submit contributions to the European Parliament, the Council and the Commission, and shall “promote the exchange of information and best practice between national parliaments and the European Parliament, including their special committees”. COSAC may also organize interparliamentary conferences on specific topics.113 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 function. No European parliamentary organ has the power to advise the member states directly. Outside the European Union and the Nordic Council, all decisions, even recommendations, that 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

109

For the text of this Joint Declaration, see Europe Documents No. 1668 (1990). Corbett, Jacobs, Shackleton, op. cit. note 23, at 329. 111 Art. 12 TEU; Protocol No. 1 (On the role of national parliaments in the European Union). The role of national parliaments is strengthened in particular because draft legislative acts are forwarded to them. National parliaments may send reasoned opinions to the Presidents of the European Parliament, the Council and the Commission, on whether such drafts comply with the principle of subsidiarity (above, §215). See Ph. Kiiver, European Treaty Reform and the National Parliaments: towards a new Assessment of Parliament-Friendly Treaty Provisions, in J. Wouters, L. Verhey and Ph. Kiiver (eds.), European Constitutionalism beyond Lisbon (2009), at 131-146. 112 Protocol No. 1, Art. 9. 113 Id., Art. 10. The acronym COSAC comes from the French name of this body: Conférence des organes specialisés dans les affairs communautaires. COSAC was created in 1989 and was formalized in the 1997 Amsterdam Treaty. Website: www.cosac.eu/en/cosac/. 110

432

chapter five

§588

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.114 §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 and in legislation §589 To a limited extent, parliamentary organs participate in the decision-making 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 Union may bind the citizens directly or may oblige the governments to take measures binding the citizens. Parliamentary involvement is essential in these circumstances, and much more important than for decisions of other international organizations. Since the 1990s, the powers of the European Parliament in this field have been substantially increased. §590 Originally, many regulations had to be adopted by the Council on the proposal of the Commission. This proposal had to be submitted to the European Parliament for advice, and on the basis of this advice the Commission could decide to amend its original proposal. The Council of Ministers was in no way bound by the opinion of the European Parliament when it finally formulated the regulations. Nevertheless, the Council could not take a final decision until Parliament had given its opinion. When in 1979 the Council adopted a regulation without

114 H. Robertson, Relations between the Council of Europe and the United Nations, 18 European Yearbook 90-91 (1970).

§590

advisory and supervisory organs

433

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.115

Does this mean that the European Parliament could 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, which concerned 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, but 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”.116 Until the entry into force of the Lisbon Treaty (1 December 2009), a considerable amount of EU legislation was still adopted through this so-called consultation procedure, in particular legislation concerning “economic sectors of special political sensitivity in the member states or matters felt to impinge directly on their sovereignty”.117 Nevertheless, over the years several amendments of the 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 (now named the consent 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. The 2007 Lisbon Treaty has substantially reduced the application of the consultation procedure. It has abolished the cooperation procedure, and the codecision procedure has become what is now indicated by its new name: “the ordinary legislative procedure”. The consent procedure and the ordinary legislative procedure have given the European Parliament a stronger position in decisionmaking and in promulgating legislation.

115

Cases 138 and 139/79, Roquette Frères and Maizena v. Council, ECR 1980, at 3360 and

3424. 116

Case C-65/93, Parliament v. Council, ECR 1995, at I-643. A. Dashwood, Community Legislative Procedures in the Era of the Treaty on European Union, 19 ELRev. 345 (1994). Examples were 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). Following the entry into force of the Lisbon Treaty, of these three important examples only the second one (Art. 93 EC, now Art. 113 TFEU) still refers to the consultation procedure. 117

434

chapter five

§591

§591 The consent of the European Parliament is required, inter alia, in the procedure for admitting new member states,118 in the provision on the establishment of a European Public Prosecutor’s Office,119 in the procedure for the conclusion of specified categories of agreements between the Union and third states or international organizations (such as association agreements),120 and in the appointment of the President of the Commission and the members of the Commission as a body.121 In limited but important areas, the Parliament has also been given the right of veto. There is no right of amendment, however: the Parliament must ‘take it or leave it’. §592 The ordinary legislative procedure will be described in Chapter Six (§741A). In this procedure, the European Parliament is indeed a co-legislator. Parliament and the Council are equal partners. No act can be adopted without the approval of both of these institutions. In spite of its complexity, this procedure has been considered a success. Its scope of application has been considerably extended over time, and it has now indeed become the standard procedure for adopting EU legislation. §593

[deleted] 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 meetings impossible. Of necessity, international parliamentary organs meet less frequently than their national counterparts. The European Parliament meets every month (except during its summer recess). Most of these plenary meetings last one week. The Parliamentary Assembly of the Council of Europe meets four times a year. The EFTA Parliamentary Committee normally holds four meetings a year, in addition to two joint meetings with EFTA ministers.122 The Consultative Interparliamentary Council of Benelux usually meets, in plenary session, three times annually. The NATO Parliamentary Assembly meets twice a year.123 The Parliamentary Assembly of the OSCE meets three times a year: an annual session (normally during the first week of July), and two further meetings (one in Winter, one in Autumn).124 The Pan-African Parliament meets in ordinary session at least twice a year.125 The committees of these parliamentary organs meet more frequently.

118 Art. 49 TEU. On this procedure see Corbett, Jacobs, Shackleton, op. cit. note 23, at 230-232; Dashwood, op. cit. note 117, at 363-365. 119 Art. 86.1 TFEU. 120 Art. 218.6 TFEU. 121 Art. 17.7 TEU. 122 See www.efta.int/advisory-bodies/parliamentary-committee.aspx (January 2011). 123 See www.nato-pa.int. 124 OSCE Handbook (2007), at 36. 125 Protocol to the Treaty establishing the African Economic Community relating to the PanAfrican Parliament (adopted 28 June 2002), Art. 14.2.

§595

advisory and supervisory organs

435

§595 International parliamentary organs need commissions to help prepare their work for the same reasons a general congress does (see above, §403). In fact, much of their work is delegated to special committees with restricted membership, which meet when the plenary organ is not in session. The European Parliament has 20 standing committees, each covering one of the essential functions of the European Union.126 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 13 committees.127

§596 Since most international parliamentary organs possess no real power, can they make a substantial contribution to the work of international organizations? Leaving aside the position of the European Parliament, 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.128

II. Judicial organs A. The need for judicial organs §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

126 See European Parliament, Rules 183-197 and Annex VII to the Rules of Procedure (see www.europarl.europa.eu). Some examples are the Committee on Foreign Affairs, the Committee on International Trade, the Committee on Budgets, the Committee on Legal Affairs, and the Committee on Constitutional Affairs. 127 See http://assembly.coe.int/ASP/Committee/PACECommitteesInfoListing_E.asp (January 2011). 128 E.B. Haas, International Integration, 15 International Organization (1961), at 369.

436

chapter five

§599

tasks, of which the judicial control of the legality of decisions of the organization is by far the most important. Other tasks include the exercise of administrative jurisdiction over staff members, the 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 only be taken concerning specified subjects, in accordance with the procedure prescribed by the constitution. 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 will 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 established have never had to meet (see below, §632, 634, 635). The EU Court of Justice 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 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 to be illegal. They therefore refused to pay that part of their UN contribution which they calculated would be used to finance these operations, and this subsequently led to a crisis in the UN (see

§602

advisory and supervisory organs

437

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 seek, in relation to a proposal before the Sea-Bed Disputes Chamber of the International Tribunal for the Law of the Sea, an advisory opinion on the proposal’s conformity with the Convention. Pending receipt of the advisory opinion, the proposal may not be put to a vote.129 A special case is the question of 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 Security Council gave it the inherent power to examine the question of whether it was lawfully established.130 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 occur now and then 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).131 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.

129

UNCLOS, Art. 159.10. See below, §616. 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 PostCold War World – Essays in memory of Li Haopei 473-479 (2001). 131 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). 130

438

chapter five

§603

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; or 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 the uniform application of the legal rules of international organizations by judicial control may be to establish a supreme court for the organization, which could be empowered to overrule the decisions of the national supreme courts in matters which have been harmonized. To date, state sovereignty has prevented this. States are generally reluctant to accept a court that 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 law 132 §604 International organizations buy equipment, hire and let conference rooms, buy and sell books and documents, and so forth. 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 in force where the immovable property is situated, will be applied, and this law 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 rarely 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

132 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 (6th ed. 2009), at 466-469.

§605

advisory and supervisory organs

439

try to persuade his government to take action on his behalf. However, experience indicates that 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 EU Court demonstrate the importance of such cases.133 B. Existing judicial organs134 1. Universal judicial organs a. The International Court of Justice135 §605 The International Court of Justice (ICJ) is the successor to the Permanent Court of International Justice (PCIJ). In 1945, when the ICJ was created as a principal organ of the UN,136 there were few changes, except for the name.137 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. Like the PCIJ before it, 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.138 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 either for disputes under a specific convention or in general by way of a general declaration.139

133 See Schermers and Waelbroeck, op. cit. note 11, 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). 134 For further surveys of existing judicial organs and bibliographies see F.C. Jeantet, International Courts (1958); Sands and Klein, op. cit. note 132, at 341-443; 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). 135 For literature on the ICJ, see the catalogue of the Peace Palace Library (www.ppl.nl). 136 UN Charter, Art. 7. 137 UN Charter, Art. 92. 138 UN Charter, Art. 93. 139 ICJ Statute, Art. 36. As at 7 January 2011, 66 states had recognized the compulsory jurisdiction of the ICJ (see www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3). Several General

440

chapter five

§606

Some UN organs (for example, the General Assembly, the Security Council and ECOSOC),140 and almost all international organizations of the UN family may ask for advisory opinions (see below, §1366-1370).141 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.142 To a limited extent, the ICJ also performs a role for international organizations other than the UN.143 This opens up some possibilities for control of the legality of their acts.144 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.145 In 1989, a second application of this kind was filed at the Court’s Registry, but in 1996 this case was removed from the Court’s list, when the parties informed the Court that they had settled their dispute.146 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

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). 140 UN Charter, Art. 96. 141 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). 142 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. 143 See O. Audéoud, La Cour Internationale de Justice et le règlement des differends au sein des organisations internationales, 81 RGDIP 945-1006 (1977). 144 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), 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). 145 ICJ Rep. 1972, at 46. See Audéoud, op. cit. note 143, at 956-957. 146 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 (see International Court of Justice, Yearbook 1991-1992, at 153-154).

§607

advisory and supervisory organs

441

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 “a closer similarity to federal administrative agencies than is the case with most other international economic organizations”.147 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 be competent to take final decisions in complicated economic questions regarded as unsuitable 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 (ILOAT) provides for advisory opinions, which may be requested on its decisions.148 Only a few such cases have been brought before the ICJ. Most recently, in 2010, the Executive Board of the International Fund for Agricultural Development has challenged an ILOAT decision under this procedure. This possibility of ‘appeal’ to the ICJ is rather limited.149 The staff members concerned may not lodge appeals, which can only be made in the interests of the organization,150 and the request has no suspensory effect.151 According to the ILOAT Statute, the advisory opinion of the Court is binding.152 It is not appropriate that the ICJ acts as an administrative tribunal, since individuals may not appear before it. In practice, however, the problem of the inequality of the parties is avoided as the organization renounces its right to make oral representations to the Court, and also includes the written statement of the civil servant together with its own written submissions.153 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

147 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). 148 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). 149 Administrative Tribunal ILO, Statute Art. 12. 150 See also ILO Tribunal Decision No. 83 (UNJY 1965, at 212-213). 151 ILO Tribunal Decision No. 82 (UNJY 1965, at 211-212). 152 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. 153 ICJ Rep. 1956, at 84-86.

442

chapter five

§608

international humanitarian law committed in the territory of the former Yugoslavia.154 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 16 permanent and 13 ad litem judges. Ad litem judges serve in the Trial Chambers for one or more trials.155 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.156 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 of Rwandan citizens responsible for such violations committed in the territory of neighbouring states. The structure of the Rwanda tribunal is essentially the same as that of the former Yugoslav tribunal (for example, it has three Trial Chambers having three judges each, and one Appeals Chamber with five judges).157 The Rwanda Tribunal also has ad litem judges.158 It sits in Arusha (Tanzania).159 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, however, as they relate to the judicial review of decisions of international organizations, namely the decisions by which these tribunals were created (see above, §227B (the Tadic case and the Kanyabashi case)). Subsequently, other ad hoc international or ‘internationalized’ criminal tribunals have been created: the Special Court for Sierra Leone; the Extraordinary Chambers in the Courts of Cambodia; and the Special Tribunal for Lebanon. In 1998, the International Criminal Court was established as a permanent, general court to exercise criminal jurisdiction over persons for the most serious crimes of

154 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). 155 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). 156 See further A. D’Amato, Peace vs. Accountability in Bosnia, 88 AJIL 500-506 (1994). 157 UN Security Council Res. 955 (the Statute of the Rwanda Tribunal is annexed to this resolution). 158 SC Res. 1431. 159 UN Security Council Res. 977.

§609

advisory and supervisory organs

443

international concern (genocide, crimes against humanity, war crimes, the crime of aggression).160 The ICC Statute entered into force on 1 July 2002. As neither the ad hoc criminal tribunals nor the ICC are judicial organs supervising the work of international organizations, they will not be further discussed here. Only one specific element should be mentioned, as it relates to some extent to the review of decisions of international organizations. One of the amendments to the ICC Statute adopted in 2010 relates to the exercise of jurisdiction by the Court over the crime of aggression. When exercising jurisdiction over this crime, circumstances may be such that there may have been a prior determination by the UN Security Council that a state has committed an “act of aggression”. Under the amendment, it is recognized that “[a] determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute”.161 As a result, if the Security Council determines that an act of aggression has been committed by a state, the ICC may subsequently find that no such act has been committed, when dealing with a specific case involving the crime of aggression by a leader of the state concerned. c. The Human Rights Committee162 §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.163 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”.164 It may also receive and consider communications from state parties, which claim that other parties are not fulfilling their obligations under the Covenant, provided

160 See for the text of the Statute of the ICC, UN Doc. A/CONF.183/9*, or http://untreaty.un .org/cod/icc/statute/romefra.htm (January 2011). 161 ICC Doc. RC/Res. 6 (Art. 15bis.9). This amendment has not yet entered into force. The ICC only deals with crimes committed by individuals. However, a crime of aggression can only be committed by an individual leader of a state if there is also an act of aggression committed by that state. 162 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 369443 (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). 163 For the text of the Covenant, see GA Res. 2200(XXI), Annex, YUN 1966, at 423-431. As at 16 January 2011, 167 states were party to this Covenant. 164 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).

444

chapter five

§610

that the states involved have expressly recognized the competence of the Committee to receive and consider such communications.165 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 first optional protocol to the Covenant.166 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”.167 d. The Committee on Economic, Social and Cultural Rights168 §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 with a committee of independent experts, an organ of ECOSOC.169 The functions performed by this committee are largely 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”.170 Unlike the Human Rights Committee, it does not yet have the right to receive complaints. However, in 2008 the UN General Assembly adopted an Optional Protocol attached to the Covenant, opening the possibility for individual communications to be made.171 Under the Protocol, the Committee may give its “views on the communication, together with its recommendations”. The state party concerned “shall give due consideration” to such views and recommendations, and must submit a written response within six months on the action taken in the light of these views and recommendations.172 This Protocol has not yet entered into force. 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).173 State parties have

165 Id., Art. 41. As at 22 January 2011, 48 states had recognized this competence of the Committee; to date, no state complaints have been lodged. 166 Optional Protocol to the International Covenant on Civil and Political Rights, GA Res. 2200(XXI), Art. 1. As at 22 January 2011, 113 states were party to this Protocol. 167 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. 168 For the text of the International Covenant on Economic, Social and Cultural Rights (establishing this Committee), see GA Res. 2200(XXI). As at 16 January 2011, 160 states were party to this Covenant. See P. Alston, The Committee on Economic, Social and Cultural Rights, in Alston (ed.), op. cit. note 162, 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 162, at 129-144. 169 ECOSOC Res. 1985/17. 170 Id., para. (f ). 171 GA Res. 63/117. See also 48 ILM 256 (2009), with introductory note by T.J. Melish. 172 Optional Protocol, Art. 9. 173 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 Com-

§612

advisory and supervisory organs

445

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”.174 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.175 f. 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.176 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 individuals and groups of individuals.177 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.178 It “may make such general comments . . . as it may consider appropriate” on the reports submitted by the states.179 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.180

mittee on the Elimination of Racial Discrimination, in Alston (ed.), op. cit. note 162, 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 (eds.), op. cit. note 162, at 55-78. As at 16 January 2011, 174 states were party to this Convention. 174 CERD, Art. 9. 175 As at 22 January 2011, 54 states have recognized this competence. 176 For the text of this Convention, see GA Res. 34/180. As at 16 January 2011, 186 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 (ed.), op. cit. note 162, at 444472; M.R. Bustelo, The Committee on the Elimination of Discrimination against Women at the crossroads, in Alston and Crawford (eds.), op. cit. note 162, at 79-112. 177 Optional Protocol to the Convention on the Elimination of Discrimination against Women (1999), Art. 2. As at 22 January 2011, 100 states were party to this Protocol. 178 For the text of this Convention, see GA Res. 39/46. As at 16 January 2011, 147 states were party to this Convention. See A. Byrnes, The Committee against Torture, in Alston (ed.), op. cit. note 162, at 509-546; R. Bank, Country-oriented procedures under the Convention against Torture: Towards a new dynamism, in Alston and Crawford (eds.), op. cit. note 162, at 145-174. 179 Id., Art. 19.3. 180 As at 22 January 2011, 62 and 66 states respectively had recognized the competence of the Committee to deal with state and individual communications.

446

chapter five

§614

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.181 The Committee may make suggestions and general recommendations on the basis of state reports. It does not yet have the right to receive state and individual communications. i. 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.182 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.183 j. The Committee on the Rights of Persons with Disabilities §615A This committee was established by the 2006 Convention on the Rights of Persons with Disabilities.184 It may make “suggestions and general recommendations” on reports that states parties have to submit. The Committee may also consider communications from or on behalf of (groups of) individuals, relating to states that are parties to the Optional Protocol to this Convention.185 k. The Committee on Enforced Disappearances §615B This body was created in the 2006 International Convention for the Protection of All Persons from Enforced Disappearance.186 It may issue comments, observations or recommendations on reports that states parties have to submit. The Committee may also consider communications from states or individuals relating to alleged violations of Convention obligations by states parties that have recognized the competence of the Committee to do so. In addition, “[i]f the Committee receives reliable information indicating that a state party is seriously violating the provisions of this Convention, it may, after consultation with the state party concerned, request one or more of its members to undertake a visit and report back to it without delay”.187 181 For the text of this Convention, see GA Res. 44/25. As at 16 January 2011, 193 states were party 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 (eds.), op. cit. note 162, at 113-128. 182 For the text of this Convention, see GA Res. 45/158. As at 16 January 2011, 44 states were party to this Convention. 183 Id., Arts. 73-78. 184 For the text of this Convention, see GA Res. 61/106. As at 16 January 2011, 97 states were party to this Convention. 185 As at 16 January 2011, 60 states were party to this Protocol. 186 For the text of this Convention, see GA Res. 61/177. As at 16 January 2011, 21 states were party to this Convention. 187 Art. 33.1 of the Convention.

§616

advisory and supervisory organs

447

l. 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.188 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 organs §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 own case law to build a legal order appropriate to the organization. The risk that states from outside the region become involved in regional conflicts is smaller when these conflicts can be settled entirely within the region.189 There are many regional courts and tribunals. The following may be mentioned as the best-known examples. a. The Court of Justice of the European Union190 §618 The Court of Justice of the European Union is the judicial organ of the Union.191 It includes the Court of Justice, the General Court (originally named

188 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 134, 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 488-499 (1994). 189 Cf. B. Boutros-Ghali, Les difficultés institutionnelles du panafricanisme 34 (1971). 190 On the EU 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 11; A. Arnull, The European Union and its Court of Justice (2nd ed. 2006). On the Court of First Instance, see Schermers and Waelbroeck, op. cit. note 11, 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); R. Barents, The Court of Justice after the Treaty of Lisbon, 47 CMLRev. 709-728 (2010). 191 Art. 13.1 TEU mentions the Court as one of the seven institutions of the Union.

448

chapter five

§619

Court of First Instance) and specialized courts. Its main task is to “ensure that in the interpretation and application of the Treaties the law is observed”.192 The EU Court has more powers than any other international court. It may, inter alia, decide cases brought by member states, institutions or a natural or legal person, and it can determine the legality of Union acts (see below, §912-916).193 It exercises some control over the application of EU law within national legal orders by its right to give preliminary rulings at the request of courts or tribunals of the member states (see below, §1374-1378) and it also has jurisdiction over disputes between the Union and its staff.194 In addition, some of the Association Councils based upon the association agreements concluded between the EU and third countries may submit disputes to this Court.195 The powers of the Court of Justice laid down in the EU Treaties have been extended by further treaties between the member states over other specific subjects.196 Furthermore, cases in relation to contracts may be brought before the Court by virtue of an arbitration clause in the contract concerned,197 such clauses being common in the contracts in which Euratom delegates research tasks to private firms. The Court of Justice also has jurisdiction to decide cases relating to the non-contractual liability of the Union.198 On appeal, it may hear disputes concerning licences granted under the Euratom Treaty:199 for judgment at first instance, an arbitration commission was considered more suitable in this very specialized field. §619 The Court also has some advisory duties. The EU can conclude agreements with foreign states or with other international organizations. A member state, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice on the compatibility of a contemplated agreement with the Treaties. In the event that the Court comes to a negative conclusion, either the agreement or the EU Treaties must be amended before the agreement can enter into force.200 This procedure has the aim of “forestalling complications which would result from legal disputes concerning the compatibility with the Treaty of international agreements binding upon the Community”.201 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

192

Art. 19.1 TEU. Art. 19.3 TEU; Arts. 258, 259, 263, 265, 277 TFEU; Arts. 141, 142, 146, 148, 156 Euratom. 194 Art. 270 TFEU. 195 E.g. Association Agreement with Turkey, Art. 25.2. 196 See Schermers and Waelbroeck, op. cit. note 11, at 660. 197 Art. 272 TFEU; Euratom, Art. 153. 198 Art. 268 TFEU; Euratom, Art. 151. 199 Euratom, Art. 18. 200 Art. 218.11 TFEU. 201 Opinion 1/08, 30 November 2009 (not yet reported), para. 107. See also Opinion 1/75, ECR 1975, at 1355, 1360. 193

§620

advisory and supervisory organs

449

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.202 §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.203 The jurisdiction of the Court of Justice can be further extended. Under the TFEU, regulations may be adopted in which provision is made for penalties in the event of breach. Such regulations may confer on the Court of Justice unlimited jurisdiction in respect of such penalties.204 The Council has adopted such regulations and has conferred jurisdiction on the Court.205 The caseload of the Court has increased sharply. Since the Court was established in 1952, approximately 15,000 judgments have been delivered. In 1978, 200 new cases were brought; in 1985, more than 400. In 2009, 561 new cases were brought, 543 were completed and 741 were pending. Of the completed cases, 228 dealt with references for a preliminary ruling, 215 concerned direct actions, and there were 87 appeal cases and 13 others.206

§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”.207 This led in 1988 to the creation of the Court of First Instance, which started to function on 31 October 1989.208 It was charged to deal with staff cases and some other cases, in particular actions brought against a Union institution by natural or legal persons pursuant to Articles 263 and 265 TFEU and relating to the implementation of the competition rules applicable to undertakings. Further classes of actions have subsequently been brought within the jurisdiction of the Court of First Instance.209 Since December 2009, this Court has been re-named the General Court.

202

Euratom, Art. 103. Arts. 245.2 and 247 TFEU. 204 Art. 261 TFEU. 205 E.g. Regulation 17 (Anti-Trust); Regulation 11 (Transport Tariffs). 206 See the 2009 Annual Report of the Court (2010), at 81, 87 (also available from the website of the Court: http://curia.europa.eu). 207 See Arts. 225 EC and 140a Euratom. These provisions have now been amended. 208 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). 209 Art. 256 TFEU; OJ 1993, L 144/21. 203

450

chapter five

§622

In view of the continued increase in staff cases, as well as the need to have a more specialized tribunal to deal with these cases, the Council decided to create the European Union Civil Service Tribunal, which was installed in October 2005. In most cases, appeal from the Tribunal’s judgment is possible to the General Court; and in exceptional cases, judgments by the General Court may be reviewed by the Court of Justice.210 b. 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.211 As a consequence of the adoption of many recommendations and conventions within 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 the (then) 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.212 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 1994.213 It is in particular competent in relation to:

210 See OJ 2004, L 333/7. On this Tribunal, see P. Mahoney, The European Union Civil Service Tribunal, in C. de Cooker (ed.), International Administration; Law and Management Practices in International Organizations II.7/4 (2009), at V.13 (1001-1037); H. Kraemer, The European Union Civil Service Tribunal: A New Community Court Examined After Four Years of Operation, 46 CMLRev. 1873-1913 (2009). 211 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 the Court’s website www.courbeneluxhof.be/nl/index.asp, and 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 149178 (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. 212 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). Website of the Court: www.eftacourt.int. 213 OJ 1994, C 250/7.

§624

advisory and supervisory organs

451

– actions concerning the surveillance procedure regarding the EFTA states (for example, 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; and – the settlement of disputes between two or more EFTA states.214 One analysis has concluded that, in its first 15 years, the EFTA Court has generally given a dynamic interpretation of the EEA Agreement, and that it appears that, in hard cases, it has leaned “even further towards teleological (i.e. integrationist) interpretation” than the EU Court. This is explained by “structural imbalances between the two EEA courts, the EFTA Court’s desire to prove its independence from the EFTA States and its quest for recognition from the ECJ”.215 d. 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.216 The Court was inaugurated at its seat in Quito in 1984. It is one of the principal organs of the Andean Common Market. To a large extent, this court used the EU Court of Justice as a model. Many provisions of the EU 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 Union had demonstrated that they were not quite appropriate. In particular, since the mid-1990s, the Andean Court has become very active. Until the end of 2007, it had issued over 1400 rulings. More than 90 per cent of these are preliminary rulings relating to intellectual property rights. In other areas, Andean Community law is much less developed; the Court has been much less active in these areas.217 The Andean Court followed the EU 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. In its case law, in which it has referred to the case law of the EU 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.218

214

EEA Agreement, Art. 108.2. H. Haukeland Fredriksen, The EFTA Court 15 Years on, 59 ICLQ 731-760 (2010) (quotations at 731). 216 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). Website of the Court: www.comunidadandina.org/ingles/sai/estructura_4.html. 217 R.L. Helfer, K.J. Alter and M.F. Guerzovich, Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community, 103 AJIL 1-47 (2009). 218 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). 215

452

chapter five

§625

e. The European Court of Human Rights219 §625 The European Convention for the Protection of Human Rights and Fundamental Freedoms – concluded within the framework of the Council of Europe – originally created two special organs for the protection of human rights in Europe: a Commission220 and a Court.221 Following a steep rise of the number of complaints222 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. Allegations of violations of the Convention by a participating state may be brought before the Court by other participating states and by individuals.223 In practice, almost all cases are brought by individuals. §626 To consider cases brought before it, the Court sits in a single-judge formation, in committees of three judges, in Chambers of seven judges and in a Grand Chamber of 17 judges.224 The Court first determines whether a case brought before it is admissible.225 If it declares the application admissible, it shall 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.226 If a friendly settlement is effected, the Court shall strike the case from its list.227 If there is no friendly settlement, the Court will deliver a judgment. As a rule, meritorious cases are decided by Chambers. However, if a Chamber finds that a case raises new legal issues, or if it believes that the existing case-law needs to be reconsidered, it may relinquish jurisdiction to the Grand Chamber. The Grand Chamber is also competent to rehear, “in exceptional cases”, cases decided by the Chambers.228 The president of the Chamber and the judge elected

219 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: http://conventions .coe.int/Treaty/Commun/QueVoulezVous.asp?NT=005&CL=ENG. 220 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). 221 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 (Suppl. 1977). 222 From 404 in 1981 to 2,037 in 1993 and further to 4,750 in 1997. 223 Id., Arts. 33 and 34. 224 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. 225 For the criteria for admissibility, see the European Convention on Human Rights, Art. 35. 226 Id., Art. 38.1. 227 Id., Art. 39. 228 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

§626

advisory and supervisory organs

453

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 initial proceedings. One of the reasons for choosing this approach may well have been that the drafters wished to avoid an apparent conflict with the Strasbourg Court’s own case-law, according to which a judge who has heard a case at first instance cannot sit again in appeal.229 Nevertheless, although this is formally not an appeal procedure, in practice it may put the two judges that sit both in the Chamber and in the Grand Chamber in a difficult position. Judge Costa has decribed their position as “disconcerting”, as they have to decide to “adhere strictly to their initial opinion” on the case, or, “with the benefit of hindsight, depart from or even overturn their previous opinion”.230 Judgments of the Chambers of the Court are final unless the case is referred for rehearing to the Grand Chamber.231 Judgments of the Grand Chamber are final.232 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.233 The Committee of Ministers supervises the execution of the judgments of the Court. In 1960, the Assembly of the Council of Europe proposed to confer upon the Court the competence to give advisory opinions.234 This proposal finally led to the Second Protocol to the Convention,235 in which such a competence is granted (but only to a very limited extent).236 By the Eleventh Protocol this competence was incorporated in the Convention itself.237 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.

and in 15 HRLJ 86-90 (1994); see also http://conventions.coe.int/Treaty/EN/Treaties/HTML/155. htm. On problems facing this Court when it was established, 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. 229 Hauschildt judgment of 24 May 1989, Publ. ECHR, Series A vol. 154, paras. 48, 49, 52, 53. 230 Kyprianou v. Cyprus, Appl. No. 73797/01 (partly dissenting opinion, para. 2). See also Dickson v. UK, Appl. No. 44362/04 (concurring opinion Judge Bratza) and Samona v. The Netherlands, Appl. No. 38224/03 (concurring opinion Judge Myjer, para. 1). 231 Id., Art. 42. 232 Id., Art. 44.1. 233 Id., Art. 46.1. 234 Consultative Assembly, Recommendation 232 (1960). 3 Yearbook of the European Convention on Human Rights 156-158 (1960). 235 6 Yearbook of the European Convention on Human Rights 2-5 (1963). 236 Second Protocol to the European Convention on Human Rights, Art. 1. 237 See Arts. 47-49 of the European Convention (following the entry into force of the 11th Protocol).

454

chapter five

§627

§627 On various occasions, the Parliamentary Assembly of the Council of Europe proposed to extend the competence of the Court to other Council of Europe conventions, but only with limited results. The Biomedicine Convention, adopted in Oviedo in 1997 and ratified so far by 22 member states of the Council of Europe, provides in Article 29 that the European Court of Human Rights may give advisory opinions on the interpretation of the Convention. So far this possibility has not been used. 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 that are not members of the Council of Europe may nominate additional judges (see below, §633).238

§628 Since 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 13,843 in 2001, to 27,178 in 2003 and to 41,717 new cases in 2007. On 1 January 2011, approximately 140,000 applications were pending.239 The number of judgments delivered by the Court has increased from a total number of 837 judgments in the period 1959-1998 to 177 in 1999, 703 in 2003, and to 1,499 in 2010.240 These steeply rising numbers have resulted in a fresh debate about the future of the Court. The main outcome of this debate has been the adoption of Protocol No. 14 to the European Convention, although other suggestions have also been made.241 Protocol No. 14 has introduced measures such as the possibility for the Court to sit in a single-judge formation (empowered to reject clearly inadmissable cases), and a new admissibility requirement: the Court shall declare inadmissible an individual application if it considers that “the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal”.242 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.243 It is an advisory body which may make recommendations

238 Additional Protocol to the European Convention on State Immunity (European Treaty Series No. 74), Art. 4. 239 More than half of these were lodged against Russia, Turkey, Romania or Ukraine; see Council of Europe publication ‘The European Court of Human Rights in Facts and Figures 2010’ (2011), at 5. 240 These figures have been taken from Council of Europe publications ‘The European Court of Human Rights – Some Facts and Figures 1998-2008’, at 4-5, and ‘The European Court of Human Rights in Facts and Figures 2010 (2011), at 8. 241 See, e.g., a working document by R. Lawson prepared for the Parliamentary Assembly’s Committee on Legal Affairs and Human Rights, Parliamentary Assembly Doc. AS/Jur(2008)05. 242 Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention, 13 May 2004. 243 See L. Ronald Scheman, The Inter-American Commission on Human Rights, 59 AJIL 335344 (1965); L. Sohn and T. Buergenthal, International Protection of Human Rights (1973), at

§630

advisory and supervisory organs

455

concerning human rights to the OAS as well as to its member states.244 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 Inter-American Court of Human Rights. Prior to the creation of the Court, the Commission managed to reach a solution in a substantial number of cases.245 The Inter-American Court of Human Rights was established by the 1969 American Convention on Human Rights, which 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 then only after proceedings before the Commission have been terminated.246 Again, express acceptance of the Court’s jurisdiction is required.247 Furthermore, the Court is competent to render advisory opinions at the request of OAS member states or organs.248 g. African Commission on Human and Peoples’ Rights, African Human Rights Court, and the African Court of Justice and Human Rights §630 The African Commission on Human and Peoples’ Rights was created by the African Charter on Human and Peoples’ Rights.249 It has 11 members. Article 62 of

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 49 ILM (2010), at 597 ff. (with introductory note by C.M. Cerna). 244 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). 245 Sohn and Buergenthal, op. cit. note 243, at 1293-1356. 246 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 134, 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). 247 As at January 2011, 22 of the 35 member states of the OAS had recognized the compulsory jurisdiction of the Court (see www.cidh.org/Basicos/English/Basic4.Amer.Conv.Ratif.htm). 248 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). 249 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

456

chapter five

§631

the 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.250 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.251 The Protocol entered into force in 2004. This Court is intended to “complement and reinforce the functions of the African Commission on Human and Peoples’ Rights”. It is composed of 11 judges who each serve for a six-year term. The Court’s judgments will be binding, final and without appeal. Individuals and NGOs 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. The Court’s first meeting was held in July 2006; in December 2009, it delivered its first judgment.252 In July 2004, the Assembly of the African Union decided to merge the African Court of Human and People’s Rights and the Court of Justice of the African Union. It adopted the Statute of the proposed African Court of Justice and Human Rights in July 2008.253 As stated in Article 2.1 of this Statute, the Court “shall be the main judicial organ of the African Union”. The Court will have sixteen judges, elected for a period of six years, who may be re-elected once. The Statute has not yet entered into force. h. 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.254 Appeal from these national

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). 250 See for more details the website of the Commission: www.achpr.org. 251 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). 252 See www.african-court.org (January 2011). At the end of 2010, 25 African states had accepted the Court’s jurisdiction. 253 For the text of this Statute, see 48 ILM 314-353 (2009) (with introductory note by O. Elias). See D. Juma, Lost (or Found) in Transition? The Anatomy of the New African Court of Justice and Human Rights, 13 Max Planck UNYB 2009, at 267-306. 254 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 English summary), 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

§632

advisory and supervisory organs

457

judgments lies to the Central Commission.255 In exerting this power (which it has done in many cases, both penal and civil)256 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.257 This Chamber has decided dozens of cases. i. Other river commissions258 §632 A Commission similar to that for navigation on the Rhine has been established for navigation on the Moselle.259 Its judicial functions have been attributed to a separate organ, however, which has not yet acted. Similar commissions have been instituted for several other rivers,260 such as the Danube,261 the Senegal,262 the Niger,263 the Mekong264 and the Plata.265 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.266 An Additional Protocol to this Convention opens the possibility of bringing an action before a special European

in Honour of Henry G. Schermers, Vol. I (1994), at 205-215; J.-M. Woehrling, L’administration de la Commission centrale pour la navigation du Rhin, Revue française d’administration publique no. 126 (2008), at 345-358. 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 European Yearbook LVI 2008, at CCNR 1-6. 255 Revised Convention of Mannheim, Art. 45(c). 256 Annual overviews are presented in the European Yearbook, e.g. European Yearbook LVI 2008, at CCNR 1-6. 257 This Chamber was created in 1967; see 15 European Yearbook (1967), at 127. 258 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). 259 See H. Wiebringhaus, Gerichtshof für Europa (2nd ed. 1967), at 39; G. Nolte, Moselle River, in EPIL Vol. III (1997), at 465-468; www.moselkommission.org. 260 See Bourne, op. cit. note 258, at 119 (note 18). 261 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. Seidl-Hohenveldern, Danube River, in EPIL Vol. I (1992), at 934-937; www.danubecommission.org. 262 T. Parnall and A.E. Utton, The Senegal valley authority. A unique experiment in international river basin planning, 51 Indiana LJ 235-256 (1976). 263 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; www.abn.ne. 264 P. Lawrence, Mekong River, in EPIL Vol. III (1997), at 339-342; www.mrcmekong.org. 265 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). 266 European Treaty Series No. 74; 11 ILM 470 (1972).

458

chapter five

§634

Tribunal on State Immunity (see above, §627). This Tribunal was inaugurated in 1985.267 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 that are binding on these undertakings.268 A Tribunal has been set up that may hear appeals of member governments against these decisions or, where necessary, against the Agency’s failure to take them.269 In addition, the Tribunal may order the Agency to make reparations, at the request of an undertaking that 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.270 To date, no cases have been brought before this Tribunal. l. 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.271 This Tribunal has not 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).272 The tribunal operated until the end of September 1959.273 n. Central American Court of Justice §637 This court was established in 1991 and is part of the Central American Integration System (SICA).274 It was preceded by the Court of the Organization

267

See C.H. Schreuer, State immunity: some recent developments 126-128 (1988). Convention on the Establishment of a Security Control in the Field of Nuclear Energy (1957), Arts. 3, 5. 269 Id., Art. 13. See also Nuclear Law Bulletin No. 46 (1990), at 78. 270 Id., Art. 13 d. 271 Convention of Paris (1957), 5 European Yearbook (1957), at 245ff. 272 For the statute of the Tribunal, see 3 European Yearbook 193-199 (1955). 273 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). 274 See Sands and Klein, op. cit. note 132, at 418. 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. 268

§638

advisory and supervisory organs

459

of Central American States (ODECA) that 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.275 These powers were more limited than those of the former Central American Court of Justice created by the same states in Washington in 1907.276 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 267 TFEU. A few dozen cases have been submitted to this Court.277 o. 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.278 The Commission commenced its operations on 6 May 1981. p. East African Court of Justice §639 The 1967 Treaty for East African Cooperation provided for a Common Market Tribunal of the East African Community. This Tribunal was 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 pertained to the Common Market.279 As a result of the political circumstances surrounding the Amin regime in Uganda, it was impossible for the East African Community to function properly during this period. The Community became inactive in the late 1970s. A new regional cooperation effort was made when in 1999 the Treaty for the Establishment of the East African Community was signed.280 This Treaty entered into force in 2000. It

275

ODECA, Art. 15 (Peaslee I, at 1224). 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. 277 Sands and Klein, op. cit. note 132, at 418; see for these cases www.ccj.org.ni. 278 OAPEC, Arts. 8, 21-25 (see 7 ILM (1968), at 762, 766, 767). See on this Commission S. El-Gebali, Die OAPEC als Organisation zur Interessenvertretung der Arabischen Ölländer in den internationalen wirtschaftlichen Beziehungen 94-98 (1981). 279 Treaty for East African Cooperation (1967), Arts. 32-42. 280 See www.eac.int. 276

460

chapter five

§640

created the East African Court of Justice. This Court became operational in 2001; its first judgment was delivered in October 2006.281 q. ECOWAS Community Court of Justice §640 The Community Court of Justice of the Economic Community of West African States (ECOWAS) became operational in 2002.282 It is located in Lagos (Nigeria). In 2005, its jurisdiction was extended to, inter alia, cases of violations of human rights that occur in any member state, and individuals now have standing before the Court. In one of its first judgments, it found Niger to be in violation of the prohibition on slavery as laid down in the African Charter on Human and People’s Rights.283 r. 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”.284 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”.285 In addition, legal and natural persons may also bring cases before the Court, provided they have exhausted local remedies.286 Furthermore, the Court is competent to give preliminary rulings at the request of courts and tribunals of the member states, on “the application or interpretation of this Treaty or the validity of the regulations, directives and decisions of the Common Market”.287 The Court is modelled along the lines of the European Court of Justice. It became operational in 1998 and delivered its first judgment in 2010.288

281 Id. See on this court and its first cases A.P. van der Mei, Regional Integration: The Contribution of the Court of Justice of the East African Community, 69 ZaöRV 403-425 (2009). 282 The Court was created in the 1991 Protocol on the Community Court of Justice. On this Court, see www.aict-ctia.org/courts_subreg/ecowas/ecowas_home.html (January 2011). 283 Judgment No. ECW/CCJ/JUD/06/08. This judgment is analyzed by J. Allain in 103 AJIL 311-317 (2009). Allain criticizes “the manner in which the judges played fast and loose with the judgments of both the International Court of Justice and the European Court of Human Rights” (at 317). 284 Art. 7. This Treaty (that entered into force 8 December 1994) has been published in 33 ILM 1067-1123 (1994). Website: www.comesa.int . 285 Art. 24.2. 286 Art. 26. 287 Art. 30. 288 See www.comesa.int/lang-fr/component/content/article/34-general-news/427-news-fromthe-comesa-court-of-justice (January 2011).

§641A

advisory and supervisory organs

461

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.289 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.290 The SADC Tribunal became operational in 2005.291 It has delivered a few judgments. In one of these judgments, relating to Zimbabwean land allocation legislation, it ruled that Zimbabwe had discriminated against the applicants on the basis of race and had violated its obligations under the SADC Treaty. However, neither the political nor the judicial authorities of Zimbabwe were impressed by this judgment. President Mugabe referred to it as “an exercise in futility”, and the High Court of Zimbabwe stated in a subsequent ruling that the judgment was null and void because it was ultra vires.292 But it is even more problematic that this induced the supreme policy-making organ of SADC, the Summit of Heads of State and Government, to decide “that a review of the role, functions and terms of reference of the SADC Tribunal should be undertaken and concluded within 6 months”.293 As is often the case in international organizations, the political courage to create independent institutions is not always matched by an equal willingness to accept all of the implications. t. Caribbean Court of Justice §641B The Caribbean Court of Justice was created in 2001.294 It became operational in 2005 and is located in Port of Spain (Trinidad and Tobago). The Court has two distinct functions. In its so-called original jurisdiction it ensures the uniform interpretation and application of the CARICOM constitution.295 Secondly, the Court has so-called appellate jurisdiction: it acts as the final court of appeal for CARICOM members. Until September 2010, it had delivered 45 judgments (8 in its original jurisdiction, 37 in its appellate jurisdiction).296

289

The constitution of SADC is reproduced in 32 ILM (1993), at 116 ff. Website: www.sadc.int. Protocol, Arts. 14-20. See the site of the Tribunal: www.sadc.int/tribunal. 292 B. Chigara, Introductory Note to SADC Tribunal – Mike Campbell (PVT)LTD and others v. Republic of Zimbabwe, 48 ILM 530-533 (2009). 293 Decision of 17 August 2010, see www.sadc.int/index/browse/page/782 (January 2011). 294 Agreement establishing the Caribbean Court of Justice, 14 February 2001. See www.caribbeancourtofjustice.org (January 2011); D.E. Pollard, The Caribbean Court of Justice – Closing the Circle of Independence (2004); D. O’Brien, Accessing the Original Jurisdiction of the Caribbean Court of Justice, 36 LIEI 339-351 (2009); O’Keefe, op. cit. note 38, in particular at 368-370. 295 Agreement establishing the Caribbean Court of Justice, Arts. XI-XXIV. 296 Id., Art. XXV. 290 291

462

chapter five

§641C

A special feature of this Court is the way in which it is financed. A loan of US$100,000,000 was raised by the Caribbean Development Bank on the international market, which is repaid by the participating states. This money was put in a Trust Fund; a Board of Trustees is responsible for investing this Fund, and pays the costs of the Court.297 u. MERCOSUR Permanent Review Tribunal §641C The 2002 Protocol of Olivos established the Mercosur Permanent Review Tribunal, which was inaugurated in 2004.298 It is located in Asunción (Paraguay). This Tribunal has to “guarantee the correct interpretation, application and fulfilment of the fundamental instruments of the integration process” and MERCOSUR norms “in a consistent and systematic manner”. Inter alia, the highest courts of the MERCOSUR member states may seek advisory opinions on MERCOSUR obligations.299 3. Staff administrative tribunals300 a. The UN Dispute and Appeals Tribunals §642 During 60 years, until 2010, the UN had a specialized judicial organ to deal with disputes brought by UN personnel against the UN: the United Nations Administrative Tribunal (UNAT). In 2008, the UN General Assembly decided to abolish the UNAT as of 31 December 2009, and to create a new system for dealing with staff complaints.301 This system consists of a first and second instance tribunal: the UN Dispute Tribunal and the UN Appeals Tribunal.302 The UNAT was established on 24 November 1949.303 Its jurisdiction covered all personnel304 of the UN and that of two specialized agencies (ICAO and IMO), as well as personnel of

297 Presentation by Justice Michael de la Bastide, President of the Caribbean Court of Justice, 5 October 2007 (available at www.caribbeancourtofjustice.org/papers_addresses.html (January 2011)). 298 See www.tprmercosur.org. 299 O’Keefe, op. cit. note 38, at 149-152 (quotation at 149). 300 M.B. Akehurst, The Law governing employment in International Organizations (1967); W. Choi, Judicial Review of International Administrative Tribunal Judgments, in T. Buergenthal (ed.), op. cit. note 248, 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 254, at 217-237. 301 GA Res. 63/253. 302 The Statutes of these Tribunals are attached to GA Res. 63/253. Arts. 1 of these Statutes refer to this new system as “the two-tier formal system of administration of justice”. “Administration of justice” is the (far too broad) term used in the UN to refer to the system of judicial protection for UN staff. 303 GA Res. 351 (IV). For the text of the UNAT Statute, see GA Res. 55/159 (Annex). UNAT judgments are published in a separate UN publication. Surveys of the most important judgments were provided in UNJY and in AFDI. 304 “Personnel” is interpreted rather widely, see UNAT judgment No. 150, UNJY 1971, at 162-164.

§642

advisory and supervisory organs

463

all organizations belonging to the UN Joint Staff Pension Fund. Judgments were binding, final and without appeal.305 Its creation proved to be rather difficult. Had it been established earlier and on a clearly permanent basis, UNAT might also have become the administrative tribunal for the personnel of more specialized agencies.306 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.307 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.308 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 such requests have been brought before the International Court of Justice.309 In 1995, this procedure was abolished, one of the elements of criticism supporting its abolition being that individuals cannot appear before the ICJ.310 One authority refers more in general to “the almost total irrelevance of the International Court’s contribution to the development of international administrative law”.311

The UN Dispute and Appeals Tribunals were created to remedy a number of deficiencies of the ‘old system’ of judicial protection for UN staff, including UNAT.312 The ‘old system’ was increasingly subject to criticism. A panel of experts concluded in 2006 it was “extremely slow, underresourced, inefficient and, thus, ultimately ineffective. It fails to meet many basic standards of due process established in international human rights instruments”.313 In 2009, a new system became effective.314 305

UNAT Statute, Art. 10.2. Akehurst, op. cit. note 300, at 14. 307 UNAT, No. 29, at 124-127. 308 Effects of awards of compensation made by the UN Administrative Tribunal, Advisory opinion, ICJ Rep. 1954, at 47ff. 309 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 300; Pescatore, op. cit. note 300. 310 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. 311 P. Pescatore, op. cit. note 300; see also Sands and Klein, op. cit. note 132, at 432-434. 312 See in more detail A. Reinisch and C. Knahr, From the United Nations Administrative Tribunal to the United Nations Appeals Tribunal – Reform of the Administration of Justice System within the United Nations, 12 Max Planck UNYB 2008, at 447-483; P. Hwang, Reform of the Administration of Justice System at the United Nations, 8 The Law and Practice of International Courts and Tribunals 181-224 (2009); P. Vargiu, From Advisory Opinions to Binding Decisions: The New Appeal Mechanism of the UN System of Administration of Justice, 7 IOLR 241-260 (2010). For a first impression of the operation of the new system by one of the judges, see T. Laker, “Administration of Justice” in den Vereinten Nationen – ein Werkstattbericht, 70 ZaöRV 567-583 (2010). 313 Report of the Redesign Panel on the United Nations System of Administration of Justice, UN Doc. A/61/205, para. 5. 314 The structure of this new system is laid down in GA Resolutions 61/261, 62/228 and 63/253. 306

464

chapter five

§643

It consists of an informal pillar, focusing on non-judicial measures (Ombudsman, mediation, and so forth), and a formal pillar, consisting of two levels of independent judicial review by the UN Dispute Tribunal and the UN Appeals Tribunal. The UN Dispute Tribunal is a court of first instance. It operates on a full-time basis in Geneva, Nairobi and New York, and is comprised of five independent judges (three full-time and two half-time). Registries support the Tribunal. It may organize oral hearings and issues binding judgments.315 The UN Appeals Tribunal is an appeal court, created to review judgments of the Dispute Tribunal for error, not to deal with cases anew. It has seven independent judges. It is based in New York and may hold sessions in New York, Geneva and Nairobi.316 b. The ILO Administrative Tribunal (ILOAT) §643 The League of Nations established an administrative tribunal on 26 September 1927.317 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 some 60 other organizations: some of the UN family,318 some public international organizations outside that group such as the EFTA, Interpol, the European Organization for Nuclear Research (CERN), and even a private international organization, the Inter-Parliamentary Union. While UNAT members usually came from a diplomatic or university background, the ILO Tribunal is composed of seven lawyers mostly coming from national judiciaries.319 It is competent to consider disputes between the organizations concerned and their staff at the initiative of staff members. It will not accept a complaint filed by an organization against a staff member.320 Staff members must exhaust the internal remedies available within the organization concerned; otherwise a complaint to ILOAT is not receivable.321 In addition to staff cases, the Tribunal can be charged with the settlement of possible conflicts arising from con-

315

See www.un.org/en/oaj/dispute (January 2011). See www.un.org/en/oaj/appeals (January 2011). 317 LoN, Official Journal, Special Suppl. No. 54, at 201 and 478. On this tribunal, see the overview by C. Comtet-Simpson, Registrar of ILOAT (Sept. 2009, available at www.ilo.org/public/ english/tribunal/download/articleccenglish.pdf (January 2011)); J. Ballaloud, Le Tribunal Administratif de l’Organisation Internationale du Travail et sa Jurisprudence (1967); F. Gutteridge, The ILO Administrative Tribunal, in De Cooker (ed.), op. cit. note 210, at V.2. For the Statute of the ILO Administrative 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 website: www.ilo.org/public/english/tribunal/ (January 2011). The judgments are published by the ILO; the UNJY and the AFDI provide surveys of the judgments. 318 E.g. FAO, WHO, UNESCO, UPU, IAEA, IFAD, WIPO, World Tourism Organization, UNIDO. 319 See on the method of selecting ILOAT and UNAT judges, UN Doc. A/42/328, in particular paras. 11-14; Pescatore, op. cit. note 300, at 219-220, 223. 320 ILOAT Judgment No. 173, UNJY 1971, at 169-170. 321 ILOAT Statute, Art. VII.1. See Comtet-Simpson, op. cit. note 317, at 21-24. For an example, see Judgment 2570. 316

§644

advisory and supervisory organs

465

tracts concluded by the ILO.322 Judgments of the Tribunal are binding, final and without appeal.323 §644 Having different 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 UN Dispute Tribunal.324 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 the UN and ILO 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.325 A number of further considerations have suggested in the past that the former UNAT and ILOAT should be merged.326 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.327 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;328 and indeed, at the very time when these discussions were taking place, a third administrative tribunal was created within the UN family: the World Bank Administrative Tribunal (WBAT), established in 1980. Since then, the suggestion of a merger of administrative tribunals has not been given serious consideration. Rather, the trend is in the opposite direction, as a number of organizations have decided to create their own administrative tribunal.

322

ILOAT Statute, Art. II.4. Id., Art. VI.1. 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)). 325 Kotra Case, ILOAT Case 180, UNJY 1971, at 178. 326 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. 327 GA Res. 33/119. 328 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). 323 324

466

chapter five

§645

c. 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.329 Why did these organizations not join the administrative tribunals of the UN or of the ILO? The main reasons 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.330 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 of the UN organizations that have joined UNAT or ILOAT have identical membership, and in any event, it is unclear why such identical membership is required. 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 reduced efficiency and an increasing divergence in the legal protection for personnel of UN organizations.331 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.332 The Tribunal was formally established on 13 January 1994, upon the announcement by the Managing Director to the staff

329

See the website of the World Bank for the Statute of this Tribunal: www.worldbank.org. C.F. Amerasinghe, The Law of the International Civil Service, Vol. I (1988), at 60. 331 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). 332 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/statute.htm. On this tribunal, see J.S. Powers, Reinventing the Wheel – The Establishment of the IMF Administrative Tribunal, in De Cooker (ed.), op. cit. note 210, at V.10. 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. 330

§647

advisory and supervisory organs

467

of the appointment of the members of the Tribunal.333 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.334 e. Regional administrative tribunals §647 Apart from the abovementioned examples, numerous other organizations have also created a specific organ to adjudicate upon staff cases,335 the most important being the Administrative Tribunal of the OECD (established in 1991, replacing the OECD’s Appeals Board), the Appeals Commission of NATO,336 the Administrative Tribunal of the League of Arab States,337 the Administrative Tribunal of the Bank for International Settlements,338 the Administrative Tribunal of the OAS,339 the Administrative Tribunal of the Inter-American Development Bank,340 the Administrative Tribunal of the Asian Development Bank,341 the Administrative Tribunal of the African Development Bank342 and the European Union Civil Service Tribunal.343 4. Arbitration, conciliation, mediation and fact-finding commissions §648 It should be clear from the preceding overview in Sections 1 and 2 that it was felt necessary to create a number of special judicial organs to supervise the implementation of treaties ranging from the EU treaties to human rights conventions and international river agreements. Consequently, the International Court of Justice has not developed as the world’s sole judicial body. However, not only numerous specific judicial organs have been created. In addition, a substantial

333 As of January 2010, the Tribunal has five members (including the President). Decisions of the Tribunal in a case are taken by a Panel composed of the President and two other members designated by the President. See www.imf.org/external/imfat/index.htm. 334 Id., Art. XXI. 335 For an enumeration see Akehurst, op. cit. note 300, 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 (2nd ed. 2005), at 489-504; Sands and Klein, op. cit. note 132, at 421-434. 336 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). 337 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). 338 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. See www.bis.org/about/at_bis.htm (January 2011). 339 See www.oas.org/tribadm/default_en.asp (January 2011). 340 See www.iadb.org/aboutus/iii/tribunal_home.cfm?language=en&parid=1 (January 2011). 341 See www.iadb.org/en/about-us/administrative-tribunal,6187.html (January 2011). 342 See www.afdb.org/en/about-us/structure/administrative-tribunal/# (January 2011). On this tribunal, see Chr. Tomuschat, Le Tribunal Administratif de la Banque Africaine de Développement, in Liber Amicorum Jean-Pierre Cot, Le process international 323-339 (2009). 343 See above, §621.

468

chapter five

§649

number of organs have been charged with arbitration, mediation and fact-finding tasks. A large number of disputes between states, which could in principle have been submitted to the International Court of Justice, have instead been referred to arbitration.344 Many treaties contain provisions for the settlement of disputes by arbitration, conciliation, mediation or fact-finding. A large proportion of these dispute settlement mechanisms have been created within the framework of international organizations.345 For example, the Arbitration and Mediation Center of the World Intellectual Property Organization was created in 1994 to deal with internet domain name disputes.346 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. Factfinding commissions ascertain the underlying circumstances of a dispute. In some cases, the clarification of the facts may be sufficient to lead to a settlement of a dispute and indeed, fact-finding often forms part of a conciliation procedure.347 Ad hoc arbitration is also used to settle disputes concerning contracts with private persons.348 §650 Some international organizations entrust the settlement of disputes to arbitration tribunals.349 Sometimes there are express provisions as to the consti-

344 Cf. C. Gray and B. Kingsbury, Developments in Dispute Settlement: Inter-State Arbitration since 1945, 63 BYIL 97-134 (1992). 345 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. 346 See www.wipo.int/amc/en. As at January 2011, this Center had administered over 220 arbitration and mediation cases. 347 Nguyen Quoc Dinh, Les commissions de conciliation sont-elles aussi des commissions d’enquête?, 71 RGDIP 565-674 (1967). 348 UNJY 1976, at 168-176. 349 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).

§651

advisory and supervisory organs

469

tution of such a tribunal.350 In the absence of such provisions, the organization can choose to use one of the sets of existing rules, such as the Model Rules on Arbitral Procedure drafted by the UN International Law Commission,351 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, modelled on the abovementioned UNCITRAL rules.352 §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.353 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 appeals (on issues of law only), a Permanent Court of Review has been created whose decisions are final.354 §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 (at 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

350 UNIDO, Art. 22. See also the Annex to the Convention on the International Maritime Satellite Organization (INMARSAT), 15 ILM 1071-1075 (1976). 351 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). 352 For the text and analysis of the UNCITRAL rules, see A. Redfern and M. Hunter, Law and Practice of International Commercial Arbitration (2nd ed. 1991). 353 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 (2007), at 96. 354 Mercosur’s website: www.mercosur.org.uy. See above, §641C.

470

chapter five

§653

between states as well as disputes between states and private parties.355 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 election of judges to the International Court of Justice.356 The Permanent Court of Arbitration was used rather frequently before World War I. Since then, until the mid 1990s only a limited number of disputes have been brought before it. As of 1996, the Court has been increasingly used. In total since its creation fifty cases have been submitted to arbitration before the Court or conducted with the cooperation of the Court’s International Bureau; additionally, five International Commission of Inquiry and three International Conciliation Commissions have been set up, composed of members of the Court.357 §653 The International Centre for Settlement of Investment Disputes (ICSID) 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.358 ICSID 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 at January 2010, more than 300 cases had been submitted to ICSID.359 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.360

355 See on the Permanent Court of Arbitration W.E. Butler, The Hague Permanent Court of Arbitration, in M.W. Janis (ed.), op. cit. note 134; J.L. Bleich, A New Direction for the PCA: The Work of the Expert Group, in Muller and Mijs, op. cit. note 351, 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. (eds.), op. cit. note 353, at 577 ff. Website: www.pca-cpa.org. 356 ICJ Statute, Arts. 4-5. 357 See the website of the Permanent Court of Arbitration, www.pca-cpa.org. Of these 50 arbitrations 17 were brought before WW I; 21 were brought since 1996. 358 For the text see UNJY 1966, at 196-212 or the website: www.icsid.worldbank.org. 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); J. Fouret, The World Bank and ICSID: Family or Incestuous Ties? 4 IOLR 121-144 (2007). 359 See the ICSID website: www.icsid.worldbank.org. 360 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.

§654

advisory and supervisory organs

471

§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 in Tehran as well as the Iranian assets frozen in the US.361 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 are 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 January 2010, the Tribunal had delivered 600 awards (excluding interlocutory and interim awards).362 §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.363 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.364 These commissions collect information on the case concerned. To date, twelve Commissions of Inquiry have been established (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 over 2,300 cases, while the Fact-Finding and Conciliation Commission has dealt with only six cases.365

361 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 Iran-United States Claims Tribunal (1999). For further information see the Tribunal’s website: www.iusct.org. 362 Information taken from the Tribunal’s website: www.iusct.org. 363 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 254, at 99-113. 364 ILO, Arts. 26-29. 365 Information taken from the ILO website: www.ilo.org.

472

chapter five

§656

§656 Prior to the creation of the World Trade Organization in 1994, the GATT did not have a standing judicial or arbitral organ. If member states were in 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.366 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 to the GATT dispute settlement procedure.367 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.368 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.369 Fourthly, a standing Appellate Body was established to hear appeals from panel cases.370 An appeal “shall be limited to issues of law covered in the panel report and legal interpretation developed by the panel”.371 Appellate Body reports shall be adopted unless it is decided by consensus not to do so.372 The WTO procedures have been used frequently. As at

366 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). 367 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; G. Sacerdoti, A. Yanovich, J. Bohanes (eds.), The WTO at Ten – The Contribution of the Dispute Settlement System (2006); P. Van den Bossche, The Law and Policy of the World Trade Organization (2nd ed. 2008). See for the relevant texts the collection prepared by the WTO Secretariat, The WTO Dispute Settlement Procedures (2nd ed. 2001). 368 Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2 to the Agreement establishing the World Trade Organization, Art. 6.1. 369 Id., Art. 16.4. 370 Id., Art. 17.1. 371 Id., Art. 17.6. 372 Id., Art. 17.14.

§657

advisory and supervisory organs

473

January 2010, some 400 disputes have been brought to the WTO. The Appellate Body has taken decisions some 100 cases.373 Partly as a consequence of the frequent use of the WTO dispute settlement procedures, it has been suggested that the organization move from using ad hoc Panelists to appointing 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.374 §657 The UPU has its own arbitration procedure for dealing with disputes between two or more postal administrations of member countries.375 To date, 28 cases have been dealt with, of which only five date from the period after the Second World War.376 §658 Since 1978, UNESCO has operated 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 (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”.377 This procedure is characterized by the search for a dialogue with the government in question.378 From 1978 to September 2007, the Committee examined 545 communications.379 §659 A specified 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 generally 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.380

373 Information taken from the WTO website: www.wto.org. See also the annual reports of the Appellate Body; A. Alvarez-Jimenez, The WTO Appellate Body’s Decision-making Process: A Perfect Model for International Adjudication?, 12 JIEL 289-331 (2009); K. Leitner and S. Lester, WTO Dispute Settlement 1995-2009 – A Statistical Analysis, 13 JIEL 205-218 (2010). 374 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. 375 UPU, Art. 32, and General Regulation 129. 376 See UPU publication “Constitution – General Regulations” (2010), at A.27-A.28. 377 UNESCO Decision 104/EX/Decision 3.3 (para. 7). 378 See S.P. Marks, The Complaint Procedure of the United Nations Educational, Scientific and Cultural Organization, in Hannum, op. cit. note 243, 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); S. von Schorlemer, UNESCO Dispute Settlement, in A.A. Yusuf (ed.), Standard-setting in UNESCO, Vol. I (2007), at 73-103, in particular at 99-101. 379 UNESCO Doc. 179EX/CR/2, at 13 (para. 54). 380 See e.g. International Coffee Agreement 2001, Art. 42; International Cocoa Agreement 2010, 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.

474

chapter five

§660

§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.381 They strive for a friendly settlement of disputes concerning respect for human rights. §661 The constitution of the OAU provided for a Commission of Mediation, Conciliation and Arbitration,382 the composition and tasks of which were defined in a separate Protocol.383 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.384 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.385 In 2004, before this Court became operational, the AU Assembly of Heads of State and Government decided to merge the African Court on Human and Peoples’ Rights established in 1998 and the Court of Justice of the AU to create an African Court of Justice and Human and Peoples’ Rights.386 §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.387 If a dispute arises between member states, these states may compose an arbitral tribunal from this list. In addition, the Secretariat of this organization (the ‘Central Office’) may, at the request of a member state

381 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. 382 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). 383 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). 384 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). 385 Art. 18.1. 386 In 2008 AU Justice Ministers formally adopted a single legal instrument to create an African Court of Justice and Human Rights (see above, §630). 387 Convention concerning International Carriage by Rail, Art. 14.1.

§663

advisory and supervisory organs

475

or a transport company, attempt to settle a dispute by rendering its good offices.388 These provisions for dispute settlement have never been used.389 §663 The College of Arbitrators of Benelux is charged with the settlement of disputes between Member States. It has decided only one case,390 and will cease to exist when the 2008 Revised Benelux Treaty enters into force. §664 The 1957 European Convention for the Peaceful Settlement of Disputes, prepared by the Council of Europe, lays down rules for arbitration that are applicable to the states parties. In the absence of agreement to the contrary, an arbitral tribunal will consist of five members.391 The tribunal is not competent in questions that by international law are solely within the domestic jurisdiction of states,392 nor in questions of international law, which shall be submitted to the International Court of Justice.393 The Convention has rarely been invoked.394 §664A In 1994, the World Intellectual Property Organization (WIPO) established the WIPO Arbitration and Mediation Center for the settlement of international commercial disputes between private parties This Center deals, inter alia, with disputes relating to internet domain names. It is an efficient alternative to court litigation; normally, internet domain name cases are concluded within two months. More than 20,000 such cases have been brought before this Center.395 §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 1991.396 According to this so-called Valletta 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 procedures for the settlement of the dispute. Thus, basically, Mechanisms do not arbitrate or

388 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. 389 Information obtained from the organization, July 2002 . 390 Case No. 1-1957, Judgment of 29 March 1958, published in Benelux kwartaalbericht, bijlage bij No. 5 (July 1958). 391 European Convention for the Peaceful Settlement of Disputes, European Treaty Series, No. 23, Art. 20; 320 UNTS 243. 392 Id., Art. 27. 393 Id., Arts. 1 and 19. 394 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. 395 See further WIPO Publication 892 (WIPO Arbitration and Mediation Center, Guide to WIPO Domain Name Dispute Resolution (2008)), and www.wipo.int/amc (March 2011). 396 At the Valletta meeting of Experts on Peaceful Settlement of Disputes; the report of this meeting has been published in 30 ILM 382-396 (1991); see also OSCE Handbook (2007), at 96.

476

chapter five

§666

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 within the OSCE.397 §666 The constitution of the European Free Trade Association (EFTA) directs the members to refer their disputes to the EFTA Council of Ministers.398 The Council may in turn refer the matter to an examining committee, which may perform a judicial function. The commentary to the EFTA constitution, however, suggests that the examining committees were intended to be primarily political.399 §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).400 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, 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”.401 §668 Many organs for mediation and fact-finding have been appointed on an ad hoc basis for the settlement of particular disputes.402 The 1997 Convention 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.403

397 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 134, 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. (eds.), op. cit. note 353, at 437-456. Cf. also Condorelli, op. cit. note 353. 398 EFTA, Art. 31. 399 The Stockholm Convention Examined (2nd ed. 1963), at 4 and 69; A. Szokoloczy-Syllaba, EFTA: The Settlement of Disputes, 20 ICLQ 519-534 (1971). 400 NAFTA, Chapter 20. 401 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. 402 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 194647, at 276, 436, 441 (on Palestine), or YUN 1946-47, at 360-375 and UN Doc. S/360 (Greek incidents). 403 See Art. 33 of this Convention.

§669

advisory and supervisory organs

477

Fact-finding alone can resolve conflicts arising from different views of the particular facts.404 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 of whether the Red Crusader was actually fishing within Danish waters, and the dispute was resolved when that question was settled.405

§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 1949,406 and discussed other possibilities for a fact-finding organ during and after its 17th session.407 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.408 No new organ has yet been established.409 5. Other bodies §670 Some organs have been created in order to carry out a task that is not strictly judicial, but which is rather a more general supervisory task, to be 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 Degrading Treatment or Punishment (CPT). These are the products of an 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.410 The UN Human Rights Council (and before this Council was established, the 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

404 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.), Factfinding before International Tribunals (1992). 405 Report of the Commission of Inquiry established on 15 November 1961 (published by the Permanent Court of Arbitration). 406 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). 407 See reports of the Secretary-General A/5694 and A/6228 and comments of governments in Documents A/6886 and A/6373. 408 GA Res. 46/59. 409 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). 410 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 254, at 124.

478

chapter five

§671

of specific human rights. Examples are the working groups, rapporteurs, and representatives dealing with South Africa, Chile, Afghanistan, the Working Group on Enforced and Involuntary Disappearances, and the ‘thematic rapporteurs’ dealing with summary or arbitrary executions, torture and the right to food.411 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.412 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 asylum seekers. It is composed of a number of independent experts, such as medical doctors, psychiatrists, criminologists, and 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. As at 15 December 2010, the CPT had carried out 297 visits to places in all the 47 member states of the Council of Europe (179 periodic visits and 118 ad hoc visits).413 Its operation has generally been regarded as a success.414 §671 Another organ having a more general supervisory task is the World Bank’s Inspection Panel. This Panel was created in 1993. It has three independent members, appointed for a non-renewable five-year term. Its task is 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.415 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 the Bank’s relations with indigenous peoples and with non-governmental organizations. The Panel reviews complaints and makes recommendations to the Executive Board concerning which complaints to investigate. It will investigate those complaints approved for investigation by the Board. In all cases, the final decision will rest with the Board: the Panel has only advisory powers.416 In its first 15 years of existence, between 1994 and 2009, the

411 For a brief survey, see Hannum, op. cit. note 243, 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. 412 For the text of this Convention, see 27 ILM 1152 (1988). 413 See www.cpt.coe.int/en/about.htm (January 2011). 414 Cassese, op. cit. note 410. 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). 415 World Bank Res. 93-10; IDA Res. 93-6. 416 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); A. Orakhelashvili, The World Bank Inspection Panel as a Mechanism of the Institutional Accountability of International Organizations, 2 IOLR 57-102 (2005).

§672

advisory and supervisory organs

479

Panel received 58 requests for inspection. The Panel recommended investigation in 27 of these cases, and the Executive Board formally authorized an investigation in all but four of these cases.417 Similar inspection panels have been established by other organizations, for example the Inter-American Development Bank (in 1994) and the Asian Development Bank (in 1995). C. Composition of judicial organs 1. Number of members §672 International judicial organs are rather large compared to national courts. For example, the International Court of Justice has 15 members who, in principle, participate in all cases.418 The International Tribunal for the Law of the Sea has 21 members. The EU Court and the European Court of Human Rights have as many members as there are member states of the EU (27) and the Council of Europe (47) respectively. §673 Two reasons may explain why international judicial organs are rather large compared to national courts. 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 from its region. Confidence in decisions is important, since their execution often lies in the hands of the states themselves, which also often must consent to the judicial organ having jurisdiction to 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 that are often 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 Union. They are also less applicable to 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 need to apply general rules common to national legal systems than in ordinary international law (although this need still exists).

417 See for these as well as more detailed figures a publication by the Inspection Panel: Accountability at the World Bank – The Inspection Panel at 15 years (2009); the figures mentioned are at 188-192 (Table IV). 418 ICJ Statute, Arts. 3, 25.

480

chapter five

§674

§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 Statute of the International Court of Justice refers to two kinds of chambers: standing chambers, for dealing with particular categories of cases; and ad hoc chambers, established to deal with a particular case.419 The EU Court originally used chambers for staff cases only, but later this practice was extended to other classes of proceedings. The European Court of Human Rights sits in committees of three judges, in Chambers of seven judges and in a Grand Chamber of seventeen judges.420 The Court may also sit in a single-judge formation (see above, §628). Since the 1980s, the ICJ has used ad hoc chambers in a number of cases.421 The Court has created the possibility to establish 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.422 In 1993, the Court decided to establish a seven-member Chamber for Environmental Matters, the members of which were elected by secret ballot.423 Generally all judges of the International Tribunal for the Law of the Sea sit in cases brought before it. However, the Tribunal may form chambers, composed of three or more members, as it considers necessary for dealing with particular categories of disputes.424 The International Criminal Court has eighteen judges.425 It has an Appeals Division (composed of the President of the Court and four other judges), a Trial Division and a Pre-Trial Division (each having no fewer than six judges).426 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 Pre-Trial Chamber are carried out either by three judges of the Pre-Trial Division or by a single judge of that division.427 The Inter-American Commission on Human Rights and the Inter-American Court of Human Rights each has seven members.428 The Human Rights Committee established under the International Covenant on Civil and Political Rights consists of eighteen members, but

419 Statute, Art. 26. 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); H. Thirlway, The International Court of Justice 1989-2009: at the Heart of the Dispute Settlement System?, LVII NILR 347-395 (2010), in particular at 385-386. 420 European Convention on Human Rights, Art. 27.1. 421 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 345, at 85. 422 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). 423 ICJ Communiqué No. 93/20. So far, this Chamber has not been used. 424 Statute of the International Tribunal for the Law of the Sea, Arts. 13-15. 425 ICC Statute, Art. 36.1. 426 Id., Arts. 34(b) and 39.1. 427 Id., Art. 39.2. 428 American Convention on Human Rights, Arts. 34, 52.

§675

advisory and supervisory organs

481

it leaves its most specific conciliatory tasks to an ad hoc conciliation commission of five.429 The Benelux Court of Justice has nine members, but may sit in chambers of three.430 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 Union has 27 members, but much of its work is carried out in chambers of three. The Andean Tribunal of Justice has four members. The administrative tribunals decide their cases with three judges, even if they have more, as in the case of the UN Appeals Tribunal and ILO Administrative Tribunal, which both have seven members.431 Likewise, the WTO Appellate Body is composed of seven members but only three of them serve on each case.432 The Permanent Court of Arbitration nominally has many more members, but the judicial function is performed by tribunals of three or five arbitrators.

2. Nationality of the members §675 The two abovementioned reasons for having large international judicial organs (increased confidence and expertise) also explain the requirement to appoint members of different nationalities.433 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 a member of an international court is a national of more than one state. The question then arises as to which 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.434 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 the Statutes of these two Tribunals in order to introduce a provision similar to that of the ICJ.435 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

429

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. 431 UN Appeals Tribunal Statute, Art. 3.1; ILOAT Statute, Art. 3 (since June 1992). 432 WTO, Understanding on Rules and Procedures Governing the Settlement of Disputes, Art. 17.1. 433 ICJ Statute, Art. 3; ITLOS Statute, Art. 3; ICC Statute, Art. 36.7; UN Appeals Tribunal Statute, Art. 3.2; 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). 434 ICJ Statute, Art. 3.2. The Statutes of other tribunals contain a similar provision: ITLOS Statute, Art. 3.1; ICC Statute, Art. 36.7. 435 SC Res. 1411. 430

482

chapter five

§676

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, the 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 perceived to be so. It is only exceptionally that ad hoc judges vote against their country.436 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, for example 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.437 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 EU 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 European Union, 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 will be 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.

436

See N. Singh, The Role and Record of the International Court of Justice 192-194 (1989). Rules of the ICJ, Art. 36. Rule 30.1 of the European Court of Human Rights contains a similar provision. 437

§679

advisory and supervisory organs

483

3. Qualifications438 §679 In many cases, only lawyers may be appointed to these judicial posts. Eligibility for the International Court of Justice, for the EU 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.439 The members of the Benelux Court of Justice must actually hold such highest national offices.440 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 exclusive appointment of 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 as arbitrators, such as directors of postal services in the arbitral tribunals of the UPU. Generally, geographical and legal criteria are employed for the election of judges of international courts. Only exceptionally (International Criminal Court, African Court on Human and Peoples’ Rights) are there rules aimed at promoting a balanced representation of sexes.441 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.442 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”.443 Members of the WTO Appellate Body must be “persons of recognized authority, with demonstrated expertise in law, international trade and the subject matter of the covered agreements generally”.444

438 See in more detail, with respect to the ICJ and the ICC: R. Mackenzie, K. Malleson, P. Martin and P. Sands, Selecting International Judges (2010), in particular at 24-62. 439 ICJ Statute, Art. 2; ICC Statute, Art. 36.3(a); TFEU, Art. 253; European Convention on Human Rights, Art. 21. 440 Benelux Court of Justice, Art. 3, para. 1. 441 See European Court of Human Rights, Advisory Opinion of 12 February 2008, on certain legal questions concerning the lists of candidates submitted with a view to the election of judges to the European Court of Human Rights (para. 34). This Advisory Opinion was requested when Malta submitted a list with three male candidate judges for this Court, whereas the Parliamentary Assembly had decided that these lists should at least have one candidate belonging to the sex that is underrepresented (at the time: the female sex). Malta indicated that the two available Maltese female applicants did not fulfil the necessary experience in the field of human rights. The Court advised that, if a member state had taken all steps to nominate a candidate of the underrepresented sex, but without success, the Parliamentary Assembly may not reject the list on the sole ground that no such candidate featured on it (id., para. 54). Finally, in 2010, Mr. Vincent de Gaetano was elected by the Parliamentary Assembly. 442 See J.P. Jacque, L’avis de la Cour internationale de Justice du 21 Juin 1971, 76 RGDIP 10501054 (1972). 443 ITLOS Statute, Art. 2.1. 444 WTO, Understanding on Rules and Procedures Governing the Settlement of Disputes, Art. 17.3.

484

chapter five

§680

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”.445 For the purpose of the 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.446 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.447 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.448 Where an organization has more than one principal organ, other organs may also be involved. While the selection process is specific for each judicial organ, some important general principles apply to all international courts. This is another area of international institutional law in which there is unity within diversity. One such principle is that “selection processes must be based on merit and must be independent and impartial, as well as being seen to be so”.449 One of the ways to strengthen this is to involve nominations commissions, as has been done in recent years by the EU450 and by the Council of Europe.451 It has also been proposed in the context of the International Criminal Court.452 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.453 Only those who

445

ICC Statute, Art. 36.3(b). Id., Art. 36.5. Id. Art. 36.8(a). 448 E.g. Benelux Court of Justice, Art. 3; UN Appeals Tribunal Statute, Art. 3.2. 449 Mackenzie, Malleson, Martin and Sands, op. cit. note 438, at 178. 450 Art. 255 TFEU; this “panel” has to give an opinion on candidates’ suitability to perform the duties of Judge and Advocate-General of the Court of Justice and the General Court before the governments of the member states make the appointments. See Barents, op. cit. note 190, in particular at 712-714. 451 Res. CM/Res(2010)26, on the establishment of an Advisory Panel of Experts on Candidates for Election as Judge to the European Court of Human Rights. As specified in this Resolution, the mandate of this Panel is to “advise the High Contracting Parties whether candidates for election as judges of the European Court of Human Rights meet the criteria stipulated in Article 21.1 of the European Convention on Human Rights”. 452 According to Art. 36.4(c) of the ICC Statute, the Assembly of States Parties may decide to establish an Advisory Committee on Nominations. 453 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); 446 447

§681

advisory and supervisory organs

485

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.454 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.455 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.456 Judges of the International Criminal Court are elected by the Assembly of States Parties.457 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 who shall in any case be a national of a state party.458 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.459 For the InterAmerican Court of Human Rights, each state party to the Convention may propose up to three candidates, but at least one candidate must be a national of another state party.460

§681 In the European Union, the governments of the member states appoint the judges by mutual agreement.461 This underlines the independence of the members of the Court both from individual states and from the other institutions of the Communities.462 The judges of the Andean Court of Justice are also appointed by common accord of the governments of the member states.463

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); K.J. Keith, International Court of Justice: Reflections on the Electoral Process, 9 Chinese JIL 49-80 (2010); Mackenzie, Malleson, Martin and Sands, op. cit. note 438, at 63-136. 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. 454 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). 455 An exception is the International Covenant on Civil and Political Rights, Art. 29.2 (not more than two nationals). 456 ITLOS Statute, Art. 4. 457 ICC Statute, Art. 36.6. See Mackenzie, Malleson, Martin and Sands, op. cit. note 438, at 63-136. 458 ICC Statute, Art. 36.4(b). 459 European Convention on Human Rights, Art. 21. See A. Drzemczewski, Election of Judges to the Strasbourg Court: An Overview, 4 European Human Rights Law Review 377-383 (2010). Once submitted, such a list of candidates may be withdrawn and replaced by the member state concerned, but only before the deadline for submission. If a candidate on the list withdraws after the deadline for submission, the member state concerned may only replace the empty place on the list. See the Advisory Opinion of the Court of 22 January 2010, on certain legal questions concerning the lists of candidates submitted with a view to the election of judges to the European Court of Human Rights. 460 American Convention on Human Rights, Art. 53. 461 EU, Art. 19.2. 462 This was confirmed when the 2007 Lisbon Treaty maintained this appointment procedure, while at the same time it changed the appointment procedure for the members of the European Commission from appointment by common accord of the governments of the member states to appointment by the European Council. 463 Cartagena Agreement, Art. 8.

486

chapter five

§682

§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 serving on the European Court of Justice who were nationals of member states of the WEU.464 The Grand Chamber of the European Court of Human Rights includes ex officio the President of the Court, the Vice-Presidents, the Presidents of the Chambers and the judge elected in respect of the state concerned,465 the other members being chosen by lot.466 The drawing of lots for the composition of judicial organs guarantees that no specific interests influence the choice of judges, but it 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 being 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.467 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.468 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 securing independence.469 Many members of judicial organs are appointed for long terms (see above, §297); the procedure for election may be such that individual states can exert little influence (see above, §680-682); and in some courts the personal opinions of the judges are kept secret (see below, §695696). 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

464

Treaty of 14 December 1957, Art. 8. European Convention on Human Rights, Art. 26, paras. 4 and 5. See above, §626. 466 Rule 24.2(e) of the European Court of Human Rights. 467 In letters to the Committee of Ministers of the CoE, respectively in March 1961 and February 1962. 468 Sohn and Buergenthal, op. cit. note 243, at 143. 469 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). See also the 2004 Burgh House Principles on the Independence of the International Judiciary, prepared by a study group of the International Law Association; on these principles, see P. Sands, C. McLachlan and R. Mackenzie, The Burgh House Principles on the Independence of the International Judiciary, 4 The Law and Practice of International Courts and Tribunals 247-260 (2005). 465

§684

advisory and supervisory organs

487

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.470 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.471 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 EU Court is assisted by eight Advocates-General, that of Benelux by three.472 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.473 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 approach to the problems of a case. The opinion of the Advocates-General may be of importance for the future development of the law. There are no Advocates-General in the other international judicial bodies. When, within the EU, the Court of First Instance was created (now called the General Court), 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 were no Advocates-General as such, but members of the Court of First Instance could be called upon to perform the task of an Advocate-General. If this were to happen, such decision being exclusively for the General Court, the member acting as Advocate-General could not take

470 Il Ro Suh, Voting behavior of National Judges in International Courts, 63 AJIL 224-236 (1969). 471 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. 472 Art. 252 TFEU; Benelux Court of Justice, Art. 3.1. 473 On the role of the Advocate-General, see Neville Brown and Jacobs, op. cit. note 190, at 53-63; T. Tridimas, The Role of the Advocate General in the Development of Community Law: Some Reflections, in 34 CMLRev. 1349-1387 (1997); N. Burrows and R. Greaves, The AdvocateGeneral and EC Law (2007).

488

chapter five

§685

part in the judgment of the case.474 In addition, in the future “[t]he Statute may provide for the General Court to be assisted by Advocates-General”.475

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 that control the legality of decisions of the organization (in which the Secretariat has usually played its part) are particularly aware of the need for 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 Justice of the European Union each has 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.476 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 ILO, World Bank, IMF, and OAS,477 the UN human rights committees,478 and the Benelux College of Arbitrators479 have to rely on the secretariats of the organizations concerned. The UN Dispute Tribunal and the UN Appeals Tribunal have their own registries.480 D. Procedure before judicial organs481 §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,482 experts may be heard,483 and so forth. A comparative

474

See T. Millett, op. cit. note 190, at 15-16. Art. 254 TFEU. 476 Benelux Court of Justice, Art. 3, para. 1. 477 E.g. UN Appeals Tribunal Statute, Art. 3; IMFAT Statute, Art. IX. 478 E.g. International Convention on Civil and Political Rights, Art. 36. 479 Benelux College of Arbitrators, Statute, Art. 1. 480 Statute of the Dispute Tribunal, Art. 6.2; Statute of the Appeals Tribunal, Art. 5.3, 481 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). 482 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). 483 In its judgment in the Case concerning pulp mills on the river Uruguay (Argentina v. Uruguay), the ICJ indicated that it would have preferred that the experts would have been presented 475

§687

advisory and supervisory organs

489

study by Brown has demonstrated that international courts often follow common approaches to questions of procedure and remedies, and that a “common law of international adjudication” is emerging. There is broad agreement on issues such as the rules of evidence, the power of courts to order provisional measures and their power to interpret and revise judgments, although it is also clear that there is no uniform approach to all of these issues.484 Three aspects of the proceedings deserve particular attention: firstly, the question of access to the court; secondly, the possible decisions that can be taken; and thirdly, the possibility of separate opinions. 1. Access to the court 485 §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.486 In a number of cases, states are the only parties competent to appear. However, 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.487 §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.488 Some writers have interpreted the Statute of the Court in such a way as to include international organizations in the list of parties that are permitted to appear before the Court.489 In practice, however, this has never been tried. The EU Court and the Andean Court permit an organ (respectively the Commission and the Junta) to act as plaintiff against member states

by the parties as expert witnesses under Arts. 57 and 64 of the Rules of the Court, instead of being included as counsel in their respective delegations, “so that they may be submitted to questioning by the other party as well as by the Court” (judgment of 20 April 2010, para. 167). 484 C. Brown, A Common Law of International Adjudication (2007). 485 See also E. Lauterpacht, op. cit. note 345, at 59-75. 486 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). 487 ITLOS Statute, Art. 20.2. 488 The UN, the IAEA and all specialized agencies except UPU, which never applied for this power (see UN Charter, Art. 96). 489 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).

490

chapter five

§690

not fulfilling their obligations,490 and the principal organs (institutions) may bring actions against each other.491 §690 Individuals have standing before some international judicial organs. Before administrative tribunals and the EU Court of Justice,492 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 the necessary 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 states that have recognized this competence.493 The European Court of Human Rights is open to states and to private persons.494 Any individual may lodge petitions with the Inter-American Commission on Human Rights.495 Individuals may bring an action before the EU Court for the annulment of an act that is addressed to them or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.496 Individuals may also bring actions before the EU Court in cases concerning the non-contractual liability of the Union.497 Individuals may also bring claims before some regional courts, for example the Andean Court of Justice.498 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 judicial organs of a number of organizations, including the EU, Benelux and the Andean Common Market (see below, §1374-1378). 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

490

TFEU, Art. 258; Cartagena Agreement, Art. 23. See also below, §1442. TFEU, Arts. 263, 265; Cartagena Agreement, Art. 17. 492 TFEU, Art. 270. 493 Optional Protocol to the International Covenant on Civil and Political Rights, YUN 1966, at 431-432. 494 European Convention on Human Rights, Art. 34. 495 American Convention on Human Rights, Art. 44. 496 TFEU, Arts. 263, 265. 497 TFEU, Art. 340. 498 Cartagena Agreement, Art. 19. 491

§693

advisory and supervisory organs

491

rights and obligations bind them and their nationals. Thus, they will not readily accept a judgment on this question by an independent court without first having expressly accepted 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 arbitral tribunals. The cooperation of all states involved is necessary, both for the creation and the functioning of such tribunals. Organs of an organization may be summoned before relevant administrative tribunals by civil servants. Within the European Union, legislative acts and various other acts of institutions of the Union may be challenged in actions before the Court of Justice.499 In exceptional cases, individuals may have to appear as defendants before international judicial organs. Examples are the various ad hoc international criminal tribunals, 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 may decide whether they have jurisdiction (see also above, §601),500 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.501 Judgments are formally binding 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 Union, 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).

499

TFEU, Arts. 263, 265, 270, 340. E.g. ICJ Statute, Art. 36.6; UN Dispute Tribunal Statute, Art. 2.6; UN Appeals Tribunal Statute, Art. 2.8; 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. 501 For the International Court of Justice, see the Court’s Res. of 12 April 1976, 70 AJIL 905908 (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); Judge Keith concludes that he had been a member of 11 courts, “and the ICJ process is the most inclusive of them all” (K.J. Keith, The International Court of Justice: Primus Inter Pares?, 5 IOLR 7-22 (2008), quotation at 21). For the EU Court, see Schermers and Waelbroeck, op. cit. note 11, at 734-749. 500

492

chapter five

§694

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.502 If they do not, sanctions are rarely provided for.503 Within the World Trade Organization, there has to be “prompt compliance” with recommendations or rulings of the Dispute Settlement Body.504 However, “[i]f it is impracticable to comply immediately with the recommendations and rulings, the member concerned shall have a reasonable period of time in which to do so”.505 This reasonable period of time is (a) the period proposed by the member concerned, as approved by the Dispute Settlement Body; or, in the absence of such approval, (b) a period mutually agreed by the parties to the dispute within 45 days after the adoption of the recommendations and rulings; or, in the absence of such agreement, (c) a period determined through binding arbitration within 90 days after the adoption of the recommendations and rulings. As a guideline for the arbitrator, it is determined that this period should not exceed 15 months from the date of adoption of a panel or Appellate Body report.506

b. Other decisions §694 Apart from regular judgments, most courts have the power to indicate interim measures507 and to revise judgments on the discovery of new

502 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 – at the time – there were four cases of non-compliance in the case of the International Court of Justice (the Corfu Channel Case, the Icelandic 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). As far as the EU Court of Justice 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). 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). However, in recent years, regular reports prepared within the context of the Parliamentary Assembly of the Council of Europe have demonstrated that a considerable number of member states have not always timely and effectively implemented judgments of the European Court of Human Rights (see e.g. Doc. AS/Jur (2010)36, Implementation of judgments of the European Court of Human Rights). 503 See Chapter Ten. 504 WTO Understanding on rules and procedures governing the settlement of disputes (Annex 2 to the 1994 Marrakesh Agreement establishing the World Trade Organization), Art. 21.1. 505 Id. Art. 21.3. 506 Id. See, e.g., WTO Doc. WT/DS366/13 (2 October 2009), Colombia – indicative prices and restrictions on ports of entry, Arbitration award. 507 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 11, at 694-706; C. Harby, The Changing Nature of Interim Measures before the European Court of Human Rights, EHRLR 73-84 (2010). It was long disputed whether or not orders on provisional measures of the ICJ and interim measures of the European Court of Human Rights were legally binding. In the La Grand case (Germany v. USA, 27 June 2001, in particular paras. 98-109), the ICJ concluded that such orders have binding effect. Likewise, referring inter alia to the La Grand case, the European Court of Human Rights decided in 2005

§695

advisory and supervisory organs

493

facts.508 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 their further decision-making, rather than to control the legality of their acts (although they may also have this function). The Court of Justice of the European Union and other regional courts may 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.509 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,510 the European Court of Human Rights,511 and the Court of Justice of the Southern African Development Community.512 The separate opinions are published with the judgments.513 In other courts, such as the Court of Justice of the European Union, judges do not have the right to deliver separate opinions. §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

that its interim measures are binding (Case of Mamatkulov and Askarov v. Turkey, Appl. Nos. 46827/99 and 46951/99, 4 February 2005). 508 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. 509 ICJ Statute, Art. 57, Rules 95(2), 107(3). 510 ITLOS Statute, Art. 30.3. 511 European Convention on Human Rights, Art. 45.2. 512 Rule 58.2 of the Rules of Procedure of this Court. 513 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).

494

chapter five

§697

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: that is, for the five permanent members of the Security 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 will only be 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 write a dissenting opinion, the court may be more easily inclined to meet its wishes in the judgment itself.514 In the Dyestuff Cases,515 the European Court of Justice 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

[deleted]

514 See A.M. Donner, Handelingen der Nederlandse Juristen Vereniging, deel 2, 17-19 (1973); Schermers and Waelbroeck, op. cit. note 11, at 737. 515 ECR 1972, at 619-959.

§699

advisory and supervisory organs

495

§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 of a declaration.516 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 have such organs (with limited powers) been set up in other regions as well (see above, §566). Therefore, first of all, we must try to answer the question of 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 EU Court, is directly linked to the scope of the powers attributed to the European Union. While parliamentary and judicial organs originally existed mainly within Europe, and while it is still true that the European parliamentary and judicial organs are the most powerful, significant developments have taken place in other parts of the world during the last two decades, as a result of which parliamentary and judicial organs have not only been created elsewhere, but are also actively performing their functions in practice. The overview in this chapter has demonstrated not only that member states of regional organizations outside Europe have been willing to

516 Rules of Procedure, Art. 95.2. See also F. Jhabvala, Declarations by Judges of the International Court of Justice, 72 AJIL 830-855 (1978).

496

chapter five

§701

create independent parliamentary and judicial organs, but also that they may find it difficult at times to face the implications of such independence. Although there is much diversity in the precise competences and in the practical functioning of these organs in different parts of the world, there is also much unity in the nature of their functions and in their relationship with the member states of the organizations concerned. §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 that 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 proportionate when compared with their populations: the UK has only five times as many seats as Luxembourg or Malta, while it has more than 120 times as many inhabitants as each of these two countries. In the European Parliament, German and French members represent some 857,000 citizens, while a member from Luxembourg represents some 83,000 citizens and a member from Malta some 67,000.517 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 might seem curious from a national perspective, but they are inevitable on the international level. Their tasks can only be performed effectively if states have confidence in them. 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 Union when the resulting decrease of powers of national parliaments, which no longer had to approve the contribution of the member state, was compensated for by a corresponding increase in budgetary powers for the European Parliament (see above, §583). 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 (EU, 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

517 Figures for the European Parliament have been taken from the Lisbon judgment of the German constitutional court (judgment of 30 June 2009, (www.bverfg.de/entscheidungen/ es20090630_2bve000208en.html (March 2011)), para. 285.

§702

advisory and supervisory organs

497

Organization need their own ‘internal’ judicial organs, instead of using the International Court of Justice? 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?518 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 a tendency to increase, rather than decrease, the number of administrative tribunals? 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? It was proposed, in the 1970s, to merge administrative tribunals (see above, §644) and, more recently, to transform the nine existing human rights supervisory committees into one unified super committee.519 Why have such proposals been rejected? This proliferation sometimes results in inefficiencies 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 ”.520 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, expressed their concern about it, and suggested creating the possibility for international courts and tribunals to refer questions of general international law to the ICJ.521 This suggestion is not supported by some other judges of the Court, as it would be “cumbersome and unrealistic”.522 And when ICJ President Higgins addressed the General Assembly in 2006, she stated:523

518 See E. Lauterpacht, op. cit. note 345, at 19-22. According to Lauterpacht, this is “a good illustration of what probably is an unnecessary duplication of arrangements” (at 19). 519 The proposal to consolidate human rights supervisory bodies into one or two new ‘super committees’ was discussed in a report prepared by P. Alston (UN Doc. A/44/668). This report was updated for the 1993 World Conference on Human Rights (UN Doc. 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 (eds.), op. cit. note 162, at 383-401. In 2006, the UN High Commissioner for Human Rights suggested to create a “unified standing treaty body” (UN Doc. HRI/MC/2006/2), but this did not meet with much support. Instead, the nine existing bodies try to harmonize working methods and improve coordination by annual meetings of their chairpersons (see, e.g., UN Doc. A/65/190). See further M. O’Flaherty, Reform of the UN Human Rights Treaty Body System: Locating the Dublin Statement, 10 Human Rights Law Review 319-335 (2010). 520 C. Wilfred Jenks, The Prospects of International Adjudication 175 (1964). 521 See the address by President Schwebel, 26 October 1999, UN Doc. A/54/PV.39 (at 3-4), and the address by President Guillaume, 26 October 2000, UN Doc. A/55/PV.41 (at 6-7). 522 R. Higgins, The ICJ, the ECJ, and the integrity of international law, 52 ICLQ 1-20 (2003), in particular at 18-20 (quotation at 20). According to Higgins, “[t]he better way forward, in my view, is for us all to keep ourselves well informed” (id.). Also: Keith, op. cit. note 501, in particular at 18. Similar criticism has been expressed by others, see 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. 523 See www.icj-cij.org/court/index.php?pr=1874&pt=3&p1=1&p2=3&p3=1 (February 2011).

498

chapter five

§702

This growth in the number of new courts and tribunals has generated a certain concern about the potential for a lack of consistency in the enunciation of legal norms and the attendant risk of fragmentation. Yet these concerns have not proved significant. The general picture has been one of these courts seeing the necessity of locating themselves within the embrace of general international law. The authoritative nature of ICJ judgments is widely acknowledged. It has been gratifying for the International Court to see that these newer courts and tribunals have regularly referred, often in a manner essential to their legal reasoning, to judgments of the ICJ with respect to questions of international law and procedure. Just in the past five years, the judgments and advisory opinions of the ICJ have been expressly cited with approval by the International Tribunal for the Law of the Sea, the European Court of Human Rights, the European Court of Justice, the United Nations Commission on Human Rights, the Inter-American Commission on Human Rights, the International Centre for Settlement of Investment Disputes, the International Criminal Tribunal for the former Yugoslavia, and arbitral bodies including the Eritrea-Ethiopia Claims Commission. The International Court, for its part, has been following the work of these other international bodies closely.

An example frequently given in this discussion is the judgment of the International Criminal Tribunal for the former Yugoslavia in the Tadic case.524 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.525 The Tribunal carefully examined this test and finally concluded that “with respect, it does not hold the Nicaragua test to be persuasive”.526 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 each other’s caselaw 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”.527 There are more examples, some of which concern the danger of forum shopping.528 In the 1990s, for instance, a dispute existed between the EU and Chile 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 EU this was the World Trade Organization, while for Chile it 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. Nevertheless, 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

524

ICTY, Appeals Chamber judgment, Prosecutor v. Dusko Tadic (Tadic IT-94-1). Id., para. 99. 526 Id., paras. 115-145. 527 Jenks, op. cit. note 520. 528 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). 525

§702

advisory and supervisory organs

499

coherence of international law, so far “no substantial breakdown in the unity of central norms of general international law has developed”.529 Whatever the dangers of the proliferation of judicial organs may be, 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 arbitrators 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. One reason for the establishment of the EU Civil Service Tribunal was the wish to have a specialized tribunal composed of persons having the necessary expertise. 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.530 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”.531 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 creations, and are hesitant to ‘delegate’ specific functions to organs of other organizations. Objectively viewed, the organs of other organizations might in some cases be perfectly capable of performing

529 J.I. Charney, Is International Law threatened by Multiple International Tribunals?, 271 RdC 101-382 (1998), quotation at 373. Keith, writing in 2008, is largely in agreement with Charney’s conclusion (op. cit. note 501). See also Y. Shany, The Competing Jurisdictions of International Courts and Tribunals (2003). 530 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 (eds.), op. cit. note 162, at 403-437. 531 E. Lauterpacht, op. cit. note 345, at 17.

500

chapter five

§702

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 to give such organs a more general role. The clearest exception 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 generally use other mechanisms for the settlement of their disputes instead.

CHAPTER SIX

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. However, we 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 Eight).

§704 Decision-making will be discussed in its legal context. The political context is wider than the legal context, 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 concluding observations will be made.

1 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). 2 E. Ustor, Decision-making in the Council for Mutual Economic Assistance, 134 RdC 174 (1971 III).

502

chapter six

§706

I. 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 are more properly considered in the context of 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. Factfinding 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

3 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. 4 UN Charter, Art. 18.2; UN Doc. A/1356 (GAOR 5th Session, Annexes, agenda item 49), paras. 22, 23, 24. See also UNJY 2005, at 459 (note prepared by the UN Office of Legal Affairs): “The term ‘decision’ as used in Article 18, refers to all types of action which the General Assembly takes by a vote while performing its functions under the Charter”. In practice, the General Assembly takes most of its decisions by consensus, without voting (see below, §775); the broad definition of ‘decision’ also applies to these decisions adopted by consensus. 5 TFEU, Art. 288; ECSC, Art. 14; Benelux, Art. 19(a); OECD, Art. 5 (see below, §1322, 1323, 1330). The term ‘decision’ is used here in its broad sense. The specific sense of individually binding decisions (TFEU, Art. 288) will be indicated by capitalizing the D in ‘Decision’ or by the expression ‘binding decision’ (see below, §1322).

§708

decision-making process

503

more important. In Chapter Ten, when the issue of enforcement will be discussed, a number of circumstances will be mentioned that 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 that falls outside the scope of these powers (see above, §206-210). As the EU Court has stated, the EU has only conferred powers, and therefore “the choice of the appropriate legal basis has constitutional significance”.6 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 judicial 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.7 The restrictions of the constitution and the provisions for its amendment would make no sense if organs had complete freedom to act and were not bound by the competences as attributed to them in the constitution. This is true for any organ, irrespective of its nature or competences. As the International Court of Justice has stated with respect to the Security Council and the General Assembly of the UN: “[t]he 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”.8 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

6

Opinion 1/08, 30 November 2009, not yet reported (para. 110). On this question, see B. Conforti, Le rôle de l’accord dans le système des Nations Unies, 142 RdC 223-230 (1974 II). 8 Admission of a state to the United Nations (Charter, Art. 4), Advisory Opinion, ICJ Rep. 1948, at 64. 7

504

chapter six

§709

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 determined before any discussion on the merits.9

III. Initiative A. Necessity for initiatives §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 original constitution of the (then) European Economic Community offers some good examples. Article 43 contained the initiative for the agricultural conference of Stresa of July 1958; Article 54 instructed the Council to lay down a general programme for the abolition of restrictions on freedom of establishment; Article 75 required the Council to take a number of decisions on transport; Article 87 prescribed decisions on competition. Other international organizations also have initiatives built into provisions of their constitutions, but experience demonstrates that the inclusion of such provisions in itself is no guarantee of success. Thus, in several cases, articles that provide for the convening of a conference to discuss the amendment of the constitutions have been ignored.10 The UN General Assembly frequently decides to place specific issues 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.11

9 See D. Ciobanu, Preliminary Objections related to the Jurisdiction of the United Nations Political Organs (1975). 10 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). 11 Charter of Economic Rights and Duties of States, Art. 34.

§711

decision-making process

505

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.12

B. 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 Union, in which the Commission has an exclusive right of initiative for almost all legislative acts. The only limitation on this power of governments is the competence of the organization itself: government initiatives are only permissible in relation to decisions the organization is competent to take. Governments do not like their initiatives to fail, which may happen when 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 a 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.13

§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.

12 Agreement on an International Energy Programme, Arts. 13, 14, 17, (Trb. 1975, No. 47, at 14, 16). 13 315 UNTS, No. 4564.

506

chapter six

§714

The Secretary-General of the UN may propose items for the agendas of the main organs.14 Even outside the scope of a particular meeting, he may bring any matter to the attention of the Security Council that he considers may threaten the maintenance of international peace and security.15 This power has been used on only a few occasions:16 the Congolese crisis in 1960;17 the Iranian occupation of the US consulate in Tehran (1979);18 and following an escalation of violence in and around Beirut (1989).19 The powers of the secretariats of the specialized agencies differ. Some of them have virtually no powers of initiative;20 others may make agreements with the member states or with other international organizations,21 make proposals on existing agenda items,22 or may propose new agenda items.23 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.24 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 other 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 ideas if they are well-founded, 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 Organ-

14 General Assembly, Rule 13(g); Security Council, Provisional Rule 6; ECOSOC, Rule 9.2(f ); 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 5.2(f ). 15 UN Charter, Art. 99. 16 However, the significance of Art. 99 of the Charter is broader than only providing a legal basis for the Secretary-General to bring matters to the attention of the Security Council. All SecretariesGeneral 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); J. Cardona Llorens and M.J. Aznar Gomez in J.-P. Cot, A. Pellet and M. Forteau (eds.), La Charte des Nations Unies 2051-2082 (3rd ed. 2005). 17 UN Doc. S/4381 and SCOR, 15th yr., 873rd meeting, 13/14 July 1960, para. 18. 18 UN Doc. S/13646 (letter dated 25 November 1979 from the Secretary-General addressed to the President of the Security Council). 19 UN Doc. S/20789 (letter dated 15 August 1989 from the Secretary-General to the President of the Security Council). 20 ILO, WMO, ITU, UPU, ICAO. 21 WHO, Art. 33. 22 FAO, Art. 7, para. 5. 23 UNESCO, Art. VI.3; Rule 10(f ) of the Rules of Procedure of the General Conference. 24 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).

§715

decision-making process

507

ization generally come from the Secretariat despite its lack of a formal power of initiative.25 As a general rule, official and informal suggestions of 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 decision-making. In the field of the 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,26 and the Committee for Development Policy,27 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 that 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,28 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, in which 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.

25

R.W. Cox and H.K. Jacobson, The Anatomy of Influence 338 (1973). Based on GA Rules 155-157. 27 Previously: the Committee for Development Planning. See ECOSOC Res. 1079 (XXXIX), Doc. E/4117; ECOSOC Res. 1998/46. 28 WMO, Art. 14. 26

508

chapter six

§718

§718 In the European Union, the initiative for decision-making often emanates from the Commission. The treaties have given this organ the exclusive right of initiative for almost all legislative acts.29 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.30 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.31 Similarly it has proved impossible to replace overnight a system of interstate negotiation and compromise. Diplomats and officials are so accustomed to conference diplomacy that they continue to practice it.32 Notwithstanding the text of the treaties, numerous decisions of the European Union are initiated by interstate negotiations. As De Witte has observed, “in relation to important questions of policy, the real political initiative comes from the European Council”.33 Earlier, in 1969, the President-in-office of the Council observed that decision-making in the Council all too often assumed the character of intergovernmental negotiations which threatened to make the essential difference between the (then) European Community and intergovernmental organizations disappear.34 Interstate negotiations in the Union 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 that resulted in a proposal by the Commission for a European Energy Charter.35

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, a proposal of such agenda items is not the original initiative for

29 Other acts than legislative acts shall be adopted on the basis of a Commission proposal where the Treaties so provide; see TEU, Art. 17.2. 30 TFEU, Art. 293.1. 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). 31 A. Zimmern, The League of Nations and the Rule of Law, 1918-1935 (1936), at 492. 32 See J. Kaufmann, Conference Diplomacy: an introductory analysis (2nd rev. ed. 1988). 33 In Kapteyn & VerLoren van Themaat, The Law of the European Union and the European Communities (4th rev. ed., edited by P.J.G. Kapteyn, A.M. McDonnell, K.J.M. Mortelmans, C.W.A. Timmermans and the late L.A. Geelhoed, 2008), at 324. 34 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. 35 See Europe Documents No. 1691 (1991).

§720

decision-making process

509

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 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 (for example, 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.36 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 NGOs representing the “private sector”: authors, inventors, publishers, broadcasters and others.37 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.38 Their influence on initiating action by international organizations can however usually only be indirect. If individuals wish for an international organization to act, they must approach it through one of the institutions that is competent to take initiatives: national governments, private international organizations representing the interest involved, international organs if the matter falls within their jurisdiction. A

36

ITU, Res. 3, adopted at the 1992 Additional Plenipotentiary Conference. A. Bogsch, Brief History of the First 25 Years of the World Intellectual Property Organization 131-133 (1992). 38 H. Maza, Neuf Meneurs Internationaux; de l’initiative individuelle dans l’institution des organisations internationales (1965). 37

510

chapter six

§722

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.39

§723 If an EU institution, body, office or agency has failed to address to any natural or legal person any act other than a recommendation or an opinion, that person may bring an action before the Court of Justice: the action for failure to act.40 The Court may then establish the obligation of the Union organs to act, in which case the person concerned will have taken the initiative for the decision which the Union organ unlawfully neglected to take, despite the fact that the basis for this initiative is to be found in the legal obligation incumbent on the Union organ concerned. §724 Parliamentary organs sometimes allow individuals to submit petitions.41 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. 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 39

European Convention on Human Rights, Art. 46(2). TFEU, Art. 265; H.G. Schermers and D. Waelbroeck, Judicial Protection in the European Union 463-484 (6th ed. 2001). 41 Examples are the Parliamentary Assembly of the Council of Europe (Rule 63 of the rules of procedure) and the European Parliament (Art. 227 TFEU). See A. Plate, Le droit de pétition à l’Assemblée parlementaire du Conseil de l’Europe, 23 AFDI 868-873 (1977). 40

§726

decision-making process

511

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 that 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 foresee 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.42 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.43 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 (which often acts as co-legislator with the Council), 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 further debates. States often make use of the regional group meetings, held in many international organizations, to gather support.44

42

See e.g. GA Rules 78, 120. 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. 44 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. 43

512

chapter six

§727

In the International Civil Aviation Organization, for example, draft conventions may be considered only six months after their transmission to the member states.45

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 structure 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 decisionmaking 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.46 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 one-third 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 insertion of the words “the Indian” before “and the Atlantic Ocean”, for which a two-thirds majority would be required.47

§728 It would be incorrect to leave the framing of a proposal entirely to the state that 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 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.

45 ICAO Assembly Res. A7-6, reproduced in ICAO Doc. 7669-LC/139/4 (Legal Committee, 4th ed. 1989), at 3. 46 Zimmern, op. cit. note 31, at 237. 47 For another comparable example, see UNJY 200-201 (1971).

§729

decision-making process

513

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 UN48 (the 1958 Conventions on the Law of the Sea),49 and for the main pieces of legislation of the European Union. 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.50 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 1931.51 Similar procedures are followed by other international organizations.52 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 omitted; b) the first author of this book 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, however, this disadvantage does not seem overwhelming.

48 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). 49 UN Doc. A/3159, at 2. 50 UN Doc. ST/LEG/SER.B/21, at 16-23. 51 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). 52 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 881-901 (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).

514

chapter six

§731

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 by the ILC,53 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).54 §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 investigation. At its fourth session, however, the General Assembly decided that such specific approval was not necessary.55 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.56 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.57 On the basis of the extensive discussions in the ILC, he drafted a new report,58 which the ILC discussed in 1951. After making some further amendments, the ILC adopted its first draft59 on which the member states of the UN were invited

53 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). 54 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). 55 Publication No. 22 of the Netherlands Ministry of Foreign Affairs, at 122; YUN 1948-49, at 950-951. 56 GA Res. 374 (IV). 57 UN Doc. A/CN.4/17. 58 UN Doc. A/CN.4/42. 59 UN Doc. A/1858.

§733

decision-making process

515

to submit their comments. When he had received the comments of 18 states,60 François prepared a new draft.61 In the meantime, the Secretariat of the UN collected all national laws and international treaties concerning the high seas.62 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.63 The new ILC report64 was again forwarded to the members of the UN and to interested intergovernmental organizations, which were invited to submit their comments. Observations were submitted by 25 members of the UN and by the International Commission for the Northwest Atlantic Fisheries.65 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.

§733 Having studied the comments and three further reports of its rapporteur,66 the ILC made its final draft on the regime of the high seas in 1956.67 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.68 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 abovementioned 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.69 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 Law70 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

60

Published in Documents A/CN.4/55 (with six addenda), A/CN.4/70, and A/2456. A/CN.4/51. Laws and Regulations on the Regime of the High Seas, UN Doc. ST/LEG/SERB/1 and 2. 63 A/CN.4/60. 64 UN Doc. A/2456. 65 Yearbook ILC (1956 II), at 37-102. 66 UN Documents A/CN.4/69; A/CN.4/79 and A/CN.4/103. 67 UN Doc. A/3159 (GAOR 11, Suppl. 9), at 7-9; 23-31. 68 UN Documents A/CN.4/26; A/CN.4/30; A/CN.4/32; A/CN.4/38. 69 Publication No. 56 of the Netherlands Ministry of Foreign Affairs, at 10-11. 70 A commission composed of individual experts on international law. At the time François was its president. 61 62

516

chapter six

§735

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 in which treaties were being prepared (for example, the Conventions on Diplomatic Relations, Consular Relations, the Law of Treaties, Representation of States in their Relations with International Organizations of a Universal Character, Succession of States in Respect of Treaties, the Law of Treaties between States and International Organizations or between International Organizations, and the Statute of the International Criminal Court). With regard to decision-making, the procedure would not have been substantially different if the conventions had been made by the General Assembly itself.

§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 ).71 Further comments were submitted by 21 states, including the Federal Republic of Germany (at the time not a member of the UN), and by three international organizations.72 §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,73 specialized agencies and 9 private international organizations met in Geneva from 24 February to 28 April 1958.

71

For the texts, see UN Doc. A/Conf.13/37. UN Doc. A/Conf.13/37. 73 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). 72

§739

decision-making process

517

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.74 b. Decision-making and legislation in the European Union75 §739 The procedures for decision-making and for legislation in the European Union are substantially different from that in the UN. In particular, since the entry into force of the Lisbon Treaty (1 December 2009), a distinction can be made between procedures for the adoption of EU legislation and other decision-making procedures.76 As far as the latter is concerned, the EU treaties contain many different procedures, such as those on amendment of the Treaties (Article 48 TEU), on the admission of new members (Article 49 TEU), and on withdrawal from the Union (Article 50 TEU), as well as numerous procedures governing the EU’s external action (for example, Article 22 TEU) and the common foreign and security policy (for example, Articles 24 and 31 TEU). All these other decision-making procedures are much less supranational than the legislative procedures: the role of the Commission and the European Parliament is rather limited; the role of the member states is predominant; and, in most cases, decisions have to be taken unanimously. Although there are some nuances (for example, the consent by the European Parliament is required for the admission of new members (Article 49 TEU)), these decision-making procedures generally resemble ‘intergovernmental’ decision-making in many other international organizations. The EU is different from almost all other international organizations, as far as decision-making is concerned, in that it adopts legislation and has specific legislative procedures. In the procedures for the adoption of legislative acts, there is a

74 Convention on the High Seas, Arts. 2, 3, 4; Convention on the Territorial Sea and the Contiguous Zone, Art. 14, para. 1. 75 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 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). 76 See e.g. Art. 17.2 TEU. Art. 24.1 TEU explicitly provides that in the field of the common foreign and security policy “[t]he adoption of legislative acts shall be excluded”.

518

chapter six

§739A

strong role for the Commission and the European Parliament. These institutions counterbalance the role of the member states in the adoption of EU legislative acts, a role that is defined in the decision-making rules of the Council and that is far less predominant than their role in the other EU decision-making procedures. The paragraphs below will focus on the procedures for the adoption of EU legislation. §739A The European Commission has an exclusive right of initiative for EU legislative acts, except when the Treaties provide otherwise.77 It often consults experts of the member states before making any proposal.78 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)79 in which the governments expressed their desire to be consulted on important proposals before they are officially made.

§740 Under the ordinary legislative procedure, the Commission has to submit its proposal for EU legislative acts to the European Parliament and the Council. In other legislative procedures, the Commission has to submit its proposal only to the Council, which subsequently usually has to refer it 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).80 In the interests of generating 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 always Council practice. Under the ordinary legislative procedure, in case the Council does not approve the European Parliament’s position adopted at first reading, it is obliged,

77 TEU, Art. 17.2. An example of an exception is Art. 76 TFEU (acts shall be adopted “on a proposal from the Commission”, or “on the initiative of a quarter of the member states”). 78 As of 1 January 1994, when the Treaty on a European Economic Area (EEA) entered into force, the Commission was also obliged to seek advice from experts of the EFTA members of the EEA (EEA Treaty, Arts. 99-101). The EEA Treaty was concluded between the EEC, the ECSC, the (then) 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). 79 On this crisis, see below, §780. 80 See on the limited number of cases in which other organs have to be consulted, Raworth, op. cit. note 75, at 60-62.

§741

decision-making process

519

after it has adopted its position at first reading, to inform the European Parliament “fully of the reasons which led it to adopt its position at first reading”.81 §741 The specific powers of the European Parliament in the decision-making process and in legislation have been discussed in Chapter Five (§576-593). Traditionally, its role was usually limited to giving non-binding opinions. However, the Single European Act (1986) and subsequent amendments of the EC Treaty (now the Treaty on the Functioning of the European Union) have introduced three new procedures that give the Parliament a much more important role in legislation: the assent procedure (now referred to as the consent procedure); the cooperation procedure; and the co-decision procedure.82 With the entry into force of the Lisbon Treaty (1 December 2009), the co-decision procedure was renamed as the “ordinary legislative procedure”, and has become the standard procedure used for EU legislation. Although this has streamlined the process of adopting EU legislation, there are still numerous different procedures for passing legislation and decision-making more generally. As a consequence of the Parliament’s different decision-making powers under these different procedures, the choice of the legal basis for a given proposal has become more important: the applicable procedure depends on the choice of this legal basis. There has never been one uniform procedure for adopting legislation and decision-making in the EU, but as long as the Parliament’s powers were the same in most Treaty provisions, the choice of legal basis was generally only important because of the divergent rules for voting in the Council (simple majority, qualified majority, unanimity). Indeed, 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 provisions for adopting legislation and decision-making in the EU Treaties now have two variables: the powers of Parliament; and the voting rules of the Council. This explains why the choice of a legal basis for EU legislation and for other EU decisions has become more important since the 1980s. In practice, the Commission’s proposal contains a reference to the legal basis. The Council may change this legal basis by simple majority vote.83 Under the ordinary legislative procedure, the European Parliament may do so as well. If the Commission insists on its choice of the legal basis, or if the European Parliament disagrees with the choice made by the Council, these institutions may start proceedings before the Court.84

81

TEU, Art. 294.6. See Raworth, op. cit. note 75, 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 was no longer used except for certain decisions relating to the economic and monetary policy. The 2007 Lisbon Treaty has abolished the cooperation procedure. 83 See more in detail Raworth, op. cit. note 75, 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. 84 For the European Parliament, such a right was only included in the Treaties (Art. 263 TFEU) by the 1997 Amsterdam Treaty after it had been created, under certain conditions, by the Court itself (Case C-70/88, Parliament v. Council, ECR 1990, at 2041). 82

520

chapter six

§741

This issue may best be illustrated by briefly examining a few important “legal basis judgments” of the EU 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 114 TFEU, 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 192 TFEU, on action relating to the environment). At that time, 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 brought an action for annulment. 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 (the powers of 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.85 In another case, the Commission sought annulment of Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law. This decision was adopted on the basis of a number of provisions in Title VI of the EU Treaty (police and judicial cooperation in criminal matters), as a result of which the Council had to decide unanimously, with only a limited role for the European Parliament (consultation procedure). According to the Commission, this legal basis was wrong, as the purpose and content of the decision were “within the scope of the Community’s powers on the environment, as they are stated in Articles 3(1) EC and Articles 174 to 176 EC”. According to the Commission, Article 175 (now Article 192 TFEU) should have been the legal basis, as a result of which the co-decision procedure (now called the ordinary legislative procedure) would apply. The Court agreed and annulled the decision: “on account of both their aim and their content, Articles 1 to 7 of the framework decision have as their main purpose the protection of the environment and they could have been properly adopted on the basis of Article 175 EC”.86

85 Case C-300/89, Commission v. Council, ECR 1991, at 2867. See also the annotation by H. Somsen in 29 CMLRev. 140-151 (1992); N. Emiliou, Opening Pandora’s Box: the Legal Basis of Community Measures before the Court of Justice, 19 ELRev. 488-507 (1994); M. Klamert, Conflicts of Legal Basis: No Legality and No Basis but a Bright Future under the Lisbon Treaty?, 35 ELR 497-515 (2010). 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. 86 Case C-176/03, Commission v. Council, ECR 2005, at I-7879.

§741A

decision-making process

521

A third example is the decision taken by the Council on the conclusion of an agreement between the EC and the US on the processing and transfer of Passenger Name Record data by air carriers to the US Department of Homeland Security. This decision was based on Article 95 EC (now Article 114 TFEU); therefore, the co-decision procedure was applied. According to the European Parliament, this legal basis was wrong as the decision did not have as its objective and subject matter the establishment and functioning of the internal market. Its purpose was to make lawful the processing of personal data as required by US legislation related to the fight against terrorism. The Court agreed that Article 95 was wrong as a legal basis and annulled the decision.87 Subsequently a new decision was adopted, based on Articles 24 and 38 of the EU Treaty.88 A final example is a Council decision in which an EU financial contribution was given to the Economic Community of West African States in the framework of the latter’s moratorium on small arms and light weapons. This decision was based on Article 14 EU (now Article 28 TEU), a provision within Title V of the TEU (common foreign and security policy). The European Commission, supported by the European Parliament, asked the Court to annul this decision, claiming that the Council should have used a different legal basis, namely the provisions in the (then) EC Treaty on development cooperation policy (Article 179 EC, now Article 209 TFEU). The Court looked at this case in particular from the perspective of (now) Article 40 TEU, providing that the implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions as laid down in Articles 3-6 TFEU. It referred to its earlier case-law: if a measure taken pursues a twofold aim or if it has a twofold component, and if one of those is the main one (the other being merely incidental), then the measure must be based on the article related to the main aim/component. If the different aims/components are of equal importance, without one being incidental to the other, such decisions must, as a rule, be based on both legal bases. However, this solution was impossible in this case, which partly fell within the development cooperation policy (covered by the TFEU) and partly in the area of the common foreign and security policy (TEU). In view of Article 40 TEU, the Court annulled the decision, concluding that it should not have been based on (now) Article 28 TEU.89

§741A The ordinary legislative procedure consists of the following steps.90 The first reading is similar to the consultation procedure: following a proposal from the Commission, the European Parliament adopts its position and the Council takes a decision. If the Council approves the European Parliament’s position, the act shall be adopted. However, in most cases there is no agreement at the end of this first reading. In these cases, the decision by the Council is not final, but is called the “Council’s position at first reading”. This is communicated to the European Parliament (EP). It is the starting point for the second reading. The EP has three options. First, if it approves this common position, or does not take a decision within the prescribed time limit, the act concerned shall be deemed to have been adopted in the wording which corresponds to the position of the Council.

87

Joined Cases C-317/04 and C-318/04, ECR 2006, at I-4721. OJ 2006, L 298/27. Case C-91/05, Commission v. Council, ECR 2008, at I-3651 (in particular paras. 73-77). On this judgment, see R. van Ooik, Cross-Pillar Litigation Before the ECJ: Demarcation of Community and Union Competences, 4 EUConst. 399-419 (2008). Van Ooik concludes that this judgment must have been “a disappointment for member states that had argued on principle that ‘CFSP matters do not belong before the Court’ (id., at 419). 90 The precise details of this procedure are laid down in Art. 294 TFEU. 88 89

522

chapter six

§742

Second, if the EP rejects the common position, the proposed act shall be deemed not to have been adopted. Third, if the EP proposes amendments to the Council’s position at first reading, the amended text shall be forwarded to the Council and to the Commission. If the Council approves the amendments, the act in question shall be deemed to have been adopted. 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 does not approve a joint text, the proposed act shall be deemed not to have been adopted. If, within that period, the Conciliation Committee approves a joint text, the third reading starts: 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. The Conciliation Committee has almost always been able to approve a joint text.91 In this ordinary legislative procedure, the European Parliament is indeed a co-legislator. 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 considerably extended over time. It has now indeed become the standard procedure for adopting EU legislation. §742 In all decision-making and legislative procedures, each institution and organ has its own procedure for internal decision-making. Within the European Parliament, the proposal is usually referred to one of its committees, which appoints a rapporteur to prepare a report. The final report of the committee is usually discussed in each of the political groups. Unlike the committees, which may discuss a proposal extensively over several days, the political groups usually have little time for discussing proposals. The report is finally adopted at a plenary session.92 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.93

91 This happened for the first time (since the entry into force of the 1997 Amsterdam Treaty) in April 2009, when Parliament and Council could not find a compromise on a new Working Time Directive. See press release European Parliament, 28 April 2009. 92 See more extensively on procedures within Parliament, Raworth, op. cit. note 75, at 45-52; R. Corbett, F. Jacobs, M. Shackleton, The European Parliament (7th ed. 2007), in particular at 126-155. 93 See more extensively on the discussion within the Economic and Social Committee, Raworth, op. cit. note 75, at 56-60.

§743

decision-making process

523

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. §743 Decision-making in the Council is prepared by the Committee of Permanent Representatives (COREPER, see above, §393). COREPER is assisted by over one hundred working groups. The aim of COREPER’s work is to secure the widest possible agreement before the matter is discussed by the Council.94 It has been observed that COREPER can, in particular, make significant contributions to decision-making by the Council “on issues which are both politically sensitive and technically complex”.95 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 consent procedure or for first reading of the ordinary legislative procedure. 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 1990.96 §744 During the debates in COREPER and in the Council, the Commission may change its proposal.97 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, and usually also insufficiently informed to challenge the position taken by individual national ministers in European institutions. §746 During the phase preceding the adoption of a legislative act, 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

94 See Rules of Procedure of the Council, Art. 19.2; Raworth, op. cit. note 75, 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). 95 See D. Bostock, COREPER Revisited, 40 JCMS 215-234 (2002). 96 Raworth, op. cit. note 75, at 69. 97 Art. 293.2 TFEU. Cf. Case 280/93, Germany v. Council, ECR 1994, at I-4973, paras. 27-43.

524

chapter six

§747

body, the Joint Committee, “at the significant moments” at the request of one of the EEA parties.98 This has to be “a continuous information and consultation process”, in which parties “shall cooperate in good faith”.99 But apart from these EEA consultations, EU legislation takes place within the context of the EU 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 and the European Parliament. Following the adoption of such EU legislative acts, 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 Union legislation “in order to guarantee the legal security and the homogeneity of the EEA”.100 B. Discussion of proposals 1. Date of submission §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.101 In the African Union, this period is one year.102 In the IAEA 90 days is sufficient;103 for amendments to the Statute of the International Criminal Court, this period is three months.104

§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.105

98 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. 99 EEA, Art. 99, paras. 3 and 4. 100 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. 508-526 (1994). 101 UNESCO, Art. 13; WHO, Art. 73; WMO, Art. 28; IMO, Art. 66. 102 AU, Art. 32.3. 103 IAEA, Art. 18A. 104 ICC Statute, Art. 121.2. 105 UPU, General Regulations, Art. 122, para. 1.

§749

decision-making process

525

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 of a session,106 but specific proposals should be circulated to all delegations not later than the day preceding the meeting at which they will be discussed.107 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 90 days before the opening of the session.108 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 abovementioned time required for translation and duplication, proposals concerning a subject matter will have to be submitted a few days in advance of the deadline.109 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 taking 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.

106 GA Rule 14; Rule 12 of the Rules of Procedure of the Assembly of States Parties to the ICC Statute. 107 GA Rule 78. 108 GA Rule 24. 109 See e.g. UN Conference on the Law of the Sea, Vol. III (A/Conf. 13/39), at 74.

526

chapter six

§751

For political reasons, however, it may 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.110 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 19471948 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 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.111

§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.112 Separate meetings of the sponsors of a proposal may delay decisionmaking.113 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 cosponsors.114 There is no uniform policy as to whether states that 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.115 The Economic and Social Council of the UN (ECOSOC) does, however, permit such co-sponsorship.116 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).117 110 See e.g. the discussions on proposal A/Conf.20/L.4Rev.1 at the Conference on Diplomatic Intercourse and Immunities (Vienna 1961). 111 YUN 1947-1948, at 417-418. 112 J. Kaufmann, United Nations Decision Making 122 (1980). 113 On meetings of groups of sponsors, see also Baehr, op. cit. note 44, at 33, 53-59. 114 UNJY 1976, at 180. See also R. Sabel, Procedure at International Conferences – A study of the rules of procedure at the UN and at intergovernmental conferences 146-150 (2nd ed. 2006). 115 See e.g. UNJY 1983, at 169. 116 UNJY 1971, at 203-204. 117 UNJY 1995, at 421-424.

§752

decision-making process

527

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 one other delegation before an amendment can be brought up for discussion.118 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 decisionmaking ‘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 used to expedite the decision-making process. In the Treaties, as well as in several Council decisions, time-limits were set for future decisions. 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 socalled 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

118 ITU, General Rules of Conferences, Assemblies and Meetings of the Union (adopted in 2002), Nr. 18.1.

528

chapter six

§755

advisors and assistants diminishes until at last the ministers alone discuss the remaining obstacles with a member of the Commission.119

§755 Marathon sessions have some obvious disadvantages. When there is a timelimit 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 in relation 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,120 they are practically unavoidable. One study has examined vote-trading in the UN, in the WTO and in the International Whaling Commission, and came to the conclusion that in most cases it was not possible “to determine with certainty whether vote-trading is harmful or beneficial”, and that “in some cases there are good reasons to believe that vote-trading maximizes welfare”.121 §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 European Commission has sometimes made progress in European integration by ‘packaging’ some agricultural interests of France together with certain

119 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, 10 Europese Monografieën 49-50 (1968). 120 T. Hovet, Jr., Bloc Politics in the United Nations 9-10 (1960). 121 O. Eldar, Vote-trading in International Institutions, 19 EJIL 3-41 (2008), at 38.

§758

decision-making process

529

German industrial interests, this occasionally proving to be the only possibility for progress. §758 Package deals seem acceptable in the European Union, 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 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 conflict 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.122 In the IMF, separate meetings of the Group of Ten (rich states), which holds a voting majority in the organization, present the same risk.123

6. Informal consultation, pressure §760 A variety of methods may be utilized by members seeking to enhance (or to reduce) 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 the 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 welltried 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.124 §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

122

See e.g. General Assembly, Third Committee, 27th Session. J. Gold, Voting and Decisions in the International Monetary Fund (1972), at 95-97. 124 See e.g. L. Feuerle, Informal Consultation: A Mechanism in Security Council Decision-Making, 18 NYUJILP 267-306 (1985). Cf. also F. Delon, La concertation entre les membres permanents du Conseil de sécurité, 39 AFDI 53-64 (1993). 123

530

chapter six

§762

convince delegations of the necessity of particular proposals. This kind of pressure may benefit decision-making. During the 1958 UN Conference on the Law of the Sea, the seafaring states benefited 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 delegations125 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.126 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.127

§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.128 7. Caucuses §763 Within international organizations member states that 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 decision-making 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.129 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.

125

NGO/Conf.13.WPA. A/Conf.13/C3/L6. A/Conf.13/38, at 144. 128 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). 129 See M. Hippolyte, La problématique des groups aux Nations Unies, 20 R.F.Sc.Pol. 453-482 (1970). 126 127

§765

decision-making process

531

§765 The composition of caucuses reflects the positions taken by members with 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.130 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.131 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.132 §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 20 to 30 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 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

130

See R.W. Cox, ILO: Limited Monarchy, in Cox and Jacobson, op. cit. note 25, at 124. G. Abi-Saab, UNCTAD, The Issues and their Significance (Lecture No. 19 of the Dag Hammarskjöld Foundation, Upsala, 1968), at 9-10. 132 A New United Nations Structure for Global Economic Cooperation, UN Doc. E/AC.62/9, at 30-32 (1975). 131

532

chapter six

§769

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 preempted 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.133 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.134 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 to that effect 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.135 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 proposal upon the budget estimates of the UN.136 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.137 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,

133 134 135 136 137

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). GA Rule 153. See UNJY 1978, at 172-173.

§770

decision-making process

533

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.138 Other organizations have somewhat different rules, which serve the same purpose: to take into account the financial implications of proposals before they are voted upon.139 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.140 Debates might also be closed after hearing a closed list of speakers or following the adoption of a motion to close the debate.141 In 1983, the effects of the closure of debates were discussed in a memorandum by the UN Office of Legal Affairs.142 The main consequences are that no further substantive statements may be made as to the item under discussion, and that 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 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”.143

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). In such cases, the chairman of an organ asks whether he ‘may take

138

Id. See e.g. UNESCO, Rules of Procedure of the General Conference, Rules 79-80. Cf. also Art. 218.6(a)(iv) TFEU, requiring the European Parliament to give its assent to agreements concluded by the Union which have important budgetary implications for the Union. 140 On closure of debate, see also Sabel, op. cit. note 114, at 188-200. 141 See e.g. GA Rules 73 and 75. 142 UNJY 1983, at 174-177. 143 Id., at 175. 139

534

chapter six

§772

it that it is the wish of this organ to adopt the proposal concerned’.144 If this is followed by silence, the proposal is adopted. If it is followed by one or more objections raised by members of this organ, or by a request for a vote, the proposal is not adopted. 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 non-binding 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.145 However, the overruling of a minority if no consensus can be arrived at is a rather crude way of solving conflicts and it is in practice, therefore, not always an acceptable form of decision-making (see below, §863-867). In the UN General Assembly, the practice has emerged that even when part or parts of a proposal have been voted on separately, the decision on the proposal as a whole may be taken not by voting but by consensus.146 §772 A marked tendency towards decision-making by consensus has been discernable in a large number of international organizations since the 1960s.147

144

See e.g. UNJY 2003, at 533. See e.g. 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. 146 UNJY 2003, at 533. 147 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); L. Sohn, Voting Procedures in United Nations Conferences for the Codification of International Law, 69 AJIL 310353 (1975); 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 Leontin-Jean Constantinesco 695-706 (1983); K. Zemanek, Majority Rule and Consensus Technique 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 LawMaking?, 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; T. Fitschen in Simma (ed.), op. cit. note 16, at 412-414; C.-D. Ehlermann and L. Ehring, Decision-making in the World Trade Organization, 8 JIEL 51-75 (2005); J. Tijmes-LHL, Consensus and majority voting in the WTO, 8 World Trade Review 417-437 (2009). See also the work done on this topic by the Institute of International Law: Yearbook of the 145

§772

decision-making process

535

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, “a decision shall be deemed made if neither member state issues any objections to any proposed decisions”;148 “the absence of any objection expressed by a participating State to the adoption of the decision in question”;149 “the absence of any formal objection made at the time the decision was taken”;150 or “. . . if no member, present at the meeting where the decision is taken, formally objects to the proposed decision”.151 A definition that is not only negative but has some positive elements as well is given in the constitution of the Common Market for Eastern and Southern Africa: “ ‘consensus’ means general agreement, characterized by the absence of objection to issues secured by a process that involves seeking to take into account the views of all parties concerned and to reconcile any conflicting arguments”.152 Taking decisions by consensus often involves protracted negotiations to achieve the desired concurrence of views and to avoid express objections, and an important role is often 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.153 It is important that this possibility to fall back on voting is a real possibility, that there is always a “visible shadow of a vote”,154 otherwise the danger of endless negotiations and paralysis of decision-making may become too serious. However, at the same time, such majority decisions will lack the necessary authority for those who were outvoted, which may in turn affect the implementation of such decisions. In the end, there is the delicate paradox that it both should, and should not be, taboo to vote. The decision to vote should not be taken lightly, and should be the exception rather than the rule, for cases in which decisions are really necessary and consensus really cannot be reached. However, the decision to vote should be a real option in such cases in view of the real danger of paralysis that is inherent in decision-making by consensus. Obviously, the role of the chairman is crucial in dealing with this paradox.

Institute of International Law, Vol. 68, Part II (Session of Berlin, 1999), at 155-183 (the proposed resolution was not adopted). 148 Charter of the Shanghai Cooperation Organization, Art. 16. 149 OSCE Rules of Procedure, Rule II(A)2. See also UNJY 1982, at 177; UNJY 1987, at 174-175. 150 Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, Art. 16.1. 151 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). 152 Art. 2. 153 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”. 154 Ehlermann and Ehring, op. cit. note 147, at 52 and 72-74.

536

chapter six

§773

This section on consensus is placed here within 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, considered in the context of the general development of decision-making in international organizations. B. Some examples §773 Although decision-making by consensus has been widely adopted since the 1960s, it had been applied earlier. For example, since 1948 decisions 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.155 §774 No voting took place during the UN General Assembly’s 19th annual session (1964).156 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.157 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.158 Increasing numbers of resolutions of the Assembly itself have also been taken by consensus. Since 1972, more than half of all resolutions adopted per annual session, and since the 1990s usually more than 70 per cent, have been adopted “without a vote”.159 In general, voting is preferred if the major-

155 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 260262. 156 With the exception of one vote, see Zemanek, op. cit. note 147, at 862-863. 157 Id. See also below, §1459. 158 Id. 159 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: for the 2008 data, see www.state.gov/documents/organization/122182.pdf ). The State Department annually prepares a report to US Congress on voting practices in the UN General Assembly

§776

decision-making process

537

ity 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.160 While the official records only refer to resolutions “adopted 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”;161 they therefore “do not consider themselves too closely associated with the adopted text”.162 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: those of the richer states and those 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.163 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 the Secretariat often devote considerable energy to the organization of such consultations, and UNCTAD formalized these consultation proceedings.164 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. Any 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

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). 160 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. 161 Peterson, op. cit. note 159, at 86. See also Fitschen, op. cit. note 147, at 414. 162 UNJY 1987, at 174. 163 Statement of the Secretary-General of UNCTAD at the end of the UNCTAD Conference in 1964. 164 UN Doc. A/5749. See also, Conciliation Procedures in UNCTAD, An Explanatory Note, 2 JWTL 445-466 (1968).

538

chapter six

§778

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 to be making progress.165 Nor does UNCTAD adopt decisions by majority vote: as a rule, decisions are taken by consensus.166 §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.167 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 ability to take the initiative to produce so-called informal negotiating texts, which effectively obliged interested states to take positions to encourage or discourage the formation of consensus around them.168 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”.169 §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.170 There are many other examples.171

165

UNJY 1986, at 282, and information obtained from the UNCTAD Secretariat (Jan. 1994). Abi-Saab, op. cit. note 131; U. Villani, Conciliation and Consensus in UNCTAD, 2 ItYIL 61-79 (1976). 167 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). 168 Plant, op. cit. note 147, at 527. 169 Id., at 527-528. See also Sohn, op. cit. note 147. 170 UPU, Rules of Procedure of Congresses, Art. 20.1. 171 Rules of Procedure of the Tin Council under the 1981 International Tin Agreement, Rule 18(d); other international commodity organizations, see e.g. the 2006 International Tropical Timber Agreement (Art. 12.1) and the 2007 International Coffee Agreement (Art. 14(1)); 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 166

§779

decision-making process

539

A good compromise between the advantage of seeking consensus and the need to avoid endless negotiations has been found in the rules for decision-making 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 twothirds majority of the members present and voting unless specified otherwise in this Convention”.172 This provision also provides a good illustration of the important role of the chairman of an organ in the consensus procedure. Another compromise solution can be found in the constitution of the International Renewable Energy Agency (IRENA). The Assembly – the general congress of this organization – shall take decisions on matters of substance by consensus of the members present. “If no consensus can be reached, consensus shall be considered achieved if no more than 2 members object, unless the Statute provides otherwise”.173 Some rules of procedure may oblige the chairman to attempt to secure consensus on proposals.174 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.175

Committee (Art. 11.2 of the rules of procedure (published in OJ 1994, L 301/10)); the Assembly and 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)); Agreement on the Establishment of the International Network for Bamboo and Rattan (Arts. 8.7, 11.1); 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); Assembly of the African Union (Art. 18.1 Rules of Procedure); Charter of the Shanghai Cooperation Organization (Art. 16); ASEAN Charter (Art. 20.1); Convention of the Asia-Pacific Space Cooperation Organization (Art. 14.2); European Council (TEU, Art. 15.4); see also the draft standard rules of procedure for UN conferences, Rule 51.1 (UN Doc. A/37/163). 172 Chemical Weapons Convention, Art. VIII.18. The same rule is used by the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization (Rules 25-26 of the Rules of Procedure). A similar rule – albeit without a 24-hour deferment – exists in other organizations. Examples are the Council and the Board of the International Network for Bamboo and Rattan (Arts. 8.7 and 11.1 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); the Council of the Agency for International Trade Information and Cooperation (Art. 10 of the 2002 constitution of this organization) and the Commission of the South Pacific Regional Fisheries Management Organization (Art. 16 of the constitution). 173 IRENA, Art. IX.F. 174 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). 175 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).

540

chapter six

§779A

In the IMF, for example, this usually leads to consensus;176 it is only exceptional that a consensus cannot be reached.177 §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 substantive (not procedural) decisions.178 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) in The Hague, 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”.179 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.180 The adoption of a decision by consensus in this way 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.181 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

176

Gold, op. cit. note 123, at 195; Ferguson, op. cit. note 145, 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). 178 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. 179 See the report of the 6th meeting of the Conference, Doc. UNEP/CBD/COP/6/20, at 57. 180 Id., at 57-60. 181 Id. See also Res. 57/260 of the UN General Assembly, in particular para. 2, footnote 5. 177

§779B

decision-making process

541

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 decision-making rules provide for some kind of majority voting (for example, voting by two-thirds majority, or even through ‘consensus minus one’). §779B Something similar happened in the early morning of 11 December 2010, at the end of the UN Climate Change Conference in Cancun, where two decisions were adopted by consensus, notwithstanding formal objections raised by Bolivia.182 The Conference of the Parties to the Framework Convention on Climate Change has always functioned on the basis of draft rules of procedure. However, there has never been agreement on draft Rule 42 on voting with respect to the adoption of substantive (not procedural) decisions. This draft Rule 42 is therefore placed between brackets and sets out two alternative provisions. According to Alternative A, substantive decisions should be taken by consensus. However, if all efforts to reach consensus have been exhausted, these decisions may be adopted by a two-thirds majority vote of the parties present and voting (with three exceptions). According to Alternative B, these decisions can only be taken by consensus.183 In practice, in the absence of agreement on draft Rule 42, substantive decisions have always been taken by consensus. The Mexican Foreign Affairs Minister Patricia Espinosa was elected President of the Conference of the Parties at Cancun. There was overwhelming support for the proposed draft decisions, but no unanimous agreement, since Bolivia raised strong objections, both in the informal and in the formal meetings. It insisted that no decisions could be taken as long as it objected to the draft texts. Nonetheless, President Espinosa concluded that the decisions were adopted by consensus. After one of these decisions was adopted, the Bolivian ambassador stated:184 You cannot say there is consensus. You can only take note. This is an attempt to violate rules of the Convention and the United Nations. Consensus is not by a majority. There must be an absence of explicit rejection of a decision. Despite our objection, the decision was adopted. We are going to apply to all international bodies to preserve the rules of consensus. We came here to negotiate and not to gavel an injustice. Not even in Copenhagen was this done and there was respect for the rule of consensus. The (Copenhagen) Presidency did not have the gall to hammer through a decision. Now there is a violation of rule. This is an unhappy conclusion. I ask you to review your decision and return to the path of law.

182 Decision 1/CP.16, adopted by the 16th session of the Conference of the Parties (COP 16) to the United Nations Framework Convention on Climate Change, and Decision 1/CMP.6, adopted by the 6th session of the Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol (COP/MOP 6). 183 Doc. FCCC/CP/1996/2. See F. Yamin and J. Depledge, The International Climate Change Regime – A Guide to Rules, Institutions and Procedures (2004), in particular at 441-445. 184 See http://peoplesclimatemovement.net/component/content/article/204-twn-cancun-newsupdate-no-19 (January 2011). See also: Earth Negotiations Bulletin, Vol. 12 No. 498 (13 December 2010), in particular at 5-6. This statement was made in the COP/MOP 6 meeting and related to Decision 1/CMP.6.

542

chapter six

§779C

In response, President Espinosa said that consensus did not mean unanimity, and that there was no right of veto; she could not disregard the position and requests of 193 parties to adopt the decision.185 Some participants were upset that decisions were adopted notwithstanding the formal objections of Bolivia, but the vast majority supported President Espinosa. Following the adoption of the decisions, there were standing ovations, and Mexican President Calderón stated that the Cancun Conference marked “a new era of international cooperation on climate change”.186 The prevailing view was that, following the failure of the 2009 Copenhagen Conference, another failure should be avoided at all costs. Despite modest expectation for progress prior to the start of the Conference, there was a strong determination amongst the 12,000 participants (including some 5,200 government officials) to bring the Cancun Conference to a successful close, and to demonstrate that it is not impossible to achieve results in these large-scale multilateral negotiations on climate change. These events in 2002 (The Hague) and 2010 (Cancun) illustrate the importance of having agreed rules on decision-making. In these two cases, the meetings concerned operated on the basis of the practice to take decisions by consensus. It would have been more difficult for the presidents of these meetings to neglect the formal objections by one participant if there had been an adopted rule that decisions could only be adopted by consensus. Nevertheless, the presidents took a considerable risk by adopting the relevant draft decisions. Under these circumstances, the reactions of the other participants are crucial. In Cancun, there was overwhelming support for the President; there was not much support for ‘persistent objector’ Bolivia, less than was given in 2002 to Australia (the ‘persistent objector’ in the Biodiversity Conference of the Parties). Preferably, agreement should be reached on the decision-making rules for these large-scale meetings. The rule of law should govern the procedure of such meetings, rather than the law of the jungle. Such agreement should avoid a pure consensus rule, without any possibility to vote if no consensus can be reached (see, for example, the abovementioned decision-making rules of the OPCW and IRENA, §779). The 2002 Conference in The Hague and the 2010 Cancun Conference have demonstrated that, in these cases, the strong collective political will to achieve results may prevail over the wish not to take decisions without consensus. If it proves impossible to reach agreement on decision-making rules, these two important precedents will make it easier for future meetings to adopt decisions that are in fact ‘consensus-minus-one decisions’. §779C At the same time, there are also examples of important multilateral conferences where decision-making by consensus has worked well. In June 2010 in Kampala, the Review Conference of the International Criminal Court adopted by consensus an agreement on the crime of aggression.187 For decades, negotiations

185 186 187

Id. Earth Negotiations Bulletin, Vol. 12 No. 498 (13 December 2010), at 29. Document ICC.RC/Res.6.

§780

decision-making process

543

have taken place on this crime. Not many observers and participants expected that agreement could be reached during this Review Conference.188 Unlike in the two abovementioned examples, there was agreement about the rules of procedure of the ICC Review Conference, including the rules on decisionmaking. According to these rules, every effort should be made to reach decisions by consensus; but if this is not possible, decisions on matters of substance are taken by a two-thirds majority of the states parties present and voting.189 In the dramatic final hours of decision-making, Review Conference President Wenaweser from Liechtenstein presented his “best attempt to achieve a compromise”, and asked whether it was the wish of the Review Conference to adopt the package by consensus. At that moment, it was uncertain for almost all participants whether or not the silence would be broken, blocking a consensus decision. Most eyes were fixed on the delegations of France and the UK, who had firmly and consistently indicated that the compromise package was undermining the position of the UN Security Council. At the end of the day, their wish for a consensus agreement on aggression prevailed and they could live with the result. However, unexpectedly, the delegate from Japan raised his hand. A shock was collectively felt. When the Japanese delegate stated that he had asked for the floor “with a heavy heart”, almost everyone in the room was convinced that the attempt to reach consensus had failed. The depth of this shock was only equalled, and even surpassed, by the depth of the collective release when, a few sentences later, Japan explicitly stated that it did not want to break the consensus. Long applause and cheering followed, a bagpipe played, and other scenes occurred that are rather unusual in diplomatic settings. Different factors may explain why it was possible to reach a consensus agreement on this difficult issue of the crime of aggression. One of these factors is that almost every State Party from the outset indicated that it had strong preference for consensus decision-making, or even that it did not want to vote as this would be divisive for the International Criminal Court. The logical consequence of aiming for consensus is that there must be flexibility and willingness to compromise, and this was demonstrated by all the parties in Kampala. Another factor is the strong, determined leadership role of the president. §780 The original constitution of the European Economic Community (1957) stipulated that after some time (beginning of 1966), the rule of unanimity for decision-making 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 the 1966 milestone, 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

188 The following is mostly taken from N. Blokker and C. Kress, A Consensus Agreement on the Crime of Aggression: Impressions from Kampala, 23 LJIL 889-895 (2010). 189 Rules 51, 53.

544

chapter six

§780

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”.190 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.191 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 1985.192 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 16 days before the meeting.193 The general acceptance that majority voting was no longer taboo generated a new dynamism in decision-making, inspiring delegations to greater flexibility.194 In addition, it also led to a renaissance of decision-making by consensus, in cases where it was clear that the required majority existed and no formal vote was necessary.195 This

190 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 EWGMinisterrats: Die Beschlüsse der ausserordentlichen Tagung des EWG-Rates 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 33 (4th ed.), at 326-327; A.L. Teasdale, The Life and Death of the Luxembourg Compromise, 31 JCMSt. 567-579 (1993). 191 See Kapteyn and VerLoren van Themaat, op. cit. note 33 (4th ed.), at 326-327; 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). 192 See OJ 1986, C 306/42; Kapteyn and VerLoren van Themaat, op. cit. note 34, 2nd ed. (1990), at 250, footnote 269. 193 Rules of Procedure of the Council, Arts. 11 and 3. See also 20th Report on the Activities of the Communities – 1986, at 36. 194 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 75, at 75-76; V. Götz, Mehrheitsbeschlüsse des Rates der Europäischen Union, in O. Due et al. (eds.), Festschrift für Ulrich Everling 339-353 (1995). 195 See the General Reports on the Activities of the Communities/European Union, published annually; specific sections are devoted to voting in the Council (e.g. General Report 1999, at 376). In most recent years, such sections are no longer included.

§781

decision-making process

545

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 decisionmaking in international organizations. §782 In most national and other communities, decision-making by unanimity has preceded majority decision-making.196 Sociologists consider decision-making 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, 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.197 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.198 §783 At the global level, international organizations could traditionally take decisions almost exclusively by unanimity,199 in a manner similar to decision-making 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

196 See A.J.P. Tammes, Hoofdstukken van Internationale Organisatie 7 (1951). Most of what follows is based on this early and 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). 197 Id., at 8. 198 Id., at 12-15; Zemanek, op. cit. note 147, at 869-870. 199 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).

546

chapter six

§784

of state sovereignty. It was also the basic rule for decision-making in the League of Nations.200 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 new age truly 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”.201 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.202 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 according to their rules had to take decisions by two-thirds or by simple majority in practice started to take decisions without formally voting at all. 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 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”.203 At the same time, it is interesting to note that consensus decisions were also taken in organizations in which 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.204

200

League Covenant, Art. 5 (excepting matters of procedure). C. Wilfred Jenks, Some Constitutional Problems of International Organizations, 22 BYIL 34 (1945). 202 Zemanek, op. cit. note 147, at 867. 203 B. Buzan, Negotiating by consensus: Developments in Technique at the United Nations Conference on the Law of the Sea, 75 AJIL 326 (1981). 204 See Gold, op. cit. note 123, 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). 201

§785

decision-making process

547

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”,205 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 values and interests often conflict, do not meet the requirements for a general application of majority voting.206 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, leaving no room for extensive public records that might facilitate the solution of future questions of interpretation. Furthermore, negotiations are usually time-consuming 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 decisionmaking 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.

205 This term is used by I. Claude, Swords into Plowshares: the Problems and Progress of International Organization (4th ed. 1971), Chapter 7. 206 Zemanek, op. cit. note 147, at 871, 879; Claude, op. cit. note 205, 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).

548

chapter six

§788

(1) Many states will participate more readily in an organization if they are sure that they cannot 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.207 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. In smaller organizations, a requirement for unanimity is more common. Unanimity is the rule in Benelux, OECD, EFTA, and OPEC.208 In the Council of Europe and ESA unanimity is required in many cases, in the EU in some.209 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.210 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.211 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.212

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). 207 LoN Covenant, Art. 5. On its application, see J. Fischer Williams, The League of Nations and Unanimity, 19 AJIL 475-488 (1925). 208 Benelux, Art. 18; OECD, Art. 6; EFTA, Art. 32; LAFTA, Art. 38; OPEC Art. 11c. 209 CoE, Art. 20; ESA, e.g. Arts. 11.5(a), 14.1, 16, 22; TFEU, e.g. Arts. 113, 115, 352; TEU, Arts. 42.4, 49. In the EU, the number of provisions requiring unanimity for Council decisions taken on the basis of these provisions has been significantly reduced over the years. 210 Agreement on Andean Subregional Integration, Art. 11b; Peaslee I, at 48. 211 LAFTA Res. 68 (III); M.S. Wionczek, Economic Cooperation in Latin America, Africa and Asia 74-75 (1969). 212 Art. 43.

§790

decision-making process

549

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 of 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 of the interested parties do not affect the required unanimity. . . . The well-known rule that no one can be judge in his own suit holds good”.213 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;214 but this is not required in relation to decisions adopted on the basis of Chapter VII of the UN Charter (in particular, regarding enforcement measures). §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.215 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.216

In most international organizations, representatives are not disqualified from casting their votes when a decision directly affects their states.217

213 PCIJ Rep. Series B, No. 12 (Interpretation of Art. 3.2 of the Treaty of Lausanne ( frontier between Turkey and Iraq)), 21 November 1925, at 31-32. 214 UN Charter, Art. 27.3. 215 Vienna Convention on the Law of Treaties, Art. 60(2). 216 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; Cot, Pellet, Forteau (eds.), op. cit. note 16, at 944-945. 217 See e.g. Gold, op. cit. note 123, at 111.

550

chapter six

§791

B. Voting power 1. Equality of voting power §791 Most international organizations take at least some of their decisions by majority vote218 and base their decision-making process on the principle of equality of the voting power of all member states. In a few cases, however, there is no such equality of voting power. In the WMO, for example, members that are not states may not vote on amendments to the constitution, admission of new members, relations with other public international organizations and several types of elections.219 Parties to disputes are usually permitted to participate in the voting when decisions are taken by majority vote.220 In some cases, persons not representing governments of members can vote either in all policy-making organs,221 or in particular organs.222 The transfer of voting-power to the delegation of another member state is only permitted in organizations that accept voting by proxy (see above, §264-266).

§792 Equality of voting power for all member states is a poor basis for decisionmaking, unless it is supported by an equality of judgment or a parity of interest.223 Equality of judgment exists when all voters base their votes on the same factors, and 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 interests of hundreds of millions of people, others only those of fewer 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 watchmakers’ 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 that pay the bill for almost all an organization’s expenses often possess so little voting strength that they are unable 218

One exception is Benelux. WMO, Art. 11(a). 220 For the UN General Assembly, see 8 UNCIO, at 376. 221 Representatives of workers and employers in all organs of ILO. 222 E.g. in judicial and parliamentary organs. 223 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. 219

§794

decision-making process

551

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.224 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.225 2. Inequality of voting power §794 The inequality of the members’ influence on decision-making is reflected in different ways.226 a. Permanent seats and weighted representation The influence of particular states may be enlarged by allowing them plural membership (see above, §75, 77), by permitting them to send a greater number of representatives with full voting rights to the organization, or by offering them permanent seats in non-plenary 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.227 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 in which votes are not weighted, states that 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.

224

G. Clark and L.B. Sohn, World Peace though World Law 20-34 (1964). See Gold, op. cit. note 123, at 5. 226 See also J. Kolasa, “One State-One Vote” Rule in International Universal Organizations, 6 PYIL 215-243 (1974). 227 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). 225

552

chapter six

§796

§796 The main problem regarding weighted voting is identifying the criterion to which extra weight should be given. Should it be population, national income, power, or some other criterion? 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 (relatively) a more limited interest in safety at sea than 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.228

§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.229 It is worth mentioning that once the developed states consider that they

228 229

C. Wilfred Jenks, op. cit. note 201. African Development Fund, Art. 29.

§799

decision-making process

553

have sufficient influence in decision-making, they appear to be willing to increase their contributions without also obtaining additional voting power.230

(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 threefold, while the small states had only one vote.231 There is no weighted voting in the UN.232 Among the specialized agencies, however, the IMF and the World Bank use weighted voting for all decision-making. Their tasks are confined so precisely to only 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.233 In the World Bank: every member state has one additional vote for each share of stock held234 (the interest element). As a result of this system, the US has 371,743 votes in the IMF (16.74 per cent) and 265,219 in the World Bank (16.36 per cent). The Netherlands has 51,874 votes in the IMF (2.34 per cent) and 35,753 in the World Bank (2.21 per cent), the Maldives has 332 votes in the IMF (0.01 per cent) and 719 in the World Bank (0.04 per cent).235 The relative importance of the Western 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.236 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.237 Consequently, where possible these organizations tend to avoid voting.

§800 A voting system similar to that of the IMF and World Bank is used by the regional development banks.

230 231 232 233 234 235 236 237

§779.

Barents, op. cit. note 175, at 150. 13 AJIL Suppl. 156-186 (1919). Manno, op. cit. note 227. IMF, Art. XII, Section 5(a). World Bank, Art. V, Section 3. See www.imf.org and 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,

554

chapter six

§801

Originally, the relative differences in voting strength used to be smaller in the regional development banks (in particular in the African Development Bank), because there the element of sovereign equality was more predominant (see above, §799),238 but this situation has somewhat changed over the years.239 In the African Development Bank, three of the strongest members (Nigeria, Egypt and the US) hold 8.705, 5.050 and 6.498 per cent of the votes respectively, the weakest (Comores) holds only 0.049 per cent.240 In the Asian Development Bank, the strongest members (US and Japan) each hold 12.756 per cent of the votes, the weakest 0.3 per cent (Tuvalu) and 0.301 per cent (Cook Islands, Marshall Islands, Palau).241 In the Caribbean Development Bank, the strongest members are Jamaica, Trinidad and Tobago (each has 17.38 per cent of all votes), Canada and the United Kingdom (each has 10.552 per cent). The five memberterritories are considered as one member for this purpose and together have 1.91 per cent of all votes; the weakest member state (Grenada) holds 0.79 per cent of the votes.242 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 30.006 per cent of the votes, the four smallest regional developing members each hold between 0.089 and 0.162 per cent, and the five smallest non-regional members each hold between 0.004 and 0.055 per cent.243

§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 at meetings of these boards is the same as in the general congress. Generally, every member of the board must cast all his votes as a unit.244 §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 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.245 This voting power system was changed in 1995; and the agreed amendments to the constitution entered into force in 1997. Whereas previously there was a formal equality group system (each of the three categories of members had 600 votes), in

238

J. Syz, International Development Banks 34 (1974). Compare the figures given here to those presented in the 2nd edition (at 399-400), the 3rd edition (at 523) and the 4th edition (at 541). 240 See www.afdb.org (situation as at 30 November 2009). 241 See www.adb.org (February 2010). 242 See www.caribank.org (situation as at 30 April 2008). 243 See www.iadb.org (February 2010). Cf. also the 2nd ed. (at 400), the 3rd ed. (at 523) and the 4th ed. (at 541). 244 E.g. 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)). 245 IFAD, original Art. 6, Section 3; Schedule II; Rule 33.1 of the Rules of Procedure of the Governing Council. 239

§803

decision-making process

555

the new system there is a stronger relationship between the voting power and the contribution paid by members. This 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”).246 As at 31 December 2009, the United States had 256.738 votes (some 7 per cent of all the votes), the Netherlands 213.592 (some 6 per cent), Saudi Arabia 178.324 (some 5 per cent), and the Maldives 9.472 (some 0.26 per cent).247

§803 In the Restructured Global Environment Facility, decisions of the Assembly and the Council are normally taken by consensus. However, in the case of the Council (not in the case of the Assembly), “if, in the consideration of any matter of substance, all practical efforts by the Council and its Chairperson have been made and 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.248 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 1000 votes to the importing members collectively and another 1000 to the collective 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 EU has 332 votes, Cuba 151, Sweden 15 and Guyana 6.249 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

246

IFAD, Art. 6, Section 3(a). IFAD Doc. GC 33/L.2, Annex III. 248 Instrument for the Establishment of the Restructured Global Environment Facility, para. 25. 249 International Sugar Agreement (1992), 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. 247

556

chapter six

§805

to the average volume of their exports and imports in the preceding four calendar years.250 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.251

§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).252 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 for which it has subscribed (interest element). The smallest member states have 309 votes, Brazil 1024, Germany 4362 and Japan 5502 votes.253 The most important decisions are taken by a majority of three quarters of the total votes cast, with other decisions, depending on their relative importance, being made 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.254 §806 In the International Energy Agency, every member state has 3 general voting weights (the element of sovereign equality) plus 1 to 46 voting weights based on oil consumption.255 Currently the US has 46 combined voting weights, Japan 17, the UK and Italy each 8, Canada 7, and the Netherlands 4. §807 In the International Maritime Satellite Organization (privatized in 1999), voting power depended on shares held in the organization, as in a private company.256 §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

250 International Coffee Agreement 2007, Art. 12. A slightly different system is applied in the International Cocoa Council; see Art. 10 of the 2010 International Cocoa Agreement. 251 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. 252 UNCTAD, Fundamental elements of the Common Fund, para. 24, see 13 JWTL (1979), at 361. 253 Agreement establishing the Common Fund for Commodities, Schedule D; Annual Report 2008, at 10-12. 254 Rules of Procedure of the Governing Council, Rule 30; Rules of Procedure of the Executive Board, Rule 23. 255 IEA, Art. 62, and www.iea.org/textbase/nppdf/free/2004/history_v4.pdf (February 2010). See further R.H. Lauwaars, Some institutional aspects of the International Energy Agency, 12 NYbIL 113-145 (1981). 256 Inmarsat, Art. 14(3), 15 ILM (1976), at 1058.

§809

decision-making process

557

class regardless of its means. The system is rarely followed elsewhere. Although it was also used in the International Red Locust Control Service,257 in that case it was not the members but rather the treaty and the general congress that 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. Originally the largest members (Germany, France, Italy and the United Kingdom) had ten votes each, and the smallest (Luxembourg) two. When the EU still had 15 member states, a decision could be adopted by 62 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,258 an additional provision was inserted in the constitutions of the European Community and Euratom to the effect that where these treaties did not require the decision in question to be adopted on a proposal from the Commission (which is exceptional), the 62 votes required must come from at least 11 member states.259 When the EU had 15 members, the ‘blocking minority’ (that is, the minimum number of votes required to prevent a draft decision from being adopted by qualified majority) was 26 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 the then-existing voting rules. Spain and the UK were firmly opposed to the new rules, and final agreement was only reached in the so-called Ioannina compromise (29 March 1994). This was amended after the non-accession by Norway, stipulating, 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”.260 §809A This weighted voting system of the European Union has been the subject of difficult negotiations since the mid-1990s, until a solution was found in the 2001 Nice Treaty. At the time it was expected that a number of states in Central and

257

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 34 (3rd ed.), at 400. 259 EC, Art. 205.2; Euratom, Art. 118. See also: Besluitvorming in de Europese Gemeenschappen: theorie en praktijk, 10 Europese Monografieën (1968). 260 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 34 (3rd ed.), 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). 258

558

chapter six

§809A

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 27 members (since January 2007) is completely different from decision-making with 6 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 with qualified majority voting; otherwise, decision-making in the Union could become paralyzed. This need for more qualified majority voting also increased the importance of 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.261 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 19961997 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 for the selection of criteria of relative importance capable of securing general acceptance”.262 Only later, in the 2001 Nice Treaty, was a new system agreed.263 This system has been applied as of 1 January 2005. Following the accession of 12 new member states, the new votes are as follows (between brackets the previous votes): 29 for the largest members (10), 27 (8) for Poland and Spain, Romania 14, Netherlands 13 (5), Belgium, Czech Republic, Greece, Hungary and Portugal 12 (5), Austria, Bulgaria and Sweden 10 (4), Denmark, Finland, Ireland, Lithuania and Slovakia 7 (3), Cyprus, Estonia, Latvia, Luxembourg and Slovenia 4 (2), and Malta 3. It is clear from these figures that the relative voting strength of the large members has increased, although not too much. The biggest increase in relative voting strength has been given to Spain – it is the only member that now has more than three times as many votes as it had before. As of 1 January 2007, the threshold for adopting Council decisions is 255 votes in favour (the total amount of votes being 345). In addition, it will be required that Council acts need the support of at least the majority of member states where

261 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. 262 See the quotation from the 1945 study by Jenks at the bottom of §796 above. 263 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. On these new rules and the preceding negotiations, see A. Moberg, The Nice Treaty and Voting Rules in the Council, 40 JCMS 259-282 (2002); G. Tsebelis and X. Yataganas, Veto Players and Decision-making in the EU After Nice: Policy Stability and Burocratic/Judicial Discretion, 40 JCMS 283-307 (2002).

§810

decision-making process

559

they have to be adopted on a proposal from the Commission; in other cases a twothirds 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.264 As from 1 November 2014 this regime for qualified majority voting will change again, introducing the requirement of a double majority (see also below, §819): the qualified majority shall be defined as at least 55 per cent of the members of the Council, comprising at least fifteen of them and representing member states comprising at least 65 per cent of the population of the Union.265 §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 per cent of the total annual contributions of all the parties have 1 vote; members paying 30 per cent or more have 16 votes.266 As at February 2010, 18 member states (Albania, Armenia, Bosnia Herzegovina, Bulgaria, Cyprus, Croatia, Finland, the FYR of Macedonia, Hungary, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, Serbia, the Slovak Republic and Slovenia) have 1 vote; Spain and the UK have 9 votes, Germany has 10 votes and France 11.267 §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). 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.268 §812 In international organizations in which weighted voting is used, it is not always clear whether it is intended that this voting system be extended to cover subsidiary organs.269 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 in which decisions are taken by majority vote, the group voting as the majority must also include specified member states. The effect of such a requirement is to make the decision-making process in relation to these

264 TEU, Protocol No. 36 on transitional provisions, Art. 3.3. On the website of the Council a voting calculator is available to simulate Council voting: see www.consilium.europa.eu/App/ calculette/default.aspx?lang=en&cmsid=1690 (March 2011). 265 TEU, Art. 16.4. A transitional arrangement is laid down in Protocol No. 36 on transitional provisions, according to which between 1 November 2014 and 31 March 2017 a member of the Council could request that the pre-2014 regime would apply. 266 Eurocontrol Amended Convention (1981), Art. 8. 267 Information from the Eurocontrol Central Secretariat (February 2010). 268 European Centre for Medium-Range Weather Forecasts, Art. 6 (2), Trb. 1974, 7. 269 Gold, op. cit. note 123, at 203.

560

chapter six

§814

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.270 The Security Council cannot adopt an 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.271 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”,272 and a “classification by categories of possible decisions of the Security Council”.273 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 considered as procedural.274 The notion of what is “procedural” in this classification is rather broad.275 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

270 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 155; for a list of the 242 vetos expressed between 1945 and 1997, see id., at 231-238. See also Cot, Pellet and Forteau (eds.), op. cit. note 16, at 950-951. 271 11 UNCIO, at 711-714; YUN 1946-47, at 23 ff.; Simma, op. cit. note 16, at 481-482. 272 YUN 1947-48, at 291-295. 273 YUN 1947-48, at 295-296. 274 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. 275 It is wider than the notion of “procedural” which has been used above when discussing procedural motions (§349-350).

§815

decision-making process

561

Power by declaring it procedural.276 The fears that the double veto might lead to the indefinite expansion of substantive matters subject to the veto have not been vindicated.277 §815 The right of veto cannot be used by a party when a vote is taken in relation to the peaceful settlement of a dispute, where that party is itself involved in that dispute.278 Here too, problems can easily arise. What is a dispute, and what is only a conflict situation but not a dispute (as a result of which the right of veto may be used)?279 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”.280 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 relation to 186 agenda items of which the Security Council has been seized in the period between 1945 and 1987, but in fact no vetoes were used in connection with 127 of these 186 agenda items.281 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”.282 §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 that exercised a veto in the first round cannot do so again.283 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:

276 For examples of the application and non-application of the double veto, see Bailey and Daws, op. cit. note 155, at 240-249. The issue of the double veto has not arisen since 1959. See also UNJY 1986, at 283-285. 277 Claude, op. cit. note 205, at 142. Claude’s conclusion still holds true today. 278 UN Charter, Art. 27.3. 279 Bailey and Daws, op. cit. note 155, at 251-257, give several examples. See also UNJY 1986, at 283-285. 280 YUN 1947-48, at 292, item 22. 281 See the second edition (1988) of Bailey, op. cit. note 155, at 210. 282 Id., at 214. 283 Cartagena Agreement, Art. 11 (Peaslee I, at 48).

562

chapter six

§817

(1) The smallest possible majority is a simple majority, which is more than half of the voters who actually vote (disregarding abstentions). (2) When a qualified majority is required, a proposal can only be adopted by a specified 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 (for example, three-quarters or three-fifths) are also used. (3) A relative majority is larger by a number of votes than the number that is obtained for any other solution. In a case in which the voters have a choice between two alternatives, a relative majority is the same as a simple majority. However, if there is a choice between more than two alternatives, the number of votes required for a relative majority 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 would be adopted if a relative majority is sufficient. (4) 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 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; that is, enough votes 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, as 6 × 43 is less than 300 (258); but seven candidates cannot, because 7 × 43 is more than 300 (301)). An absolute majority of this nature is used by the FAO for multiple elections.284 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

284 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.

§818

decision-making process

563

number of votes cast Required majority = ___________________ + 1 number of seats (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.285 The UN draws a distinction between simple and absolute majority based not on the majority of the votes cast but on the number of participants in the relevant vote. 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, the majority of the total membership of the UN). Rudzinski has rightly opposed this practice: formally Articles 10 and 12 of the Statute of the International Court of Justice (on the election of judges) are the only basic UN texts employing the term “absolute majority”.286 §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.287 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 that each produced at least one tenth of the total value of the coal and steel output of the Community.288 In order to prevent a minority taking important decisions when a large number of members are absent from a meeting (see above, §304), some international organizations taking their decisions by a two-thirds majority of the votes cast require that at least a majority of the members support the decisions.289 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.

285 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. 286 A. Rudzinski, op. cit. note 285, 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. 287 See e.g. IMF, Art. XXVIII; 1992 International Sugar Agreement, Art. 2 (definitions of “special vote” and “simple majority vote”). 288 ECSC Art. 28. 289 E.g. SELA, Art. 17.

564

chapter six

§821

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.290 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. Abstaining 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.291 The same majority is needed to convene a special conference for the purpose of reviewing the Charter.292 Comparison with the general rule for calculating majorities of the members present and voting293 suggests that two-thirds of the actual membership is needed in cases mentioned. However, this conclusion has not met with unanimous acceptance.294 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.295 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 that were rejected never obtained a two-thirds majority, even of the members present and voting. The second case in which the UN requires the approval of a majority of the membership concerns voting in the Security Council. The Charter provides that decisions on all nonprocedural matters “shall be made by an affirmative vote of nine members, including the concurring votes of the permanent members”.296 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).

290 International Agreement on Jute and Jute Products (1989), Art. 2; International Coffee Agreement (2007), Art. 2; International Cocoa Agreement (2010), Art. 2. 291 UN Charter, Art. 108. 292 UN Charter, Art. 109. 293 UN Charter, Art. 18. 294 R. Zacklin, The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies 113 (1968). 295 L. Kopelmanas, L’Organisation des Nations Unies 152-154, Vol. I (1947). 296 UN Charter, Art. 27.3.

§822

decision-making process

565

In the third case, the approval of a majority of the membership is not required by the UN Charter, but by the interpretation that the General Assembly and the Security Council have each adopted in relation 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.297

§822 Apart from the UN, several other universal organizations require a majority of the membership to support the adoption of decisions of special importance.298 In a number of closed organizations, decision-making by a majority of the membership is the rule,299 sometimes even for procedural motions. b. Majority of the votes §823 In most international organizations, each member state has one vote. In such circumstances, a majority of the votes is 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.300 c. Abstention301 §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 wished to neither support nor reject the proposal. It actually divides its vote.302 While, on the one hand, it fails to support the proposal, on the other, it reduces the number of votes 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,303 but this has not always been the case and, indeed, abstentions were often counted as negative votes in the past.

297

See also UNJY 1984, at 173-176. ICAO, Art. 90, see Buergenthal, op. cit. note 48, 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). 299 See e.g. EFTA, Art. 32.5; TFEU, Art. 238.1; Euratom, Art. 118.1; AU, Arts. 7, 11. See also CoE, Art. 20 and OAS, Art. 59. 300 See Gold, op. cit. note 123, at 120-121. This figure applies to the constitution in force before the second and third amendments to the IMF constitution. 301 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). 302 Except when unanimity is required. Generally, abstention (if permitted) then has exactly the same effect as support. 303 See e.g. Benelux, Art. 18; OECD, Art. 6; EFTA, Art. 32.5; CoE, Art. 10; TFEU, Art. 238.4; Euratom, Art. 118.3; IEA, Art. 62 (1). 298

566

chapter six

§825

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 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.304 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.305 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.306 The same rule is applied in other organizations.307

§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.308 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.309 The International Court of Justice accepted this practice in its 1971 Advisory Opinion on Namibia.310 §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).311 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), consideration of the matter must be deferred until a subsequent meeting, at which abstentions plus blank or null and

304

Zimmern, op. cit. note 31, at 260 ff. UN Doc. A/393, at 4. 306 Cf. also UNJY 1986, at 274-275. 307 E.g. WHO, Rule 69 of the Rules of Procedure of the World Health Assembly; IMO, Art. 57(c). 308 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 294, 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 16, at 493-499. 309 Res. 202, Publication No. 82 of the Netherlands Ministry of Foreign Affairs, at 116, 216. 310 ICJ Rep. 1971, at 22. 311 In 2008, the UN General Assembly adopted Res. 63/3 (Request for an advisory opinion of the ICJ on whether the unilateral declaration of independence of Kosovo is in accordance with international law) by 77 votes to 6, with 74 abstentions (see UN Doc. A/63/PV.22, at 11). 305

§827

decision-making process

567

void ballot papers are disregarded.312 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.313 §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.314 Abstentions do not invalidate the decision, but they do render it inapplicable to those members that abstained.315 A similar provision applies to some cases in the IMF.316 The constitution of the League of Arab States accepts majority decisions and declares that decisions reached by a majority vote bind only those members that accept them.317 In these cases, abstention – and in the League of Arab States also negative voting – excludes the abstaining members from all consequences of the decision-making process. This procedure facilitates decisionmaking 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), the question of whether members who are not interested in a particular issue are, at least morally, obliged to abstain was considered. By voting against a proposal, they could prevent other members from adopting mutually binding rules. On the one hand, members should be considered as being 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.318 However, 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.

312

UPU, Rules of Procedure of Congresses, Art. 21.5. ITU, General Rules of Conferences, Assemblies and Meetings of the Union (adopted in 2002), Nr. 21.4. 314 OECD, Art. 6.1. 315 OECD, Art. 6.2. 316 Under the General Arrangements to Borrow, para. 7. See Gold, op. cit. note 123, at 113. 317 League of Arab States, Art. 7. 318 Ustor, op. cit. note 2, at 208, 211-213. 313

568

chapter six

§829

§829 In 1951, the Committee of Ministers of the Council of Europe decided that each of its recommendations for which unanimity is required319 can be addressed, by a separate and prior vote, to those members that 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 (non-binding) 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.320 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’ ”.321 Another example is the decision by the United States not to participate in the consensus on a number of resolutions of the UN General Assembly and the OAS General Assembly concerning the International Criminal Court.322 As stated in the relevant meetings of these assemblies, the US has serious objections against this Court and therefore decided “to disassociate itself from consensus” or “not to join consensus” on the relevant resolutions.

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 (that is, the state in question was party to the dispute).323 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 followed by other members.324

319

CoE, Art. 20 (a). See SCOR, 1847th meeting, 17 October 1975, at 1-2; GAOR, 2402nd plenary meeting, 12 November 1975, at 815. 321 GAOR, 2402nd plenary meeting, 12 November 1975, at 815. 322 E.g. UNGA Res. 61/15, 62/12 (the US “disassociates itself from consensus on this resolution”), UNGA Res. 63/21 (the US “cannot join consensus on this resolution”), UNGA Res. 64/9 (the US “was not in position at this time to join in the adoption of the resolution before the Assembly, explaining that if the vote had been called on the resolution, the United States would have abstained” (UN Doc. GA/10880); OAS General Assembly Res. 2505, footnote 39 (“the new administration is in the process of reviewing its policies regarding the International Criminal Court, and accordingly the United States is not in a position to join consensus on the resolution”). 323 Bailey and Daws, op. cit. note 155, at 258. 324 As a result, there have been non-participations in the vote in some 100 cases between 1971 and 1982. See id. 320

§831

decision-making process

569

Since 1982 there have hardly been any cases of non-participation in the vote in the Security Council.325 The ITU explicitly provides for non-participation in the vote. Rule 21.2 (No. 119) of the General Rules of Conferences, Assemblies and Meetings of the Union 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 . . . 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 a proposal. 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 unbalanced. 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 some quite 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 be restricted to major issues. Fewer members will then be absent. Even then, however, 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 considers the organ to be entirely incompetent to discuss the issue in question. It may then leave the conference hall before a vote. The actual result of such action is the same as in the case of an abstention.

325 Bailey and Daws, op. cit. note 155, at 258-259. In recent years, non-participation in the vote has been exceptional; an example is SC Res. 1402 (2002), adopted by 14 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).

570

chapter six

§833

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 1947.326 The delegation of the United Kingdom did not participate in the debates on Oman in 1970 and previous years.327 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, when on 29 September 1950 the Security Council of the UN voted on a challenge to a ruling of the president, and there were no votes in favour, no votes against and no abstentions, the challenge was considered rejected.328 §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.329 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.330 Decision-making remained possible to a limited extent as unanimity could be obtained by a written procedure. The Council did not however equate absence with abstention, although the French statements in the Security Council would have offered some strong arguments for doing so.331 The EC Treaty offered less opportunity for this interpretation than the Charter of the UN, since it expressly provided that abstention by members that are either present or represented shall not prevent the adoption of decisions requiring unanimity.332 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

326

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. 328 SCOR, 5th year 507th meeting (No. 49), at 7. 329 EFTA, Art. 32.5; CoE, Art. 20. See also, Agreement on Andean Subregional Integration, Art. 10, which declares attendance obligatory and as signifying abstention. 330 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). 331 See, Commerce Clearing House Inc., Common Market Reporter, Vol. II, para. 9077 (January 1966). 332 The text of this provision as currently in force is similar: “Abstentions by members present in person or represented shall not prevent the adoption by the Council of acts which require unanimity” (TFEU, Art. 238.4). 327

§835

decision-making process

571

interested members was sufficient, other members were not affected by the decision. However, sessions of the Council were required to be composed of delegates of all members.333 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).334

§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.335 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.336 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 quorum337 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 members that are present at the beginning of a session. If there are then sufficient members to meet the quorum requirement, the whole session and all its decisions are considered valid. This 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 when written voting procedures are used. The invalidity of the vote depends on the internal rules of the organization. For example, 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

333 334 335 336 337

CMEA, Art. 6.2. M. Kaser, COMECON (2nd ed. 1967), at 97, 245-246. Zacklin, op. cit. note 294, at 186. OPEC, Art. 11. For the quorum, see above, §302-305.

572

chapter six

§838

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 regarding procedural decisions, which must receive at least 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.338 Some other organs require a simple majority for some questions, while for others a qualified majority is necessary.339 §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 in favour and against are exactly equal, in which case many organizations consider a proposal rejected.340 As a rule in these circumstances, the UN organs vote again within two days of the original vote.341 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 subtly altered. If the voting is equal again, the proposal is considered to have been rejected.342 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.343 A final decision one way or the other can be assured by giving the president a casting vote, or by drawing lots, in the event of a tie.344

338

TFEU, Art. 250; Euratom, Art. 132. E.g. UN General Assembly, general congresses of many specialized agencies (see below, §852). 340 E.g. WMO, General Regulations, Art. 63(a); ITU, General Rules of Conferences, Assemblies and Meetings of the Union (adopted in 2002), No. 21.1(3); GA Rule 133. 341 E.g. GA Rule 95; see also UNESCO, General Conference Rule 96. 342 GA Rule 95. 343 FAO General Rules, Rule XII.12(h). 344 Id. See on these solutions, Schweizerische Juristenzeitung, 1 July 1965, at 201-206 and 239240. A casting vote has been given, for example, to the chairman of the Board of the Bank for International Settlements (Statutes, Art. 33). 339

§840 §840

decision-making process

573

A casting vote is often given to presidents of judicial organs.

The president has a casting vote in the International Court of Justice,345 and in the European Court of Human Rights.346

§841 If the votes are equal even after a second vote, most other international organs draw lots when some proposal must be adopted.347 The EU Court deliberates with an uneven number of judges. If the Court finds itself in a situation in which it is comprised of an even number, the possibility of a tied vote is avoided by excluding the most junior judge from the voting.348 b. Voting between several alternatives §842 Instead of only two alternatives, several different possibilities may be under consideration. A meeting must then decide to either 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 two alternatives (for or against each separate possibility). The order of voting may then assume great significance, since the adoption of one proposal may exclude the adoption of others on the same subject. Delegations are often prepared to support several proposals. At other times, 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 the UPU. For 25 of the seats, the three proposals were the same. A difference of opinion existed, however, in relation to 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.349

§843 Three generally recognized rules have been established to limit conflicts on the order of voting:

345 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 525-530 (1999). 346 European Court of Human Rights, Rule 23.1. 347 E.g. WHO, Rules of the Assembly, Art. 81; WMO, General Regulations, Art. 89; UNESCO, General Conference, Rule 95. 348 Court of Justice, Rules of Procedure, Art. 26.1. 349 For the voting, see UPU, XVth Congress, PV 12 (18 June 1964), at 12-16.

574

chapter six

§844

(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.350 §844 Unless otherwise provided, it is not relevant for the order of voting whether the proposals have been submitted by organs or by member states.351 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 if it had been submitted on that later date.352 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.353 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.354 §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.

350 See e.g. GA Rules 90, 91, 130, 131; CoE Parliamentary Assembly Rule 33; 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). See in general Sabel, op. cit. note 114, at 275-284. 351 UNJY 1976, at 181-183; UNJY 1984, at 169. 352 UNJY 1973, at 181. 353 GA Rule 20. See also UNJY 1973, at 143, para. 9. 354 See UNJY 1973, at 143, para. 10.

§846

decision-making process

575

(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 6 miles with an additional fishing zone extending to 12 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 in favour 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.355 Neither of these two procedures necessarily leads to the most suitable candidate being elected. In an organ containing two blocks of members (radical, moderate; developed, underdeveloped; and so forth), 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.

355

CoE Parliamentary Assembly, Rules 14 and 44.

576

chapter six

§848

§848 For this reason, a working party of the FAO proposed a system of elimination-voting.356 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 abovementioned case, one candidate had to be chosen when there were more than two candidates. Another type of election in which a majority may be difficult to establish is the multiple election, in which several candidates must be chosen from a larger number. This is commonly the situation in elections for nonplenary organs in which many seats may have to be filled (see above, §286-287). The successive election of each seat takes a long time, and is not always appropriate because of the interrelationship between the elections themselves.357 Therefore, the separate elections may be combined into a multiple election. Every 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 is relatively large, an absolute majority may be difficult to obtain. When the Security Council elects five judges to the International Court of Justice (which occurs every three years), each of its fifteen members votes for five names: a total of 75 votes are cast. The smallest possible majority that 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.358

356 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. 357 Rudzinski, op. cit. note 285, at 84. 358 For the problems arising when the Security Council elects 5 judges to the International Court of Justice, see Rudzinsky, op. cit. note 285, at 81-88; Hogan, op. cit. note 286, at 908-912; Bailey and Daws, op. cit. note 155, at 307-314.

§850

decision-making process

577

§850 The difficulties of determining what constitutes an absolute majority, and of obtaining the majority required, have persuaded most international organizations to permit a simple or a relative majority for multiple elections,359 even when the rules normally require an absolute majority.360 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 total 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.361 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. Decision-making by qualified majority is the rule in, for example, the WMO,362 the Council of Europe,363 and the Assembly of Heads of State and Government of the African Union.364

§852 In many international organizations, usually those that generally require a simple majority, qualified majority votes may be reserved for particular categories of decisions that will be mentioned expressly in the constitution or in specific decisions of the organization.365 For the UN General Assembly and for the WHO, it is not clear what decisions require a qualified majority.366 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 within a non-exhaustive list. 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 important and less important decisions

359 E.g. European Parliament, Rules 15 and 16 (absolute majority required for the first and second ballot; if a third ballot is necessary, a relative majority shall suffice). 360 E.g. Statute of the ILC, Art. 9. See Rudzinski, op. cit. note 285, at 88-94, for the UN practice. 361 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 285, at 108. 362 WMO, Art. 11(b). 363 CoE, Art. 20(d). 364 AU, Art. 7. 365 E.g. UN Charter, Art. 18; WHO, Art. 60. 366 E.L. Kerley, Voting on important questions in the UN General Assembly, 53 AJIL 324-340 (1959). 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 16, at 352-362.

578

chapter six

§853

is vague and difficult to draw. Items from the list of examples will need a twothirds 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 a simple majority will suffice, only in cases of genuine doubt.367 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 the 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 question is in fact important does not seem very relevant to either camp. For example, while questions relating to the operation of the UN trusteeship system require a qualified majority in the General Assembly,368 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.369

§853 The ‘important-unimportant criterion’ has little in common with the practical – and totally different – consideration of exploiting the different voting procedures in order to achieve political ends in the decision-making process. Perhaps holding 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 leaving them to be swayed by considerations of public 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.370 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.371

367

UNJY 1983, at 160. UN Charter Art. 18.2. 369 UNJY 1977, at 195; UNJY 1982, at 159-160. 370 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. 371 See Lefranc, op. cit. note 52, at 647-654. 368

§854

decision-making process

579

§854 The distinction between decisions requiring a qualified majority and those that may be adopted by simple majority is not drawn in the same way in all organizations that utilize both procedures. Thus, budgetary questions need a qualified majority in some organizations,372 and only a simple majority in others.373 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.374 Questions of principle that basically affect decisions on the budget or on the scale of assessment will probably also require a majority of two-thirds.375 Amendments 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 UN376 on the basis of a careful study.377 Following the decision of the UN, it now seems to have become a generally accepted rule of international institutional law.378 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.379 The IMF requires a majority of 70 per cent for many important decisions,380 and of 85 per cent for others,381 whilst normally a simple majority is sufficient.382 In the case of amendments to the constitution, three-fifths of member states must be in favour, holding 85 per cent of the votes.383 The 85 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 of 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.

372

E.g. UN Charter, Art. 18.2; ILO, Art. 13.2(c). E.g. FAO, Art. IV.1 jo. III.8; UNESCO, Art. IX.2 jo.IV, para. 8(a). 374 UNJY 1972, at 160-163. 375 Id., at 161-162. 376 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). 377 UN Doc. A/1356. 378 For its application in ICAO, see Buergenthal, op. cit. note 48, at 64-65. 379 ICAO, Art. 93. 380 See e.g. Arts. III(3)d, V(8)d, XII(6)d, XIX(7)b. 381 See e.g. Arts. III(2)c, IV(4), V(12)b, XII(1), XVIII(4)d, XXVI(2)b, XIX(7)b. 382 Art. XII(5)c. 383 Art. XXVIII. 373

580

chapter six

§857

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.384 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.385 Thus, every member state may veto such a decision.

6. Factors influencing the majority to be preferred 386 §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 that 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.387

§859 However, 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. For example, the day on which a general congress is to convene must be decided; and the budget for the organization must be set. In such cases, a bad decision is better than no decision. Decisions should then be taken by simple majority. Only this procedure will be likely to 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.388

384

GA Rule 66. See also 3 UNCIO, at 230. Council, Rules of Procedure, Art. 12. 386 Claude, op. cit. note 205, at 120 ff. 387 See J. Gold, The “Dispensing” and “Suspending” Powers of International Organizations, 19 NedTIR 191-192 (1972). 388 Claude, op. cit. note 205, at 124. 385

§860

decision-making process

581

§860 The UN requires a qualified majority vote inter alia for elections to the Security Council.389 In the past, this has caused great problems where no such majority could be found for candidates for a specific seat. In 1947, 12 ballots were needed before the Ukraine could be elected. In 1955, no candidate was elected after 35 ballots.390 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.391 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 will be given to them. 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 only very 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 1964.392 Even in integrated organizations problems may arise, as was demonstrated by the 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 in such organizations 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.

389

UN Charter, Art. 18.2. GAOR 1955, at 247-252, 269, 270, 275-277, 405-407, 469, 470, 494-501; see Bailey and Daws, op. cit. note 155, at 144-148. 391 E.g. 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. 392 N. Padelford, Financing Peacekeeping, 19 International Organization 444 (1965). 390

582

chapter six

§863

In the European Union, the Committee of Permanent Representatives has no decisionmaking power. In fact, however, it decides many issues on 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.393

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 would not necessarily form an insurmountable barrier to majority decisions. However, this is not the case. Most states with a minor interest in any one outcome would support it, notwithstanding the fact that one or two other states may have a large, or even vital, interest in a different outcome. 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, whereas other 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.394 It seems plausible that the fish contain more foodstuffs than the excrement of the birds that 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.

393 See M. Virally, P. Gerbet, J. Salmon, Les Missions Permanentes auprès des Organisations Internationales 398-399 (1971). 394 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).

§864

decision-making process

583

§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.395 In some situations in which 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, for example, explain why the Socialist states were reluctant to participate in several activities during the 1950s. In another instance, 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,396 Australia, the US and the UK contended that the majority prepared decisions in complete disregard of minority views, which induced them to withdraw from the Committee.397

§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 to which both groups can agree can be reached. This procedure has been formalized in UNCTAD by the introduction of a conciliation procedure, prior to voting in cases in which 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 to be 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 groups of African states previously in existence (the so-called Casablanca group and the Monrovia group) from out-voting the other. Organs that clearly only represent two interests have succeeded in giving an equal voting power to each one, either by a system of equal representation (for example, the UN Trusteeship Council) or by a system of weighted voting (such as the commodity councils; see above, §804). Decision-making by majority voting then meets no objection.

§866 In organs in which 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

395

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). 397 UN Doc. A/AC.109/366, at 10. 396

584

chapter six

§867

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 that 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 EU Treaties, supranational organs have been incorporated in the decision-making process. For example, for all Union legislative acts, a proposal of the Commission is required (see above, §547). It may be assumed that the vital interests of minorities will be adequately protected in the preparation of 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 almost always required.398 Thus, a system was developed which permitted majority voting even on issues that 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”.399 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 larger organizations have gradually 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.400

1. 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 wish to determine their own vote based on the attitude of others. The vote is public

398 399 400

TFEU, Art. 293.1. Case 57/72, Westzucker, ECR 1973, at 341. See ILO Doc. GB.256/SC/3/1 (May 1993).

§870

decision-making process

585

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.401

§870 Modern conference halls are usually equipped with facilities for electronic voting. Many larger organs, for example 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.402 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; for this reason, roll-call votes should be limited to important questions. Roll-call votes may present difficulties 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 some other members on these aspects. Delegations that vote first are thus at a disadvantage, because they will be uncertain of the way others will vote. For this reason, lots are drawn to decide which delegation must commence the voting, after which the members vote in alphabetical order. 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,403 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.404

401

Reports, Part II (1949), at 344, 360. Also in the 15th Session, 1st meeting, Reports III, at

1032. 402 403 404

See GA Res. 2323 (XXII), UNJY 1967, at 135-137. YUN 1965, at 17. GA Res. 2323 (XXII).

586

chapter six

§873

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.405 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.406 In the UPU407 and in the WMO,408 every vote is taken secretly if that is requested by at least two delegations; in the ITU, a request supported by at least five delegations is required.409 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 members present and voting.410 This makes secret voting difficult. In the UN, there are no provisions for secret voting other than for elections, although this does not form an absolute barrier to the use of such procedure by an individual organ of the UN. On a number of occasions, for example, the General Assembly of the UN has decided on the choice of a site or venue by secret ballot.411 §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 a compromise or to change an opinion will be impossible when it is not known how delegations have voted. For this reason, secret voting seems to be inappropriate for complicated political issues. It may, however, be useful in other situations, particularly, for example, regarding 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: 56 countries voted against South Africa, 58 favoured South Africa’s presence in the Union, and only 3 abstained. It may be that some

405 Cf. UNJY 1984, at 101-102 and UNJY 1985, at 84-85. See also Sabel, op. cit. note 114, at 294-298. 406 Cf. UNJY 1986, at 307-309. 407 UPU, Rules of Procedure of Congresses, Art. 20.3(c). 408 WMO Regulation 60. 409 ITU, General Rules of Conferences, Assemblies and Meetings of the Union (adopted in 2002), No. 21.5 (1(c)) . 410 World Health Assembly, Rule 76. For example, in 1989 a vote by secret ballot took place on the application for membership by Palestine. 411 UNJY 1977, at 195-196; UNJY 1984, at 170-171; UNJY 2005, at 457-458.

§875

decision-making process

587

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.412 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 is obliged to meet in public when it deliberates on and votes in relation to a draft legislative act.413 4. Vote by correspondence §876 Many organs can vote when they are not in session,414 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, for example, the International Olive Oil Council, no vote by correspondence can be taken if any one member objects.415

412 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. 413 TEU, Art. 16.8; to this end, each Council meeting is divided into two parts, one dealing with legislative acts and another one covering non-legislative activities. Art. 7 of the Rules of Procedure of the Council defines when the Council acts in its legislative capacity. 414 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 294, at 44-45. 415 International Olive Oil Agreement 2005, Art. 9. 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. 263 TFEU), and requested

588

chapter six

§877

§877 One of the most detailed procedures for voting by correspondence is that of the World Meteorological Organization.416 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 cases other than elections.417 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 in favour and against the proposal and sets a reasonable time-limit for 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, which must be returned within 90 days. A separate vote must be requested on each independent question. The proposal is deemed to have been rejected if fewer members than the number required to meet the quorum send in replies. A 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”.418 §878 The system of the IMF is also rather detailed.419 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 the Board of Governors. The Executive Board shall present to each Governor “by rapid means of communication a motion embodying the proposed action”.420 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.421 §879 In the UN, voting by correspondence is rare.422 In the International Court of Justice, judges may vote by correspondence if they participated substantially in

the Court to declare the decision in question void. The UK’s claim was sustained (Case 68/86, UK v. Council, ECR 1988, at 902). 416 WMO, General Regulations 65-78. 417 WMO, Regulation 75 and 60. See also UNJY 1984, at 120, and UNJY 1985, at 100-101. 418 WMO, Regulation 77. 419 IMF, Art. 12 (2)(f ); By-Laws of the IMF, Section 13. 420 By-Laws of the IMF, Section 13 (b). 421 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 123, at 54. 422 UNJY 1970, at 171-172.

§880

decision-making process

589

the proceedings of a case but are unable to be present when the decision is taken.423 The UN Commission on Narcotic Drugs introduced voting by correspondence by a resolution,424 which has been accepted as a sufficient legal basis for decisions taken in this way.425 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 at least as many members as constitute a quorum.426 §880 In 1980, the question arose in the IMF and in the World Bank as to whether member states had the right to withdraw their votes under the procedure of voting by correspondence. If such a right were to be accepted, a quorum would have been 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 to invite observers to meetings after consultation with the Executive Directors, but does not necessarily require 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 insufficient votes were collected, and the period was extended by ten days. (It was disputed whether this extension was legally permitted.) During the extended period, the necessary number of votes were received, including the negative votes of Syria and Sudan. However, before the voting period 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.427

§881 Debates serve little purpose in relation to 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

423 See G. Guyomar, Le vote final des décisions de la Cour internationale de justice, 17 AFDI 334-339 (1971). See Art. 9 of the Resolution concerning the internal judicial practice of the Court, containing more detailed rules governing the participation in the final vote by judges who cannot be present when the final voting takes place. 424 Res. 1 (XX) 1965. 425 UNJY 1972, at 171. 426 IFAD, Governing Council, Rule 39. 427 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).

590

chapter six

§882

Union (and previously the OAU) votes by correspondence on the admission of new members.428 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.429 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 was sufficient to obtain a majority for the proposal. The meeting considered the rejected proposal as having been adopted after the US declaration.430

§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.431 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 wishes subsequently to express its opinion, a footnote to the tabulation of votes is used, in the following form: “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.432 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.433 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,434 but the ad hoc committee on the improvement of the methods of work of the General Assembly 435 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

428 429 430 431 432 433 434 435

AU, Art. 29; OAU, Art. 28. YUN 1947-48, at 40. 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 112, at 126. A/5423, Annex VIII.

§884

decision-making process

591

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.436 E. Conditional voting §884 Sometimes delegations add certain conditions to their agreement to a proposal. 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 European Court of Justice, there are no such consequences. It ruled in 1973: 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.437

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 on 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.438 §886 The conclusion that should be drawn from the foregoing discussion 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 in favour or against. The IMF does form an exception to this rule in that, in the case of special drawing rights, an

436 437 438

See e.g. the recording of the voting on GA Res. 2339 (XXII), YUN 1967, at 506. Case 39/72, Premiums for slaughtering cows, ECR 1973, at 115-116. UNJY 1974, at 172-174.

592

chapter six

§887

opting-out procedure is available only to those members that have voted against. This is based, however, on a specific legal rule.439 §887 Members often issue a “declaration of vote” either before or after the voting.440 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 in favour of or against a proposal, the government concerned may be better able to defend its position at home or in other international organizations. 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. When a proposal is adopted by consensus declarations may also be made, 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.441

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 adopted. 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 EU take effect on notification to the persons concerned if they are addressed to specific persons or states. In the EU legal order, legislative acts enter into force on a specified date or, failing this, on the 20th day following their publication.442 Such requirements, however, only provide for a period of delay. The decision itself was final as soon as 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 another

439 440 441 442

See Gold, op. cit. note 123, at 102-103. Cf. UNJY 1983, at 176-177. See UN Doc. A/PV. 2312 (1974), recorded in 20 AFDI 495 (1974). TFEU, Art. 297.1.

§890

decision-making process

593

organ. All organs may 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 may have 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 to the UN, and on the candidates for the International Court of Justice.443 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 ECOSOC, but must be approved by the General Assembly.444 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.445 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 EU and one or more states or an international organization. If the Court considers that the agreement is incompatible with the EU Treaties, the conditions for amendment must be satisfied before the agreement can enter into force.446 The opinion of the Court may be requested even before an agreement is concluded. In 1996, when the Council had requested the Court to rule on the question of whether the EC could adhere to the European Convention on Human Rights, the Court replied that the EC had no such competence.447

§891 In most international organizations, no organs have specific competences that are different from those of the general congress. For that reason, there is little need to require the 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 the 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 itself calls for action by the parent organ.448

443 444 445 446 447 448

UN Charter, Art. 4, and ICJ Statute, Art. 10, respectively. UN Charter, Art. 63. ECSC, Art. 95. TFEU, Art. 218.11. Opinion 2/94, ECR 1996, at I-1759. See UN Doc. TD/B/327, para. 208, reproduced in 5 JWTL 226 (1971).

594

chapter six

§892

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. There may be two reasons for requiring such agreement. In the first place, such a requirement ensures that all members are involved in the decision-making process before they are bound by its outcome. Members that might not have been present at the session in which 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 other 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 that do not expressly “contract out” (see below, §1288-1294). In order to permit the nonmembers 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 are 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.449 This has never yet occurred.450

449

ICAO, Art. 90(a). E. Yemin, Legislative Powers in the United Nations and Specialized Agencies 130 (1969); Buergenthal, op. cit. note 48, at 68; information obtained from the ICAO Secretariat (March 2010). 450

§894

decision-making process

595

§894 The desire to allow further discussions within the member states seems a more persuasive argument for requiring their express approval in relation to a given proposal. International decisions may strongly influence national policy, which itself is a complicated matter involving many national organs. Although 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 decision-making in the international fora. However, even if there were a strong international parliamentary organ, such an organ 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 time-tables 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.451

§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 decision-making. 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. Secondly, 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 451

Recommendation adopted at the 42nd annual conference, quoted in 11 IJIL 270 (1971).

596

chapter six

§896

mainly on the basis 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) amendments to the organization’s 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.

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.452 Nevertheless, if circumstances change considerably, amendment of the rules is essential to any legal order. One of the greatest problems within the international legal order is the extremely difficult procedure for amending its existing binding legal rules, a procedure which frequently fails to fulfil the needs of practical daily life. 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.453

452

K.W. Deutsch, The Nerves of Government 246 (1963). Several constitutions provide that their amendment will be discussed after a number of years (e.g. UN Charter, Art. 109.3), or that they may be reviewed after a number of years (e.g. ASEAN Charter, Art. 50). 453

§899

decision-making process

597

§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, preambular paragraphs of General Assembly resolutions often begin with the phrase: “The General Assembly, recalling its resolution . . . ”, and then enlarge upon or amend what was previously recommended. §900 Binding decisions can be amended by using the same procedure by which they were adopted. The European Union offers many examples.454 When the amendments are of minor importance, and particularly when errors are being corrected, the Union does not always follow the procedure established for making (and therefore also for amending) decisions.455 However, it is not always easy to draw the line between purely technical corrigenda such as typographic mistakes, and corrigenda that are in fact changes to the substance of the decision. EU practice offers many examples of these two types of corrigenda, in particular since the most recent membership increases and the resulting need to publish EU legislation in, at present, twenty-three official languages. A clear example of a corrigendum that is in fact a substantive change is the corrigendum of the Czech version of Regulation 865/2006 (laying down detailed rules concerning the implementation of Regulation 338/97 on the protection of species of wild fauna and flora by regulating trade therein). More than a year after the entry into force of this Regulation, a corrigendum of the Czech language version appeared in the EU’s Official Journal, containing 122 corrections: positive statements were turned into negative statements, and the nature of a list of conditions to be fulfilled was changed from requiring that at least one of the criteria had to be met into requiring that all the criteria had to be met.456

§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 answered 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.457

454 EU decisions sometimes contain a specific clause providing a less rigorous procedure for the adoption of amendments. 455 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 abovementioned 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. 456 See for this example and for further analysis M. Bobek, Corrigenda in the Official Journal of the European Union: Community law as quicksand, 34 ELR 950-962 (2009), at 952-953. 457 Case 131/86, UK v. Council, ECR 1988, at 935.

598

chapter six

§902

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 TFEU) and replaced the reference to the European Convention for the Protection of Animals kept for Farming Purposes with 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.458

§902 It is not self-evident in all cases that the amendment of a binding decision should require the same majority as the initial adoption of that decision. 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: in other words, when more than the minority wants to amend them in order to weaken them.459 §903 May an international organization amend decisions that 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 that 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. However, in the European Union, 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 EU Court may also amend some Commission decisions, namely decisions levying fines. It can reduce (or increase) a fine that it considers inappropriate (see below, §1552). 2. Revocation §905 The most drastic amendment of a decision is its revocation. When revoked, a decision disappears entirely, often to be replaced by another. The revocation of decisions of universal organizations is rare. Since most decisions are not binding, there is usually no need to revoke them when they become outdated.

458 459

Id., at 934-935. On this question, see Gold, op. cit. note 123, at 126.

§906

decision-making process

599

In 1970, the ICAO revoked 16 resolutions that had not been superseded by new resolutions, because it considered that the objectives had been realized.460 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 1975.461 Some member states (that 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.462 Others (that 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).463 When this matter was put to the vote, the proposal to treat the decision to revoke the earlier resolution as “important”, thereby requiring a two-thirds majority, was rejected.464 In 1994, following the first all-race multi-party elections and the establishment of a nonracial 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).465

§906 In the European Union, decisions are often revoked,466 which occasionally has created problems when individuals had derived rights from the decisions. In Case 54/65 (Forges de Chatillon), the 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”.467 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.468

The European 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 340 TFEU.469 3. Withdrawal §907 Sometimes members are permitted to withdraw unilaterally 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).

460

ICAO Assembly Res. A18-1. GA Res. 46/86. See YUN 1991, at 537. 462 UN Doc. A/46/PV.74, at 22-23 (Yemen), 23-28 (Algeria), 28-30 (Sudan). 463 Id., at 31-32 (Uruguay) and 33-36 (Poland). 464 Id., at 37. 465 SC Res. 919 (1994). 466 On the legality of the withdrawal of EU acts, see Schermers and Waelbroeck, op. cit. note 40, at 70-71. See further M.A. Letemendia, Retrait et abrogation des actes administratifs individuels en droit communautaire et en droit anglais (1987). 467 Case 54/65, Forges de Châtillon, ECR 1966, at 196. 468 ECR 1982, at 763, 764, 771. See also Schermers and Waelbroeck, op. cit. note 40, at 355. 469 Cases 19, 21/60 and 2, 3/61, First Fives Lille Cail, ECR 1961, at 297. 461

600

chapter six

§908

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 decisions related to them. If a member withdraws from the European Union, it would no longer be bound by the EU antitrust and agricultural policies, not even by those parts of these policies that were 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 that 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.470 The constitution of the ILO provides expressly that withdrawal from the organization does not affect the continuing validity of obligations arising from ILO conventions.471 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. Withdrawal 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 (for example, 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, and so forth. 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

470 471

E.g. European Convention on Human Rights, Art. 58.3. ILO, Art. 1.5.

§911

decision-making process

601

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 only provided for particular types of decisions (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.472 In the European Union, 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).

E. Judicial annulment 1. Possibility of annulment §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 would 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.473 Such a unilateral rejection of the

472

Gold, op. cit. note 123, at 105. 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). 473

602

chapter six

§912

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 cannot 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.474 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.475 A proper action for the annulment of decisions476 of international organizations is possible in the European Union. Such an action can be brought against EU legislative acts, against acts (other than recommendations and opinions) of the Council, of the Commission and of the European Central Bank, and against acts of the European Parliament and of the European Council that are intended to produce legal effects vis-à-vis third parties.477 The Court of Justice may also decide to annul parts of decisions while other parts remain in force.478 In the period 2001-2005, most direct actions for annulment were against Commission Decisions. In almost one-third of the annulment cases in this period, the applicant was successful.479 Originally, resolutions of the European Parliament could only be annulled if they had been adopted under the ECSC Treaty.480 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 263 TFEU –] could not be used to challenge the acts of institutions other than the Council

474 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. 475 L.B. Sohn, Enabling the United States to Contest “Illegal United Nations Acts”, 69 AJIL 852854 (1975). 476 The reader is reminded that ‘decision’ is used here in its broad sense. The specific sense of individually binding decisions (TFEU, Art. 288) will be indicated by capitalizing the D in ‘Decision’ or by the expression ‘binding decision’ (see below, §1322). 477 TFEU, Art. 263; Schermers and Waelbroeck, op. cit. note 40, at 313-359. 478 TFEU, Art. 264; Schermers and Waelbroeck, op. cit. note 40, at 346-347. 479 T. Tridimas and G. Gari, Winners and losers in Luxembourg: A statistical analysis of judicial review before the European Court of Justice and the Court of First Instance (2001-2005), 35 ELR 131-173 (2010), at 171. 480 ECSC, Art. 38.

§913

decision-making process

603

or the Commission.481 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 that 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 EEC [– now Article 19 TEU –] 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 [sic] 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”.482 This development in the case-law of the Court was subsequently reflected in the 1992 amendments to the present Article 263 of the EC Treaty, so as to also cover judicial review against, inter alia, “acts of the European Parliament . . . intended to produce legal effects vis-à-vis third parties”.

§913 Acts of EU institutions enjoy a presumption of legality. This presumption applies until the Court has annulled the act in question.483 Illegal decisions may only be annulled if they are brought before the Court of Justice 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.484 As a rule, this plea may only be used for the next-to-last link in the decision-chain: earlier regulations cannot be challenged.485 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 merely an incidental ground of illegality in proceedings for the annulment of a decision. It cannot be brought independently.486 Many EU decisions have legal effects within the national legal order of the member states. National courts need not apply such decisions when they consider them to have been illegally enacted. Before using this power they may, and in certain cases must, request the opinion of the Court of Justice.487 In the resulting

481

See Schermers and Waelbroeck, op. cit. note 40, at 409-410. Case 294/83, First Les Verts, ECR 1986, at 1339. See Schermers and Waelbroeck, op. cit. note 40, at 410-411. 483 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). 484 TFEU, Art. 277. See Schermers and Waelbroeck, op. cit. note 40, 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). 485 Case 21/64, Third Dalmas, ECR 1965, at 187-188. See Schermers and Waelbroeck, op. cit. note 40, at 489-490. 486 Case 33/80, Albini, ECR 1981, at 2157, para. 17. See also Schermers and Waelbroeck, op. cit. note 40, at 485-489. 487 TFEU, Art. 267; Schermers and Waelbroeck, op. cit. note 40, at 218-307. 482

604

chapter six

§914

preliminary ruling, the Court of Justice may then inform the national courts that a particular EU 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).488 In recent years, decisions of international organizations have increasingly been challenged before national and regional courts. This development may be explained by the fact that, increasingly, such decisions affect private individuals. Particularly in cases in which the relevant organizations do not offer any remedies or other mechanisms to such individuals, national or regional courts may fill possible ‘accountability gaps’ by subjecting the decisions concerned to more or less direct, and more or less intense, judicial scrutiny.489 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 initiate such proceedings to be extended? 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, legal certainty could be jeopardized and the courts overburdened if standing to challenge decisions 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.490 In practice, not many parties consider it worthwhile to challenge an international decision. Nevertheless, the drafters of the Union Treaties have restricted the capacity to bring an action before the Court of Justice to the principal organs of the Union and to the member states. In addition, individuals may bring an action against decisions that directly and individually affect them.491 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 challenge their legality 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.

488

Cf. Case C-364/92, Eurocontrol, ECR 1994, at I-43. See A. Reinisch (ed.), Challenging Acts of International Organizations before National Courts (2010). The case studies in this book examine the review by national and regional courts of decisions of the UN and of organizations such as Eurocontrol, the European Patent Organization, Interpol and OPEC. 490 The time-limit is two months (Art. 263 TFEU), in the ECSC it was one month (Art. 33). 491 Schermers and Waelbroeck, op. cit. note 40, at 414-459. 489

§915

decision-making process

605

3. Grounds of illegality §915 The competence of the EU 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.492 Infringement of the Treaty or of any rule of law relating to its application are the two 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 having conducted 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. §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 that 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 decisionmaking organs or to justify a subsequent refusal to apply them.493

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 as true for Security Council Resolution 660, adopted immediately after the invasion of Kuwait by Iraq, as it is for Resolution 63.15 (2010) of the World Health Assembly (the WHO general congress), urging the member states, inter alia, “to expand significantly efforts towards meeting the goal of universal access to HIV prevention, treatment, care and support by 2010 and the goal to halt and reverse the spread of HIV/AIDS by 2015”.

492 493

TFEU, Art. 263; Schermers and Waelbroeck, op. cit. note 40, at 359-404. See Osieke, op. cit. note 473.

606

chapter six

§918

§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 constraints on the possibilities for states to control decision-making in the organization. §920 The first constraint 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 were to take an initiative in an area apparently falling outside the scope of powers of the organ in question, it would 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 constraint has been developed in particular within the European Union, in which the exclusive right of initiative for the adoption of Union legislative acts has been attributed to the Commission. Although in practice numerous such acts 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 Union 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. The situation is completely different in other organizations, in which, at most, the secretariat or the Secretary-General has a right of initiative alongside that of the member states. §922 The third and most formidable constraint 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 BosniaHerzegovina wants the Security Council to adopt certain decisions, it will do its utmost to secure the support 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 EU 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

decision-making process

607

§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) with the factual inequality of states. The examples of such formulae given in this chapter all demonstrate different ways of finding this balance. Often, for example, the same number of basic votes is given to each member (formal equality), and a different number of votes is added (factual inequality). The main difficulty is to find an appropriate and acceptable key for such weighted voting formulae: in other words, a criterion has to be developed to decide what weight should be given to the vote of 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 that 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, in some of the development banks, IFAD, the Global Environment Facility, and the commodity organizations including the Common Fund for Commodities. The distribution of voting strength in these organizations is partly influenced by their specific function.494 §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 subsequently to the taking of decisions by consensus. It has been submitted that the social conditions of the present day’s decentralized international society, in which there is little volonté générale and in which values and interests frequently conflict, provide a context within which a general application of majority voting procedures by international organizations would be inappropriate. Decision-making by consensus has proved to be an acceptable alternative in many organizations, as it may allow the 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 (that is, from giving a veto to each member). Unless this is done, a consensus requirement could paralyze decision-making. The experience of the European Union (see above, §780) demonstrates the difference between a consensus that is more or less the same as decision-making by unanimity (from 1966 until the mid1980s) and a consensus which in fact covers different majorities and minorities (since the mid-1980s).

494 Wolfrum, op. cit. note 223, 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 SEVEN

FINANCING

§925 Before we consider the types of decisions that can be made by international organizations, we will first discuss the financing of international organizations. Often financing is only an administrative consequence of the activities of international organizations, and could therefore 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 out operational 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 usually made a commitment to pay their share of the agreed expenses. Income therefore follows expenditure. This is also the case 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 agreed expenditure. Only in a limited number of international organizations is there 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 in agreed expenditure will be met by a commensurate increase in 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 this expenditure and, finally, the more technical rules relating to the budget of an organization. Throughout the chapter, references to figures will be limited to the minimum necessary to illustrate the discussions in the text, in order to give a general impression of the amounts involved and to facilitate comparisons between organizations. Unless otherwise indicated, monetary amounts and percentages set out in this Chapter are expressed in the manner in which they are expressed in the source document from which they are drawn. 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).

610

chapter seven

§928

I. Expenditure A. Total expenditure §928 The budgets of international organizations have grown substantially since their early years, although since the 1990s a ‘zero growth’ policy has at times 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.2 The first UN budget (for 1946) amounted to $19 million. Subsequently, the size of the regular UN budget has increased considerably, although it 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 million for 1994 (half the size of the 1994-1995 budget), to $1,312 million for 2002 (half the size of the 2002-2003 budget).3 During the last few years the UN budget has increased again: for 2010 it is $2,578 million (half the size of the 2010-2011 budget).4 This recent increase is explained by, inter alia, rising inflation, the reduced exchange rate of the US dollar, the expansion of special political UN missions (such as the UN Assistance Missions for Iraq and in Afghanistan) and the strengthening of human rights activities. Although this increase is considerable, the size of the UN budget still does not appear to be 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 refuse collection in New York.5 Likewise, the budget of the World Trade Organization is only one third of the budget of the World Wildlife Fund.6 The budget of the International Maritime Organization (£55 million for the biennium 2008-2009) is “less than half what it would cost to buy a medium sized oil tanker and only a fraction of the cost of the damage caused by an oil spill” (for example, the Exxon Valdez spill).7

2 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. 3 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. 4 GA Res. 64/244, and UN Doc. A/64/548/Add.1. These figures only concern the regular UN budget; each of the UN peace-keeping operations has its own, separate budget. 5 See e.g. Simma, op. cit. note 3, 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). 6 Speech by WTO Director-General Moore, 2 December 1999 (taken from www.wto.org). 7 See www.imo.org (entry: frequently asked questions) (February 2010).

§929

financing

611

§929 Total expenditure for the European Union amounted to approximately ECU 3,600 million in 1970.8 This figure rose to some ECU 70,000 million in 1994, to €97,503 million in 2003, and to €141,453 million in 2010.9 The budget of the Council of Europe for 2010 came to €211 million.10 The Organization of American States: $90 million for the Regular Fund and $6 million for the Voluntary Fund (2010).11 The African Union’s budget: US $250 million (2010).12 The budget of the International Criminal Court for 2010 was €104 million.13 The 2008 budget of the Intergovernmental Organization for International Carriage by Rail (OTIF) was 3 million Swiss francs.14 The budget of the Central Commission for the Navigation of the Rhine for 2012 is some €2.5 million.15 §930 The total estimated expenditure of the United Nations system (excluding the IMF and the World Bank Group) amounted to some $18,588 million in 2002 and to some $36,726 million in 2009.16 More detailed figures for most of the organizations within the UN system are given in Table 1 (see the following page).17

8 The European Currency Unit (ECU) was used as a budgeting unit between 1979 and 1999; see below, §1009. 9 See the Interinstitutional Agreement of 6 May 1999, OJ 1999, C 172. Figure for 2003: OJ 2003, L 54; figure for 2010: OJ 2010, L 64. 10 Committee of Ministers Res. CM/Res(2009)21. 11 OAS General Assembly, Doc. AG/Res. 1 (XXXVIII-E/09). 12 AU press release no. 30/14 AU Summit. 13 ICC Assembly of States Parties, Res. ICC-ASP/8/Res.7. 14 OTIF Annual Report 2008, at 38. 15 Doc. ADM/SC 11(3). 16 UN Doc. A/65/187, at 126-129. 17 The figures in this table have been taken from UN Doc. A/65/187, Table 3 (footnotes omitted). The figures used have been collected from the audited financial statements (A/65/187, at 3). Unless otherwise indicated, amounts are expressed in US $.

612 Table 1

chapter seven

§930

Total expenditure UN system, 2002-2009 (in US dollars)18 2002

Org.

RB

UN UN Peacekeeping Ops. CTBTO FAO IAEA ICAO ICTY IFAD ILO IMO UNAIDS UNDP UNEP UNESCO UNFCCC UNHCR UNICEF UNRWA UNWTO WFP WHO WIPO WMO WTO Total

2 514 351 000

71 727 256 389 927 000 214 117 270 54 818 000 126 726 000 81 381 000 254 836 000 29 720 562 78 580 520 666 015 000 47 466 000 258 855 000 13 491 070 21 021 000 571 921 000 13 350 544 8 256 000

XB

53 718 000

464 097 000 207 811 000 48 024 922 96 777 019

309 978 000 113 362 524 89 976 000 6 636 000 6 849 000 132 057 500 12 871 916 16 248 705 2 261 964 000 116 199 000 264 378 000 5 023 561 903 445 000 690 702 500 363 073 025 2 345 000 1 685 732 500 765 437 150 4 154 000 22 940 278 12 534 044

6 817 831 749

8 301 672 946

2006 In-kind

3 573 000

1 952 000 4 683 500 17 566 598 853 823 000 10 887 850

892 485 948

Total 2 203 431 500 2 571 642 000

RB

XB

4 553 020 000

21 199 000

71 727 256 699 905 000 327 479 794 144 794 000 133 362 000 88 230 000 386 893 500 42 592 478 94 829 225 2 927 979 000 163 665 000 523 233 000 18 514 631 926 418 000 1 267 307 000 393 990 167 10 601 000 2 539 555 500 1 240 422 000 211 965 000 70 965 200 109 311 063

95 282 268 462 787 500 316 949 838 63 118 000 161 098 000 122 014 000 263 755 000 42 971 885 159 139 265 903 389 000 55 180 000 284 443 000 19 102 000 31 458 000 751 203 283 20 906 800 14 493 000 426 688 065 209 121 488 59 576 860 142 534 255

145 301 424 510 500 151 308 509 159 933 000 1 691 000 10 555 000 180 676 000 12 649 753 40 702 577 3 873 373 000 196 771 000 290 999 000 19 683 786 1 061 417 800 1 573 497 326 583 114 783 2 782 000 2 463 114 000 1 360 605 425 5 047 623 25 669 421 21 464 043

18 588 023 378

9 884 040 917

13 922 633 035

18 See UN Doc A/65/187, Table 3. RB = regular budget resources, XB = extrabudgetary resources, incl. trust funds, technical cooperation and other non-regular resources. Not all UN specialised organizations are extracted, but totals shown include expenditures for all UN specialised organizations.

§930

financing

613

2006 Org. UN UN Peacekeeping Ops. CTBTO FAO IAEA ICAO ICTY IFAD ILO IMO UNAIDS UNDP UNEP UNESCO UNFCCC UNHCR UNICEF UNRWA UNWTO WFP WHO WIPO WMO WTO Total

In-kind

8 540 000

7 851 000 12 042 278 682 506 412 539 000 10 305 652

451 960 436

2009 Total 2 976 978 000 4 582 759 000

RB

XB

7 087 014 000

24 765 000

95 427 569 887 298 000 468 258 347 223 051 000 162 789 000 132 569 000 444 431 000 55 621 639 199 841 842 4 776 762 000 251 951 000 575 442 000 38 785 786 1 100 726 800 2 336 742 887 604 704 089 37 931 000 2 875 653 000 1 797 599 142 214 169 111 85 246 281 163 998 268

103 823 546 526 878 000 402 919 454 73 047 000 190 358 000 147 089 000 343 105 475 44 883 397 244 321 984 166 574 000 108 824 799 356 322 847 24 366 205 46 031 000 1 089 242 193 20 499 513

500 431 862 286 503 884 67 318 681 164 057 232

1 257 384 567 654 000 167 136 802 171 983 000 1 480 000 10 078 000 243 445 012 13 474 641 33 959 130 4 360 232 000 122 157 886 178 599 000 76 287 755 1 696 195 000 2 180 531 149 749 591 033 65 067 000 4 228 100 000 1 532 557 260 8 070 387 24 397 602 23 994 250

27 235 612 388

13 863 911 616

17 566 637 954

In-kind

8 779 000

1 150 133

12 270 000 9 584 521 1 717 299

126 490 981

159 991 934

Total 5 136 382 000 7 120 558 000

105 080 930 1 094 532 000 570 056 256 245 030 000 191 838 000 157 167 000 586 550 487 58 358 039 279 431 247 5 526 806 000 230 982 685 534 921 847 100 653 960 1 754 496 000 3 279 357 863 771 807 845 65 067 000 4 228 100 000 2 159 480 103 294 574 271 91 716 283 188 051 482 36 726 923 505

614

chapter seven

§931

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,19 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, and so forth. When classified according to field of activity, costs will be split between the various fields in which the organization operates: technical assistance, social development, industrialization, and so forth (the specific 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 relevant instruments in fact incur the expenditure of the organization, so 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 specific 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. However, 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 this 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.20 In 1986, the Group of High-level Intergovernmental Experts to Review the Efficiency of the Administrative and Financial Functioning of the United Nations (Group

19 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”. 20 UN Docs. A/7822, at 20-21 and A/34/84 (reports by Maurice Bertrand).

§934

financing

615

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.21 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 performed when the expenditure of the agencies is known, both as allocated to instruments and as distributed according to field of activity.22

§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 the 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.23

§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.24 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

21

UN Doc. A/41/49, at 9 (recommendation 13). Cf. the Compendium of Introductions to the Budgets of Agencies and Organizations within the United Nations system, UN Doc. E/AC.51/89 (1978). 23 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. 24 UN Doc. E/4702, at 14-64. 22

616

chapter seven

§937

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).

§937 In the UN family, financing used to be undertaken 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. However, there were separate headings for some organs 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.25 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 1973.26 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) ($1,248 million for the biennium 2010-2011) can now be compared with “human rights and humanitarian affairs” ($302 million for 2010-2011) and with “international justice and law” (International Court of Justice and legal affairs) ($96 million for 2010-2011). However, more than one-fourth of the budget (in 2002-2003, more than one-third; in 19941995, more than half) 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 to which they relate.27 b. Administrative or operational expenditure §938 Independent 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, and so on); operational costs are the costs of projects performed by the organization (economic assistance, peacekeeping, and so on). Some expenditure is clearly administrative: for example, the painting of a 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

25

See the budget for the year 1973, GA Res. 3044 (XXVII). YUN 1973, at 832. Budget appropriations for the biennium 2010-2011, GA Res. 64/244. Figures for 2002-2003: GA Res. 56/254 A. Figures for 1994-1995: GA Res. 48/231. 26 27

§939

financing

617

discussions part of the peace-keeping operation and, therefore, of the operational costs? The same question can be asked about the costs of the 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 part of the general expenditure of the organization. A large part of such costs will be considered operational when budgeting is conducted 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 demonstrated (see below, §1210-1215).28 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.29 §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,30 or because they want to finance them from different sources.31 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 within the UN system, there are important differences. In particular, the World Health Organization used to include in its administrative budget many items that 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.

28

B. Conforti, Le rôle de l’accord dans le système des Nations Unies, 142 RdC (1974 II), at

270. 29

Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962, ICJ Rep. 1962, at 167. 30 Euratom, Art. 177.5, before the entry into force of the Treaty of 22 April 1970, amending certain budgetary provisions. 31 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).

618

chapter seven

§942

In UN budgets, which (since 1973) are compiled according to field of activity, it is hard to determine the percentage of administrative expenditure. Before 1973, about 85 per cent of the regular UN budget was administrative.32 However, that figure did not include the costs of the voluntary programmes (see below, §10221028), which were predominantly 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.33 In 1979, this figure had decreased to 75 per cent, because of a gradual increase in expenditure on development cooperation.34 By far the largest part of the budgets of most regional organizations goes towards administrative costs. The European Union is an exception, mainly because of its large operational expenditure (for example, the costs of the agricultural policy and the structural policies). In 2010, the €7,900 million provided for administrative costs represented only 5.6 per cent of the budget.35 Almost half of this was for the European Commission.36 2. Fields of activity: some examples §942 The fields of activity to which expenditure by an international organization will be directed 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. First, we will give a general indication of activities that 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 peace-keeping (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 the programmes and resources of the UN system. This Committee was restructured and renamed the

32 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. 33 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”. 34 UN Doc. A/32/309, at 9 and 13. 35 European Commission, General budget of the European Union for the financial year 2010 – The figures (2010), at 6. 36 Id., at 24.

§944

financing

619

“UN System’s Chief Executives Board for Coordination” in 2001.37 The data in Table 2 (on page 620) are reproduced from the ACC’s 1993 report (a similar more recent version of this overview is not available).38 §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”.39 The costs of 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. b. 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 less-developed 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 less-developed 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 has been concerned with development cooperation. In 2010, it was estimated that operational activities regarding development represent some 60 per cent of all UN system-wide activities.40 For the UN,

37 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. 38 UN Doc. E/1993/84, Table 1 (there is a version from 1995 (UN Doc. E/1995/64, at 5), but this excludes figures from the UN). The footnotes are omitted. 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 are 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). 39 Cf. Maurice Bertrand in UN Doc. E/7822, at 46. 40 Divided into 40 per cent for development related activities and 20 per cent for humanitarian assistance (the remainder being 25 per cent for peace-keeping and 15 per cent for normsetting and other). See UN Secretariat, Funding of operational activities for development of the United

620 Table 2

chapter seven

Estimated expenditures of the United Nations system by organization and by sector, 1992-1993, all sources of funds (millions of United States dollars) Sector

I. Policy-making organs II. Programmes of activity 010 Political affairs 020 General development issues 030 General statistics 040 Natural resources 050 Energy 060 Agri., forestry and fisheries 070 Industry 080 Transport 090 Communications 100 Trade and development 110 Population 120 Human settlements 130 Health 140 Education 150 Employment 160 Humanitarian assistance and disaster management 170 Social development 180 Culture 190 Science and technology 200 Environment Total

§946

UN

UNICEF

169.5 583.8 693.0 161.5 119.6 62.3 34.7 49.9 47.1 152.1 459.9 70.9 106.3

UNDP

UNFPA

3.0 48.0 11.0

7.0 8.0 4.0 1 106.0 251.0

2 518.6

248.0

358.8

124.0

7.0 658.1 11.1 174.5 48.0 294.5 147.7 135.1 21.2 58.2 1.7 101.1 141.5 73.0 42.3 84.4

35.3 370.8

3.0

88.5 6.7 81.4 55.5

5 994.1

1 810.0

2 234.5

UNRWA

WFP

46.6

ILO 18.9 3.0 15.1 15.5

242.0 342.0 39.0

3.0 20.5

323.4 28.0 209.0 296.0 601.3 10.0

333.4

4.0 3.2

4.8 1.3 497.2

1 850.0 84.7 4.5

647.9

3 006.0

675.7

the legal basis for these development activities can be found in Articles 55 and 56 of the Charter.41 The UN Millennium Declaration (2000) is the latest, most authoritative agenda for development cooperation, with internationally-agreed quantitative goals and time-limits.42 In 2010, the UN Secretary-General warned that, “with five years to go to the target date of 2015, the prospect of falling short of achieving the Goals because of a lack of commitment is very real. . . . The shortfalls in progress towards the Millennium Development Goals are not because they are unreachable or because the time is too short, but rather because of unmet commitments, inadequate resources, lack of focus and accountability, and insufficient interest in sustainable development”.43 In 2008, the total expenditure for development cooperation provided by the UN system (excluding the IMF, the World Bank Group and the WTO) amounted to some $18 billion ($18,332 million).44 Three-quarters of this came from the UN

Nations system, informal note published 8 March 2010, at 1. ‘UN system’ refers to the UN and the specialized agencies, excluding the IMF, the World Bank Group and the WTO. 41 M. Virally, L’Organisation mondiale (1972), at 314 ff. 42 GA Res. 55/2. 43 UN Doc. A/64/665, at 2 (para. 4) and 31 (para. 116). 44 See UN Secretariat, Funding of operational activities for development of the United Nations system, op. cit. note 40, at 4, 17.

§946

FAO

financing

UNESCO

14.3

34.0

38.6 68.3 164.7 3.3 908.0 24.8

36.9 11.6 47.3

ICAO

WHO

2.2

32.7

UPU

ITU

WMO

IMO

WIPO

4.7

4.1

2.4

1.3

UNIDO 3.7 59.2 6.2 24.5 14.8

6.6 22.1

314.2 181.3

37.2 28.6 1.6

621

74.8

76.5

46.6

252.3

IAEA 18.4

355.8

176.8

770.6 1 548.9 291.8 807.1 162.9 1 634.5 555.1 482.3 597.9 583.8 537.6 255.8 2 805.8 837.1 568.9 5 399.7

12.4 34.5 55.3 14.5 1.8 5.0

34.1 34.6 2.0

76.9

47.4

1 193.9

14.4 12.0

91.2

12.7

6.9

215.8 56.5

1.0

56.0 19.2 88.4

18.2 82.9 93.3 8.7

1 556.9

662.1

9.8 40.6 7.2

3.1

3.9

8.2 96.0

118.3 5.1

183.5

371.6

46.6

257.0

144.5

82.3

139.6

Total

23.8 2.7

118.0

491.3

534.8

750.5 97.8 589.2 538.7 20 171.8

Development Programme (23 per cent); the World Food Programme (19 per cent); UNICEF (15 per cent); the World Health Organization (9 per cent); and the UN High Commissioner for Refugees (9 per cent).45 Most of these development expenditures (some 40 per cent) were used to support African countries, in particular Sudan, the Democratic Republic of the Congo, Ethiopia and Kenya.46 The Agenda for Development, presented in 1994 by the UN Secretary-General, identifies as one of the trends concerning these expenditures the 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”.47 Since 1994, this development has continued: most UN funds and programmes first experienced a decline in regular, so-called core resources, and subsequently experienced a very modest increase. Meanwhile, non-core resources almost tripled in the period 1993-2008.48 The UN has pointed

45

Id., at 1. UN Doc. A/64/75, at 37-38. Agenda for Development, UN Doc. A/48/935, at 26. 48 See UN Secretariat, Funding of operational activities for development of the United Nations system (op. cit. note 40, at 2). Core resources are defined as “unearmarked funding that is used at the sole discretion of the respective United Nations entity”; non-core resources as “earmarked funding that is directed by donors towards specific locations, themes, activities and operations” (UN Doc. A/64/75, at 67). 46 47

622

chapter seven

§947

out the danger inherent in this development: “[c]ore funding is at the foundation of the multilateralism, flexibility, universality and neutrality that characterize the United Nations system . . .”.49 §947 Regional arrangements and organizations also spend a considerable part of their funds on development cooperation. The 1994 Agenda for Development estimated that they provide development cooperation of some $5.5 billion each year.50 §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 providing assistance to developing countries, which is complementary to the development cooperation policies pursued by the member states. This Union policy for development cooperation has as its primary objective the reduction and, in the long term, the eradication of poverty.51 Moreover, the Union “shall take account of the objectives of development cooperation in the policies that it implements which are likely to affect developing countries”.52 §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 socalled Structural Funds: the European Social Fund, the Guidance Section of the European Agricultural Guidance and Guarantee Fund 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 and are now laid down under the title “Economic, Social and Territorial Cohesion”.53 Its main objective is to promote overall harmonious development in the EU. 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.54 How is the EU to attain these objectives? The answer is given in Article 175 TFEU. 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 EU through the three Structural Funds, the European Investment Bank and the other existing financial instruments. In addition, the Cohesion Fund – created in 1993 – provides financial contributions to projects in

49 50 51 52 53 54

Id., at 6. Agenda for Development, UN Doc. A/48/935, at 27. TFEU, Art. 208.1. Id. TFEU, Arts. 174-178. TFEU, Art. 174.

§950

financing

623

the fields of environment and trans-European networks in the area of transport infrastructure.55 Those eligible for Cohesion Fund projects are EU member states with a GNP per capita below 90 per cent of the EU average (as at February 2010: Greece, Portugal and Spain, Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia).56 In 1988, the structural funds, together with the fisheries policy, accounted for 19.1 per cent of total budget expenditure.57 In the “financial perspective for 19931999”, the total appropriations for commitments for structural actions (Cohesion Fund, Structural Funds and other operations) increased 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).58 In the “financial perspective for 2000-2006” these expenses were be gradually reduced: from €32,045 million in 2000 to €29,170 million in 2006.59 The “financial perspective for 2007-2013” no longer has such specific appropriations for these funds.60 In the EU budget for 2010, total appropriations for these structural expenses amounted to €38,896 million.61 §950 It is useful to put the abovementioned figures for development assistance in some perspective. Firstly, it should also be noted that non-governmental organizations undertake projects valued at more than $7 billion annually.62 Secondly, it has been estimated that foreign direct investment flows to developing countries amounted to almost $500 billion in 2007.63 In this context, the UN SecretaryGeneral has observed 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”.64 c. Peace operations §951 The UN and some other organizations (for example, the OAS) spend part of their finances on peace operations. The peace-keeping activities of the OAS are hardly reflected in its budget. Members sending forces pay their own expenses. The UN peace operations (see below, §1495-1512) have incurred heavy expenditure.

55

TFEU, Art. 177. See http://ec.europa.eu/regional_policy/funds/procf/cf_en.htm (February 2010). 57 D. Strasser, The Finances of Europe (7th ed. 1992), at 163. 58 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. 59 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. 60 OJ 2006, C 139. 61 OJ 2010, L 64, at 857. 62 Agenda for Development, UN Doc. A/48/935, at 39. 63 UN Doc. A/63/179, at 5 (para. 12). 64 Id. 56

624

chapter seven

§952

Expenditure for UN peace operations has 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. Approved resources for the period from 1 July 2009 to 30 June 2010 were $7.75 billion.65 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.66 The UN budget for the Operation in the Congo (ONUC) ran to $196 million,67 although its total costs (including direct payment by states) were considerably higher. Yearly budgets for some current UN peace operations are as follows: the UN Peacekeeping Force in Cyprus (UNFICYP), $54.41 million; the UN Disengagement Observer Force (UNDOF), $45.03 million; the UN Interim Force in Lebanon (UNIFIL), $589.80 million; the UN Mission in Sudan (UNMIS), $958.35 million; the UN Organization Mission in the Democratic Republic of the Congo (MONUC), $1,350.00 million; the UN Operation in Côte d’Ivoire (UNOCI), $491.77 million; the UN Stabilization Mission in Haiti (MINUSTAH), $611.75 million.68 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 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 operations as well as budgetary appropriations, including start-up costs, approved by the General Assembly for new, expanded or renewed peace operations pending the collection of assessed contributions.69

§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 expenses have 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 in the regular budget.70 §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

65

See United Nations Peace Operations 2009 – Year in Review (UN publication, 2010), at 68. YUN 1967, at 258. T. Franck and J. Carey, The legal aspects of the United Nations Actions in the Congo 47-51 (1963). 68 Information taken from www.un.org/en/peacekeeping/currentops (March 2010). 69 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, A/59/787, A/64/497; 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). 70 In 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. Understandably, but nevertheless illegally, the member states that 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 67

§954

financing

625

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”.71 §954 Generally, the costs of peace operations that 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 have UN peace operations (a few observer groups) been financed through the regular budget of the UN. The most important example is the UN Truce Supervision Organization in the Middle East (annual costs $66.22 million).72

3. 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 savings could be achieved 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 more 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 in 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.73 In the European Union, the budget for 2010 included appropriations for the cost of personnel of the five institutions to the amount of €4,6 billion. This is almost 60 per cent of total administrative expenditure, and approximately 3.7 per cent of the Union’s overall budget for 2010.74 The WTO’s budget for 2010 amounted to approximately 194 million Swiss francs; some 141 million (that is, more than 70 per cent) was reserved for staff costs.75

71

SC Res. 831. See also GA Res. 47/236. Information taken from www.un.org/en/peacekeeping/currentops (March 2010; the figure between brackets is the approved budget for the period 1 July 2009-30 June 2010). 73 See for specific data the second edition of this book, at 465. 74 See the general budget for the European Union for the financial year 2010, OJ 2010, L 64, at 12, 195, 255, 373, 1509, and 1551. 75 See www.wto.org (entry: budget). 72

626

chapter seven

§957

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.76 Originally, the Belgian government provided the subordinate personnel of the International Committee of Military Medicine; the costs of the higher personnel were charged to the budget of the organization. At present, the costs of all personnel are charged to the budget of the organization.77 b. Sessions of the organs of the organization §957 Apart from the necessary expenses incurred by hiring conference rooms and staff, meetings of international organs entail further costs. In smaller organizations, which have insufficient staff for providing simultaneous translation services, 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 sponsorship dollars contributed. Invitations for sponsorship came from the organizing committee of Seattle for this conference, chaired by Bill Gates of the (Seattle-based) software company Microsoft. According to Gates, sponsorship of the conference offered private business an exciting opportunity. However, his view was not shared by the European Commission, which criticized the initiative and warned the US government that it would destroy credibility of the WTO – the organization was already criticized for being

76

Peaslee, Vol. V, at 41. 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). 77

§958

financing

627

much too oriented towards the interests of private business. The US government itself was not happy with the initiative by Gates either.78 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.79 Between 1954 and 1966 the number of the UN meetings doubled for the first time.80 Ever since then, this number has been rapidly growing. In the European Union, appropriations for meetings and conferences in the 2010 budget amounted to approximately €36 million for the European Parliament and €96 million for the Council.81

§958 In many cases, the costs of meetings are partly borne by the host state.82 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 should 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.83 In this resolution, the General Assembly followed the previous policy of the Assembly of the League of Nations.84 c. Buildings §960 A considerable amount of money is needed for the buildings, 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.85 In 1978 and 1979, the percentage had fallen to

78

NRC Handelsblad, 23 August 1999. 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. 80 UN Doc. A/6289/Add. 2, at 5. 81 See general budget for the European Union for the financial year 2010, OJ 2010, L 64, at 195, 273. 82 This includes costs for security and liability for claims, see UNJY 1976, at 178. 83 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). 84 F.P. Walters, A History of the League of Nations (Reprint 1965), at 131. 85 $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. 79

628

chapter seven

§961

4.5.86 The WTO’s budget for 2010 amounted to approximately 194 million Swiss francs, of which 3,8 million (2 per cent) was reserved for buildings.87 In the 2010 budget of the European Union, the money appropriated for buildings was €483 million for buildings rented; the net book value of buildings owned was €4,356 million.88

§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 contributed by member states (see below, §1041), and sometimes by others (for example, Rockefeller to the UN, see below, §1042). These gifts are usually not 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.89 Austria offered a $25 million building to the IAEA and UNIDO for the nominal rent of 1 Austrian Shilling a year.90 Switzerland put a building site, worth 2 million Swiss Francs, at the disposal of the UPU through a 99-year rent free lease91 and donated 3 million Swiss Francs to meet the major share of expenses of the new building of the WHO.92 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 1983.93 France paid the largest contribution by far to the extraordinary budget for financing the construction of the Council of Europe’s human rights building.94 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.95 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.96 By 1978, this rate had risen to 284 million Belgian Francs ($8.9 million).97 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.98

86

UN Doc. 32/205, Part XI. See www.wto.org (entry: budget). See the general budget for the European Union for the financial year 2010, OJ 2010, L 64, at 173. 89 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). 90 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. 91 20 International Organization (1966), at 839. 92 WHO Res. WHA 13.42. 93 ILO, Personnel Newsletter No. 156 (November 1983). 94 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). 95 See the budget for the first financial period of the Court, Annex V. 96 Nieuwe Rotterdamse Courant, 12 September 1969. 97 OJ 1979, C 221/16. 98 Information obtained from the secretariats of these organizations (July 2003). 87 88

§962

financing

629

§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 “buildings”. Some organizations, however, use a considerable part of their finances for equipment. In 2008, the European Organization for Nuclear Research (CERN) spent more than 40 per cent of its expenditure on accelerators, beams and other equipment (372.2 million Swiss Francs out of a budget of 892.8 million).99 e. General expenses §964 The functioning of an international secretariat entails costs for communication (post and telecommunications), recording of meetings and documentation. Publicising the organization’s achievements is important for every international organization. To some extent, national governments will inform their parliaments and their populations of such matters, but, as a rule, the provision of additional information by the 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.

99

CERN Annual Report 2008, at 48.

630

chapter seven

§965

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,100 or 6 per cent of the total administrative budget of $166 million.101 For the European Commission, the budget for 1971 allocated $9.3 million or 9 per cent102 of the administrative costs to 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 in the observance. Member states are often reminded of this obligation by the competent organs of the organization.103 In Chapter Two, five different kinds of participants in international organizations were discussed. Of these, full members pay most of the contributions, associate members and affiliate members are assessed at 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 that participate in the work of an international organization usually do not contribute to its costs. The agencies participating in the Sectors and Conferences (specialized congresses) of the International Telecommunication Union and those that are affiliate members of the World Tourism Organization are an exception, as they share in the expenses of these organs.104

100 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. 101 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. 102 OJ 1971, L 62/135. 103 See for example GA Res. 48/220; UN Doc. A/64/497. 104 ITU Convention, Art. 33; Statutes of the World Tourism Organization, Art. 25.1.

§967

financing

631

2. The sharing of expenditure a. Equal contributions §967 In 1961, Peaslee listed 8 out of 122 organizations that assessed the contributions of their member states in equal shares.105 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,106 the Organization of the Petroleum Exporting Countries,107 and the Western European Union. Currently, the two former organizations still apply this system of equal contributions.108 This system has been chosen only exceptionally for organizations that have been established more recently. Examples are the Organization of Arab Petroleum Exporting Countries,109 Mercosur110 and the Baltic Marine Environment Protection Commission (the Helsinki Commission).111 §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. None 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 approach of sharing expenditures equally, 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

105 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. 106 Mannheim Convention, 17 October 1868, Art. 47. 107 OPEC Statute, Art. 38 C. 108 The WEU abolished this system following the accessions of Portugal and Spain in 1990. The WEU was dissolved in 2011. 109 See YIO 2008-2009, Vol. I, at 2333. 110 Mercosur, Protocol of Ouro Preto (1994), Art. 45. 111 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.

632

chapter seven

§970

ITU 640 times as much.112 The World Intellectual Property Organization (WIPO) also uses optional classes of contributions: it inherited this system from the unions of which it is composed.113 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.114 §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.115 §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.116 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 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.117 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

112 UPU, Constitution Art. 21; General Regulations, Art. 130. ITU Constitution, Art. 28; ITU Convention, Art. 33. 113 WIPO, Art. 11 (YUN 1974, at 1038). 114 WIPO Doc. AB/XXIV/5; information obtained from the WIPO Secretariat (July 2003); www.wipo.int/treaties/en/contribution_classes.html (April 2010). 115 WIPO, Art. 11.4(b). 116 LoN Covenant, Art. 6.5 (original text). 117 H.Ch.G.J. van der Mandere, Vijftien jaren arbeid van den Volkenbond, 1919-1935 (1935), at 175-183.

§973

financing

633

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.118 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.119 Nevertheless, the ITU has firmly upheld the principle of free choice of contribution class.120 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.121 At the 15th UPU Congress (1964) a document was submitted listing the members and the contribution classes to which they belonged.122 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.123 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).124

§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. 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 thirteen (UPU), fourteen (WIPO) or twentyfour (ITU) different amounts can be charged to a member.125 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 pays 22,000 times as much as the smallest (the US bears 22 per cent of the cost and the smallest 0.001 (for a table of contributions, see below, §992-994)).

118 R. Szawlowski, Finanzen und Finanzrecht der Internationalen Zwischenstaatlichen Organisationen, in Handbuch der Finanzwissenschaft, 4. Band, 2. Auflage (1965), at 328. 119 ITU Congress 1965, Res. No. 11. 120 See ITU Constitution, Art. 28. 121 G.A. Codding, The Universal Postal Union (1964), at 125. 122 UPU XV Congress, Doc. 130. 123 For the discussions, see UPU XV Congress, PV 23 (10 July 1964, afternoon session). 124 See UPU Constitution, Vol. 1 of the annotated code (1991), at 35 and 133-134; UPU, Constitution, General Regulations (with commentary by the UPU International Bureau (2010)), at XXIV. 125 UPU, General Regulations, Art. 130.1. 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.

634

chapter seven

§974

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.126 Some organizations (for example, 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.127 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. 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 Djibouti 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 even 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

126 See e.g. GA Res. 64/248 for the UN scale of assessments (regular budget) for the three year period 2010-2012. 127 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).

§977

financing

635

is charged to continuously improve the system of comparing the basic national data.128 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.129 Since 1998, national income data were measured first in gross national product (GNP) figures, and later in gross national income (GNI) figures for each member state.130 Over the years, a number of alternative measures (other than national income) have been considered to determine the capacity to pay, for example socio-economic 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 GNI) as the starting point to determine the capacity to pay.131 When the former republics of the Soviet Union were admitted to UN membership (excluding Belarus and Ukraine, which are original members of the UN, and the Russian Federation, which took over Soviet 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.132 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,133 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”.134 This criticism did not lead to new rates, but was included in the general discussion on scale methodology within the Commission on Contributions.135

128 E.g. UN Documents A/48/11, A/49/11, A/55/11 and A/65/11 (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). 129 UN Doc. A/48/11, at 13; UN Doc. A/49/11, at 10; UN Doc. A/55/11, at 14-15, 26; UN Doc. A/64/11, at 39-43 (for the scale of assessments for the period 2010-2012, average statistical base periods of three and six years have been used). 130 Simma, op. cit. note 3, at 345. See UN Doc. A/64/11, at 13: “The renaming of GNP as GNI was a refinement of product and income concepts and did not entail a change in the actual coverage of the concept”. 131 See UN Doc. A/55/11, at 25; UN Doc. 64/11, at 39. 132 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). 133 UN Doc. A/48/11, at 3-8. 134 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”. 135 Id., at 9. See also UN Doc. A/49/11, at 8-9.

636

chapter seven

§978

§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.136 The ‘other factors’ to be taken into account have changed over the years.137 For more than a decade, two factors have been used (in addition to the national income data):138 (a) the level of external debt; and (b) low per capita national income. §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), the Organization for the Prohibition of Chemical Weapons (Article VIII.7) and the International Renewable Energy Agency (Article XII.A).139 The OAS assesses 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”.140 The Economic Cooperation Organization takes decisions about the contributions by the members to the budget “taking into account their capacity to pay and the prevailing scale of assessment of contributions of the United Nations”.141 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.142 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) originally charged its contributions exclusively in proportion to the length of railway lines served.143 In 2002, these contributions amounted to 6.40 Swiss Francs per kilometre.144 This method for determining contributions has changed since 1 July 2006, when the 1999 Protocol (Vilnius Protocol) entered into force. At present, two-fifths of the contribution is based on the UN

136

GA Res. 14 (I), A 3 of 13 February 1946. For an overview, see UN Doc. A/55/11, Annex II. 138 See in more detail GA Res. 55/5 B and UN Doc. A/55/11; GA Res. 64/248 and UN Doc. A/64/11, at 39-43. 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. 140 OAS, Art. 55. 141 Treaty of Izmir, Art. XI. 142 GA Resolutions 31/149 para. 4, 32/9 E para. 4, and 34/92 C, paras. 1, 2. 143 Convention concerning International Carriage by Rail (COTIF) of 9 May 1980, Art. 11.1. 144 OTIF, 2002 Annual Report, at 46. 137

§980

financing

637

scale of assessments, and three-fifths in proportion to the total length of railway infrastructure as well as of the maritime and inland waterway services.145 The costs of the Inter-American Tropical Tuna Commission are assessed in the proportion which the catch of the fisheries of each state bears to the total catch.146 The contributions of the members of the South Pacific Regional Fisheries Management Organization are partly based on a “variable fee based on [their] total catch of such fishery resources as may be specified by the Commission”.147 The International Hydrographic Organization uses a scale based on the tonnage of the fleets of the member states to determine their contributions.148 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.149 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.150 Until the second biennium (1994-1995) of its eleventh financial period (1992-1995), the WMO scale was partly (25 per cent) based on the UN scale, and partly (75 per cent) 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 50/50.151 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”).152 For that reason, Liberia, which pays the minimum (0.001 per cent) to the 2010-2011 budget of the UN, had a far larger share (8.86 per cent) in the 2010-2011 IMO budget. Similarly, Panama’s share in the 2010-2011 UN budget is 0.022 per cent, and 19.34 in the 2010-2011 IMO budget.153 Austria, on the other hand, which pays 0.851 per cent of the 2010-2011 UN budget, had a share of only 0.09 per cent in the 2010-2011 IMO budget.154 Contributions by members of the World Trade Organization 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 EU but also its member states are members of the World Trade Organization, they have to pay a greater contribution than would the EU if the latter were to fully replace its member states, because intra-Community trade is now included.155

145 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. 146 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). 147 Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, Art. 15.2. 148 Convention on the International Hydrographic Organization, Art. XIV. 149 See annex 2 to the constitution for the allocation of contributions (www.oiv.int). 150 ICAO Doc. A33-WP/22 (2001). 151 Abridged Report Cg 11, para. 10.2.4. 152 See IMO Docs. A 23/16 (2003) and A2/A/1.04 (NV.84). 153 Figures for the UN taken from GA Res. A/64/248; figures for the IMO from A2/A/1.04 (NV.84) (Annex 2). 154 See UN Doc. A/57/265, at 8-17 (Table 3). 155 See 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).

638

chapter seven

§981

§981 Some fisheries commissions relate 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 that only participate in some activities.156 Some other fisheries commissions relate the assessments to the amount of fish caught by each member,157 and again others are FAO bodies whose expenditure is paid by the FAO.158 The commodity councils often relate the assessments in the budget to the number of votes attributed to each member.159 §982 Some smaller organizations, such as the International Organization of Legal Metrology,160 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 so for the poorer ones with large populations. Four decades ago, 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. Over the years, the Council of Europe has taken account of the 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, in the 2010 budget however considerably more again.161 The large powers still bear the same share of the contributions, whilst Italy pays only a bit more than half as much as Germany in the scales of the UN and those specialized agencies that attribute costs according to capacity to pay.162 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 shared amongst the member states.163

156

See Carroz and Roche, op. cit. note 146, at 695-696. E.g. the Inter-American Tropical Tuna Commission (Art. I.3 of its constitution). 158 E.g. the Commission for Inland Fisheries of Latin America; the Indo-Pacific Fishery Commission. 159 E.g. International Agreement on Olive Oil and Table Olives 2005, Art. 15 (“participation shares”); International Tropical Timber Agreement 2006, Art. 19; International Coffee Agreement 2007, Art. 20.2; International Cocoa Agreement 2010, Art. 24.2. 160 International Organization of Legal Metrology, Art. XXVI. 161 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; 2002-2003 UN budget: Belgium 1.138 per cent; Turkey 0.444 per cent. 2010 budget CoE: Belgium 2.1483 per cent, Turkey 3.7176 per cent (CoE Doc. CM/Res(2009)20); 2010-2011UN budget: Belgium 1.075 per cent, Turkey 0.617 (GA Res. 64/248). 162 Council of Europe, Parliamentary Assembly, 30th ordinary session (1978), Doc. 4186, at 9; Press release 603a (2002); CoE Doc. CM/Res(2009)20. 163 Up to 1963, NATO administrative expenditure amounted to approximately $13 million annually. Gradually, expenditure was increased. The total civil budget for 2000 amounted to $133 million (NATO Handbook 2001, at 205), and to $301 million for 2010 (information obtained from the Netherlands Permanent Representation to NATO (March 2010). 157

§984

financing

639

The US, France and the UK originally paid about 24 per cent each and the other members the remainder.164 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 situation in 1994.165 In 2003, the US share was 22.4 per cent; the UK 17.3, Germany 15.5 and France 15.4 per cent.166 In 2010, following the accession of a number of new members, these figures were 21.7 (US), 14.8 (Germany), 12.6 (UK) and 11.9 (France).167

The sharing of the much higher operational (military) expenditure caused considerable problems.168 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, the UK 21.96, Germany 19.42, Italy 7.38 and the other members the balance.169 In 2003, the US share was 25.5 per cent, Germany 20.7, the UK 15.4, Italy 8.8 and the other members the remainder. In 2010, these figures were 26 per cent (US), 18.4 (Germany), 9 (UK), and 8.3 (Italy). The figures for operational (military) expenditure (including operations such as SFOR and KFOR) should be seen in their proper context. Most of the costs of the operational activities of NATO are paid in kind by the member states: this in-kind expenditure does not appear as part of NATO’s military budget.170

§984 Between 1958 and 1971, the European Economic Community (EEC) and Euratom had 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). In the EEC and Euratom scale of contributions, Germany, France and Italy each paid 28 per cent, Belgium and the Netherlands each 7.9 and Luxembourg 0.2.171 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 Council172 and they send more representatives to the European Parliament.173 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

164

Stoessinger, op. cit. note 2, at 56. See NATO Doc. ISM (94)5, Annex B. NATO Doc. FC(2003)040, Annex 2. 167 Information obtained from the Netherlands Permanent Representation to NATO (March 2010). 168 The military budget amounted to approximately $751.5 million for the year 2000, and to $1864 million for 2010 (NATO Handbook 2001, at 205; Netherlands Permanent Representation to NATO (March 2010)). These figures exclude the substantial costs of assignment of military personnel, which are borne by the respective contributing countries. 169 Data provided by NATO Secretariat. 170 Information obtained from the Netherlands Permanent Representation to NATO (September 2003 and March 2010). 171 EEC, Art. 200.1 (original text); Euratom, Art. 172.1 (administrative budget, original text). See also Strasser, op. cit. note 57, at 84-86. 172 EEC, Art. 148; Euratom, Art. 118 (original texts). 173 EEC, Art. 138; Euratom, Art. 108 (original texts). 165 166

640

chapter seven

§985

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)174 and the European Social Fund of the EEC (to which Germany and France paid 32 and Italy 20 per cent).175 In both cases, the Dutch share was also lower than that of Belgium.

§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 so-called First Own Resources Decision was adopted by the Council in 1970.176 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 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.177 Although it was added to the existing “own resources” source of income, this is basically a contribution, and thus the same type of income as that used between 1958 and 1971.178 According to the European Commission, this resource constituted the keystone of the new system of financing.179 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 of the EU budget. This 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 newly-introduced system of an overall ceiling for the Community’s resources ensured stability of finance irrespective of developments relating to the individual components. If the other three resources decreased

174

Euratom, Art. 172, para. 2 (original text). EEC, Art. 200, para. 2 (original text). 176 Decision 70/243 (OJ Special English Edition 1970 (I), at 224). See also Strasser, op. cit. note 57, at 84-86. This Decision has been amended most recently by Decision 2007/436 EC, Euratom (OJ 2007, L 163/17), the “Sixth Own Resources Decision”. 177 Decision 88/376/EEC, Euratom (OJ 1988, L 185); amended most recently by Decision 2007/436 EC, Euratom (OJ 2007, L 163/17). See also Strasser, op. cit. note 57, at 93-94. 178 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 57, at 93; R. Bieber, Artikel 201, in Von der Groeben et al., Kommentar zum EWG-Vertrag (5th ed. 1997), at 4/14431445. See also C.-D. Ehlermann, The Financing of the Community: The Distinction between Financial Contributions and Own Resources, 19 CMLRev. 571-589 (1982). 179 Strasser, op. cit. note 57, at 93. 175

§986

financing

641

or increased more than expected, the fourth resource would change correspondingly.180 The overall ceilings laid down in the financial perspective for 1993-1999 increased from 1,20 per cent of the Community GNP in 1993 to 1,27 per cent of the Community GNP in 1999.181 For the period 2000-2006 it was agreed to retain this overall ceiling of 1,27 per cent,182 and for the period 2007-2013 it was reduced to 1,24 per cent of the EU’s GNI.183 In the 1994 budget, the share of this fourth resource in total revenue was 27 per cent,184 in 2003 it was 60 per cent,185 and in 2010 75,9 per cent.186

(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 about 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.187 This has rendered them extremely inflexible. This approach 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 First World War on the members’ capacity to pay. Amendment of the League’s Covenant was thus required, and this was a lengthy process.188 After 1924, the League was able to apportion the expenses; but since a unanimous decision by the Assembly was necessary, no substantial degree of flexibility was attained.

180

See Kolte, op. cit. note 178, in particular at 489-490. See Interinstitutional Agreement of 29 October 1993 (OJ 1993, C 331/6); Decision 94/728/ EC, Euratom (OJ 1994, L 293/9), Art. 3. 182 See Interinstitutional Agreement of 6 May 1999 (OJ 1999, C 172); Decision 2000/597 EC, Euratom (OJ 2000, L 253/42). 183 See Interinstitutional Agreement of 17 May 2006 (OJ 2006, C 139/1); Decision 2007/436/ EC, Euratom (OJ 2007, L 163/17), Art. 3.1. 184 See general budget for the European Union for the financial year 1994, OJ 1994, L 34, at 5, 26. 185 See general budget for the European Union for the financial year 2003, OJ 2003, L 54, Vol. I, at 12, 17. 186 European Commission, General budget of the European Union for the financial year 2010 – The figures (2010), at 25; general budget of the European Union for the financial year 2010, OJ 2010, L 64/11. 187 EEC, Art. 200; Euratom, Art. 172 (original texts). (In both Communities amendment of the scales was possible, however, by unanimous vote of the Council); League of Nations, Art. 6. para. 5 (original text). 188 The amendment of Art. 6, adopted by the League Assembly in 1921, entered into force in 1924. See Van der Mandere, op. cit. note 117, at 175-180. 181

642

chapter seven

§987

§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 it was clear that there had been substantial changes in the relative capacity to pay.189 §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.190 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.191 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 accede to an organization, and when they 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, thereby achieving a substantial degree of flexibility.192

189

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. 191 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. 192 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. 190

§991

financing

643

§991 Special scales have been introduced in the special accounts (separate from the regular budget) established for UN peace-keeping forces. Originally, an ad hoc scale of assessments was established for each specific peace-keeping force. Generally, more than half of the expenditure was 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 was paid almost entirely 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;193 and did so again in 1963, when a 65 per cent reduction was made.194 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.195 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).196 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);197 and a similar system has been used for the United Nations Interim Force in Lebanon (UNIFIL)198 and for most subsequent peace-keeping forces.199

In 2000, the General Assembly decided to reform the method for apportioning the expenses of UN peace-keeping operations. It reaffirmed five general principles for the financing of these operations: (1) the financing of peace-keeping 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; (2) a different procedure is required from that applied to meet expenditure under the general budget of the UN; (3) developed states will make relatively larger contributions to peace-keeping operations than developing states;

193

GA Res. 1575 (XV). GA Res. 1875 (S-IV). 195 GA Res. 1619 (XV). See also GA Res. 1732 (XVI). 196 GA Resolutions 3101 (XXVIII), YUN 1973, at 218, 222. See YUN 1974, at 212, 218, and GA Res. 3374 (XXX) B. 197 See YUN 1974, at 203 and UN Doc. A/34/11, Add., at 4, showing that UNEF and UNDOF are covered by the same contributions. 198 See for the UNIFIL figures GA Res. S-8/2 (1978). 199 E.g. 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). 194

644

chapter seven

§992

(4) the special responsibilities of the permanent members of the Security Council should be taken into account in determining their share of the financing; and (5) 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.200 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. This list is updated every three years, in conjunction with the regular budget scale of assesments reviews.201 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.202 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.203 In 1978, this floor was further reduced to 0.01 per cent.204 In 1993, 87 members were assessed at this percentage level. In 1998, the UN has lowered this minimum contribution to 0.001 per cent.205 For the period 2010-2012 (regular budget), 39 members were assessed at this percentage.206 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, WTO 0.015 per cent.207 The budget for the International Tribunal for the Law of the Sea has a floor rate of 0.01 per cent.208 In most of these organizations, the minimum has been drastically lowered over the years.209

200 GA Res. 55/235, para. 1; reaffirmed most recently in GA Res. 64/249. See Simma, op. cit. note 3, at 347-348. 201 GA Res. 55/235, para. 15; most recently updated in GA Res. 64/249. 202 UN Publication No. 1 of the Netherlands Ministry of Foreign Affairs (1947), at 80. 203 GA Res. 2961(XXVII). 204 As decided by the General Assembly in Res. 31/95, para. 2. 205 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). 206 GA Res. 64/248. 207 UN Doc. A/33/309, at 16-19. WTO: see www.wto.org. 208 See, e.g., Docs. SPLOS/97 (2003) and SPLOS/217, para. 5 (2010). 209 Cf. the first edition of this book, at 402.

§993

financing

645

Of the regional organizations, the Council of Europe has a minimum contribution of 0.12 per cent.210 The OAS has a minimum contribution of 0.022 per cent (Antigua and Barbuda; Belize; Dominica; Grenada; Guyana; St. Kitts and Nevis; St. Lucia; St. Vincent and the Grenadines).211

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.212 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.213 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.214 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.215 §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.216 Legally, such a statement cannot be of any effect on an international organization. The law of the organization 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.217 As it was decided at the same time that this decision should not lead to an increase of the percentage

210 211 212 213 214 215 216 217

Financial Regulations CoE (1985). See OAS Doc. AG/Res. 1 (XXXIV-E/07). 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). GA Res. 2961 B (XXVII).

646

chapter seven

§995

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 has 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.218 As a consequence, the rates for other members increased, and the Assembly therefore agreed to establish transitional measures.219 §995 The imposition of a maximum contribution level 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.220 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 cents221 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.222 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 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 1977.223 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

218 219 220 221 222 223

GA Res. 55/5B. See Simma, op. cit. note 3, at 346. Id. On these transitional measures, see Simma, op. cit. note 3, 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). GA Res. 3228 (XXIX).

§997

financing

647

Federal Republic. Every Japanese citizen paid $1.30, every Soviet citizen $0.41 and every citizen of Tanzania, Sudan, Ethiopia, Bangladesh, Chad and Nepal $0.02.224 §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.225 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, and the maximum contribution was reduced to 60 per cent of total quotas.226 At present it is 59.470 per cent.227

§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 general ceiling of the share to be paid by each member 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.228 The decrease of the US percentage has the same effect. The anomaly may be illustrated by two hypothetical cases. (1) 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. (2) 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 2.356 per cent paid so far by Mexico (GA Res. 64/248). Furthermore, a consequence of the increase of the US population by more than 110 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

224 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. 225 OAU, Art. 23. The constitution of the African Union (the OAU’s successor organization) does not provide for a maximum contribution. 226 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)). 227 OAS Doc. AG/Res. 1 (XXXIV-E/07), para. 3. 228 Singer, op. cit. note 213, at 132.

648

chapter seven

§999

Arab states would also decrease in order to prevent their contribution per capita becoming higher than that of the US (if the UN would still have a per capita ceiling, see above, §996). 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 very much 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, which supports the retention of the maximum share rule, does not apply to maximum shares per capita. (2) If there is no maximum limit 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.229 Apparently, the existence of this organization had been in the hands of the US. The dissolution of the International Refugee Organization also was largely influenced by the US desire to terminate its support.230 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 37 million Swiss Francs (2010) 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 that provided funds for half

229 230

Stoessinger, op. cit. note 2, at 202. Id., at 208.

§1000

financing

649

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. §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 sometimes done by a (qualified) majority vote, some states may be outvoted and thereby obliged to pay the expenses of activities that they do not support. In practice, members of international organizations are usually somewhat reluctant to approve new expenditure.231 So far, states have rarely suffered from extravagant budgets. Only peace-keeping operations have created serious problems (see below, §1212-1213). Similar difficulties, however, may arise elsewhere. The large number of underdeveloped states may vote for development funds against the will of the states that have to bear

231

See e.g. Walters, op. cit. note 84, at 130.

650

chapter seven

§1002

the main financial burden. In order to prevent tensions, it has been suggested in the UN that the capacity of the General Assembly to adopt the budget should be kept within definite, though reasonably wide, limits. The General Assembly would only be allowed to assess contributions above the limit that applies to a member with that member’s express agreement.232 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, problems that might be caused by the fact that no fixed budgetary ceilings exist do not arise. Certain organizations fix temporary ceilings in cases where their general congresses meet too infrequently to be able to approve the (bi-)annual budget, which must then 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.233

d. 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.234 This was reduced to one ninth for practically all newly independent states admitted since 1955.235 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 1993.236 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

232

Stoessinger, op. cit. note 2, at 185. UPU Constitution, Art. 21; General Regulations, Art. 128 (five years). ITU Constitution, Art. 8.2(c) (No. 51); ITU Convention, Art. 4.11(7) (No. 73) (four years). WMO, Art. 23; Financial Regulations, Art. 2.1 (four years). 234 GA Res. 69(I). 235 See e.g. GA Res. 3371 (XXX) and GA Res. 46/221 A. 236 UN Doc. A/48/11, at 20. 233

§1003

financing

651

pay less.237 But there are exceptions. The WIPO requires new members to pay their contribution only from the year following that in which they become members.238 §1003 Special rates may also be granted to members on the ground of special circumstances.239 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).240 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.241 For example, under the UN scales of assessment for the period 2001-2003, Switzerland’s rate was 1.274 per cent.242 When it was admitted to the UN as a full member in September 2002 the same rate was established.243 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 necessary 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 relating to the budget. The UN Charter does not oblige the General Assembly to assess 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 that 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 that 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).

237 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). 238 WIPO, Financial Regulation 3.8. 239 See e.g. European Space Agency, Art. XIII.1(b). 240 See GA Resolutions 31/149 and 32/9 E. 241 UN Financial Regulation 3.8. See also UNJY 1986, at 280-281, dealing with the problem of what constitutes “participation”, and what does not. 242 GA Res. 55/5 B. 243 GA Res. 57/4 B.

652

chapter seven

§1006

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, and 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 that 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 sometimes impossible. For this reason, international organizations require payment of contributions in the currency of the headquarters or in convertible currencies.244 This may impede the payment of contributions by members with weak currencies. Most international organizations take account of this when assessing the contributions of their members.245 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.246 Apart from the organizations themselves, pensioned staff members, who often live in other states, may also suffer (see above, §514). Some international organizations created a special suspense account against currency fluctuations.247 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. A $12 million increase was sought and approved in 1991.248

244

UN Financial Regulation 3.9; Financial Rule 103.3. As a factor of the members’ capacity to pay. 246 See UN Doc. A/PV.2206, 18 Dec. 1973. 247 E.g. FAO, see YUN 1973, at 899. 248 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. 245

§1009

financing

653

§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.249 Devaluation of one may then be (partially) compensated by the stability or even revaluation of others. Since 1974, the Special Drawing Rights (SDRs) of the International Monetary Fund have been calculated by reference to a basket of specified amounts of originally sixteen, and now four, currencies.250 The International Fund for Agricultural Development uses the SDR as its unit of account.251 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 its own.252 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, the European Currency Unit (ECU), composed of the currencies of the member states. As some of these currencies were stronger than others, a weighted formula was used.253 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.254 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 would transfer the necessary funds to the organizations almost automatically as soon as

249 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. 250 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. The most recent review was done in 2010. Since 1 January 2011, the currencies comprising the basket and their percentage weight are: US dollar (41.9 per cent), Euro (37.4 per cent), Japanese yen (9.4 per cent), Pound sterling (11.3 per cent) (see IMF Press Release No. 10/434, 15 November 2010 (www.imf.org/ external/np/sec/pr/2010/pr10434.htm (February 2011)). 251 IFAD, Art. 5(2). 252 See Strasser, op. cit. note 57, at 59-66. 253 In March 1995, the value of the 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). 254 Council Regulation No. 1103/97, OJ 1997, No. L 162/1.

654

chapter seven

§1011

they become due. The amount of contributions outstanding used to be limited in most organizations. However, since the 1970s this situation has changed. The nonor late payment of contributions became common practice, and has produced serious difficulties for organizations. 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 1974.255 At the end of 2001, the UN had collected 80.5 per cent of the contributions for 2001.256 Arrears in the general budget amounted to $239.6 million: of the UN’s members, 54 (some 29 per cent) had not paid their regular budget contributions in full.257 In 2002, only 117 members paid their regular budget contributions in full (compared to 75 in 1994 and to 141 in 2000).258 For 2002, regular budget arrears amounted to some $305 million; the US owed $190 million (or 62 per cent).259 In recent years, this situation has not improved: as at October 2010, outstanding assessments for UN peace-keeping operations had grown to about $3.2 billion. For the UN regular budget, unpaid assessments totalled $787 million.260 The WHO originally collected more than 95 per cent of its contributions before the end of the budgetary year concerned.261 Over the years, these figures have decreased. In September 1978, about 10 per cent of the contributions for 1977 were still unpaid.262 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 at all.263 While late payment of contributions has become common practice in most organizations, the resulting situation is worse for some organizations than for 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.264 Non-payment of contributions is a constant problem in the OAS.265

§1011 Occasionally an international organization is faced with a member expressly refusing to pay its contributions.266 Most such refusals result from political objections against the organization or its activities rather than from any inability 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)

255

UN Financial Report and accounts for 1976, 1977, UN Doc. A/33/5, at 5. UN Doc. A/57/265, at 40 (Table 5). 257 Information taken from the UN’s website (2002). 258 Information given at a press conference by Catherine Bertini, Under Secretary-General for Management, 9 May 2003. 259 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). 260 See UN Doc GA/AB/3963. 261 See UN Doc. A/8031, at 56 (Annex I para. 126). 262 See UN Doc. A/33/309, table F, at 21. 263 Res. 46.9 of the World Health Assembly. 264 UN Doc. A/57/265, at 40 (Table 5). For the IMO, see IMO Doc. A 23/16 (2003). 265 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. 266 C. Tomuschat, Die Beitragsverweigerung in internationalen Organisationen, Liber Amicorum F.A. Mann 439-464 (1977). 256

§1011

financing

655

and to cover expenses of the Preparatory Committee created under the 1982 Law of the Sea Convention.267 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, §1212-1213, §1497) and the UN Interim Force for Southern Lebanon (UNIFIL, see below, §1500),268 but there are other examples, such as the UN Memorial Cemetery in Korea.269 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).270 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 structure after the admission of communist states (see above, §250) and the nomination of a Soviet Russian Assistant Director General.271 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.272 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-Rudman-Hollings 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.273 The situation was different in relation to 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 for voting strength proportional to the size of the contributions.274 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 that remained “committed to the ideals of the UN”, but that no longer had “confidence in the UN as an institution for effectively serving those ideals”.275 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

267

Cot and Pellet, op. cit. note 3 (2nd ed.), 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. 269 For a further survey, see YUN 1975, at 953-956. 270 Publication No. 96 of the Netherlands Ministry of Foreign Affairs, at 150. 271 S.M. Schwebel, The United States Assaults the ILO, 65 AJIL (1971), at 136-142. 272 Cot and Pellet, op. cit. note 3 (2nd ed.), at 368. 273 See UN Doc. A/40/PV.127, at 58. 274 Id., at 57-58. 275 Id., at 54-55. 268

656

chapter seven

§1012

established by the UN General Assembly.276 The Assembly agreed to a number of recommendations of this Group.277 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”.278 Without changing UN budgetary law, this reflected a general agreement among the members that decisions on budgetary matters would not be taken against the will of the major contributors.279 In practice, the UN budget since then has almost always been adopted by consensus.280

§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, §12101215). 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 that pay most of the contributions (“he who has the vote does not pay the note”). When an organization undertakes expensive activities in a field in which its competence is disputed, the states that 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 that they consider to be illegal.281 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.282

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.283

276

GA Res. 40/237. 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 123-126 (July 1988). 278 GA Res. 41/213. 279 E. Zoller, The “Corporate Will” of the United Nations and the Rights of the Minority, 81 AJIL 634 (1987). 280 An exception being the adoption of the budget for the biennium 2008-2009, GA Res. 62/237 A-C, see UN Doc. GA/10684. The US voted against. For the US explanation of vote, see USUN Press Release 387(07). 281 Tomuschat, op. cit. note 266, at 439. 282 Zoller, op. cit. note 279, 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 259. 283 Zoller’s 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. 277

§1013

financing

657

§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.284 The debt was finally remitted.285 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) There is no new state, but only a new government. Membership of international organizations 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 A diligent 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.286 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. Particularly since the 1990s, however, a number of organizations have introduced incentive schemes in order to encourage members to pay their contributions in time. Examples of incentives used are discounts for early payment (for example FAO)287 and distribution of interest earnings (for example ICAO, ILO). An

284 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. 285 GA Res. 3049 C (XXVII); YUN 1972, at 715, 716, 719. 286 L.W. Holborn, The International Refugee Organization (1956), at 105, 106, 122. 287 Another example is the International Tropical Timber Organization (see Art. 19.9 of the 2006 International Tropical Timber Agreement).

658

chapter seven

§1015

overview by the IMO Secretariat of incentive schemes of a number of specialized agencies has shown that these schemes have only had limited success.288 §1015 Many constitutions provide for some form of sanction against members that 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 loss of eligibility for election to non-plenary organs,289 loss of membership290 or the availability of a Court judgment.291 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 specifically provide for sanctions in relation to contributions that have not been paid in time (see below, §1455-1460).292 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.293 There are always several members that are almost two full years in arrears. The fact that they manage to pay just before the close of the second year294 illustrates the effectiveness of this penalty.295 In one important case, however, 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 therefore different in character from the normal case of a failure to pay. Another indication of effectiveness of this sanction can be seen by comparing the UN with 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.296

§1016 Most international organizations do not charge interest on outstanding contributions. They have working capital funds from which the money can be freely borrowed. This procedure actually favours the states in arrears. In the

288

IMO Doc. A 23/16 (2003), Annex 3. FAO General Rules, Rule 22(5). 290 International Organization of Legal Metrology, Art. XXIX (Peaslee, Vol. III & IV, at 323); International Bureau of Weights and Measures, Regulation 6 (Peaslee, Vol. III, IV, at 251). 291 In the European Union. 292 Such sanctions do not necessarily apply to financial obligations other than contributions, see UNJY 1970, at 188. 293 UN Charter, Art. 19. The two full years are measured from the 1st of January of the financial year concerned, see UN Financial Regulation 3.4. 294 Singer, op. cit. note 213, at 140. 295 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). 296 Stoessinger, op. cit. note 2, at 44. 289

§1017

financing

659

Universal Postal Union, governments in arrears have to pay an interest of three per cent per annum for the first six months of the relevant financial year, and six per cent per annum from the seventh month.297 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 within their own budgets. The International Telecommunication Union applies the same system.298 Inflation causes another problem when members are in arrears in paying their contributions. After two years, one dollar may represent less value than it did at the time a contribution it was due. When the rate of inflation is high, late payment should be compensated for by an extra charge. c. Filling the gap: working capital funds §1017 Expenditure is made by organizations throughout the entire year. International organizations will not suffer from problems of financial liquidity provided that at least some members pay their full contributions at the beginning of the budgetary year, or that all members pay at least a proportion of their total by then. The other contributions, or the balance of those 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 situation, an organization requires credits from elsewhere. Such credits may only be available in the form of loans, which generally also entail the payment of interest. In the Universal Postal Union and the International Telecommunication Union, this interest is passed through to and paid by the defaulting members (see above, §1016). §1018 Most international organizations avoid the administrative problems of loans by maintaining and using a working capital fund.299 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.300 A working capital fund is made available by the members, which are assessed for its establishment.301 In organizations or organs that receive part of their income in

297

UPU General Regulations, Art. 128.8. 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 budgets for 2010-2011, see UN Doc. A/65/187, at 207-208. 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. 300 For examples of the latter use, see GA Resolutions 2483 (XXIII) (United Nations) and UN Doc. A/6905, at 56 (UNESCO). 301 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). 298 299

660

chapter seven

§1019

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 that would otherwise have to be purchased with dollars.302 In theory, a working capital fund will hold funds that are constant at its original level. As it is only used for borrowing purposes, the money drawn is subsequently 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. Further, members might become even more lax in paying their contributions in full and on time.303 The levels of the working capital funds of the specialized agencies generally vary between three and ten per cent of their yearly budgets.304 The Working Capital Fund of the UN was originally higher than this, 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 1963.305 It remained at this level until 1981, when it was re-set at the level of $100 million.306 In 2007, it was increased to the present level of $150 million.307 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; and in 1981 it was only 6 per cent. Subsequently, the Fund was increased to $100 million, which in 1982 represented 13.3 per cent of regular budget expenditures. This size has decreased to 8.2 per cent of the regular budget appropriation for 1993,308 to 7.7 per cent of the regular budget appropriation for 2003,309 and (in spite of the increase to $150 million in 2007) to 5.8 per cent of the regular budget appropriation for 2011.310

§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

302 P. Berthoud, The United Nations Development Programme, Framework and Proceedings, 4 JWTL (1970), at 165. 303 See e.g. UN Documents A/6905, para. 145 (for 1969) and A/8155, at 11 (for 1971). See also YUN 1991, at 878. 304 See UN Doc. A/57/265, at 41 (Table 6). 305 See YUN 1975, at 954. 306 GA Res. 36/242 (for the biennium 1982-1983). 307 GA Res. 62/240 (for the biennium 2008-2009); GA Res. 64/247 (for the biennium 20102011). 308 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). 309 Our calculation. 310 Our calculation.

§1020

financing

661

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 that 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 of the budget, the UN was compelled to solicit funds from elsewhere. The General Assembly authorized the Secretary-General to issue bonds up to the amount of $200 million.311 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 they considered to be illegal, even in this indirect manner. The bonds covered the debts of the UN resulting from the non-payment by several members. These 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 effectively. In a few instances, the General Assembly has authorized the Secretary-General to borrow from UN funds or from external sources. Without such authorization, 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.312 Borrowing from external sources has generally been restricted to obtaining loans from governments and governmental or intergovernmental institutions, and has never been done from commercial sources or banks.313 In the field of peace-keeping operations, a separate Reserve Fund was established by the General Assembly in 1992 as a cash flow mechanism to ensure a rapid response of the UN to peacekeeping needs (see also above, §951).314 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.

311

GA Resolutions 1739 (XVI), 1878 (S-IV), 1989 (XVIII). UN Financial Regulation 5.1. See UNJY 1995, at 432. 313 As was reported in a Note by the UN Office of Legal Affairs, see UNJY 1995, at 432-437, in particular at 433. 314 GA Res. 47/217. See also GA Res. 57/317 and UN Financial Regulations 4.5-4.9. 312

662 Table 3 State

chapter seven

§1022

UN Percentage assessments (2010-2011) (of total contributions)315 UN

FAO

ICAO

ILO

IMO UNESCO UNIDO UNWTO WHO WIPO WMO WTO

Belgium 1.075 1.108 0.800 1.076 0.610 Brazil 1.611 0.880 0.890 1.612 0.340 Burundi 0.001 0.001 0.060 0.001 Canada 3.207 2.992 2.390 3.208 0.750 China 3.189 2.680 3.670 3.190 3.290 Colombia 0.144 0.106 0.200 0.144 0.050 Czech Rep. 0.349 0.282 0.220 0.349 0.090 Denmark 0.736 0.743 0.540 0.736 1.200 Egypt 0.094 0.089 0.160 0.094 0.150 France 6.123 6.332 5.000 6.126 1.310 Germany 8.018 8.619 6.850 8.021 2.450 Ghana 0.006 0.004 0.060 0.006 0.030 Indonesia 0.238 0.162 0.280 0.238 0.700 Iran 0.233 0.181 0.190 0.233 0.160 Iraq 0.020 0.015 0.060 0.020 0.030 Japan 12.530 16.706 11.750 12.535 3.380 Mexico 2.356 2.268 1.630 2.357 0.570 Netherlands 1.855 1.882 1.900 1.856 1.130 Nigeria 0.078 0.048 0.060 0.078 0.080 Pakistan 0.082 0.059 0.160 0.082 0.070 Panama 0.022 0.023 0.060 0.022 19.340 Poland 0.828 0.504 0.410 0.828 0.110 Russia 1.602 1.206 0.790 1.603 0.940 S. Arabia 0.830 0.752 0.690 0.831 0.240 Slovakia 0.142 0.063 0.060 0.142 0.060 Tunisia 0.030 0.031 0.060 0.030 0.030 Sweden 1.064 1.076 0.750 1.065 0.610 Syria 0.025 0.016 0.060 0.025 0.040 UK 6.604 6.675 5.740 6.607 4.800 USA 22.000 22.000 25.000 22.000 3.140

1.102 0.876 0.001 2.978 2.667 0.105 0.281 0.739 0.088 6.302 8.578 0.004 0.161 0.180 0.015 16.626 2.257 1.873 0.048 0.059 0.023 0.501 1.200 0.748 0.140 0.031 1.071 0.016 6.643 22.000

1.532 1.218 0.001 3.707 0.146 0.391 1.027 0.122 8.758 11.921 0.006 0.224 0.250 0.021 22.000 3.137 2.603 0.067 0.082 0.032 0.696 1.668 1.040 0.063 0.043 1.489 0.022 9.232

0.241 1.684 0.222 2.659 2.370 0.532 1.063 0.961 2.836 2.836 0.266 0.886 0.540 0.266 2.836 1.772 1.921 0.266 0.266 0.532 1.441 1.608 1.329 0.088 0.532 0.532

1.102 0.876 0.001 2.977 2.667 0.105 0.281 0.739 0.088 6.302 8.578 0.004 0.161 0.180 0.015 16.625 2.257 1.873 0.048 0.059 0.023 0.501 1.200 0.748 0.603 0.031 1.071 0.016 6.643 22.000

3.927 1.060 2.533 0.524 1.590 0.944 0.008 0.020 0.015 2.618 3.160 3.213 1.964 3.140 6.454 0.066 0.140 0.202 0.786 0.340 0.746 2.618 0.730 0.980 0.033 0.090 0.263 6.545 6.030 4.626 6.545 7.890 8.933 0.016 0.020 0.044 0.262 0.230 0.739 0.262 0.230 0.016 0.020 6.545 12.340 5.111 1.964 2.320 1.925 3.927 1.830 3.274 0.033 0.080 0.264 0.033 0.080 0.179 0.033 0.020 0.086 0.786 0.820 0.974 2.618 1.580 0.262 0.820 0.995 0.346 0.063 0.786 0.033 0.030 0.122 3.927 1.050 1.335 0.016 0.030 6.545 6.500 5.105 6.545 21.660 12.962

B. Voluntary contributions 1. The principle of voluntary contributions §1022 Since the time of the League of Nations, international organizations have 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 basis of the financial resources made available to them. They appealed to both governmental and non-governmental sources for voluntary contributions and gifts.316 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”. In the UN family, voluntary contributions are often referred to as “extrabudgetary resources”, as they are resources made available in addition to the regular budget (see above, §930, Table 1). In recent years, partly because of the ‘zero growth’ policy followed by

315 316

This is a selection of figures from UN Doc. A/65/187, Table 5 (footnotes omitted). Stoessinger, op. cit. note 2, at 41.

§1023

financing

663

member states with respect to regular budgets of many international organizations, voluntary contributions have become more important as a source of income for international organizations, both in absolute and in relative terms.317 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 that 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: (1) In principle, voluntary contributions are periodical, although the amount may vary. Gifts are usually for one occasion only. (2) Voluntary contributions are made in relation to particular programmes and they do not form part of the regular budget of the organization. Most gifts represent income of the organization, benefiting its entire programme. §1023 Is the growth of the number of voluntary programmes propitious?318 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 the main advantage as being 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 being compatible with, and conducive towards, the interests and purposes expressed in their national policies.319 For this reason, Stoessinger concludes that, as a general proposition, the most acceptable principle of cost-distribution for members of international organizations is that which is 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 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 higher income generation. In a centralized budget, many states will find one or more objectionable items which may move them to press for lowering the overall budget. Voluntary programmes will meet with less resistance in

317 See for figures illustrating this trend for the period 2000-2005: Joint Inspection Unit, Voluntary Contributions in United Nations System Organizations (2007), UN Doc. JIU/REP/2007/1. For example, between 2000 and 2005 voluntary contributions rose much more than regular budget resources in the specialized agencies and IAEA, and in 2005 even were higher than regular resources (id., at 5). 318 See also M. Elmandjra, The United Nations System, An Analysis 151-152 (1973). 319 Id., at 21.

664

chapter seven

§1024

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.320 (4) Voluntary contributions are by definition uncertain. The quest for such financial sources makes international organizations more dynamic and efficient.321 (5) Some donor countries give voluntary contributions in the form of gratis personnel. As observed by the Joint Inspection Unit, such additional personnel “can often inject vitality and fresh ideas, and more experienced personnel can contribute specific expertise”.322 §1024 On the other hand, there are important disadvantages that 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 that 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 too heavily in organizations striving for no more than the facilitation of cooperation between states; however, 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 total available funds. In relation to peacekeeping, 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 contributions are identified as having been donated by the government in question. The UN Legal Counsel recommended, however, 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 SecretaryGeneral to the General Assembly, in press releases and so forth.323

320

Stoessinger, op. cit. note 2, at 208. Joint Inspection Unit, Voluntary contributions in United Nations System Organizations (2007), UN Doc. JIU/REP/2007/1, at 6. 322 Id. 323 UNJY 1995, at 475-476. 321

§1025

financing

665

(2) The voluntary character of a programme may keep out indifferent states. Many states that make little or no contribution to some voluntary programmes would contribute if the expenditure were put on the regular budget (although if it were put on the budget, the indifferent members might of course vote against the increase in total expenditure). (3) Programmes financed through voluntary contributions are largely dependent on a limited number of wealthy states, often fewer than ten.324 The power unilaterally to increase or decrease contributions puts a strong instrument of pressure into the hands of the states that 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, however, then individual donor states will have 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 just a few states. The United Nations Capital Development Fund, for example, received 91 per cent of its 2008 income from five countries (in order of size of contribution: Sweden, Spain, Norway, Luxembourg and Belgium).325

(4) Voluntary contributions, particularly those from private sources, may be unstable and unpredictable (see below, §1045). Large fluctuations in yearly incomes prejudice planning. If a programme loses support, its financial means may fall below its requirements.326 One cannot, as in the case of regular budgets, simply 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.327 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, with the exception of the United Nations Environmental Programme (UNEP). In 2002, UNEP adopted a report in which it was suggested to develop a “voluntary indicative scale of contributions”, in order to broaden the base of contributions and increase predictability of these resources.328 The Joint Inspection Unit

324

Joint Inspection Unit, op. cit. note 321, at 9. UNCDF Annual Report 2008, at 43. 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. 327 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. 328 UN Doc. UNEP/GCSS.VII/6; UNEP/GCSS.IX/3. 325 326

666

chapter seven

§1026

has suggested that other UN funds and programmes should also develop proposals for such an indicative scale, based on this UNEP model.329 Whether or not the disadvantages outweigh the advantages will depend on the activity concerned. Activities with limited costs and that are 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. 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 are exceptions. In the OAS, most technical assistance work is supported by voluntary contributions,330 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.331 As at January 2003, the total annual Italian contribution amounted to €220.000, which is equivalent to approximately 12 per cent of the total annual contributions of the member states of UNIDROIT.332 When, in 1976, the Arab states created an Arab security force in the Lebanon, they decided that it should be financed by voluntary contributions.333

§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.334

329

Joint Inspection Unit, op. cit. note 321, at 8. Stoessinger, op. cit. note 2, at 45. Statute of the International Institute for the Unification of Private Law, Art. 16. 332 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. 333 See G. Fenez, La force arabe de securité, 22 AFDI 58 (1976). 334 According to footnote (a) to Table 2 in UN Doc. A/65/187, which from this data is extracted, the figures cover “all contributions provided by state and non-state donors (including World Bank, European Commission, development banks, private companies, foundations, etc.) outside regular budgets. . . . Extrabudgetary resources include trust funds, technical cooperation, and all other non regular resources, including funding received through inter-organization 330 331

§1028 Table 4

financing

667

UN Extrabudgetary resources from all sources (in US dollars)335 2002

Organization

Income

UN Peacekeeping CTBTO FAO IAEA ICAO ICTY IFAD ILO IMO UNAIDS UNDP UNEP UNESCO UNFCCC UNHCR UNICEF UNITAR UNODC UNRWA UNWTO WFP WHO WIPO WMO WTO

364 296 000 62 378 000 20 000 350 663 000 105 177 563 102 293 000 5 996 41 098 979 104 599 000 19 236 636 20 826 746 2 233 052 000 42 166 726 231 746 059 4 746 059 813 871 569 740 989 500 6 777 800 81 611 384 376 264 576 2 552 234 1 941 462 730 606 903 833 4 932 370 22 239 200 12 933 054

Total

8 992 017 080

2006 In-kind 3 573 000

128

1 952 171 4 683 500 15 083 103 10 887 850 7 200 000 43 379 752

Income 899 134 000 21 121 000 224 566 481 356 000 129 202 278 185 313 000 668 000 49 645 168 190 848 000 17 336 217 38 074 174 3 637 000 000 56 396 532 343 676 049 34 862 143 1 072 309 062 1 712 781 423 12 273 028 125 453 918 566 162 781 2 981 714 2 353 589 000 1 496 690 586 4 482 766 15 430 000 23 505 127 14 834 428 106

2009 In-kind 8 540 000

7 851 000 12 042 278 5 102 133 387 410 000 10 305 652

432 052 063

Income 1 231 882 000 33 789 000 2 221 040 806 735 000 189 781 146 256 220 000 865 000 143 867 257 262 052 000 26 985 231 27 886 814 4 129 137 000 112 671 000 293 538 424 86 626 636 1 703 358 236 2 180 866 561 16 405 744 218 744 000 920 211 375 6 638 365 3 507 800 000 1 309 263 792 9 058 001 30 312 600 24 026 250 18 374 557 882

In-kind 8 780 000

1 150 133

12 270 000 9 584 521 1 569 000 9 420 497 764 100 000 63 245 491

872 669 513

§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. For example, in the largest voluntary programme (UNDP), Denmark, the Netherlands, Norway and Sweden together in 2008 contributed 15 per cent of all resources and 40 per cent of the core resources (excluding earmarked contributions), while in the regular UN budget they were, together, assessed for 4.465 per cent in the same year.336 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, placed

arrangements. Extrabudgetary resources should also separately include the value of contributions in kind when these are separately recorded as income in organizations’ financial statements”. 335 This is a selection from the figures in UN Doc. A/65/187, at 10-11 (footnotes omitted). 336 UNDP Annual Report 2009, at 39; GA Res. 61/237.

668

chapter seven

§1030

in 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.337 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.338 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.339 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.340 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.341 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.342 In 2002, thematic trust fund income amounted to $64 million.343

§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.344 This trust fund was financed entirely by the IMF, from net profits of the organization.345 It was terminated in 1981.346

337 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. 338 See GAOR 26th Session Suppl. No. 7 (A/8407), at 89. 339 UN Doc. A/44/PV.43 (1989), at 7-17; 47 ICJ Yearbook 1992-1993 (1993), at 145; UN Doc. A/64/308. On this trust fund, see P.H.F. Bekker, International Legal Aid in Practice: The ICJ Trust Fund, 87 AJIL 659-668 (1993). 340 UN Doc. DP/1993/44/Add.2, at 2. 341 UN Doc. DP/1993/44/Add.3, at 2-4. 342 See www.undp.org/trustfunds. 343 UNDP Annual Report 2003, at 22. 344 Selected Decisions of the International Monetary Fund and Selected Documents, Eighth issue 1976, at 185-195; UNJY 1976, at 118. 345 On this fund see Gold, op. cit. note 337, at 860-866. 346 See IMF Annual Report 1993, at 210-211.

§1031

financing

669

A wide variety of trust funds is used by the World Bank. As of June 30, 2009, the Bank had 1046 active trust funds representing $72 billion ($72,000 million) of donor funding commitments.347 As analyzed by Shihata, “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”.348 In order to improve the management of these trust funds and in order to ‘bring more World Bank unity within the diversity of these funds’, the Bank adopted a “Trust Fund Management Framework” in October 2007.349 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 2002.350

§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 fund, as well as other trust funds from non-member states, despite there being no mention of such funds in its constitution.351 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 each of over $1 million per annum.352 The same is true for a number of trust funds of the World Bank.353 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 from the regular budget at the disposal of the voluntary programme. This seems acceptable 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 favours a special programme and when voluntary contributions fall short of what is required to

347

World Bank Annual Report 2009, at 59. 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. 349 World Bank Annual Report 2008, at 64. 350 Res. ICC-ASP/1/Res.6. 351 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. 352 See UN Doc. DP/1993/44/Add.3; UN Doc. DP/2009/11/Add. 2. 353 See Shihata, op. cit. note 348. 348

670

chapter seven

§1033

meet its running costs, such initial stimulus may be continued or even increased. If it becomes more permanent in nature, the programme is then in fact being 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.354 The UN appropriated $30 million a year to UNIDO in its 1978-1979 budget,355 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 that solicit voluntary contributions from member states also accept voluntary contributions from non-member states that have been recognized by the organization (see below, §1845 ff.). Representatives of those states participate in pledging conferences; and their contributions are often mentioned with those of the UN members in lists published by the organization.356 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 the 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.357 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. Pledging358 §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

354

See GA Res. 2152(XXI), YUN 1966, at 304-305. UN Doc. A/32/6/Add. 1, at 51. 356 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. 357 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. 358 Several data have been taken from an unpublished seminar-paper written by J. Berteling on the Legal Aspects of Pledging Conferences (August 1971). 355

§1035

financing

671

refugees.359 The Committee invited representatives of members to consult it. Nonmember 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.360 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.361 During the first year, this new “Committee for Extra-Budgetary Funds” was in touch with 83 Governments by means of written communications, 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 Children’s Emergency Fund (UNICEF) and other special programmes.362 The Committee was not very effective, however, and ceased to function in 1961.363 Its discussions had attracted little public attention. §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.364 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 holding other meetings at the same time, an effort is made to focus maximum public attention on the pledging.365 §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. However, the scattering of pledges over a number of different conferences caused some confusion. In 1977, the UN General Assembly therefore decided that

359

GA Resolutions 410 (V) B and 393 (V), para. 8. Report of the Committee, UN Doc. A/1769. 361 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 ten and subsequently to 14 (UN Doc. A/4657 and GA Res. 1556 (XV)). 362 GA Res. 693 (VII). 363 Stoessinger, op. cit. note 2, at 193. 364 GA, Fifteenth Session, Agenda Item 55, Annexes, at 3 (UN Doc. A/4623, para. 21). 365 See e.g. GA Res. 1729 (XVI). 360

672

chapter seven

§1037

a single, annual UN pledging conference should be held for all UN operational activities connected with development.366 Special rules of procedure were made for these conferences.367 b. 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.368 Furthermore, several states have taken the view that pledges are not legally binding.369 In addition, the system of voluntary contributions would prohibit any legal obligations. The essence of the system is its voluntary character.370 Firm obligations would mean fewer pledges are made. 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.371 §1038 Even when pledges create binding obligations, it may be doubted whether sanctions can be applied in the case of non-payment. Sanctions are such extreme remedies in international organizations that it may be considered that they can be applied for compulsory payments only. Constitutional provisions providing for sanctions for non-payment of contributions (see below, §1451-1459) have been drafted in respect of regular contributions, and it seems doubtful whether contributions to voluntary programmes are also covered by those provisions. Furthermore, voluntary contributions are also requested from non-members, to whom sanctions cannot be applied. It may seem unreasonable to treat members differently.

366 GA Res. 32/197, Annex, para. 31. See on these pledging conferences: UN Doc. A/48/940, at 12-13; Yearbooks of the UN, e.g. YUN 1991, at 367, and YUN 2000, at 822. To indicate the size of these pledges: as at 30 June 2005, contributions pledged or paid to 24 UN funds and programmes at the 2004 pledging conference amounted to some $800.2 million (YUN 2005, at 960-961). 367 GA Res. 33/419. 368 See e.g. YUN 1952, at 816, footnote 35 or YUN 1953, at 690. The final acts are not published in the UNTS. 369 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. 370 U. Kirdar, The Structure of the United Nations Economic Aid to Underdeveloped Countries 35-37 (1966). See also Berthoud, op. cit. note 302, at 163. For a plea to strengthen the UN pledging procedures and to make all or some of the pledges legally binding, see J.E. Archibald, Pledges of Voluntary Contributions to the United Nations by Member States: Establishing and Enforcing Legal Obligations, 36 George Washington International Law Review 317-376 (2004). 371 See also Stoessinger, op. cit. note 2, at 191-214; G. Feuer, Les aspects juridiques de l’assistance technique 116-133 (1967).

§1039

financing

673

So far, no organization has proposed that sanctions be applied to states that are in arrears in paying their voluntary contributions. Within UNESCO, however, there is the following exception to this rule: 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.372

§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.373 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 that benefit the budget of the organization §1040 Sometimes international organizations receive gifts or legacies that 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 in terms of contributions to be made by their members. By virtue of this process, gifts only result in a decrease in members’ contributions.374 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.375 §1041 Member states rarely donate gifts for the benefit of the organization’s budget. Only two groups of such gifts are of practical importance:

372 UNESCO Convention concerning the protection of the world cultural and national heritage (16 Nov. 1972), Art. 16 (5). 373 See Stoessinger, op. cit. note 2, at 206. 374 UN Financial Regulation 3.14. 375 See Art. 12 of the constitution of the West Africa Rice Development Association, 10 ILM 663 (1971).

674

chapter seven

§1042

(1) At the establishment of an international organization, many members present gifts to furnish and decorate the secretariat building.376 (2) The host state – which benefits from the presence of an international organization on 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.377 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.378 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 donors. 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 headquarters379 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 that 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 1979.380 §1044 Private gifts are often obtained for programmes that 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 most easily obtained for specific humanitarian programmes. Large amounts of private gifts were obtained by the UN High Commissioner for Refugees (UNHCR) and by the UN Children Fund

376 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. 377 Stoessinger, op. cit. note 2, at 37. 378 GA OR, 24th Session, Suppl. No. 7 (A/7607), at 18, 70, 71. 379 Accepted by GA Res. 100 (I). 380 NRC Handelsblad, 31 Jan. 1979, at 5.

§1045

financing

675

(UNICEF).381 In 1993, UNHCR received $25 million from the American philantropist George Soros to help refugees in Bosnia.382 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 was 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.383 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.384 Since then, public attention for the refugee problem has fluctuated. UNHCR’s final account for 1970 only attributed $0.5 million to private donations.385 In 1977, the figure had risen again to $5.2 million, which is about 5 per cent of the contributions paid by states.386 In 1991, it rose to $19.4 million (about 2.5 per cent of the contributions by states).387 In 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.388 §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 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

381 For the financing of UNICEF see K. Karunatilleke, Le Fonds des Nations Unies pour l’Enfance 241-271 (1967), and UNICEF Annual Reports. 382 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. 383 Information taken from Williams, op. cit. note 382. 384 Stoessinger, op. cit. note 2, at 201. 385 Accounts for the year 1970, GAOR 26th Session, Suppl. No. 7E (A/8407/Add.5), at 10. 386 UN Doc. A/33/5/Add. 5, at 13. 387 UN Doc. A/47/12, Table 3. 388 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.

676

chapter seven

§1046

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 1970,389 and to $12.6 million in 1977.390 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).391 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.392

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, and therefore have 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.

§1047 The competence of international organizations to present gifts to other such organizations is in no case clearly defined. One should be cautious. A state’s contribution to an international organization should not be used for financing other organizations that 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 that fits within the general purposes of the donating

389 GAOR 26th Session, Suppl. No. 7B (A/8407/Add. 2), at 16. The income from greeting cards is not included (see below, §1060). 390 UN Doc. A/33/5/Add. 2, at 24. 391 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. 392 UNICEF Annual Report 2002, at 35.

§1048

financing

677

organization. The greater the uniformity of membership between such organizations, the less objectionable transfers of funds between international organizations become. §1048 Contributions of one international organization to another may also be paid as a consequence of particular activities that the recipient organization performs for the other’s benefit (see above, §1062).393 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 conditions, 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 that directly or indirectly involve additional financial liability for the organization shall require the consent of the General Assembly.394 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;395 this power has been delegated to the WHO Director-General.396 In the European Union, the Commission may accept donations, and in particular foundations, subsidies, gifts and bequests.397 The competence to accept gifts does not entail a power to establish trust funds for the purpose of inviting gifts.398 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.399

393 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. 394 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 476-479. For rules similar to these rules of the UN see, for example, WMO Financial Regulation 10.2. 395 WHO, Art. 57. 396 WHO Financial Regulation VIII.2. 397 Financial Regulation, Art. 19.1; see Strasser, op. cit. note 57, at 47. 398 See UNJY 1966, at 234-237. 399 See UNJY 1974, at 174-175.

678

chapter seven

§1050

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 (that is, 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.400

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. The activities of only a limited number of 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, the first SecretaryGeneral of the UN, 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.401

The generation of a substantial amount of “own” income for an international organization increases its independence. Usually, the organ permitting new activities will be aware of the budgetary consequences of those activities, 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

400 401

UNJY 1983, at 209-210. Singer, op. cit. note 213, at 143-144.

§1052

financing

679

below, §1064). But apart from that they render financial services to their members, for which they are paid. In the fiscal year ended 30 June 2009, the World Bank had an income on loans to members of $3,789 million.402 In the fiscal year ended 30 June 2009, the International Development Association received an income from development credits of $801 million.403 The IMF receives income, inter alia from periodic charges, interest on SDR holdings and service charges. In the financial year ended 30 April 2002, the Fund’s income from these sources amounted to SDR 2,232 million.404 The IMF financed its own headquarters building and accumulated considerable reserves (see below, §1122).405

§1052 Both the IAEA and the supply agency of Euratom may charge members for materials, services, equipment and facilities furnished to them by the organization.406 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.407 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 organizations would have enjoyed a strong position in the market as distributors of that material. But supplies remained plentiful and the income obtained was consequently 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.408 The General Assembly of the UN accepted its responsibilities under the

402

World Bank, Annual Report 2009, at 48. Id., at 130. 404 IMF Annual Report 2002, at 156; see for further data, id., at 161, 163. 405 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). 406 IAEA, Art. 14E; Euratom, Statute of the Agency (Official Journal 534/58), Art. 6. 407 Stoessinger, op. cit. note 2, at 232. 408 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. 403

680

chapter seven

§1054

agreement in September 1962.409 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.410 The Security Council of the UN requested the Secretary-General to establish UNYOM.411 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.412 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.413

§1054 The system of financing used in the abovementioned 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 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 that are less able to purchase an organization’s services, the latter should not perform activities that 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 that establish separate funds, or organs financed by the participating states only. In these cases, programmes are involved that may be substantially within the scope of an international organization, serving its purposes, but that are formally outside their fields since they are incorporated in separate treaties.

409 410 411 412 413

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).

§1056

financing

681

One example of this procedure is the Agreement on North Atlantic Ocean Stations, drafted at a conference convened by the ICAO on 25 February 1954.414 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 the cost of any of its expenditures. Other examples are the partial agreements made in the OECD.415 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.416

c. Cost sharing for specific projects §1056 In most economic assistance projects, some participation of the recipient countries is required. Recipients 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 UNDP was financing in 1975 was borne by the developing countries themselves.417 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 that 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 that attacked Egypt in 1956, as their aggression required the creation of UNEF.418 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 that might be considered

414 415 416 417 418

215 UNTS, at 268; Trb. 1955, No. 80. OECD, Art. 6, para. 2. See www.esa.fr. YUN 1975, at 405. YUN 1956, at 42; YUN 1957, at 51.

682

chapter seven

§1058

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 and so forth may also produce some income. For 1978 and 1979, the UN expected a yearly net income of $200,000 million from the sale of publications and nearly $140,000 million from services to visitors and guided tours. The income from the souvenir shop, gifts centre and catering service was estimated at $600,000 million and the rental of garage parking at $150,000 net.419 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.420

§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.421 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.422 In 1961, the WHO received approximately $1 million from a similar project.423 In the UPU, the host state for a session of the general congress recovers a substantial part of its costs by issuing special stamps.

§1060 cards.

UNICEF receives a significant amount of income from sales of greeting

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 specifically in order to support the organization. During the 1976 season, over 90 million

419 GAOR 25th Session, Suppl. 6A (A/8006/Add. 1), at 31-32; GAOR 25th Session, Suppl. 8(A/8008), at 136, para. 383. 420 See e.g. Report of the Activities of the ITU in 1991, at 123. 421 YUN 1975, at 972. 422 Stoessinger, op. cit. note 2, at 201. 423 Id., at 226.

§1061

financing

683

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 1977.424 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).425

§1061 The international development banks usually charge a commission on loans and guarantees to individual firms.426 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 designs, patents, and so forth.427 At present, these fees represent some 90 per cent of the income of WIPO.428 The European Patent Organization (EPO) is, in fact, completely selffinanced by income derived from fees (from patent applications, opposition procedures against granted patents, and appeals against EPO decisions).429 In 2009, EPO’s income from fees amounted to some €1,215 million.430 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 2001.431 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 142 states parties to this Treaty (April 2010) as the applicant desires. The applicant may also obtain information enabling him to assess the likelihood of the invention’s patentability. In 1979, 2,588 applications were made, and this figure grew sharply to 14,856 in 1989, to 76,358 in 1999, and to 163,248 in 2008.432

3. Income from services rendered to other international organizations §1062 International organizations may lease their conference halls to other international organizations during periods when these are not in use, or they may

424

UN Doc. A/33/5/Add. 2, at 65. UN Doc. E/ICEF/1993/2 (Part II), at 72, 76. 426 E.g. Inter-American Development Bank, Art. 3, Section 12. 427 Under the Madrid Union, the Patent Cooperation Treaty and the Hague Union respectively. 428 See www.wipo.int/about-wipo/en/how_wipo_works.html (March 2011). 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). 429 European Patent Convention, Arts. 37-38; European Patent Office, Facts and Figures 2010, at 4. 430 European Patent Office, Financial Statements, Accounting Period 2009, at 10. 431 Id. 432 See WIPO Statistics Database, March 2010 (available at www.wipo.int/ipstats/en/statistics/ pct/index.html; April 2010). 425

684

chapter seven

§1063

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,433 which covered 0.3 per cent of its regular budget. Normally, conference halls are only leased 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 concerning UNESCO’s members.

§1063 The only large sources of income that may be considered as payment for services rendered are the funds of the UNDP. In 2008, this programme received an income of $4.8 billion from voluntary contributions ($1.1 billion regular (core) resources and $3.7 billion earmarked (non-core) contributions).434 It does not spend the income itself, but distributes it instead 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 30 June 2009, the World Bank had an income from investments of $625 million.435 The Caribbean Development Bank has raised a loan of $100 million on the international market, for the purpose of financing the Caribbean Court of Justice (see above, §641B). This money has been put in a trust fund. An independent Board of Trustees is investing it and provides the Court with the necessary funds. §1065 Apart from the financial organizations,436 the European Atomic Energy Community (Euratom) and the IAEA also have the power to contract loans. The

433

GAOR 25 Suppl. No. 8(A/8008), para. 383. UNDP Annual Report 2009, at 38. 435 World Bank, Annual Report 2009, Financial Statements, at 48. 436 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). 434

§1066

financing

685

UN and certain other organizations have raised loans for specific purposes, such as the Secretariat building.437 In 1947, the UN borrowed $65 million for the establishment of its headquarters.438 The loan was interest-free and was amortized over 35 years (the last payment was made in 1982).439 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.440 Almost $170 million of this sum was used, carrying an interest of two per cent per year and being amortized over 25 years.441 To a limited extent, and not without prior approval by the General Assembly, the administrator of the UNDP is entitled to borrow money.442 The General Conference of UNESCO agreed to several loans but refused a loan to pay for the Nubian monuments.443

§1066 The borrowing power of the EU is less clearly defined. Until 1976, the EEC had never raised money on loan in its own name although, indirectly, it had access to capital markets through the European Investment Bank. In 1975, the Council accepted that the EEC could contract loans444 and from 1976 onward the E(E)C, now the EU, has frequently done so.445 §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 in expenditure on repayments and interest. In the UN, this expenditure is financed from the regular budget. In the financial organizations, the loans themselves are used for lending activities, and this creates an income sufficient to cover the costs. §1068 Most international organizations draw some income from bank interest.446 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.

437 See Jenks, op. cit. note 89, at 178-188, who also discusses the question of the law applicable to such loans. 438 Authorized by GA Res. 182 (II). 439 UN Doc. A/32/6, Vol. II, at 457. 440 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). 441 Everyman’s United Nations 479 (8th ed. 1968). 442 See GA Res. 31/165; UNJY 2009, at 395. 443 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). 444 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. 352 TFEU) as their legal basis. 445 Couzinet, 224 RMC (Febr. 1979), at 58; Strasser, op. cit. note 57, at 100-109. See for further details: previous edition, §1066. 446 UN Financial Regulations 4.16-4.17 empower the Secretary-General to invest funds.

686

chapter seven

§1069

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);447 and for the biennium 2002-2003, income from bank interest was approximately $6 million (0.23 per cent of the budget for 2002-2003).448 For 1979, the Council of Europe estimated its income from bank interest at 3.3 million French francs (1.9 per cent of its budget);449 and for 2009, bank interest amounted to €3 million (almost 1 per cent of the Council of Europe’s budget for that year).450

§1069 Investment in property may also provide some income. The leasing of office space (see above, §1062) may be brought into this category as well. 5. Income from staff assessment §1070 Originally, international civil servants paid no taxes. They were exempt 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.451 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,452 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.453 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 the objections that had been made by some member states concerning the existence of a category of persons who pay no taxes. In addition, the (fictitious) increase in 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.

447

UN Doc. A/32/6 Vol. II, at 464. See UN Doc. A/56/6 (Income sect.2). CoE budget 1979, at 78. 450 See CoE Doc. CM(2008)138. 451 J.H. Christiaanse, De inkomstenbelastingvrijstelling voor de internationale ambtenaren 79 (1960). 452 Id., at 78, 84. 453 GA Res. 239 (III). See also UNJY 1975, at 192. 448 449

§1071 Table 5

financing

687

UN staff assessment rates used in conjunction with gross base salaries (effective 1 January 2006)454

A. Staff assessment rates for staff members with dependants Assessable payments (United States dollars)

Staff assessment rates for those with a dependant spouse or dependant child (percentage)

First 50,000 per year . . . . . . . . . . . . . . . . . . . . Next 50,000 per year . . . . . . . . . . . . . . . . . . . . Next 50,000 per year . . . . . . . . . . . . . . . . . . . . Remaining assessable payments . . . . . .

19 28 32 35

B. Staff assessment for staff members without dependants Staff assessment amounts for those with neither a dependant spouse nor a dependant child would be equal to the differences between the gross salaries at different grades and steps and the corresponding net salaries at the single rate.

§1071 From the total cost of approximately $130 million455 appropriated for staff expenses in the UN budget for 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.456 But this income cannot be spent freely. It is returned to the member states according to their proportionate contributions, with the restriction that the amount of the taxes that 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.457 The actual outcome is that states do not benefit from taxes levied from staff members, and that staff members do not pay double taxes.458 Many, but not all,459 international organizations have followed the example of the UN and impose a staff levy on the salaries of their officials.460 Most specialized

454

See UN Doc. ST/SGB/2003/5, at 6, and www.un.org/Depts/icsc. 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. 456 GA Res. 56/254 B. 457 GA Res. 973 (X), UN Financial Regulations 4.10-4.12. 458 In individual cases problems may arise. See UNAT judgment No. 207, UNJY 1975, at 136138, 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. 459 E.g. ICAO, the International Sugar Agreement and the African Civil Aviation Commission (UN Doc. ST/LEG/17, at 239-240 (1987)). 460 Christiaanse, op. cit. note 451, 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 455

688

chapter seven

§1072

agencies derive an income from staff assessments, which is between 15 and 19 per cent of their expenditure for personnel.461 §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 the taxation of particular groups of persons.462 Considering the history and the application of staff assessments, it seems appropriate 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 “bookkeeping income” of the organization (see below, §1073). 6. “Book-keeping” income §1073 Singer lists as “book-keeping incomes” a number of items that add nothing to the actual net income of the organization.463 This source of income includes the revenues from the sale of property.464 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 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 “book-keeping” 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 that fulfil the following conditions:

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 . 461 UN Doc. A/6911. For the staff assessment in the European Communities, see OJ 1462/62; Protocol on the Privileges and Immunities of the European Union, Art. 12 (Protocol No. 7 to the TEU). 462 See e.g. UN Charter, Art. 17.2. 463 Singer, op. cit. note 213, at 142. His list seems too extensive: fees levied for garage and parking on UN premises accrue to the income of the organization. 464 UN Financial Rule 106.6, classifies this as miscellaneous income.

§1075

financing

689

(1) The size of the levy should be based on 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). (2) The levy should not be related to particular services rendered by the organization; nor should its level be determined by the amount of services rendered to the contributor. Levies in payment for services are considered as retributions (see above, §1051). (3) The levy should be imposed on funds obtained from outside the organization. Levies on 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 that do not levy them, and that can therefore pay lower salaries to their personnel, are no poorer than organizations that pay higher salaries and impose staff assessments (see above, §1070). (4) Payment of the levy should be obligatory. Voluntary levies must be regarded as voluntary contributions or gifts (see above, §1022 and §1040). 2. Conditions for international taxation §1075 The main advantage of taxation by an international organization is the high degree of independence that the organization gains from it. In several international organizations, progress is often obstructed by the reluctance of members to grant sufficient funds, especially for recruiting additional 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 that create or define new duties 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 that 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 Greater financial independence is not always desirable for an organization. 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”.465 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 the 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. 465

Stoessinger, op. cit. note 2, at 32.

690

chapter seven

§1077

Mainly due to income derived from 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 continued to grow, one could finance all WIPO activities from this resource, and states would not need to pay any contributions at all. In 1991, he therefore proposed a reduction in 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).466 He who pays the piper calls the tune. In this context it must be noted, however, that the European Patent Organization (EPO) is completely self-financed by income derived from fees (see above, §1061). The members’ fear of losing control if no contributions are paid may therefore be less predominant in a regional organization, in which membership is more homogeneous than in universal organizations (see above, §57).

§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 benefit from the organization. Distribution of the UN budget to everyone who benefits from the maintenance of peace and security would be virtually impossible. Even in the European Union 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 that perform functions that 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 was 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 had to pay for the activities of this Commission. This is difficult to justify. When governmental contributions are replaced by international taxes, care should be taken to establish a system that distributes the burden as equitably as possible. The experience of the European Union shows that the replacement of contributions by taxes will be more readily acceptable when these taxes burden (the inhabitants of) the members in the same proportion as the contributions did before.467 §1078 How should international taxes be levied? Either a new tax 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.

466 Bogsch, op. cit. note 428, 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). 467 Discussions in the EC Council of Ministers in Dec. 1969.

§1079

financing

691

Some states are very meticulous in their collection of taxes, whereas others have a tradition that permits wholesale evasion. In order to prevent such differences from undermining a new taxation, any international tax system should be simple and easy to supervise. §1079 Taxes that 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 Union are duties levied by the common customs tariff of the Union. These duties are intended to protect the ‘national’ industry of the Union in so far as is necessary, but they should not unnecessarily restrict international trade.468 It would not be justifiable to increase these duties merely because the Union 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 Union’s 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. 3. Existing systems of taxation §1081 Only a few international organizations levy taxes. The levies on the socalled “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.469 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 became inactive in the late 1970s.470 This Community not only collected income tax, customs duties and excise duties for its own benefit, but also on

468

TFEU, Preamble, para. 6, and Art. 32, para. (a); EEC Art. 18 (original text; now deleted). Stoessinger, op. cit. note 2, at 41. 470 Treaty for East African Cooperation, 6 June 1967, Arts. 65-68. A new regional cooperation effort was made when in 1999 the Treaty for the establishment of the East African Community was signed. This treaty does not provide for a system of taxation such as the one of the ‘old’ East African Community. 469

692

chapter seven

§1083

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, at least during the period when the organization functioned properly. §1083 In the past, some international commodity councils have charged a levy on, for example, each bag of coffee or pound of cocoa,471 in order to finance a buffer stock or other activities that are essential for the performance of their tasks. In a sense these levies can be seen as special taxes. Furthermore, the contributions that the large users of oil must pay to the International Fund for Compensation of Oil Pollution Damage are a form of taxation.472 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 crude oil and heavy fuel 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 2008, total contributions amounted to £50 million.473 §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 1957.474 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 three per cent on all shipping and trade using the Suez Canal.475 It was at least doubtful whether this resolution could create a binding obligation for private carriers. A large majority of them refused to pay.476 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.477 Other states permitted their carriers to increase shipping rates, and under these conditions they agreed to pay the surcharge. By January

471 International Coffee Agreement 1976 (extended on several occasions), Art. 55 (the current (2007) International Coffee Agreement does not provide for such levies); International Cocoa Agreement 1986, Art. 32 (expired in 1993, and replaced by a cocoa agreement without a bufferstock). 472 As at March 2010, there are three Funds: the 1971 Fund, the 1992 Fund, and the 2003 Supplementary Fund. The 1971 Fund was established by the Convention of 18 December 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 exists and deals with incidents that occurred before this date. The 1992 Fund was created by the 1992 Fund 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 2003 Supplementary Fund was established under a Protocol in 2003. It provides additional compensation above that available under the 1992 Fund Convention. These three Funds were established under the auspices of the IMO, and have a common secretariat, but are separate international organizations. See further: The International Oil Pollution Compensation Fund 1992 – Explanatory note prepared by the Secretariat of the International Oil Pollution Compensation Funds (available at http://www.iopcfund.org/npdf/genE.pdf (February 2011). 473 See the explanatory note prepared by the Secretariat, op. cit. note 472, at 5. 474 Stoessinger, op. cit. note 2, at 276. 475 GA Res. 1212 (XII) of 14 December 1957. 476 Stoessinger, op. cit. note 2, at 277. 477 GAOR, 15th Session, Suppl. No. 6 (A/4380), at 55.

§1085

financing

693

1961, all costs had been repaid and the UN Suez Canal Surcharge Operation could be successfully concluded.478 §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.479 Those levies are usually considered as the first “European taxes”. The ECSE levies were gradually reduced in the course of the 1990s, and were eliminated entirely with the expiry of the ECSC Treaty (23 July 2002).480 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.481 How the ECSC tax should be technically classified is not clear. Its classification has been disputed, particularly with regard to German categories of taxation.482 The annual levy by the High Authority was intended to raise the funds needed in order to accomplish the mission of the Community. Without the prior authorization of the Council, the levy could not exceed one per cent of the average value of the products concerned.483 In its first year, the High Authority fixed the levy at 0.9 per cent. Subsequently, it has gradually been reduced.484 In the first half of the 1990s, it fluctuated between 0.5 and 0.1 per cent.485 Since accumulation of taxes must be avoided,486 a system of value-added taxation was used.487 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).488 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 as follows:

(1) Levies, premiums, additional or compensatory amounts, additional amounts or factors, Common Customs Tariff duties and other duties established by the EU

478

GAOR, 20th Session, Suppl. No. 6 (A/6006), at 39. ECSC, Art. 49. 480 XXVIIIth General Report on the Activities of the European Union 1994, at 405-406. 481 See G. Olmi, Les ressources propres aux Communautés européennes, 7 CDE 387 (1971). 482 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. 483 ECSC, Art. 50.2, first sentence. 484 Stoessinger, op. cit. note 2, at 51. 485 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 57, at 74-76. 486 ECSC, Art. 50.2, second sentence. 487 Weides, op. cit. note 482, at 116-125. 488 Merger Treaty 1965, Art. 20. 479

694

chapter seven

§1087

institutions in respect of trade with non-member countries, customs duties on products under the expired ECSC Treaty as well as contributions and other duties provided for within the framework of the common organisation of the markets in sugar. (2) The application of a uniform rate valid for all member states to the harmonized value added tax assessment bases determined according to EU rules. (3) A contribution from the member states, based on the sum of all member states’ GNIs.489 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.490 Most of this “miscellaneous revenue” can be classified under Section D above (for example, retributions, staff assessments). Income from “miscellaneous revenue” for 2010 was estimated at approximately €1430 million (which is almost 1.2 per cent of total revenue for that year).491 The third abovementioned source of income has been discussed under A above (contributions, see above, §985). §1087 The first abovementioned resource is usually described as the traditional own resource. It results directly from the operation of the common market.492 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 own administrative expenditure.493 In the 2010 budget, this amounted to approximately €4860 million (almost 4 per cent of total revenue for that year).494 The share of this first source of income in the overall budget of the EU in 2010 was 11.55 per cent.495 This first abovementioned source of income comprises two categories that previously were classified as two separate sources of income: (i) the levels and contributions under the common agricultural policy; and (ii) customs duties imposed under the Common Customs Tariff.

489 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 2007/436 EC, Euratom (OJ 2007, L 163/17), the “Sixth Own Resources Decision”. 490 Strasser, op. cit. note 57, at 88-98; see also the European Union’s general budget for the financial year 2010, OJ 2010, L 64, at 13, 45-109. 491 See the general budget of the European Union for the financial year 2010, OJ 2010, L 64, at 11-13. 492 Strasser, op. cit. note 57, at 88-90. 493 Decision 2007/436 EC, Euratom (OJ 2007, L 163/17), Art. 2.3. 494 General budget of the European Union for the financial year 2010, OJ 2010, L 64, at 20. 495 European Commission, General budget of the European Union for the financial year 2010 – The figures (2010), at 25; OJ 2010. L 64/11.

§1088

financing

695

Category (i) includes all levies, premiums, and so forth 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 part of the first abovementioned source in the overall budget has decreased over the years, until it was merged with the second category: in the 1994 budget it was 3.2 per cent of total revenue, and in 2003 it was 1.5 per cent.496 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 resulted in decreasing imports and more exports and, therefore, less income and more expenditure. Category (ii) comprises customs duties imposed under the Common Customs Tariff. Its share in the overall budget was significant, but has decreased over the years (until it was merged with the first category): in the 1994 budget it was 20 per cent of total revenue, and in 2003 it was 11 per cent.497 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.

The size of this first source of income depends mostly on the agricultural and customs policies, rather than on the needs of the Union. Because of the insufficient flexibility of this source of 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, as it equitably burdens all member states and is large enough to cover all insufficiencies of the other sources of income.498 §1088

[deleted]

§1089 The second abovementioned 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 1977.499 The share of this resource in total income of the Union has first grown rapidly but is now

496 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. 497 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. 498 See Olmi, op. cit. note 481, at 410. 499 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 57, at 90-93).

696

chapter seven

§1090

decreasing. In the 1994 budget, its share in total revenue was 51.3 per cent,500 in the 2003 budget it was 24.7 per cent,501 and in the 2010 budget 11.35 per cent.502 §1090 Thus, the main financial resources for the European Union have 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; current legal basis: Article 311 TFEU). Nevertheless, in practice this distinction is less clear-cut.503 Moreover, although the three main financial resources all have been classified as “own resources”, the third and main source of income (a percentage of the GNI of the member states; share in total revenue in the 2010 budget: 75.9 per cent) in fact is not an own resource, but contributions by member states. In addition, the second (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”.

III. Budget A. Use of the budget 1. Purpose §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 decisionmaking 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; and (4) it serves as an essential yardstick by which the auditing agency may compare expenditure with appropriation.504

500 See the general budget for the European Union for the financial year 1994, OJ 1994, L 34, at 5, 20. 501 General budget of the European Union for the financial year 2003, OJ 2003, L 54, at 12, 23. 502 European Commission, General budget of the European Union for the financial year 2010 – The figures (2010), at 25; General budget of the European Union for the financial year 2010, OJ 2010, L 64/11. 503 See C.-D. Ehlermann, The Financing of the Community: The Distinction between Financial Contributions and Own Resources, 19 CMLRev. 571-589 (1982). 504 Singer, op. cit. note 213, at 54-55.

§1092

financing

697

§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.505 An activity that is not expressly brought under a separate budget cannot be singled out by individual members that do not participate in it or would rather not see it performed. All the activities that are in one budget are to be financed as one unit. The sole exception that is sometimes made (and even this is disputed), is in relation to illegal activities. 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 (or sometimes the board) establishes it, the secretariat again executes it and the general congress (or, again, 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, as they have served as a model for many other international organizations.506 2. 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.507 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 at that time consisted mainly in 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

505

SELA, Arts. 20-26. See for the UN Financial Regulations and Rules as presently in force, UN Doc. ST/ SGB/2003/7. UNDP, UNFPA, UNICEF and WFP have their own financial regulations and rules, separate from those of the UN. Attemps are made to harmonize these different sets of financial regulations and rules, in accordance with GA Res. 62/208 (para. 113). See also UNJY 2008, at 441-445. 507 Strasser, op. cit. note 57, at 41-42. 506

698

chapter seven

§1096

to include all administrative and operational costs in the UN budget; and this was confirmed by the International Court of Justice.508 But in practice, an increasing number of special accounts and other funds have been created separate from the regular budget.509 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.510 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 now only covers less than 40 per cent of all expenses.511 §1096 In the European Union, the rule of budgetary unity is largely respected. As is stated in the introduction to the annual budget, the principle of unity means that all revenue and expenditure of the Union must be incorporated in a single document.512 A main exception is the European Development Fund, which has always been financed from contributions by the member states, outside the general budget.513 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 1980.514 3. 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.515 Within each section, the secretariat516 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

508

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; most recently GA Res. 64/249. 511 Simma, op. cit. note 3, at 335. 512 EU’s general budget for the financial year 2010, Introduction (OJ 2010, L 64/11). 513 Strasser, op. cit. note 57, at 44-45 and 116-117; further information has been obtained from http://europa.eu/legislation_summaries/development/overseas_countries_territories/r12102_ en.htm (March 2010). 514 Id., at 45. 515 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. 516 In the European Union: the Commission. 509 510

§1098

financing

699

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.517 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.518

§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.519 §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 expenditure splitting, inter-office vouchering and frequent allotment readjustments.520 After 1957, the UN budget was simplified. In practice, even the division into sections does not create insurmountable barriers, as general congresses 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.521 With the exception of the financial agencies, all specialized agencies have agreed to submit their budgets

517

GAOR,3, part I, 1948, 5th Committee, at 221 (124th meeting); Singer, op. cit. note 213,

at 63. 518

GAOR, 4, 5th Committee, at 256 (231st meeting, para. 20); Singer, op. cit. note 213, at 158. Singer, op. cit. note 213, at 135. 520 Id., at 64; see also the Geneva proof-readers case, quoted below, §1120. 521 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 3, at 350-352. 519

700

chapter seven

§1100

to the General Assembly.522 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.523 It recommended a number of measures to facilitate mutual comparison and to improve budgetary proceedings.524 The General Assembly recommended full and speedy implementation of these recommendations.525 Most of them have been put into effect by the agencies.526

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.527 The budget contains the financial reflection of the entire policy of the organization. Its adoption procedure, therefore, offers a possibility to discuss and review this policy. However, general congresses hardly ever use the budgetary procedure 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 remarks on each subdivision”.528 5. Budgetary periods §1101 Most regional organizations529 and some UN agencies530 have yearly budgets, whereas most specialized agencies and the UN adopt their budgets on a biennial basis.531 A two-year budget cycle saves considerable time and work on the part of the secretariat and for the organs that discuss the budget. Also, longer-term 522 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. 40/180 (UNIDO), and GA Res. 58/232 (World Tourism Organization). 523 GA Res. 2049 (XX). 524 UN Doc. A/6343. 525 See GA Resolutions 2150 (XXI), 2360 (XXII) and 2475 (XXIII). 526 For a table showing which organizations implemented each of the recommendations, see UN Doc. A/6803, Annex I. 527 UN Financial Regulation 2.3. 528 European Union, Financial Regulation, Art. 46. 529 E.g. the European Union, Financial Regulation, Art. 6. 530 E.g. IAEA. Until 2001, UPU had a yearly budget. 531 E.g. 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.

§1102

financing

701

planning is easier when funds have been 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 1973.532 It was preceded by the FAO and UNESCO, and followed by the ILO, the WHO and UPU.533 The IAEA decided to continue yearly budgeting.534 §1102 The problem of long-range forecasting of expenditure is particularly relevant in organizations in which the general congress does not meet every year. On the one hand, it is undesirable to take the decision on the expenditure out 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, in which the general congress meets only once every five years,535 the general congress only sets the maximum for each of the five yearly budgets and leaves it to the board to establish the actual 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 for the entire period of four years. Within this maximum expenditure, the Executive Council (the board) is authorized to approve appropriations for the 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.536

6. Medium-term financial plan / strategic frameworks §1103 In addition to annual or biennial budgets, some organizations use medium-term financial plans. The International Telecommunication Union has strategic plans for periods of four years.537 In the UN, between 1974 and 2006,

532

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 used one budget period of three years (1980-1983) in order to draw itself into line with the others. 534 UN Doc. A/7323, GA 23rd Session, Annexes Agenda Item 80. 535 UPU, ITU. 536 WMO Financial Regulations, Arts. 2-4. 537 See www.itu.int/osg/csd/strategic_planning.html (March 2010). 533

702

chapter seven

§1104

medium-term plans covered four-year periods.538 These UN plans obviously had financial implications as a framework for the formulation of the biennial budget,539 but they primarily served planning purposes. In 2002, the Secretary-General indicated a number of weaknesses of the budgeting and planning process of the UN, and suggested the introduction of a “strategic framework” to replace the mediumterm plan.540 This was endorsed by the General Assembly.541 The strategic framework comprises a plan outline (reflecting the longer-term objectives of the UN) and a biennial programme plan. At present, it is “the principal policy directive of the United Nations”, and it “shall serve as the basis for programme planning, budgeting, monitoring and evaluation”.542 §1104 In the European Union, the European Parliament, the Council and the Commission have concluded so-called interinstitutional agreements on budgetary discipline and sound financial management.543 These agreements intend to lay down a medium-term financial perspective. They have to ensure that expenditure, broken down by very broad categories (for example, “sustainable growth”, “preservation and management of natural resources” (including expenditure of the common agricultural policy), “administration”), develops in an orderly manner and within the limits of the Union’s own resources; they also have to ensure sound financial management.544 These interinstitutional agreements are frameworks within which the annual budgets must be adopted, and which continue to be the sole legal basis for expenditure by the Union.545 While, for many years, these EU medium-term financial perspectives were laid down in interinstitutional agreements, without a specific treaty basis, this changed when the Lisbon Treaty entered into force on 1 December 2009. Article 312 was introduced in the TFEU, governing “the multiannual financial framework”. It provides that this framework, established for a period of at least five years, “shall ensure that Union expenditure develops in an orderly manner and within the limits of its own resources”. The annual budget has to comply with this framework.546

538 Regulation 4.7 of 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/2000/8). These regulations and rules govern the preparation, format and content of this plan and its revisions. See e.g. GA Res. 63/247; GA Res. 65/244. See further Simma, op. cit. note 3, at 338-339. 539 Regulation 5.1 of 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/2000/8). 540 UN Doc. A/57/387. 541 GA Res. 58/269; GA Res. 62/224. See most recently UN Doc. A/65/544 and GA Res. 65/244. 542 GA Res. 58/269, para. 7. 543 Originally named: “interinstitutional agreements on budgetary discipline and improvement of the budgetary procedure”. 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 covered the period 1993-1999 (OJ 1993, C 331/1). The third was for the 20002006 period (OJ 1999, C 172) and the fourth is for 2007-2013 (OJ 2006, C 139). 544 2006 Interinstitutional Agreement (OJ 2006, C 139), paras. 1, 10. 545 See Zangl, op. cit. note 543, at 677. 546 TFEU, Art. 312.1.

§1105

financing

703

B. Preparation 1. Regular estimates §1105 The estimates for a budget are usually made by the secretariat.547 This gives the secretariat some power of initiative. Within the organization’s field of operation, the secretariat may propose new expenditure that leads to new activities. As a rule, a secretariat will not be competent to initiate new fields of activity purely through its budgetary estimates. This would only be permissible where the secretariat already has a right to make proposals (see above, §461). In the absence of such a right, the budgetary estimates must be for activities that 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 up an estimate of their revenue and expenditure for the following year. These estimates shall be forwarded to the European Commission, not later than 1 July. The Commission shall draw up its own estimates before the same date.548 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.549 Most of the estimates will refer to the functioning of the organization itself (meetings of organs, distribution of documents, and so on) and to the continuation of projects already commenced by the organization. Other estimates will be for new projects that 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.550 These estimates are collected by the budget office (or the controller’s office) of the secretariat. In many international organizations (for example, the UN),551 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.552

547

See e.g. Benelux, Art. 37.1. European Union, Financial Regulation, Art. 31. Id., Art. 33.1. 550 UN Financial Rule 102.1; UN Doc. ST/SGB/2000/8. 551 Singer, op. cit. note 213, at 54. 552 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. 548 549

704

chapter seven

§1106

§1106 When it has been sufficiently discussed by the secretariat and the organs that 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,553 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.554 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.555 Before making any changes to 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 take the final decision 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. The financial officers know what level the total may reach and try to remain within reasonable limits.556 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 that 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 553 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. 554 Singer, op. cit. note 213, at 176. 555 UN Financial Regulation 2.5; GA Rule 1. 556 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 2, at 228).

§1109

financing

705

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 in which costs could not be foreseen in the regular estimates.557 Revised estimates have to be passed on to the general congress or to the members of the organization before the session in which 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.558 Unlike in the case of many other types of proposals, decision-making on the budget cannot be postponed when the members of the organization fail to agree. A decision must be taken. For that reason, the voting requirements on the budget should not be too stringent. The constitutions of most international organizations provide that the budgets shall be approved either by simple or by two thirds majority.559 In practice, for example in the UN, these decisions may also be adopted by consensus.560 §1110 In the European Union, the annual budget is established by the European Parliament and the Council (see above, §583). At the end of the budgetary procedure, the President of the European Parliament declares that the budget has been definitively adopted.561 It was felt that the European Parliament, which represents the peoples of the member states, should have an important say on the EU budget

557

See e.g. UN Financial Rule 102.4. IAEA, Art. 14 A. 559 NATO, OECD, EFTA and 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); OAS (Art. 54). Simple majority is sufficient in, e.g., IMO (Arts. 55, 57); IMF, World Bank, IFC that use weighted voting. For problems which arise in the absence of the required majority see UNJY 1976, at 195-200. 560 Although the regular budget of the UN is usually adopted by consensus, in exceptional cases it has been adopted by voting (e.g. in 2007, when the US voted against (see US Mission to the UN, Press release 387(07)). 561 TFEU, Art. 314.9. 558

706

chapter seven

§1111

and should exert financial control on expenses that can no longer be supervised by national parliaments.562 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 section563 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.564 Similar procedures exist in Benelux.565 2. Power of the organ adopting the budget §1111 To what extent may budgetary organs review decisions?566 Depending on the structure of the budget, two kinds of question may arise: (1) 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? (2) 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 (1). There is no reason to suppose that even a supreme organ could not be legally bound to provide funds for specific activities. 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 that

562 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 57, at 190-203. 563 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). 564 TFEU, Art. 315; Financial Regulation, Art. 13. 565 See I.E. Druker, Financing the European Communities (thesis Leiden, 1975), Chapter II A 5 and Chapter II B 4. 566 See also T. Meron, Budget Approval by the General Assembly of the United Nations: Duty or Discretion? 42 BYIL 91-122 (1967).

§1113

financing

707

. . . 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.567

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.568

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.569 §1113 Such previous agreement may cause problems in the few situations in which the general congress has no authority over the organ that 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 provided for in the UN Charter. In such 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 that is different from the one for the regular budget. In cases in which 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 the few instances in which the general congress has no authority over the organ that 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.570 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

567 Effect of awards of compensation made by the UN Administrative Tribunal, Advisory Opinion of 13 July 1954, ICJ Rep. 1954, at 59. 568 Certain expenses of the United Nations (Article 17, para. 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ Rep. 1962, at 169. 569 See e.g. UN Financial Regulation 2.11. 570 SC Res. 831.

708

chapter seven

§1114

did not respect the role of the General Assembly as set out in Article 17 of the Charter”.571 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 that the Council finance the Tribunal in this way, and not through voluntary contributions or through a special account separate from the regular budget.572 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”.573 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.574 A third example of a case in which the general congress had no authority over the organ requiring the funds is provided by Resolutions 1593 and 1970 of the Security Council, which referred the situation in Darfur (Resolution 1593) and the situation in Libya (Resolution 1970) to the Prosecutor of the International Criminal Court. According to these Resolutions, the expenses incurred in connection with these referrals shall not be borne by the UN, but by the parties to the Rome Statute and those states that wish to contribute voluntarily. As stated in Article 115 of the Rome Statute, the expenses of the Court and the Assembly of States Parties shall be provided by: (a) assessed contributions made by states parties; and (b) funds provided by the UN, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council. What is provided under (b) seems logical. Indeed, as Arsanjani has written, “the general sentiment among the delegations was that if the Security Council refers a matter to the Court, the United Nations should pay the expenses”.575 Nonetheless, Arsanjani also observed that “the language of Article 115 does not compel the United Nations to pay for such expenses”.576 The Darfur and Libya referrals have therefore used this possibility not excluded by the Rome Statute, irrespective of its partial ‘free rider’ nature.577

571

GA Res. 47/236. See also GA Decision 48/474 and GA Res. 48/244. UN Doc. A/47/1002. 573 GA Res. 47/235. 574 Simma, op. cit. note 3, at 345. See GA Res. 64/240. 575 M.H. Arsanjani, Financing, in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: a Commentary 315-329 (2002), at 325. 576 Id. In footnote 39, she writes that it is “unlikely that the Security Council would refer a situation to the Court without the United Nations paying for those expenses”. Yet, only a few years after this was written, this is what happened in Res. 1593 and in Res. 1970, the first two cases of a referral by the Security Council. 577 The free ride is partial, as it is limited to the members of the UN that are not parties to the Rome Statute. See also W.M. Reisman, On Paying the Piper: Financial Responsibility for Security Council Referrals to the International Criminal Court, 99 AJIL 615-618 (2005). 572

§1115

financing

709

§1115 Problems of conflicting substantive and budgetary powers have also arisen in the EU. In 1988, the Commission asked the Court of Justice 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 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 and so forth. Article 6.4 specified that decisions concerning the execution of those programmes are to be adopted by the Commission under the socalled 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 317 TFEU), 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 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, 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.578

Thus, the conclusion drawn by the EU 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

578 Case 16/88, Commission v. Council, ECR 1989, at 3486-3487. Another example is Case C-106/96, 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 . . . ”.

710

chapter seven

§1117

a general congress may reconsider its own projects whenever it 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 reasons 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 that served in Korea and the establishment of certain bodies)579 were in violation of the UN Charter. In these cases, it was 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 (2). 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.580 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 the opportunity is provided 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 appropriate 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

579 580

Singer, op. cit. note 213, at 106. Id., at 9-16.

§1119

financing

711

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.581

§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, increases in salaries will represent the greater 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 (for example, by restricting recruitment). §1120 As a rule, increases in salaries 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 European 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, and that this made his promotion impossible. The Court of Justice did not accept this plea and decided that Mr. Maudet had a right of promotion to the rank A3.582 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 at too low a level. The $3,000 requested for reclassification of the Geneva proof-readers was expressly rejected. Subsequently, the Secretary-General refused the promotion of the Geneva proof-readers. In 1957, the proof-readers appealed to the Joint Appeals Board, which unanimously recommended their reclassification. The Secretary-General rejected that recommendation on the ground 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 proofreaders appealed to the UN Administrative Tribunal. This Tribunal annulled the decision of the Secretary General.583 It considered that the General Assembly had not laid down a

581

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. 583 Judgment of the United Nations Administrative Tribunal, Number 76 (Champoury against Secretary-General), 17 August 1959. 582

712

chapter seven

§1121

“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 Secretary-General 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 virtue of 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).584 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.585 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.586 The level of the contingency fund is 0.75 per cent of the overall budget level.587 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 of resources from low-priority areas or modifications of existing activities. Otherwise, such activities have to be deferred until a later biennium.588 At the close of a financial year, not all appropriations will have been exhausted. Some will not be needed at all, and 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 that

584

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. 586 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. 587 See GA Res. 57/280, para. 15; GA Res. 63/266, para. 21; UN Doc. A/65/646/Add.1, paras. 58-61. In 2008, this amounted to $36.5 million. Other organizations also have a contingency fund. For example, in 2004 a Contingency Fund was established for the International Criminal Court, in the amount of €10,000,000 (Res. ICC-ASP/3/Res. 4; approved indefinitely by Res. ICCASP/7/Res. 4). 588 GA Res. 41/213, Annex I (C). 585

§1122

financing

713

still remain undischarged will be cancelled or, where the obligation remains valid, transferred to the next financial year.589 Appropriations that remain untapped are annulled. 4. Budgetary surpluses §1122

Budgetary surpluses arise in two situations:

(1) When the income of the organization surpasses the estimated expenditure. (2) When the expenditure falls short of the estimate. Ad (1). The first situation can only arise when the income is established independently from the expenditure. Usually, this will not be 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 interest income 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.590 On 30 June 2002, the general reserve of the World Bank amounted to $19,132 million.591 Since 1964, the Bank has also transferred 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.592

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.593 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).594

The general congresses of the international development banks may determine periodically what parts of the net profits and the surplus shall be distributed.595

589 UN Financial Regulations 5.3 and 5.4; EU Financial Regulation, Art. 9 (subject to conditions). 590 World Bank, Art. 5, Section 14. 591 World Bank, Annual Report 2002, Vol. II, at 18. 592 World Bank, Annual Report 1993, at 207. See also World Bank, Annual Report 1994, at 191. 593 IMF Art. 12, Section 6. See also IMF Annual Report 2002, at 161. 594 IMF Annual Report 1968, at 22; Annual Report 1970, at 38. 595 E.g. Inter-American Development Bank, Art. 7, Section 4.

714

chapter seven

§1123

Ad (2). 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.596 D. Audit 1. Internal audit §1123 The secretariat maintains an internal financial control for day-to-day examination of all financial transactions.597 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 organization.598 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,599 in response to concern expressed by member states about the way the UN managed its resources, and also in reaction to criticism about the alleged inadequacies of monitoring, evaluation and reporting on implementation of UN programmes. This Office had to investigate mismanagement and other practices with a view to preventing wastes, abuse and malfeasance.600 In 1994 it was succeeded by the Office of Internal Oversight Services (OIOS).601 OIOS covers all UN activities under the Secretary-General’s authority, including the UN Secretariat, the regional commissions, peace-keeping missions, and UN programmes such as UNHCR and UNEP. It conducts internal audits and inspections, and it investigates reports of mismanagement and misconduct. OIOS “shall exercise operational independence under the authority of the Secretary-General”,602 authorizing it “to decide whether or not to investigate a matter”.603 Each year more than 300 reports and more than 2000 recommendations are issued. The head of OIOS has the rank

596

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). 598 UN Financial Regulations 5.8(d) and 5.15. 599 See UN Doc. ST/SGB/262. 600 UN Doc. A/48/428, at 25. 601 GA Res. 48/218 B. 602 Id., para. 5(a). 603 See UNJY 2009, at 399-402 (quotation at 401). 597

§1125

financing

715

of Under-Secretary-General and is appointed by the Secretary-General (following consultations with member states and with approval by the General Assembly) for a non-renewable period of five years.604 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.605 Partly for the same reason, the UN has sometimes received from potential donors, either individual member states or intergovernmental organizations, offers of voluntary contributions that are subject to conditions on the granting of audit access to, or the conduct of management reviews by, representatives of the donor. The UN Secretary-General 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,606 the auditor general of the hoststate607 or a private firm.608 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 auditor-general in their own state”. Each participating organization should select one 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.609

604 See UN Handbook 2010-2011, at 191-192, and the website of this Office, www.un.org/ Depts/oios. For an overview of the activities of OIOS, see the annual reports of this office, e.g. UN Doc. A/64/326. See also below, §1394A. 605 Druker, op. cit. note 565, at 21. 606 E.g. three national auditors-general in the UN (Financial Regulation 7.1). On external audit, see Beigbeder, op. cit. note 597, at 55-64. 607 E.g., in earlier days, the 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 Art. 37.1 of the UPU Financial Regulations. It would be better if this appointment would be made by the UPU, not by its host state, as the organization, including its audit, is of all members. See also Report 2008/1 by the Joint Inspection Unit, Review of management and administration in the Universal Postal Union, para. 63. 608 E.g. the IMF, which normally appoints an external audit firm for a period of five years. See IMF Annual Report 2008, at 72. 609 GA Res. 347 (IV), Annex B; see also ECOSOC Res. 259 (IX).

716

chapter seven

§1126

In the same resolution, the UN General Assembly recommended certain principles to govern auditing procedures for the UN and the specialized agencies.610 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 abovementioned system developed by the General Assembly did not function satisfactorily. In practice, each organization chooses its own auditors.611 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”.612 The panel is composed of the members of the UN Board of Auditors and appointed external auditors of the specialized agencies and the IAEA.613 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 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.614 The General Assembly endorsed these recommendations.615 As a result, the Joint Inspection Unit has been established and has issued a large number of reports.616 Gradually, the task of the Joint Inspection Unit has been expanded, so that, apart from management questions and budgeting, development cooperation, inter-organization coordination and the evaluation of policies and methods were also part of the work programme.617 §1127 Originally, 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

610

GA Res. 347 (IV), Annex A, and ECOSOC Res. 259 (IX). Simma, op. cit. note 3, at 351. GA Res. 1438 (XIV). 613 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). 614 UN Doc. A/6343, paras. 60-67. 615 GA Res. 2150 (XXI). 616 See e.g. 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); JIU/ REP/2008/6 (Review of management of internet websites in the United Nations system organizations); JIU/REP/2009/5 (Towards more coherent United Nations system support to Africa). On the Joint Inspection Unit, see Beigbeder, op. cit. note 597, at 65-78. 617 See UN Doc. A/C.5/35/L.2. 611 612

§1128

financing

717

in the interpretation of financial statements.618 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 1993.619 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.620 These general accounting standards are essentially about the substance of accounting. In 2004, the International Organization of Supreme Audit Institutions (INTOSAI), a non-governmental organization, adopted general principles for the audit procedures used by international organizations.621 INTOSAI considered that “audit arrangements were in many instances established many years ago, in an era where the focus was more on the success of establishing international cooperation, rather than on ensuring insight into prudent, effective and transparent spending of public money. As a result, audit mandates and arrangements are often outdated, and the accounts and audit more geared to the budgetary process than to ensuring that money is spent wisely and with transparency”.622 The main purpose of these principles is to improve this situation. According to the first principle, international organizations “financed with or supported by public money should be subject to audit by supreme audit institutions, to promote better governance, transparency and accountability”. The other six principles are essentially requirements that the external auditor must fulfil: the external auditor must be independent, must have sufficient authority and adequate resources, and so forth. Practice has demonstrated the relevance and influence of this work by INTOSAI. For example, WIPO has amended its financial regulations to meet the standards laid down in these principles.623 §1128 The external audit of most 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.624

618

YUN 1991, at 890. GA Res. 48/216. See UN Doc. A/48/530 at 2, 5. 621 INTOSAI, Principles for the best audit arrangements for international institutions (2004). 622 Id. (introduction). 623 See JIU/REP/2008/1, para. 64. 624 Benelux convention in execution of Article 37.2 of the Benelux treaty (Benelux Publikatieblad 1966-2, at 3-8), Arts. 4, 8 and 9. 619 620

718

chapter seven

§1129

§1129 In most international organizations, the external audit can be completed within a few weeks or months.625 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 institutions of the Union.626 The Court of Auditors is the successor of the ECSC Auditor and the Audit Board of EEC and Euratom. It consists of one national of each member state. These members “shall be completely independent in the performance of their duties, in the Union’s general interest”.627 Appointed by the Council for six years, 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 office.628 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.629 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”.630 In addition, it draws up an annual report which is forwarded to the other institutions and subsequently published together with the replies of the institutions.631 Who audits the Court of Auditors? This is done by an external auditor, whose reports are made public.632 §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.633 In this respect, again, the situation in the European Union shows a further development. The European Commission is the institution charged with the implementation of the budget, in cooperation with the member states.634 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 has been an exclusive right of the European Parliament, acting on a recommendation from

625

Szawlowski, op. cit. note 118, at 346. Originally Art. 4.1 EC, now Art. 13.1 TEU. 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 57, at 271. See in general on the Court of Auditors, Strasser, op. cit. note 57, at 269-283; C.-D. Ehlermann, Der Europäische 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 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. 627 TFEU, Art. 285. 628 TFEU, Art. 286, paras. 1 and 2. 629 TFEU, Art. 287.2. 630 TFEU, Art. 287.1. 631 TFEU, Art. 287.4. 632 See for example the audit for 2007, published in OJ 2008, C 318. 633 For example, UN GA Res. 63/246 A (audit of the UN) and UN GA Res. 63/246 B (audit of UN peace-keeping operations). 634 TFEU, Art. 317. 626

§1131

financing

719

the Council.635 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.636 In practice, the European Parliament has used its power to refuse discharge in 1984, concerning the accounts for 1982,637 and in 1998, concerning the accounts for 1996 (this finally led to the resignation of the Commission on 15 March 1999; see above, §577).638

IV. Concluding observations §1131 This chapter is somewhat different from most others in this book. Sections I and II, devoted to the 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 particularly, 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 contributions on time, or pay only part of them. 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.

635

TFEU, Art. 319.1; Strasser, op. cit. note 57, at 287. TFEU, Art. 319.1. E.g. Annual Reports concerning the Financial Year 2008 together with the institutions’ replies, OJ 2009, C 269. 637 See for a detailed analysis of this refusal Strasser, op. cit. note 57, at 408-416. 638 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. 636

720

chapter seven

§1133

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 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.639 §1133 He who pays the piper calls the tune. This saying holds true for most international organizations that have as their main source of income 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, so as to be at least partly in the position to call the tune. While there are other organizations that 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.

639 H.G. Schermers, in: 16 Liechtensteinische Juristen-Zeitung 74-76 (1995). The last mentioned solution is criticized by I. Seidl-Hohenveldern, Die miβliche 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.

§1134

financing

721

§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 decisionmaking concerning the budget in the UN (“he 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-to-pay principle – can be explained by the notion of sovereignty, and more particularly by the principle of sovereign equality. If states are considered to be 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 (from a low of 0.001 to a high of 22 per cent in the UN) clearly demonstrate that the sovereign equality of states is in fact a fiction. §1135 By far the largest part of the budgets of most 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, and 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,640 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 of withholding specific parts of the compulsory contribution for the general budget because the corresponding activities are considered to be ultra vires has become widespread. Contributing to operational activities has increasingly been considered as a rather voluntary matter, free from any obligation. From a legal point of view, however, this is obviously a dangerous development, to the extent that compulsory contributions may come to be regarded as merely 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 is included in one budget (principle of unity), and budgetary revenue may not be allocated to specific expenses (principle of non-assignment).

640

Certain Expenses Case, ICJ Rep. 1962, at 157-161.

722

chapter seven

§1137

§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 each organizational activity being financed 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”: that is, to accept the transfer of certain state functions to an international organization (see above, §771-786). More evidence supporting this analysis is given in this chapter. Formally, the only option left for states that reject certain expenditures 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 withholding 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 the 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 decision-making, but also in the field of financing, as has been illustrated by the case-law of the International Court of Justice and the EU Court (see 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 in 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 (for example, the concept of own resources), but most are preserved for the Union only (for example, the adoption of the budget by the European Parliament, and 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.

CHAPTER EIGHT

LEGAL ORDER

I. Introduction §1139 The legal order of international organizations comprises a number of elements that 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, the foundation of their 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 (for example a decision to create a subsidiary organ), and are partly directed towards the external environment (for example a recommendation to the member states to tackle the problem of street children).1 In Part IV, other sources of international law that 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 depending on the criteria used for the definition of a legal order.4 §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 for by international organizations, each of which has a legal order of its own. This legal

1

UN GA Res. 47/126. E.g. by J. Combacau, Le droit international: bric-à-brac ou système?, 31 Archives de philosophie du droit 85-105 (1986). 3 H.L.A. Hart, The Concept of Law (1961), Chapter X. 4 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). 2

724

chapter eight

§1142

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, beginning in 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 of international organizations and their increasing complexity, a more specific reason that explains the acceptance and development of the concept of a legal order of international organizations is 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 being derived from international law and therefore part of the international legal order. 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 Janus-faced character of the constituent instrument of the international organization: a treaty between states

5 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”. 6 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 ICLQ 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). 7 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. 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.

§1143

legal order

725

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 (then) European Communities, looking at the objectives of the EEC, 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 now the EU legal order, 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 Union? While the objectives of the Union provide the main explanation for its much stronger legal order as compared to those of other international organizations, there are two principles, elaborated by the EU Court on the basis of these objectives, that to a great extent have shaped the development of a coherent Community legal order: the direct effect of EU law, and the supremacy (or precedence) of EU 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. European Union law has been able to avoid this situation by developing the principles of direct effect and supremacy of EU law, which independently of national constitutional law require that a number of rules of EU law have direct effect within the legal order of the member states, and that EU law is of a higher status than national law.12 In this way, EU law has pierced the national legal orders

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. 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).

726

chapter eight

§1145

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 [T]he 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 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

13 Kapteyn & VerLoren van Themaat, The Law of the European Union and the European Communities (4th rev. ed., edited by P.J.G. Kapteyn, A.M. McDonnell, K.J.M. Mortelmans, C.W.A. Timmermans and the late L.A. Geelhoed, 2008), at 71. 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 (2nd ed. 2005), at 447-463; P. Sands and P. Klein, Bowett’s Law of International Institutions (6th ed. 2009), at 448-459. 16 Except when the lower organ has an independent function, e.g. international tribunals (see above, §231(1)). 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 wellknown 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).

§1146

legal order

727

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; and 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 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 instrument 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

18 E.g. the constitutions of UPU, 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. 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.

728

chapter eight

§1148

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 Thus, constitutions of international organizations are Janus-faced. On the one hand, as to their form, they are treaties, covered by the general rules on treaties of the 1969 Vienna Convention. On the other hand, as to 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

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 that constitute international organizations “without prejudice to any relevant rules of the organization” (Art. 5). 26 Legality of the use by a state of nuclear weapons in armed conflict, Advisory Opinion, ICJ Reports 1996, 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; J.E. Alvarez, International Organizations as Law-makers 65-74 (2005). 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).

§1149

legal order

729

conventions as meaning, “in particular, the constituent instruments, decisions and resolutions 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 2. 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.

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 largely similar description is given in Art. 2(b) of the draft articles on responsibility of international organizations, adopted at first reading by the ILC in 2009 (UN Doc. A/64/10, at 20), and 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. 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).

730

chapter eight

§1151

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 organization 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. 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

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. 36 See, e.g. World Trade Organization, Art. XVI.5; Rome Statute of the ICC, Art. 120; International Tropical Timber Agreement (2006), Art. 45; International Coffee Agreement (2007), Art. 44; International Renewable Energy Agency, Art. XIX.F; International Cocoa Agreement (2010), Art. 58. 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).

§1152

legal order

731

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 that 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 that 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 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

38

For literature, see above, §95, note 98. Official Records of the WHO, No. 13, Annex 8, at 382-383. Argentina, Belgium, Philippines, Salvador and Venezuela. 41 Official Records WHO, 21.312; Res. WHA 2.98. 42 G.A. Johnston, The International Labour Organisation 20 (1970). 43 T. Buergenthal, Law-Making in the International Civil Aviation Organization 24-25 (1969). 44 Id., at 25-29. 39 40

732

chapter eight

§1153

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 that 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 Constitution explicitly provides that the Constitution and the General Regulations “shall not be subject to reservations”.48 In practice, reservations to other acts of UPU, as well as to those of the ITU,49 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 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.50 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.51 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 appar-

45

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. 48 UPU, Art. 22, paras. 1 and 2. 49 The ITU allows reservations: ITU Convention, Art. 32.B. 50 E.P. Hexner, Interpretation by Public International Organizations of their Basic Instruments, 53 AJIL 343 (1956). 51 Vienna Convention on the Law of Treaties (1969), Art. 56. 46 47

§1155

legal order

733

ently 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. Tempora mutantur, nos et mutamur in illis. Times change, and we with them. This old wisdom also holds true for international organizations: times change, and international organizations with them. Most constitutions of international organizations are concluded for an indefinite period of time. It is obvious that, during their existence, the milieu in and for which the organization was created does not remain the same. Political, economic, technological, social, cultural and other developments rapidly change our society. International organizations have to keep pace with these changes in order to remain capable of performing their functions and to avoid becoming irrelevant. In turn, international organizations are also created to assist in steering these changes and to shape conditions for future cooperation between members.52 As times change, how do international organizations and their constitutions develop and change? First of all, international organizations are instruments of change by definition. They have been given their own organs, capable of realizing changes by using their powers in response to societal developments. No matter whether these are true decision-making powers or whether the organization is essentially a forum (a platform for discussion amongst members, for coordination of policies, and for exchange of views on items of common interest), international organizations are created to assist members to deal with issues that each member can no longer deal with in sovereign isolation. Their organs have been created by the founding fathers to bridge the gap between the rules laid down in constitutions, often long ago, and present-day society. 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 not object, the interpretation will gradually become binding. Otherwise, a dispute arises that has to be settled. The present UN is different from that of 1945, although the Charter has barely been altered.53

52 This and the next paragraph are largely reproduced from N.M. Blokker and R.A. Wessel, Editorial: Updating International Organizations, 2 IOLR 1-8 (2005), at 1-2. 53 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

734

chapter eight

§1156

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”,54 the expression “concurring votes” has come to include abstentions. The International Court of Justice accepted this practice in its 1971 Advisory Opinion on Namibia.55

§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.56 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.57 Nevertheless, even though international organizations are instruments of change in this sense, there is a limit to the possibilities for tacit renewal, through interpretation of the constitution with the development of society. Fundamental changes require amendments to the constitution.58 The living character of a constitution is also reflected by the vast scale of possibilities provided for amendment. Amendment procedures are foreseen more easily, and used more frequently, than in ordinary multilateral treaties. C. Amendment of the constitution59 1. Necessity for amendments §1157 A constitution drafted to establish an international organization will gradually prove to be defective in one way or another. This may be caused by misjudgment at the time of drafting.60

De Facto Revision of the Charter, ASIL Proceedings 108-116 (1965); F. Meyer, Bestrebungen zur Satzungsreform der Vereinten Nationen, 16 Jahrbuch 32-59 (1973). 54 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. 55 ICJ Rep. 1971, at 22. 56 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. 57 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 460-463. 58 This has also been been recognized by the EU Court. In Case C-50/00 P, Unión de Pequeños Agricultures, ECR 2002, at I-6735-6736, 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. 59 Zacklin, op. cit. note 54. L.H. Phillips, Constitutional Revision in the Specialized Agencies, 62 AJIL 654-678 (1968). 60 Apart from corrections that 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

§1158

legal order

735

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, §125128), which provoked the organization to amend its constitution and include a withdrawal provision.

§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.61 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,62 eleven others the powers and duties of the organization or its organs.63 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).64 Many of the amendments made editorial changes to improve the clarity of the constitutions. §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.65 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”.66 This conference resulted in the 1997 Amsterdam Treaty.

translation). In such cases the official procedure for amendment is not always necessary. See UNJY 1964, at 251-254. 61 Phillips, op. cit. note 59, at 658-662. 62 To the amendments mentioned in category (2) (id., at 660), two of the amendments mentioned as editorial (at 662), could be added. 63 Apart from the amendments mentioned in category (3) also the FAO amendment of 1965 which Phillips classifies as editorial. 64 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. 65 UN Charter, Art. 109. See Giraud, op. cit. note 53. 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). 66 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).

736

chapter eight

§1160

§1160 The precise requirements 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 Union 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 replacing the League of Nations, or it may exist alongside the earlier body, as in the case of the International Finance Corporation and the International Development Association, the creation of which was considered preferable to alteration of the competences of the World Bank.67 §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.68 Gold offers as examples the constitutions of financial organizations, which prescribe the amount of the authorized capital stock but empower the organization to increase this,69 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 also empowered the general congress of the organization to change the site of the headquarters if necessary.70 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

67 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. 68 See Amerasinghe, op. cit. note 15, at 459-460; Sands and Klein, op. cit. note 15, at 459. 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)). 69 World Bank, Art. II(2b); Inter-American Development Bank, Art. 2(2e); Asian Development Bank, Art. 4(3). 70 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).

§1163

legal order

737

outside London would have had the effect of amending Article 44 of IMCO’s constitution. 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 in 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?71 Many authors take the view that the members may overrule an amendment clause by unanimous decision.72 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, for example 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.73 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 would be immune to challenge under Article 263 of the Treaty on the Functioning of the EU. The only procedures to challenge such a course of action would probably be those provided by Article 258 TFEU, leading to a possible declaration that the member states had not fulfilled their treaty obligations or by Article 267 TFEU, 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 that 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.74

§1164 In practice, however, amendment contrary to a constitution’s amendment procedure is rare. In 1968, the IMF, when introducing special drawing rights, accepted an extra-constitutional amendment procedure.75

71

Vienna Convention on the Law of Treaties (1969), Art. 39, first sentence. 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. 73 TEU, Art. 48. See also B. de Witte, op. cit. note 66. 74 Kapteyn & VerLoren van Themaat, op. cit. note 13, at 88-89. 75 Only those members that had ratified were bound by the new provisions (Art. XVII(1)). 72

738

chapter eight

§1165

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 relate to 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. 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.76 Both protocols needed ratification and entered into force only for those members that had ratified it (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.77 In the same way, Chinese became authentic in 1977.78

(i) Temporary exclusion of amendments §1166 The constitution of the European Coal and Steel Community (ECSC) could not be changed during the transitional period (from 9 February 1953 until 9 February 1958).79 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) could only be proposed after the expiry of seven years from its entry into force.80 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.

76

ICAO Doc. 9208. See also Doc. 9217. FAO Conference Res. 10/69; UNJY 1969, at 166. 78 FAO Conference Res. 18/77. 79 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 . . .”. 80 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). 77

§1167

legal order

739

§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. 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 lawful. 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 Treaty on European Union requires some form of cooperation by Union organs in making amendments to the EU Treaties.81 This seems entirely logical in an organization possessing supranational organs charged with serving community interests that 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 to the Treaties without prior consultation of the European Parliament and 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 were 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 provision, 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 (“common accord”) of the governments of the member states, and that such amendments can enter

81

TEU, Art. 48; see above, §1167. Another example is IRENA, Art. XV.B.1.

740

chapter eight

§1170

into force only after being ratified by all the member states in accordance with their respective constitutional requirements.82 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 that allow for some form of majority decision-making.83 Other constitutions also require unanimous approval for constitutional amendments.84 Sometimes, unanimity of all members is only required for the amendment of certain articles.85 When there is no specific basis for invoking another rule, unanimity should also be required for amending those constitutions that contain no provision for their amendment.86 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,87 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 the unanimity of all parties.88 In practice, however, it is rarely necessary to use the general rules of the law of treaties, since most constitutions contain provisions for amendments.

§1170 When the 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 a session of the general congress of the organization, without the need for ratification, then the amendment will actually be made by any such decision of the general congress (see below, §1178-1186). The IMF and the World Bank require the unanimity of all members for any amendment modifying: (1) the right to withdraw;89 (2) the provisions that no change in a member’s quota shall be made without its consent;90 (3) the provision that no change shall be made in the par value of a member’s currency except on its own proposal;91

82

TEU, Art. 48. Another example is EFTA, Art. 44. De Witte, op. cit. note 66, in particular at 331-333. 84 E.g. Asian and Pacific Coconut Community, Art. 15; Shanghai Cooperation Organization, Art. 22; APSCO, Art. 27; ASEAN, Art. 48. 85 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 70 [1973], at 51-55. 86 E.g. OECD. 87 Vienna Convention on the Law of Treaties (1969), Arts. 39-40. 88 R. Yakemtchouk, La révision des traités multilatéraux en droit international, 60 RGDIP (1956), in particular at 359-370; Hoyt, op. cit. note 33. 89 IMF, Art. XXVI; World Bank, Art. VI. 90 IMF, Art. III, Section 2. 91 IMF, Schedule C, para. 6. 83

§1171

legal order

741

(4) the right to a proportional share in the increase of stock;92 and (5) the limitation of liability on shares.93 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.94

§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 paralyze 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 in respect of which a lack of interest, negligence or a change of government will halt 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.95 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 1936.96 When no objections were received, the amendments were finally able to take effect.97 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. Nevertheless, the problem has also occurred in regional organizations.

92

World Bank, Art. II, Section 3(c). World Bank, Art. II, Section 6. 94 EBRD, Art. 56.2. 95 No provision was made for these amendments; unanimity was therefore needed. 96 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). 97 Zacklin, op. cit. note 54, at 92-100. 93

742

chapter eight

§1173

According to the constitution of the Council of Mutual Economic Assistance (now dissolved), amendments required ratification by all members. From 1961, Albania ceased to participate in this organization, but formally remained a member. Amendments to the constitution that were subsequently ratified by all members except Albania were nevertheless accepted as valid in practice.98

(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,99 the ILO,100 the WHO,101 IAEA,102 the ICC,103 the AU,104 the Hague Conference on Private International Law,105 the Asia-Pacific Telecommunity,106 the International Network for Bamboo and Rattan,107 and the International Think Tank for Landlocked Developing Countries.108 It is also applied, for most types of amendment, by the IMF,109 the World Bank,110 the World Trade Organization,111 regional development banks,112 the EBRD113 and the Council of Europe.114 UNESCO uses it for amendments that involve fundamental alterations to the aims of the organization or new obligations for the members.115

With the exception of the financial organizations (which 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 mem-

98 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). 99 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). 100 ILO, Art. 36; Arts. 46-47 of the Standing Orders of the International Labour Conference. 101 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). 102 IAEA, Art. 18 C. 103 ICC, Art. 121. 104 AU, Art. 32.4. 105 Statute, Art. 13.2 (as amended in 2005). 106 Constitution of the Asia-Pacific Telecommunity, Art. 21. 107 Agreement on the establishment of the International Network for Bamboo and Rattan, Arts. 18 and 8 (two-thirds majority vote if no consensus can be reached). 108 Multilateral agreement for the Establishment of an International Think Tank for Landlocked Developing Countries, Art. XIII. 109 IMF, Arts. XXVIIIa and c. 110 World Bank, Arts. VIIIa and c. 111 Agreement establishing the WTO, Art. X. 112 J. Syz, International Development Banks 80 (1974). 113 EBRD, Art. 56. 114 CoE, Art. 41. 115 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).

§1174

legal order

743

bers have ratified it.116 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 the League of Nations, ratification was required by all members of the Council and by a majority of the other members.117 The UPU also amends its constitution by a vote in the general congress, followed by ratification by the members.118 Its procedure differs from those already discussed in that the amendments enter into force on specific predetermined dates, even if the required number of ratifications has not yet been obtained.119 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,120 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;121 and in September 1973, ECOSOC was again enlarged, this time to its current size of 54 members.122 The ILO has amended its constitution several times,123 as has the WHO.124

116 Amendments to most provisions of the ICC Statute require ratification by seven-eighths of the states parties (Art. 121.4). 117 Zacklin, op. cit. note 54, at 80-92. 118 UPU, Art. 30. 119 UPU, Art. 30.2. 120 Zacklin, op. cit. note 54, at 42; G.A. Codding, The Universal Postal Union 110 (1964). 121 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). 122 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). 123 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 at April 2010, 94 members had ratified, which is about half of total ILO membership, whereas two-thirds is needed; see www.ilo.org/ilolex/ english/constq.htm (April 2010)). 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 (April 2010). This amendment is less far reaching than the 1986 amendments: it concerns the abrogation of obsolete ILO Conventions. 124 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

744

chapter eight

§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 that 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.125 Another disadvantage of the system is that even obtaining ratification by twothirds of the members often takes 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). In April 2010, the 1997 amendment to the ILO Constitution still lacked six ratifications for its entry into force.126 The 1965 and 1978 amendments to the WHO Constitution have not entered into force.127 The important 1986 amendments to the ILO constitution still lack a substantial number of ratifications required before their entry into force (94 ratifications obtained as of April 2010; it is no longer expected that these amendments will enter into force).128 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. Never in the long history of UPU have all members been legally bound by the same text of the constitution.129

§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 adop-

force on 20 January 1984), 1986 (entered into force on 11 July 1994), and 1998 (entered into force on 15 September 2005). Further amendments, adopted in 1965 and 1978 have not 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 (47th ed. 2009). 125 On this issue see Frowein, op. cit. note 72. 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). 126 See www.ilo.org/ilolex/english/constq.htm. The ILO’s Secretariat (the International Labour Office) launched a ratification campaign to make it possible to obtain the necessary number of ratifications (122). 127 International Organization and Integration, op. cit. note 124, at I.B.1.5.; Basic Documents (47th ed. 2009, at 4, 17). 128 Information obtained from the ILO Legal Office. 129 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).

§1177

legal order

745

tion 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 that were both members at the date of adoption of the amendment, and that 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.130 In the ICAO, in which the amendments, in principle, enter into force only for those members that 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 the required twothirds majority 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 certain variations, by some commodity councils. Whilst in most organizations belonging to this ‘qualified majority category’ the amendments are binding also on members that 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.131 (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. 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 that can be amended by unanimous decision of the general congress are the constitutions of the International Energy Agency132 and the West Africa Rice Development Association.133 This is also the case, for amendment of only some pro-

130 Different: E. Schwelb, The amending procedure of constitutions of international organizations, 31 BYIL (1954), at 90. 131 See the International Sugar Agreement (1992), Art. 44.2; Grains Trade Convention (1995), Art. 32.2; International Tropical Timber Agreement (2006), Art. 40.5; International Coffee Agreement (2007), Art. 49.2; International Cocoa Agreement (2010), Art. 63.2. 132 IEA, Art. 73. 133 West African Rice Development Association, established 4 September 1970, see 10 ILM 665 (1971).

746

chapter eight

§1179

visions of the constitution, in some financial agencies134 and in the European Free Trade Association.135 The constitution of the Southern African Development Community can be amended by a decision of three-quarters of the members of the general congress.136

§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).137 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.138 In the European Coal and Steel Community (which ceased 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). 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).139 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; and in some cases unanimity is required.140 The annexes to the Convention establishing the ICAO can be amended by a decision of the board of ICAO. Since those annexes do not contain constitutional rules, these will be discussed in the section dealing with conventions (see below, §1264).

§1180 Several international institutions that 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. This has encouraged some international organizations to utilize it, despite the absence of an appropriate constitutional provision.

134 IMF, Art. VII(a); Inter American Development Bank, Art. 12(a); Asian Development Bank, Art. 59(1); Caribbean Development Bank, Art. 58(1). 135 EFTA Arts. 3(5); 4(5); 5(7); 13(3). 136 SADC, Art. 36.1. 137 FAO, Art. 20 (for the application of the Article, see Zacklin, op. cit. note 54, 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. 138 CoE, Art. 41(d). 139 ECSC, Art. 95, paras. 3, 4. 140 IFC, Art. 7. See thereon Gold, op. cit. note 70 [1973], at 55-57.

§1182

legal order

747

In 1964, the UPU general congress decided that several provisions of the newly drafted acts would enter into force immediately.141 Thus, the board was enlarged forthwith (an operation that 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.142 Originally, every American sovereign 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.143 When the OAS constitution was amended in 1967, the resolution was incorporated in the OAS Charter.144

§1182 An amendment effected by decision – even if 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.145 There is no reason why this rule should not be applicable to the amendment of constitutions. In circumstances in which 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. Permitting the immediate entry into force of amendments that – 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

141 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. 142 The resolutions are annexed to the constitution in the texts published by the CoE. 143 G. Kutzner, Die Organisation der Amerikanischen Staaten (OAS) 161-167 (1970). 144 OAS, Art. 7. 145 Vienna Convention on the Law of Treaties (1969), Art. 12.

748

chapter eight

§1184

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 (interpretation of Article 27.3 of the UN Charter)).146 An example of an interpretation that came close to an constitutional amendment is the decision by the World Health Assembly in which it decided “that member states entitled to designate a representative to the Executive Board should designate them as government representatives, technically qualified in the field of health”. The text and the travaux préparatoires of the constitution of the WHO indicate that Board members were originally expected to act in their personal capacity, not as government representatives (see above, §267).

§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 American Integration Association) adopted many decisions that supplemented its constitution.147 (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 that 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 twothirds of the members, unless the general congress requires a larger number. The effect of these amendments will, however, be limited to the members that have ratified them.148

146 See Zacklin, op. cit. note 54, at 173-174; Amerasinghe, op. cit. note 15, at 460-461; Sands and Klein, op. cit. note 15, at 451-456. 147 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. 148 ICAO, Art. 94a.

§1188

legal order

749

The same rule applies in the OAS,149 and to those amendments of the constitutions of the FAO150 and of the WMO151 that 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 that has not accepted the amendment or when committed on its territory.152 The IMO follows the same principle, but 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 members that expressly declare their disapproval.153 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 that expressly accept them derives from the traditional rule for amendment of multilateral treaties. This rule, however, is unsuitable for constitutions since it would lead to members being subject to different provisions, which would be unacceptable particularly in respect of institutional articles. The ICAO constitution makes provision for this eventuality, providing that in its resolution recommending adoption of the amendment, the general congress may determine that member states that do not concur in the adoption of the amendment will cease to be members of the organization.154 Leaving the choice to the general congress may offer a solution for an organization like the ICAO, the constitution of which contains many non-constitutional articles. As a constitutional rule, however, the precedent of a number of commodity councils (which provide 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 that needed ratification in, for example, 1947, 1954, 1961, 1962, 1971, 1974, 1977, 1980, 1984, 1989 and 1990. As with all amendments that need ratification (see above, §1030), these amendments could enter into force only after long delays. Formally, they could bind only those members that 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.155 The 1961 amendment (which came into force on 17 July 1962) enlarged the ICAO

149 150 151 152 153 154 155

OAS, Arts. 140, 142. FAO, Art. 20, para. 2. WMO, Art. 28(b). ICC, Art. 121.5. IMO, Art. 66. ICAO, Art. 94(b). ICAO, Arts. 48(a), 49(e) and 61; 320 UNTS, at 210, 218.

750

chapter eight

§1189

Council (the board) from 21 to 27 members.156 At the 14th session of the general congress of ICAO, it was decided that states that had not yet ratified the amendment could both stand and vote for election to the augmented Council.157 One of the 1971 amendments that entered into force on 16 January 1973 increased the Council’s membership to 30,158 while the remaining 1971 amendment enlarged the Air Navigation Commission from 12 to 15159 and entered into force on 19 December 1974.160 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 that had ratified. Having regard to the subject matter concerned, the latter provision seems senseless. Although none of the amendments that 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 that 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 upon their entry into force, even for non-ratifying members.161 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, ten 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 that 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 entered into force on 18 April 2005 and 28 November 2002 respectively.162

3. Amendment procedure163 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.164 It could therefore 156

ICAO, Art. 50(a). 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 129, at 201. 158 ICAO Res. A 17 A-1 of 11 March 1971; New York Protocol of 12 March 1971, ICAO Doc. 8970. 159 Vienna Protocol of 7 July 1971, ICAO Doc. 8971. 160 Trb. 1975, No. 38. 161 Yemin, op. cit. note 46, at 47. 162 International Organization and Integration, op. cit. note 124, at I.B.1.6; ICAO Doc. 9770 – Suppl. (July 2001), at 14-15; www.icao.int/eSHOP/conventions_list.htm (February 2011). 163 For a more detailed description of the amendment procedure in the specialized agencies, see Phillips, op. cit. note 59, at 662-676. 164 Vienna Convention on the Law of Treaties (1969), Art. 40. 157

§1190

legal order

751

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: this competence can be derived from general principles of international law,165 or from the general power of members to submit proposals to the organization. A further question does arise, however, 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.166 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.167 In the EBRD, proposals for amendments may be made by the member states, a Governor or the Board of Directors.168 In the ILO and in UNESCO, initiatives for constitutional amendments have actually been taken by organs of these organizations.169 Only in the WMO was the power of the board to initiate proposals for amending the constitution expressly denied.170 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.171

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.172 The members are thus protected against hasty amendments made in the heat of debate on particular (perhaps emotive) issues, and are permitted adequate time for reflection and consultation with other members and all interested parties at home.

165 166

Yemin, op. cit. note 46, at 33. FAO, Art. 20(3); World Bank, Art. VIII(a); IDA, Art. 9(a); IMF, Art. XVII(a); IFC, Art.

7(c). 167

ICAO Assembly, 4th Session (1950), Res. A4-3. EBRD, Art. 56.1. Yemin, op. cit. note 46, at 33-34. 170 WMO, Third Congress, Cg III/doc. 11. 171 Yemin, op. cit. note 46, at 34. 172 See e.g. AU, Art. 32 and SADC, Art. 36; for the specialized agencies, see Phillips, op. cit. note 59, at 665-666. 168 169

752

chapter eight

§1192

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). According to the Constitution of the Asia-Pacific Telecommunity, provisional application of constitutional amendments is possible if this is explicitly provided in these amendments.173 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.174 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.175 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”.176 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]”.177 The legal questions involved were, inter alia, the question of 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 of 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.178

e. Amendments creating new obligations §1193 It has already been noted that some organizations employ a separate procedure for amendments that impose new obligations on members (see above, §1179, §1187).179 The question that 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).180

173

Art. 21.4. 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. 175 See D. Sagar, Provisional Application in an International Organization, 27 JSL 99-116 (1999). 176 Id, at 101. 177 Id., at 99. 178 Id., at 102, 115-116. 179 UNESCO, Art. 13; FAO, Art. 20; WMO, Art. 28; World Trade Organization, Art. X.4. 180 See on this question Zacklin, op. cit. note 54, 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 174

§1194

legal order

753

The Council of Europe avoids all such distinctions by enumerating the articles that may be amended by the simpler procedure.181 To date, the FAO general congress has never considered that constitutional amendments involve imposing new obligations on members.182 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,183 the introduction of an associate membership184 and the enlargement of the FAO Council.185 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.186

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.187 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 in which there merely is a passage of a long period of time following 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 from this analysis, therefore, 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 that must elect the new members of the enlarged organ after the entry into force 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). 181 CoE, Art. 41(d). See also Gold, op. cit. note 70 [1973], at 60. 182 Information obtained from the FAO Secretariat. 183 Second Session FAO Conference. 184 FAO Res. 30/55. 185 E.g. FAO Res. 42/53. 186 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. 187 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.

754

chapter eight

§1195

amendment. It is accepted that the organ is entitled to meet in its old composition (that is no longer in conformity with the constitution) until such elections have taken place.188 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 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;189 the ITU did the same until 1992. In 1992 – following one unsuccessful attempt, the 1989 Nice Convention, which never entered into force190 – a constitution was adopted, complemented by a convention. This constitution was applied provisionally from 1 March 1993 and entered into force 1 July 1994 (a predetermined date in the Constitution, Article 58.1). However, during subsequent meetings (Kyoto 1994, Minneapolis 1998, Marrakesh 2002, Antalya 2006, Guadalajara 2010) the general congress 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 which, for example, both contain provisions on the composition and powers of the main organs. In 2010, it was decided “to create a group to work on stabilizing the Constitution and Convention of the Union, with a view to creating a single coherent instrument subject to ratification by Member States that would not change at each Plenipotentiary Conference”.191 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 the member states that had ratified them. 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: for example, 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,

188

Note of the UN Office of Legal Affairs of 28 Sept. 1973, UNJY 1973, at 149-151. Zacklin, op. cit. note 54, at 40-42. 190 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)). 191 See www.itu.int/net/pressoffice/press_releases/2010/41.aspx (February 2011). 189

§1196

legal order

755

the need was felt to change the situation, although practice has demonstrated 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 organizations to make rules for their own legal order is generally recognized,192 and flows from the existence of the organization. Every organization requires internal rules, and these rules can be derived from no other legal order. The resulting law is part of a separate legal order, which is dependent on the organization’s own constitution, but independent of any other legal order.193 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.194 However, this is a minority view. As indicated by Bernhardt, “the prevailing opinion that the internal law of international organizations is a new branch of and forms part of international law has strong arguments in its favour. The basis of the internal law is the constituent treaty of each organization; the enactment and binding force of the internal law derive from this treaty as interpreted in conformity with the practice of the organization concerned”.195

§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 that were taken contrary to specific Charter provisions, but were nonetheless executed as they were not challenged (the division of Security Council seats, package deals on membership, and the readmittance of Indonesia and Syria as members).196

192 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). 193 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). 194 G. Balladore Pallieri, Le droit interne des organisations internationales, 127 RdC (1969 II), at 1-38. 195 R. Bernhardt, International organizations, internal law and rules,in EPIL, Vol. II (1995), at 1314-1318 (quotation at 1316). 196 B. Conforti, Le rôle de l’accord dans le système des Nations Unies, 142 RdC (1974 II), at 250-253.

756

chapter eight

§1198

§1198 Only a few constitutions expressly provide for the power to adopt internal rules other than rules of procedure.197 The provisions that have been made seem to have been inspired by a desire to identify the organs empowered to exercise this competence, rather 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”,198 a notion which has acquired a different meaning in the European Union (see below, §1326), while the OECD terms its internal decisions “resolutions”.199 §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.200 §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 that it has adopted at any particular time.201 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 that 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 (see below, §1206-1215). 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.202 (1) The power to make its own rules of procedure is inherent in every organization (see above, §201).203

197

CoE, Art. 16; Benelux, Art. 19(d). Benelux, Art. 19. 199 OECD, Rules of Procedure, Rule 18(a)(iii). 200 J. Castañeda, Valeur juridique des résolutions des Nations Unies, 129 RdC (1970 I), at 227. 201 UNJY 1976, at 143. 202 See also K. Skubiszewski, Enactment of Law by International Organizations, 41 BYIL (196566), at 226-232; Castañeda, op. cit. note 200, 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. 203 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; 198

§1201

legal order

757

(2) Within limits (see above, §224-230), organs have the power to create subsidiary organs and to establish tasks for such subsidiary organs. 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 . . .”.204 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 assessments: (a) the statistical base period should be ten years; (b) . . .; (c) efforts should be made . . .; (d) . . .”.205 In 1982, the question was raised within the Committee on Contributions of 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.206

(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.207 (6) The existence of organs, buildings and staff that 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.208 (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.209 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.

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). 204 GA Res. 36/231 A, para. 3. 205 Id., para. 4. 206 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). 207 Cf. UNJY 1982, at 182-183. 208 C. Wilfred Jenks, The Proper Law of International Organizations (1962). 209 WTO, Art. IX; GATT, Art. XXV.5.

758

chapter eight

§1202

The Constitution of the ICAO empowers it to provide, man, maintain and administer airports.210 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 rules governing these forces that were basically similar to national laws on armed forces. The UN also has the power to administer Trust Territories211 pursuant to which it undertook to administer Namibia (former South West Africa).212 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.213 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 that 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; generally, no requirements exist as to motivation or as to the procedure to be followed. 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 Union requires the European Parliament, the Council and the Commission to “consult each other and by common agreement make arrangements for their cooperation. To that end, they may, in compliance with the Treaties, conclude interinstitutional agreements which may be of a binding nature”.214 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.215 Examples are the Interinstitutional Declaration on Democracy, Transparency and Subsidiarity,216 the Interinstitutional Agreement on Procedures for Implementing the Principle of Subsidiarity,217 the Interinstitutional Agreement concerning Investigations by the European Anti-Fraud Office,218 and the Interinstitutional Agreement on Budgetary Discipline and Sound Financial Management.219

210

ICAO, Art. 71. UN Charter, Art. 81. 212 GA Res. 2145 (XXI). 213 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). 214 TFEU, Art. 295. 215 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). 216 OJ 1993, C 329/133. 217 OJ 1993, C 329/135. 218 OJ 1999, L 136/15. 219 OJ 2006, C 139. 211

§1203

legal order

759

§1203 Duly adopted internal rules will bind all lower organs,220 and may indeed bind the organization itself.221 The internal programmes in which the Council of the European Union binds itself to accomplish a certain project within a given period of time222 should be considered as binding internal law.223 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 that 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.224 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, either in the constitution or by mutual agreement with the member concerned (see above, §984), but usually it is established by 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 that arise. Organs would then be completely free to handle each situation in an ad hoc manner. The

220

E.g. UNJY 1982, at 182-183. 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. 222 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. 223 See A. Parry and S. Hardy, EEC Law 241 (1973). 224 ICJ Rep. 1954, at 61 (Advisory Opinion of 13 July 1954, Effect of awards of compensation made by the United Nations Administrative Tribunal). 221

760

chapter eight

§1206

constitutional requirement that there must be rules of procedure225 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.226 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.227 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 an insufficient guarantee in this respect.228 A good example of the principle that rules of procedure may not be changed at random can be found in the rules of 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.229 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 European Court of Justice in 1973.230

2. Internal rules with external effect a. Possibility of external effect §1206 Internal rules may have important external effects.231 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 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.

225 See e.g. Charter of the UN, Arts. 21 (General Assembly), 30 (Security Council), 72 (ECOSOC), 90 (Trusteeship Council). 226 B. Conforti, op. cit. note 196, at 216. Also F. Morgenstern, Legality in International Organizations, 48 BYIL (1976-77), at 251-253. 227 GA Rule 163. 228 Conforti does so, op. cit. note 196, at 218. 229 IFAD Governing Council, Rule 45; Executive Board, Rule 28. 230 Case 81/72, First Remunerations Adjustment Case, ECR 1973, at 586. 231 See also Alvarez, op. cit. note 27, at 122-145.

§1207

legal order

761

In 1953, the General Assembly of the UN established a list of factors that it considered should be taken into account in deciding whether the people of a particular territory have attained full self-government.232 This decision was an internal rule defining the Assembly’s future policy. Nevertheless, the decision directly affected those members that 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 that an organization adopts for its own operational activities (see also above, §938-940). 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 (interns) 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 for performing activities not directly related to the functioning of the organization is operational. Here too, delimitations are difficult.233 Purely administrative activities, such as the creation of a special unit on apartheid within the UN Secretariat,234 usually have some operational effect, which is,

232 233

GA Res. 742 (VIII). See P. Tavernier, L’année des Nations Unies, questions juridiques, 18 AFDI (1972), at 517-

518. 234 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.

762

chapter eight

§1209

indeed, often intended. The unit produces reports and studies that 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 that they entailed – almost $55.5 million – were charged to the regular UN budget. The same position 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.235 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.236 In following years, similar amounts were budgeted for these activities.237

§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 overly 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.238 c. Competence to engage in operational activities §1210 In the abovementioned cases, international organizations that 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-

235 236 237 238

J.G. Stoessinger, Financing the United Nations System 106 (1964). ICJ Advisory Opinion of 20 July 1962, Certain Expenses, ICJ Rep. 1962, at 160. See, e.g., for the years 1978 and 1979 UN Doc. A/32/6, Vol. II, at 150, 152. On evaluation, see UN Doc. A/34/38, Chapter III.

§1210

legal order

763

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 two-thirds), 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.239 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.240

Seyersted, on the other hand, contends that an international organization is inherently competent to fulfil those functions that are necessary to accomplish its aims, unless such functions are expressly excluded.241 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 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.242 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 eight largest contributors to the UN regular budget pay two-thirds of all contributions.243 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.

239 240 241 242 243

Conforti, op. cit. note 196, at 270. ICJ Rep. 1971, at 50. Seyersted, op. cit. note 193, at 143-158; id. in 34 NorTIR (1964). UN Charter, Art. 55. GA Res. 64/248.

764

chapter eight

§1211

§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.244 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.245 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.246 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 and security on the Security Council.247 However, primary is not exclusive responsibility, 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.248 Pursuant to this, the latter can recommend that the members take measures for the peaceful adjustment of any situation.249 Nevertheless, this fails to answer the question of 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,250 but doubts have been expressed as to whether the General Assembly alone has such competence.251

244 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. 245 UN Charter, Art. 1. 246 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. 247 UN Charter, Art. 24. 248 See the ICJ Advisory Opinion of 20 July 1962, Certain expenses of the United Nations, ICJ Rep. 1962, at 163. 249 UN Charter, Art. 14. 250 D.W. Bowett, United Nations Forces 94 (1964). 251 G. Rosner, The United Nations Emergency Force 42-46 (1963). P. Poirier, La Force Internationale d’Urgence 138-169 (1962).

§1213

legal order

765

§1213 The International Court of Justice gave an advisory opinion on the financial consequences of the UN decision on peace-keeping.252 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.253

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.254

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.255 The Court also drew attention to the fact that from the outset, the UN budget included items that would not fall within any of the definitions of “administrative budget”.256 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 that 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 of 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

252 ICJ Advisory Opinion of 20 July 1962, Certain expenses of the United Nations, ICJ Rep. 1962, at 151 ff. 253 Id., at 163. 254 Id., at 167-168. 255 Id., at 159. 256 Id., at 160.

766

chapter eight

§1215

provisions were adopted (see above, §991), but nevertheless it was not possible completely to avoid controversies. China did not agree with the solution found.257 §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 in which externally binding rules can only be taken with the express approval of all members, or at least 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. B. 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 peoples258 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.

257 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. 258 GA Res. 1514 (XV).

§1217

legal order

767

All conventions are decisions requiring subsequent ratification, binding only those states that have so 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 non-binding suggestions of international organs, but other common terms are “opinion” or “advice”. Before 1914, the term “voeu” was more common.259 Many organizations use “resolution” in the same context as “recommendation” for non-binding invitations to their members. “Recommendation” was used to denote a binding rule of law only in one constitution. According to the constitution of the European Coal and Steel Community (which ceased 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 to whom the recommendations are addressed”.260 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 that have no binding force outside the organization.261 Recommendations are indeed usually defined in such a ‘negative’ way, emphasizing their non legally-binding nature. An exceptional, ‘positive’ definition has been 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”.262 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. In practice, such a ‘positive’ definition is used by UNESCO. According to UNESCO’s constitution, its general congress may adopt – apart from conventions:263 Recommendations in which the General Conference formulates principles and norms for the international regulation of any particular question and invites Member States to take whatever legislative or other steps may be required – in conformity with the constitutional

259

For examples of voeux, see Tammes, op. cit. note 15, at 292-293. ECSC, Art. 14. 261 See also Castañeda, op. cit. note 200, at 217. 262 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. 263 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. 1(b). 260

768

chapter eight

§1219

practice of each State and the nature of the question under consideration – to apply the principles and norms aforesaid within their respective territories.

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 EU) that have such authority, and frequently used in organizations (like the UN and the specialized agencies) that 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, ECOSOC frequently addresses recommendations to the specialized agencies,264 and the General Assembly may do the same.265 §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) that expressly provides that particular rules will be legally binding. In this more narrow view, recommendations do not bind the members legally. Nevertheless, wider concepts of “legally binding” that may grant stronger legal force to recommendations should be borne in mind.266

264 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). 265 See, e.g., GA Resolutions 2105 (XX) para. 11 and 2107 (XX), para. 9. 266 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 quasi-legislative 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); R. Higgins, The Role of Resolutions of International Organizations in the Process of Creating Norms in the International System, in W. Butler (ed.), International Law and the International System 21-30 (1987); 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

§1220

legal order

769

b. Factors that 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.267 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.268 In 1951, the Committee of Ministers of the Council of Europe decided that each of its recommendations requiring unanimity269 could, by a separate and prior vote, be addressed only to those members270 who would vote in favour of it. Clearly, the recommendation would then apply only to those members. Likewise, the constitution of the OECD explicitly provides that an OECD recommendation shall not be applicable to members who abstained from voting when it was adopted.271 These decisions and provisions would not make sense if recommendations had 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 in 1981.272 This Code was adopted against the background of a decrease in breastfeeding, in particular in developing countries, and a concern that this was at least partly caused by the marketing and advertizing of breast-milk substitutes. The Code “advocates that babies be breastfed”. If this is not possible, the Code also advocates that babies “be fed safely on the best available nutritional alternative. Breast-milk substitutes should be available when needed, but not be promoted”.273 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. According to Article 11.1 of this Code, “Governments should take action to give effect to

and External Effects of Resolutions by International Organizations, 49 ZaöRV 778-790 (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, LawMaking 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; J. D. Aston, Sekundärgesetzgebung internationaler Organisationen zwischen mitgliedstaatlicher Souveränität und Gemeinschaftsdisziplin (2005), in particular at 119-124. 267 See for a somewhat different list of such factors and references to further literature Sloan, op. cit. 266, at 105-118. See also Skubiszewski, op. cit. note 266, at 170-175. 268 Tammes, op. cit. note 15, at 347. 269 CoE, Art. 20(a). 270 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. 271 OECD, Arts. 5-6. 272 Res. WHA 34.22 (1981). Only the US voted against the adoption of the Code (see G.L. Burci and C.-H. Vignes, World Health Organization 144 (2004)). 273 See the WHO publication ‘The international code of marketing of breast-milk substitutes – frequently asked questions’ (2006, updated 2008), at 1.

770

chapter eight

§1221

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.274 A final example concerns EU recommendations. The European Court of Justice 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”.275

(i) Constitutional provisions §1221 One of the factors that strengthen recommendations is the constitutional provision underlying the powers of the organ that has adopted the decision (see above, §208, §217-223). States will usually not execute a recommendation 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 (for example, a treaty or a rule of customary international law).276 §1222 In some cases, the constitutions of international organizations impose obligations on the members to act on recommendations. The FAO and UNESCO require their members to report to the organization on the effect given to recommendations issued by these organizations.277 Similarly, the ILO and UNESCO oblige their members to submit recommendations to the authorities competent to implement them.278 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,

274 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); S. Shubber, The International Code of Marketing of Breast-Milk Substitutes: an International Measure to Protect and Promote Breastfeeding (1998); Burci and Vignes, op. cit. note 272, at 142-146; Alvarez, op. cit. note 27, at 234-235. 275 Case C-322/88, Grimaldi, ECR 1989, at 4421. 276 Skubiszewski, op. cit. note 266, 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. 277 FAO, Art. 9.1; UNESCO, Art. 8. 278 ILO, Art. 19.6; UNESCO, Art. 4.4.

§1224

legal order

771

particularly when 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 – did they undertake 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, §1720). (iii) The method of enactment279 §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 that have supported a particular recommendation will be more inclined to give effect to it. When the President of the 20th 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 15 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.280 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 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 was 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 that were also members of the Security Council at the time voted in favour of the resolution.281 (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 estopps 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.

279 280 281

See also Skubiszewski, op. cit. note 266, at 194-225, and at 323-326. UN Doc. A/6226/Add.2, replies of Belgium, France, Netherlands, UK. See International Herald Tribune, 5-6 November 1994, at 2.

772

chapter eight

§1226

A negative vote, on the other hand, does not allow a state subsequently to ignore a recommendation completely.282 In practice, however, a state that 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.283 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.284 §1226 Particularly in universal organizations, and especially in the UN, the participation of almost every state gives recommendations that 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. 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.285 The World Intellectual Property Organization (WIPO) has adopted a number of nonbinding resolutions and recommendations. These have influenced national law and practice, partly because of the way in which they were adopted: “they went through a long process of negotiation and extensive but informal consultations, and thus embody a fairly representative view of the member states of WIPO”.286

§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.287 §1228 The persuasive force of recommendations may also be increased by the support of particular members. In the UN for example, the support of important members such as China, Russia and the US will give force to a recommendation, irrespective of the other votes.

282 The effect of majority resolutions for non-concurring states is discussed, inter alia, in Schachter, op. cit. note 266, at 90-94. 283 Conforti, op. cit. note 196, at 240. 284 Id., at 253-256. 285 ICJ Rep. 1962, at 170-171. 286 E. Kwakwa, Institutional and Procedural Reform at the World Intellectual Property Organization, 3 IOLR 143-152 (2006), quotation at 151-152. See also E. Kwakwa, Some Comments on Rulemaking at the World Intellectual Property Organization, 12 Duke Journal of Comparative and International Law 179-195 (2002). 287 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: seven states voted against, five abstained).

§1229

legal order

773

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”.288 §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 and authority of the drafters. In the WHO, recommendations enjoy such a level of support that they are often utilized instead of regulations (conventions that 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.289 §1230 The Benelux Committee of Ministers has often used recommendations to establish uniform laws in the three member states. The uniform law is actually 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.290

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.291

288 Quoted from Sir Kenneth Bailey, special adviser to the Department of External Affairs of Australia, in Schwebel, op. cit. note 129, at 500. 289 See F. Gutteridge, Notes on decisions of the World Health Organization, in Schwebel, op. cit. note 129, at 281-284. 290 Bulletin-Benelux-Publikatieblad 1963-2, at 7. In the same issue four similar recommendations can be found. See also Bulletin-Benelux-Publikatieblad 1966-8. 291 CoE, see 12 ILM 100 (1973).

774

chapter eight

§1230A

§1230A The OECD has adopted a Model Tax Convention, as well as so-called Commentaries in which interpretations are given to the articles of this Model Convention. It has done so through recommendations, suggesting that member states should follow the text of the Model Convention and the interpretations in the Commentaries when concluding bilateral tax treaties. It was not considered feasible to adopt a multilateral tax convention, to which members could become parties, as bilateral tax treaties “are still a more appropriate way to ensure the elimination of double taxation at the international level”.292 Instead of aiming at a uniform set of rules for the avoidance of double taxation, it was decided to leave more flexibility to states. Nevertheless, the Model Tax Convention and the Commentaries thereon have an important harmonizing effect on bilateral tax treaties. The legal status of the Commentaries is “one of the major unresolved issues in modern international tax law”.293 If bilateral tax treaties copy provisions of the Model Tax Conventions, legal doctrine is divided on the question of whether or not the parties to such treaties are not only bound by these copied provisions, but also by the interpretations thereon in the Commentaries. An interesting development in this regard is Austria’s inclusion in bilateral tax treaties of a provision according to which the parties consider themselves legally bound to the interpretations in the Commentaries of those provisions of the Model Convention that they have copied in the bilateral treaty concerned.294 Even though neither the Model Tax Convention nor these Commentaries are – as such – legally binding, they carry considerable authority; most bilateral tax treaties copy most provisions of the Model, and legal practice often conforms to the interpretations given in the Commentaries.295 This is yet another example demonstrating that there is considerable ‘no man’s land’ between binding and nonbinding decisions of international organizations. (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 they have supported. However, to date none has done so.296

292 Introduction to the 1997 Model Tax Convention (published in the OECD publication ‘Model Tax Convention on Income and on Capital’ (7th ed. 2008)). 293 See S. Douma and F. Engelen (eds.), The Legal Status of the OECD Commentaries (2008), at 251. 294 N. Blokker, Skating on Thin Ice? On the Law of International Organizations and the Legal Nature of the Commentaries on the OECD Model Tax Convention, in Douma and Engelen, op. cit. note 293, at 13-27 (in particular at 26). 295 See the various contributions in Douma and Engelen (eds.), op. cit note 293, with many references to further literature. 296 On the question of the binding consequences of favourable votes, see Castañeda, op. cit. note 200, at 303-306.

§1232

legal order

775

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.297

In some international organizations, it is intended that recommendations become binding law after official acceptance by the members. Until 2005, this was the case for the food standards of the Codex Alimentarius Commission (CAC), a joint body of FAO and WHO. These standards are laid down in recommendations. Originally they became binding upon acceptance by members. However, in 2005 this acceptance procedure was abolished.298 Notwithstanding this abolition, these standards are usually applied in practice (see further below, §1233). §1232 A recommendation that is subsequently formally accepted is substantially the same as a convention (see below, §1263). However, three differences can 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.299 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 constitute acceptances.300

(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, but can do so only in accordance with the relevant provisions of the convention or general international law. 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.301

297 See R.L. Bindschedler in Golsong and Ermacora, op. cit. note 266, at 205, and in 108 RdC (1963 I), at 305-423. 298 M.D. Masson-Matthee, The Codex Alimentarius Commission and Its Standards (2007), at 83-93. 299 Vienna Convention on the Law of Treaties (1969), Art. 11. 300 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 129, at 227-238. 301 Alexandrowicz, op. cit. note 186, at 80.

776

chapter eight

§1233

(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, and have a common interest in complying with the relevant rules. 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. It is particularly because of the need for universal standards in this area, that “even non-binding decisions of the ITU are commonly accepted by its members as if they were binding”.302 These rules may be considered to be self-enforcing,303 or as strengthened by natural sanctions.304 Their legal force may be bolstered where custom dictates compliance.305 An example are 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.306 Until 2005, this recommendation would have become binding upon those members formally accepting it. When a sufficient number of acceptances were received, the standard was incorporated into the Codex Alimentarius.307 However, in 2005, the acceptance procedure was abolished (see above, §1231). Nevertheless, in practice these standards are usually applied “by those engaged in the food trade as well as governments”, and “the pressures of the market . . . render its standards binding in practice”.308 In addition, Codex Alimentarius Commission standards have to some extent indirectly obtained what Masson-Matthee has named “de facto binding force”, namely through their recognition as international standards in the context of two (binding) agreements of

302 J. Hinricher, The Law-Making of the International Telecommunication Union (ITU) – Providing a New Source of International Law?, 64 ZaöRV 489-501 (2004), at 500. 303 D.M. Leive, International Telecommunications and International Law: The Regulation of the Radiospectrum 24 (1970). 304 J.E.S. Fawcett, The International Monetary Fund and International Law, 40 BYIL 34 (1964). See also Schwebel, op. cit. note 129, at 534. 305 See Alexandrowicz, op. cit. note 186, at 98. 306 Alexandrowicz, op. cit. note 186, at 78; Masson-Matthee, op. cit. note 298, in particular at 73-80; CAC, Procedural Manual (19th ed. 2010), in particular at 22-29; website: www.codexalimentarius.net. 307 Alexandrowicz, op. cit. note 186, at 81. 308 Alvarez, op. cit. note 27, at 223.

§1234

legal order

777

the World Trade Organization, the Agreement on the Application of Sanitary and Phytosanitary Measures and the Agreement on Technical Barriers to Trade.309 The Codex Alimentarius consists of more than 200 standards and a number of recommended codes of practice, guidelines, maximum residue levels of pesticide residues for over 360 commodities, maximum residue levels for different veterinary drugs and other measures.310 For example, the Codex standard for chocolate and chocolate products (Codex Stan 87-1981, Rev. 1-2003) defines chocolate as follows: “Chocolate (in some regions also named bittersweet chocolate, semi-sweet chocolate, dark chocolate or ‘chocolat fondant’) shall contain, on a dry matter basis, not less than 35% total cocoa solids, of which not less than 18% shall be cocoa butter and not less than 14% fat-free cocoa solids”. Subsection 2.2.3. defines “A Chocolate or Praline” as follows: “A Chocolate or Praline designates the product in a single mouthful size, where the amount of the chocolate component shall not be less than 25% of the total weight of the product. The product shall consist of either filled chocolate or a single or combination of the chocolates as defined under Section 2.1, with exception of chocolate a la taza, chocolate familiar a la taza and products defined in section 2.1.7.4 (chocolate para meza)”.311 Another example is the standard for Gouda cheese (Codex Stan C-5-1966), containing detailed requirements for, for example, its shape and size, including the holes in this cheese, which should be “from few to plentiful, all over the interior of the cheese, distributed regularly as well as irregularly”; these holes should be “more or less round”, “varying from a pin’s head to a pea”.312

§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.313 When there proved to be no possibility of exercising these functions, the Military Staff Committee was still-born.314 In 1954, the Western European Union established a detailed system, including judicial control, to monitor West-German rearmament.315 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.316

309 310 311 312 313 314 315 316

Masson-Matthee, op. cit. note 298, at 135-200. Id., at 60. This standard is reproduced in Masson-Matthee, op. cit. note 298, at 289, 291. Id, at 285-286. UN Charter, Art. 47. On its activities see UN Repertory of Practice 1955, Vol. II, at 417; id. 1958, at 349. Paris Protocols of October 1954, Trb. 1954, No. 179. See Conforti, op. cit. note 196, at 222.

778

chapter eight

§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.317 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.318 (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.319 (vii) The moral or legitimizing effect §1238 The legitimizing effect of resolutions adopted by international organizations is of increasing importance.320 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.321 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

317 W. Boulanger, Director Legal Division IAEA, Decisions and other Measures taken by the International Atomic Energy Agency, in Schwebel, op. cit. note 129, at 285-289 and 438. 318 FitzGerald, op. cit. note 157, at 172-176. 319 The Netherlands was one of the states that used to permit smaller letters and changed their internal rules in order to comply with UPU requirements. 320 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). 321 Claude, op. cit. note 320, at 370-371. Also Claude, The Changing United Nations 73-94 (1967).

§1239

legal order

779

become a major instrument of states for articulating their national interests, and seeking general support from them.”322

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 it proposed 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 (and 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 from both within and outside the US.323 §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.324 By contrast, Conforti considers that the application of a legitimate recommendation cannot be contrary to international law.325 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. Legitimization may also serve private law interests. Private loans can be more easily obtained for projects approved by the World Bank or by the European Commission than for projects that do not enjoy such support.326

322

Schachter, op. cit. note 266, at 85. 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. 324 Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice 1951-4, 34 BYIL 5 (1958). 325 Conforti, op. cit. note 196, at 262-265. 326 J. Gold, Certain Aspects of the Law and Practice of the International Monetary Fund, in Schwebel, op. cit. note 129, at 81; E. Stein in Schwebel, op. cit. note 129, at 418-420. 323

780

chapter eight

§1240

(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 by a recommendation, whereas 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.327 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.328 c. Internal effects of recommendations §1241 Recommendations addressed to other organs have no binding effect. Whenever a superior organ wishes to bind a 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 maintaining 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.329 §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: 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.330

327 Tammes, op. cit. note 15, at 335. For further examples, see di Qual, op. cit. note 266, 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. 328 See GA Resolutions 3080 (XXVIII) and 3259A (XXIX); YUN 1974, at 27, 30. 329 Boulanger, op. cit. note 317, at 285-286. 330 UNJY 1973, at 145.

§1243

legal order

781

§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 UN Development Programme (a body created by the UN General Assembly) bound by recommendations made by the Human Rights Council (also established by the UN General Assembly)? In such cases, organs are generally under a duty to at least 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 issue arose within the Council of Europe in relation to organs created under two conventions: the European Commission and Court of Human Rights on the one hand, and the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on the other.331 In 1990, the CPT visited the United Kingdom and criticized certain 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”.332 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 as regards the prisons in which he had been detained. Would the Commission have to align its findings in this specific case with the general observations of the CPT? This question 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”.333 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 as well as the individual in question would be left in confusion. In this case, the Commission did not proceed to a substantive analysis of the case, because it rejected the complaint on procedural grounds. However, the issue arose again in subsequent cases in which 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 instead relied on conclusions of the CPT: it stated that “the applicant’s allegations are corroborated by the conclusions of the CPT report”.334 In two cases against the Netherlands, the Court quoted extensively from a CPT report. In this report, the CPT, inter alia, criticized the strict regime applied in an high 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

331 See R. Lawson, A Prisoner’s Dilemma, in 19 (2) NJCM-Bulletin 140-145 (1994). On the relationship between the CPT and the European Court of Human Rights, see E. Myjer, About the Human Rights Success Stories of the Council of Europe – Some Reflections on the Impact of the CPT upon the Case-law of the European Court of Human Rights, in M. Groenhuijsen, T. Kooijmans and T. de Roos (eds.), Fervet Opus – Liber Amicorum Anton van Kalmthout 193-203 (2010). 332 See for the report of this visit, Doc. CPT/Inf (91) 15 (at www.cpt.coe.int). 333 Art. 17.2 CPT and Explanatory Memorandum, §91 (Doc. CPT/Inf (91) 9), quoted by Lawson, op. cit. note 331, at 141, note 3. 334 Application no. 40907/98, judgment of 6 March 2001, para. 46.

782

chapter eight

§1244

argued that this description was factually incorrect. It observed that the question of whether or not the applicants were subjected to inhuman or degrading treatment within the meaning of Article 3 of the European Convention depended 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.335 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 when it stated that it “does not diverge from the view expressed by the CPT that the situation in the EBI [– the high 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”.336 So far, however, the conclusion is justified that, although the Court and the CPT are independent treaty organs, each has respected the competence of the other as an organ of a single organization pursuing greater unity amongst its members. This is a fundamental internal organizational requirement, and has been emphasized in the context of other international organizations.337

2. Declarations a. The notion “declaration” §1244 By making 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. 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).338 International organizations may issue declarations concerning both these elements.

335 Applications no. 50901/99 and 52750/99, judgments of 4 February 2003, in particular paras. 53 and 65, respectively. 336 Id., paras.57 and 69, respectively. 337 Cf. the principle of institutional balance developed by the EU Court of Justice, and 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). 338 Castañeda, op. cit. note 200, at 288, and id., op. cit. note 192, at 117-138.

§1245

legal order

783

§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’.339 The following examples may illustrate the kind of declarations which are included in this category: (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,340 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,341 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.342 (6) The determination that a certain delegation lawfully represents a member, in circumstances in which 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).343

§1246 A declaration that a particular rule is legally binding resembles the taking of a binding decision, the main difference being that declarations are not intended to change the law. 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.344 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.345 Besides making a clear distinction between legal and factual declarations (determinations), Castañeda’s definition of a declaration also embraces those resolutions made by conferences that are unacceptable as conventions but that are nevertheless adopted in a weaker form. Although such resolutions are sometimes described as “declarations” (for example 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

339

Castañeda, op. cit. note 200, at 287-295, 224. GA Res. 742 (VIII). 341 UN Charter, Art. 2.7. 342 GA Res. 2145 (XXI). 343 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). 344 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. 345 See e.g. the “declaration” on the Preparation of Society for Life in Peace, GA Res. 33/73. 340

784

chapter eight

§1247

codify an (allegedly) existing legal situation.346 Consequently we also reject Castañeda’s conclusion – largely based on such resolutions – that declarations are of minor legal force.347

§1247 No constitution of an international organization refers to declarations 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 that organs are empowered to adopt are generally not exhaustive. An example is the omission from a constitution of provisions relating to internal rules, which any organization may adopt, even if the power to do so is not mentioned in its constitution (see above, §1196–1198). 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 impart, 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 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.348

This statement is based on the correct assumption that a declaration, in and of itself, can have no more legal force than a recommendation. An organization cannot take decisions with external binding force in the absence of an express constitutional authorization to do so. A proposal to empower the UN to adopt binding declarations of legal principles was made in San Francisco, but was not approved.349 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.350

346 On this decision-making at the Hague Conference, see also Tammes, op. cit. note 15, at 288-291. 347 Castañeda, op. cit. note 200, at 313-315. 348 UN Doc. E/CN.4/L610 of 2 April 1962. See also UNJY 1981, at 149. 349 Yuen-li Liang, The General Assembly and the Progressive Development and Codification of International Law, 42 AJIL 66 (1948). 350 O.Y. Asamoah, The Legal Significance of the Declarations of the General Assembly of the United Nations (1966). See also Golsong, op. cit. note 266, at 18-30; J. Gold, Recent international decisions to prevent restrictions on trade and payments, 9 JWTL 73-74 (1975).

§1249

legal order

785

§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.351 If 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 that used to be required for a rule to be accepted as customary international law was often considerably less than the support that can be expressed in a unanimous or almost unanimous resolution of a worldwide organization.352 §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” 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.353

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.354

351

See also Schachter, op. cit. note 266, at 87. Arangio-Ruiz, op. cit. note 266, at 453. 353 Nicaragua Case (Military and Paramilitary Activities, Judgment), ICJ Rep. 1986, at 99-100 (emphasis added). 354 Legality of the threat or use of nuclear weapons, Advisory Opinion, ICJ Reports 1996, at 254-255 (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” (id., at 255, para. 71). For a general analysis of the (early) case law of the ICJ dealing with resolutions of international organizations, see H. Thierry, Les résolutions des organes internationaux dans la jurisprudence de la Cour internationale de Justice, 167 RdC (1980-II), at 385-450. 352

786

chapter eight

§1251

The Court does not give its opinion on whether such General Assembly resolutions are binding (“even if they are not binding . . .”), but predominantly considers their possible legal effect in terms of the opinio iuris that 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 as evidence for a rule of 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 simultaneously 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.355 §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 the following: 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”.356

§1252 Declarations made by international organizations are, however, even more powerful as means of arresting the development of customary law. A developing custom the legality of which is denied by means of a declaration cannot become a rule of customary law.357 §1253 A second source that may make the substance of 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

355 C. Schreuer, Recommendations and the Traditional Sources of International Law, 20 GYIL 103-118 (1977), in particular at 109. Cf. also M. Virally, L’Organisation Mondiale (1972), at 208210, and at 26: “comme toute institution, [l’organisation 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.” 356 E. Hambro, Address before the United Nations Association of New York, 10 November 1970, UN Press Release GA/4306, at 2-3. 357 Arangio-Ruiz, op. cit. note 266, at 471.

§1254

legal order

787

aggression in its decisions on war criminals.358 The principles of international law embodied in the Charter of the Nuremberg Tribunal were later codified in a General Assembly resolution.359 The UN Declaration on the Elimination of all Forms of Racial Discrimination360 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.361 §1254 A third source that may make the substance of provisions of declarations legally binding may be the power of the organ concerned to further specify existing obligations. Almost all constitutions and binding decisions contain legal notions that 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.362 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 (such as 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 the obligations contained in provisions of a multilateral treaty when it declared that the use against plants, animals or men of some chemical and biological agents that 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 1925.363

§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.364 It could be argued that this supports 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

358

Castañeda, op. cit. note 200, at 324. GA Res. 95 (I). 360 GA Res. 1904 (XVIII). 361 K. Zemanek, The United Nations and the Law of Outer Space, YbWA 208-209 (1965); Golsong, op. cit. note 266, at 33-39. 362 See O. Schachter, The relation of law, politics and action in the United Nations, 109 RdC (1963 II), at 185-200. 363 GA Res. 2603A (XXIV); see also GA Res. 2674 (XXV), para. 5. 364 13 UNCIO, at 710. 359

788

chapter eight

§1256

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.365 It does not, however, enumerate these human rights. Such an enumeration was given subsequently by the General Assembly in the Universal Declaration of Human Rights.366 It could be argued that this declaration gives a further description of obligations existing under the Charter.367 By its resolution specifying the factors that should be taken into account in deciding whether or not a territory is one whose people have not yet attained a full measure of selfgovernment, the General Assembly substantially influenced the discretion of the members to decide whether they are under an obligation to transmit information on non-autonomous territories.368 The General Assembly resolution on the definition of aggression369 may be seen as a further interpretation of the Charter obligation on the members to refrain from the threat or use of force.370

§1256 A fourth source that may make the substance of provisions of declarations legally binding is 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 such rules have always been drawn up 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.371 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.372 Socio-political developments after the Second World War can be said to have created this vacuum, since they had rendered the then-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 hap-

365

UN Charter, Art. 56. GA Res. 217 (III) of 10 December 1948. 367 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). 368 GA Res. 742 (VIII), 1541 (XV) and, inter alia, 748 (VIII), 849 (IX) and 1542 (XV). 369 GA Res. 3314 (XXIX); YUN 1974, at 846-848. 370 UN Charter, Art. 2.4. For further examples of declarations considered as interpretations of existing obligations, see Conforti, op. cit. note 196, at 285-288; R. Rosenstock, The Declaration of Principles of International Law concerning Friendly Relations: A Survey, 65 AJIL 713-735 (1971). 371 GA Res. 1962 (XVIII), YUN 1963, at 523; di Qual, op. cit. note 266, at 267-271. 372 Asamoah, op. cit. note 350, at 164. 366

§1257

legal order

789

pened that, within a 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 also adopted a resolution condemning human cloning for reproductive purposes as contrary to human dignity.373 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.374 In 2001, it was proposed in the UN General Assembly to prepare a UN Convention in this field. However, after a few years it became clear that no agreement could be reached on a binding legal instrument. Instead, in 2005 a Declaration was adopted: the UN Declaration on Human Cloning.375 This Declaration calls upon the member states “to prohibit all forms of human cloning inasmuch as they are incompatible with human dignity and the protection of human life”.376

§1257 In all cases, it will be important to obtain unanimity or virtual unanimity when a declaration is accepted.377 Only then can its substance 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 that issues 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,378 the Declaration on Territorial Asylum,379 the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the UN,380 the Declaration on the Occasion of the Twentyfifth Anniversary of the UN (reaffirmation of the Charter),381 the Declaration on the Establishment of a New International Economic Order,382 the Millennium Declaration,383 the UN Declaration on the New Partnership for Africa’s Development,384 and most declarations on

373

Res. WHA50.37. 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. 375 GA Res. 59/280. 376 Id., para. b. 377 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. 378 GA Res. 1962 (XVIII); YUN 1963, at 523. 379 GA Res. 2312 (XXII). 380 GA Res. 2625 (XXV); Rosenstock, op. cit. note 370, at 713-735; Arangio-Ruiz, op. cit. note 266, at 519-628; J.A. Frowein, Freundschaft und Zusammenarbeit unter den Staaten, 28 Eur. Arch. 70-76 (1973). 381 GA Res. 2627 (XXV). 382 GA Res. 3201 (S-VI). 383 GA Res. 55/2. 384 GA Res. 57/2. 374

790

chapter eight

§1257

human rights385 are among those declarations adopted unanimously (or by acclamation) by the UN General Assembly. Specialized agencies have also sometimes adopted declarations. For example, the UNESCO General Conference unanimously adopted the Universal Declaration on Cultural Diversity (2001) and the Universal Declaration on Bioethics and Human Rights (2005). In 2008, the ILO Conference adopted by acclamation the Declaration on Social Justice for a Fair Globalization.386 Other declarations were accepted without opposition, but a number of states (indicated in brackets) abstained. These include the Universal Declaration of Human Rights387 (8); the Declaration on the Granting of Independence to Colonial Countries and Peoples388 (9); the Declaration on the Inadmissibility of Intervention in Domestic Affairs of States and the Protection of their Independence and Sovereignty389 (1); the Declaration on Social Progress and Development390 (2); the Declaration of Principles Governing the Sea-Bed and the Ocean Floor391 (14); the Declaration of the Indian Ocean as a Zone of Peace392 (55); the Declaration on the Rights of Mentally Retarded Persons393 (9); the Declaration on the Protection of Women and Children in Emergency and Armed Conflict394 (14); the Declaration on the Use of Scientific and Technological Progress in the Interests of Peace and for the Benefit of Mankind395 (20). An example from the specialized agencies is the 1998 ILO Declaration on Fundamental Principles and Rights at Work (273 votes in favour, 43 abstentions, none against).396 An important UN declaration that met with opposition is the Declaration on Permanent Sovereignty over Natural Resources.397 France and South-Africa voted against this declaration, and twelve states (including the Eastern European group) abstained.398 Other examples are the UN Declaration on Human Cloning (34 votes against, 37 abstentions),399 and the UN Declaration on the Rights of Indigenous Peoples (4 votes against, 11 abstentions).400

385 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). 386 On this Declaration, see F. Maupain, New Foundation or New Facade? The ILO and the 2008 Declaration on Social Justice for a Fair Globalization, 20 EJIL 823-852 (2009). 387 GA Res. 217 (III); YUN 1948/49, at 534-535. 388 GA Res. 1514 (XV); YUN 1960, at 49. 389 GA Res. 2131 (XX), YUN 1965, at 93. On the binding force of this resolution, see Golsong, op. cit. note 266, at 6-11. 390 GA Res. 2542 (XXIV). 391 GA Res. 2749 (XXV). 392 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. 393 GA Res. 2856 (XXVI). 394 GA Res. 3318 (XXIX). 395 GA Res. 3384 (XXX). 396 See Ph. Alston, Core Labour Standards and the Transformation of the International Labour Rights Regime, 15 EJIL 457-521 (2004); F. Maupain, Revitalization Not Retreat! The Real Potential of the 1998 ILO Declaration for the Universal Protection of Workers’ Rights, 16 EJIL 439-465 (2005). 397 GA Res. 1803 (XVII); YUN 1962, at 502. 398 Publication No. 75 of the Netherlands Ministry of Foreign Affairs, at 141. 399 GA Res. 59/280. 400 GA Res. 61/295.

§1258

legal order

791

§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.401 This desire also emerges from the fact that a number of declarations provide for a procedure to review their implementation.402 In such cases, nonobservance will lead to almost the same political reproaches as non-observance 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.403 It has sometimes been invoked before national courts,404 and in later declarations of the UN reference has been made to the Universal Declaration as if it were legally binding.405 The Declaration on the Granting of Independence to Colonial Countries and Peoples has been referred to in more than one hundred subsequent resolutions.406 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.407 Opinions on the binding nature of declarations of the OAS differ.408 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 . . .”.409 If they were to create binding law for the members, OAS declarations would be stronger

401 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. 402 See e.g. Res. 47/59, Res. 47/60, and Res. 47/76. See also the 1998 and 2008 ILO Declarations mentioned above (§1257), which both have an Annex devoted to “ Follow up to the Declaration”. 403 Skubiszewski mentions 20 more examples, op. cit. note 344, at 100. 404 E.g. Court in Milan, Yearbook of Human Rights of the Council of Europe, Vol. 7, at 536. See also Skubiszewski, op. cit. note 344, at 101-105. See for references to other judgments by national courts, Sloan, op. cit. note 266, at 540, note 560. 405 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). 406 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. 407 E.g. in 1923. See C.G. Fenwick, The Organization of American States 158 (1963). 408 A. van Wijnen Thomas and A.J. Thomas Jr., The Organization of American States 67-73 (1963). 409 Res. VIII, quoted by Fenwick, op. cit. note 407, at 157.

792

chapter eight

§1260

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.410

§1260 A number of declarations have been proclaimed by the Organization of African Unity. For example, the Declaration on the Denuclearization of Africa;411 the Declaration on Subversion (1965); the Declaration on Kenya-Somalia Relations (1967);412 and the Declaration reaffirming the principle of respect of sovereignty and territorial integrity of member states (1967).413 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.414 The General Assembly has expressly requested the Secretariat to ensure the application of the Declaration on the Elimination of Discrimination against Women.415

410

56 Revista de Derecho, Jurisprudencia y Ciencias Sociales I, at 320. AHG/Res. II(1). 412 AHG/St 1. 413 AHG/St 2. 414 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. 415 GA Res. 2715 (XXV). 411

§1262

legal order

793

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 organizations.416 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 16 different names for treaties;417 “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 they draft,418 but in some cases, however, they may wish to use another term.419 The ILO originally made “draft conventions”.420 In 1946 the word “draft” was deleted from the ILO constitution since it had frequently led to misunderstandings, and had tended to obscure the binding character of the obligation resulting from the ratification of ILO conventions.421 Whatever name is chosen, the binding character of conventions, and of treaties generally, is not determined by their denomination, but by the intention of the parties as to whether or not the relevant instrument should be binding under international law.422

416 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 RGIDP 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 conventionmaking 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). 417 UN Doc. A/5209, at 5. 418 See also the United Nations Treaty Handbook (2006), at 57. 419 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”. 420 Treaty of Versailles, Art. 405. 421 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. 422 See, e.g., UNJY 2009, at 453.

794

chapter eight

§1263

(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.423 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 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 that 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 that do not give immediate notification to the ICAO of the differences between their own practice and that established by the international standard (see below, §1288-1294, for a discussion of this “contracting out” procedure). To some extent therefore, international standards resemble conventions. In one respect, some ICAO Standards have a wider scope than conventions: they are binding in relation to the air-space above the high seas.424 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.425 In some cases, national courts have applied Annexes to the ICAO constitution.426

§1265 The WHO can adopt “regulations” in some specified fields.427 These are rules of law that bind the members, except when they notify their rejection of the rule or reservations to it.428 In view of this discretion accorded to the member

423 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 Tunas, 61 AJIL 688-690 (1967). What they call “potentially binding recommendations” does not actually differ from what we have termed “conventions”. 424 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 186, at 40-47; B.D.K. Henaku, The Law on Global Air Navigation by Satellite (1998), in particular Chapter 2. 425 Buergenthal, op. cit. note 43, at 105-106. 426 Id., at 107. 427 WHO, Art. 21. See M. Vierheilig, Die rechtliche Einordnung der von der Weltgesundheitsorganisation beschlossenen regulations (1984), Chapter Two; Beigbeder, op. cit. note 274, at 72-74; Burci and Vignes, op. cit. note 272, at 131-141. 428 WHO, Art. 22.

§1266

legal order

795

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 and the International Sanitary Regulations of 1951. Each of these acts has been subsequently amended. The Nomenclature Regulations were completely revised in 1967; this version is currently still in force. They require member states to compile mortality and morbidity statistics.429 The Sanitary Regulations were completely revised in 1969, and renamed as the International Health Regulations. Since smallpox was removed from the scope of these regulations in 1981 following the global eradication of this disease, they applied to only three diseases: cholera, the plague and yellow fever.430 Taking into account the growth in international travel and trade, the World Health Assembly in 1995 called for a substantial revision of the 1969 Health Regulations and requested the Director-General to prepare such a revision. Following extensive preparations and the momentum created by the outbreak of SARS (severe acute respiratory syndrome), a new version of the International Health Regulations (IHR) was adopted in 2005; it entered into force on 15 June 2007.431 This new version contains a number of innovations. For example, the scope of the IHR is no longer limited to specific diseases or manner of transmission, but covers “illness or medical condition, irrespective of origin or source, that presents or could present significant harm to humans” (Article 1.1). As a result, the IHR were applicable when an outbreak of the H1N1 virus occurred and was declared a pandemic (June 2009).432 In addition, more powers have been given to the WHO, such as the power to collect information (without prior consent of the government concerned) “regarding events through its surveillance activities and assess their potential to cause international disease spread and possible interference with international traffic”, as well as the power for the Director-General to determine that “an event constitutes a public health emergency of international concern” (Article 12.1) and to issue temporary recommendations in such emergencies (Article 15).

(iii) Characteristics §1266 The main reason international organizations make use of conventions is their traditional legal force. Conventions are treaties and therefore benefit 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.433 It is this latter feature that makes conventions practically unsuited to technical rules which must be adaptable to changing developments.434

429

Burci and Vignes, op. cit. note 272, at 132-134. Id., at 135-136. 431 See Res. WHA58.3. These regulations are reproduced in the WHO publication International Health Regulations (2005) (2nd ed. 2008). See G.L. Burci, Institutional Adaptation without Reform: WHO and the Challenges of Globalization, 2 IOLR (2005), at 437-443; D.P. Fidler, From International Sanitary Conventions to Global Health Security: The New International Health Regulations, 4 Chinese Journal of International Law 325-392 (2005). 432 See D.P. Fidler, The Swine Flu Outbreak and International Law ASIL Insights Vol. 13, Issue 5 (27 April 2009). 433 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. 434 Dobbert, op. cit. note 300, at 439-440. 430

796

chapter eight

§1267

Several international organizations have initiated studies in an attempt to facilitate and accelerate the procedure of law-making by conventions.435 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 making 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 that included not only the amendments agreed upon up until 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).436

§1267 The question may well be posed as to whether conventions can even 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 organization 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.437 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 Council438 or attributed new tasks to existing organs.439 Other organizations have followed suit.440

435 O. Schachter, M. Nawas and J. Fried, Toward Wider Acceptance of UN Treaties, a UNITAR study (1971). 436 Focus on IMO (A Summary of IMO Conventions, January 1994; obtained from the IMO Secretariat). See also Aston, op. cit. note 266, at 153-166. For more examples of simplified acceptance of modifications to technical provisions, see Morgenstern, op. cit. note 266, at 112. 437 H. Golsong, The Council of Europe, in Schwebel, op. cit. note 129, at 342. 438 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. 439 The European Convention for the Protection of Human Rights and Fundamental Freedoms gives tasks to the Parliamentary Assembly (e.g. Art. 22 (election of judges of the Court)), to the Committee of Ministers (e.g. Art. 46 (supervision of execution of judgments)) and to the Secretary-General (e.g. Art. 15 (receiving reports in case of derogation in time of emergency)). 440 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.

§1268

legal order

797

Conventions are therefore not the “sole property of ratifying states”, particularly when they give the organization a legal interest in the performance of obligations.441 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 categorization as decisions of international organizations. §1268 In one respect, however, the effect of conventions on the legal order of the organizations that 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).442 While this may be a valuable tool for the subject matter concerned,443 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, and they may even refer to each other.444 However, they cannot form a coherent whole. More than 200 conventions and protocols have been concluded within the framework of the Council of Europe. Some 30 of these have been ratified by almost all members. Approximately two thirds of all conventions and protocols have been ratified by fewer than half of the member states.445 This has made it impossible for the organization to create a coherent body of law. A new rule cannot be based on a former one if those rules do not concern the same states. There is no “Council of Europe law” in the way that there is a “law of the European Union”. 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”.446 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.447 The situation in the ILO is more or less similar. In May 2010, when this organization had 183 members, the following data were reported. Of the 188 international labour conventions in force – of which some are by virtue of their subject matter of interest to only a limited number of states – 15 had over 100 ratifications (these include most of the key human rights instruments), 16 had been ratified by more than half the membership, while 15 had

441 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. 442 Golsong in Schwebel, op. cit. note 129, at 343; Polakiewicz, op. cit. note 416 at 12-13. 443 F. Eyriey, Activités des Comités de L’Accord partial, 13 European Yearbook 125-135 (1965), extensive summary in English at 140-144. 444 F. Wolf, L’interdépendence des conventions internationales du travail, 121 RdC 113-220 (1967 II), in particular at 121-148. 445 See http://conventions.coe.int/ (May 2010), and the Chart showing ratifications of conventions and agreements concluded within the Council of Europe as at 31.12.2008, LVI European Yearbook 2008, at C of E 117-123. 446 Statute CoE, Art. 1(a). 447 Cf. 49 European Yearbook 2001, at C of E 113-114; Polakiewicz, op. cit. note 416, at 9-10.

798

chapter eight

§1268

not yet entered into force.448 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.449 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 30 April 2010, some 60 conventions had been adopted, only a few of which had been ratified by almost all member states.450 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).451 The problem of a coherent legal order also arose in GATT, partly because, originally, GATT was not intended to become an international organization. In practice, a large number of conventions were concluded within the GATT framework (“side 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.452 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 was the proposal to create a ‘Unitary Assembly’ as the general congress for all WIPO treaties.453 So far, this proposal has failed to receive the necessary support. 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

448 Data taken from the ILO website (May 2010) and information provided by the International Labour Office. Several of the older conventions that did not enter into force have been withdrawn by the Conference and are therefore no longer open to ratification. See further Morgenstern, op. cit. note 266, at 105. Cf. also Wood, op. cit. note 402. 449 See Summary of reports on ratified conventions and ILO Chart of ratifications. 450 Including some protocols and amendments. See www.imo.org (overview of status of conventions; May 2010). 451 Information obtained from the IMO Secretariat. 452 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 particularly about the relationship between the textile conventions (“arrangements”) and the GATT, see N. Blokker, International Regulation of World Trade in Textiles (1989), Chapter 5. 453 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).

§1269

legal order

799

to such agreements inter se was anticipated, and a legal framework was provided for what was known as ‘flexibility‘ or ‘enhanced cooperation’. Such a framework was created in the 1997 Amsterdam Treaty. However, it was subsequently felt that these rules were too strict. The 2001 Nice Treaty and the 2007 Lisbon Treaty have amended these rules. According to the current, more liberal framework, at least nine member states must 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 (except for enhanced cooperation within the framework of the common foreign and security policy, where unanimity is required).454 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.455 However, they are only loosely attached 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.456 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”.457 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”.458 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 such conventions are ratified. 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.459 The rights and obligations under these agreements apply exclusively between their parties. Nevertheless, important links

454 See for the current rules: Art. 20 TEU and Arts. 326-334 TFEU. See I.F. Dekker and R.A. Wessel, The European Union and the Concept of Flexibility: Proliferation of Legal Systems within International Organizations, in N.M. Blokker and H.G. Schermers (eds.), Proliferation of International Organizations – Legal Issues 381-414 (2001). 455 H.H. Han, International legislation by the United Nations, Legal Provisions, Practice and Prospects (1971). 456 See Yearbook ILC (1967 II), at 168-169. 457 Vienna Convention on the Law of Treaties (1969), Art. 5. 458 Yearbook ILC (1963 II), at 213. See also Yearbook ILC (1965 I), at 31, 308 and Yearbook ILC (1965 II), at 160. 459 Arts. 7-14.

800

chapter eight

§1271

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 that tend to stimulate convergence so that their benefits extend to all the member countries.460 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,461 these governments 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 that was finally renounced in 1924.462

§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.463 Some organizations (ILO, Council of Europe) use this power rather frequently, others generally use other legal instruments and rarely adopt conventions. It took until 2003 for the WHO to adopt its first convention, the Framework Convention on Tobacco Control.464 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.465 In practice, the General Assembly has

460

Art. 9(a) and (b). ILO, Art. 19. 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’O.I.T., 16 AFDI 596-604 (1970). 463 FAO, Art. 14; WHO, Art. 19; UNESCO, Art. 4.4; IMO, Art. 2(b); CoE, Art. 15; Benelux, Art. 19. 464 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 274, at 71-72; D.J. Malcolm, Tobacco, Global Public Health, and Nongovernmental 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 NGOs. Public hearings took place in October 2000. See further www.who.int/ fctc/en. The text of the Framework Convention has also been reproduced in UNJY 2003, at 454-475. 465 8 UNCIO, at 206-210. 461 462

§1273

legal order

801

indeed adopted a number of conventions466 that were subsequently adhered to by members of the UN, and even by some non-members. §1273 One organ that 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 European Commission. Nevertheless, the members have found a practical solution to the Council’s lack of competence in this respect. When 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.467 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.468 §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

466 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), the International Convention for the Suppression of the Financing of Terrorism (GA Res. 54/109), the UN Convention on Jurisdictional Immunities of States and Their Property (GA Res. 59/38), and the International Convention for the Protection of All Persons from Enforced Disappearance (GA Res. 61/177). 467 See H.G. Schermers and D. Waelbroeck, Judicial Protection in the European Union 329330 (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. 468 Procedure for approval of draft conventions (ICAO Assembly Res. A7-6), para. 4, (ICAO Doc. 7669-LC/139/2, 3).

802

chapter eight

§1275

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 that merely require ratification by the members. The resolution of the general congress replaces the signatures of the individual states.469 In the absence of such a constitutional power to adopt conventions, signature and ratification by states may both be required. The conventions of the UN are usually signed and also ratified separately by each state. §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.470 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.471 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 that, 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. If the organization has the power, it will generally move to adopt binding decisions, and the latter type of convention will only really be resorted to where no stronger option is available.

469 F. Maupain, The ILO’s Standard-Setting Action: International Legislation or Treaty Law?, in V. Gowlland-Debbas (ed.), Multilateral Treaty-making 129-135 (2000), at 130. 470 This problem occurred in the CMEA, as one member state (Albania, see above, §141) obstructed all activities. See R. Szawlowski, The System of International Organizations of the Communist Countries 65 (1965). 471 On the legal force of unratified conventions, see O. Schachter, The Twilight Existence of Non-binding International Agreements, 71 AJIL 296-304 (1971).

§1277

legal order

803

§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.472 The Office of Legal Affairs of the UN Secretariat attributed some force to an unratified UN convention when it considered: 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.473

§1278 The International Court of Justice considered the declaratory aspect of the UN Genocide Convention in its advisory opinion of 28 May 1951, in which 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.474

§1279 International organizations will often exert pressure on their members to ratify conventions (see below, §1282-1287). For the same reasons as apply to declarations, conventions that, 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,475 Diplomatic Relations,476 Consular Relations,477 and the Law of Treaties.478 These conventions reflect existing rules of law that the organization could have codified in a declaration. Instead, however, it 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

472 See Golsong, op. cit. note 266, at 40-43; Maupain, op. cit. note 416. Cf. also Wood, op. cit. note 402. 473 UNJY 1970, at 184. 474 ICJ Rep. 1951, at 23. See also ICJ Rep. 1971, at 47 (Vienna Convention on the Law of Treaties). 475 78 UNTS, at 277. 476 500 UNTS, at 95. 477 596 UNTS, at 261. 478 8 ILM 679-735 (1969).

804

chapter eight

§1280

on the Continental Shelf479 and for many UPU conventions.480 In these cases, no customary law existed, or it existed only in a rudimentary form, but there was a generally perceived need for specific legal rules, which 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 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.”481 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 that have ratified them (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.482

479 480 481 482

499 UNTS, at 311. 364 UNTS, at 5211-5212; 365 UNTS, at 5213-5214; 366 UNTS, at 5215-5220. ICJ Rep. 1969, at 38. See UNJY 1969, at 222.

§1282

legal order

805

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 by rules it has expressly ratified. However, for two reasons, the ratification requirement is the convention’s greatest weakness. First, ratification is usually a long process.483 For example, IMO Conventions enter into force within an average of five years after adoption.484 Conventions are thus generally unsuitable instruments in which to embody urgent international legislation.485 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, the prompt ratification of conventions by its members. In principle, international organizations have a legitimate interest in the broad acceptance of conventions concluded under their aegis.486 They accordingly seek to promote ratification in a number of different ways.487 Resolutions of the general congress or of other organs may urge the members to ratify.488 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) during which members sign a convention or deposit their instruments of ratification, acceptance, approval or accession.489 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 were represented at the level of Head of State or Government, undertook 274 treaty actions (signature, ratification, and so forth) in relation to more than 40 treaties.490 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 signing, ratifying

483

Schachter, Nawas and Fried, op. cit. note 435, at 80-92. Information taken from www.imo.org. 485 Schermers, op. cit. note 433. Of course, there are exceptions. See Morgenstern, op. cit. note 266, at 106. 486 Id., at 13-15. 487 Id., at 15-18; 41-79. See also Alexandrowicz, op. cit. note 186, at 24-33. 488 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). 489 See the UN website for an overview of UN treaty events of the last number of years, at http://treaties.un.org/Pages/TreatyEvents.aspx?pathtreaty=Treaty/PastTreaty/Page1_en.xml (May 2010). 490 See the UN Treaty Handbook (2006), at 1. 484

806

chapter eight

§1283

or acceding to treaties against terrorism.491 On 11 April 2002, a treaty event took place during which 10 states simultaneously deposited their instruments of ratification, acceptance, approval or accession with respect to the Rome Statute of the International Criminal Court. At present, the UN organizes a treaty event every year, during the high-level segment of the regular meeting of the General Assembly. From 2000 until 2010, 11 treaty events resulted in 1,549 treaty actions.492

§1283 According to the original text of the FAO constitution, the members were required to report periodically on any action taken on the basis of conventions submitted by the general congress.493 However, this provision has since been considerably weakened, as its application was found to be impossible.494 The members of UNESCO are under a similar obligation.495 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 IV.4 of the Constitution.496 According to these rules, the members must report on action undertaken by them in relation to a convention.497 The members’ reports are then discussed by the general congress,498 which may impose additional pressure to provoke ratification. Similar rules apply to the members of the Council of Europe.499 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.500 Even more onerous still are the obligations of the members of the WHO. 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 any failure to ratify.501 Subsequent 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.502 Not only do members have to submit conventions to their competent authorities and to report

491 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. 492 UN Doc. A/65/318, at 4. 493 FAO, Art. 11.1 (original version). 494 FAO, Art. 11. 495 UNESCO, Art. 8. 496 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, 17th, 25th, 32nd and 35th sessions (7C/Resolutions, at 109; 17C/Resolutions, at 114; 25C/Resolutions, at 194; 32C/Resolutions, at 117-118; 35C/Resolutions, at 95). These Rules are reproduced in UNESCO, Basic Texts (2010), at 111-116. 497 Id., Art. 16. 498 Id., Art. 17. 499 Res. 61(1) of the Committee of Ministers of the Council of Europe. 500 UNESCO, Art. 4.4. See UNJY 1965, at 137-140 and 237-241. 501 WHO, Art. 20. 502 According to Valticos, op. cit. note 416, at 16, “c’est la clef du système”.

§1285

legal order

807

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 practices with regard to the matters dealt with in the convention.503 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 the 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 law-making authority.504 By contrast, the WHO constitution clearly refers to the treaty-making authority.505 The legal committee of the general congress of UNESCO concluded that, for UNESCO, the law-making authorities were intended.506 §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).507 §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 Respect of Treaties,508 was initiated by the ILO Secretariat and has produced some good results.509

503

ILO, Art. 19, para. 5(e). 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. 505 WHO, Art. 20. 506 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). 507 Morgenstern, op. cit. note 266, at 107. 508 For the text of this convention, see 17 ILM 1488-1517 (1978). 509 ILC Report on its 24th Session (UN Doc. A/8710/Rev. l, GAOR 27th session, Suppl. No. 10), at 14. 504

808

chapter eight

§1288

(iii) Negative acceptance (contracting out, opting out, tacit acceptance) §1288 The requirement of ratification presents particular disadvantages for conventions that 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”.510 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.511 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, unless they notify before a certain date that they do not intend to participate. Instead of “contracting in” or “opting in”, they have to “contract out” or “opt out”.512 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

510

Wilcox, op. cit. note 462, at 115. OECD, Art. 6.3. Skubiszewski, op. cit. note 192, at 511 and id., op. cit. note 202, 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 416, at 163-169. On the history and application of this method in the IMO, and on the use of the terms ‘contracting out’ and ‘opting out’, see Aston, op. cit. note 266, at 153-166 and at 170-172. 511 512

§1291

legal order

809

can states contract out after the rule has entered into force.513 Other organizations discourage contracting out by requiring previous consultation or a statement of reasons.514 §1291 The negative ratification 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, or 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. In some cases, this factor may be of crucial importance. The IMO has concluded that “[w]ithout tacit acceptance, IMO’s ability to set safety and environmental standards for world shipping would have been seriously weakened. Without tacit acceptance, in fact, IMO might no longer exist”.515 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 for a negative ratification procedure for WHO regulations.516 The ICAO constitution does the same for international civil aviation standards that may be “annexed” to the constitution.517 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.518 Although the constitution does not specifically say so, members are considered bound if they fail to give such notice. States wishing to accede to the Convention Concerning International Carriage by Rail (COTIF) have to address their application to the depositary (now the Secretary-General of OTIF, previously the Swiss government). Such applications shall be deemed to be accepted after three months, unless five member states lodge objections.519

513

See Alexandrowicz, op. cit. note 186, at 51-69. WHO and WMO, see Alexandrowicz, op. cit. note 186, at 55, 68. 515 IMO 1948-1998: a process of change, in Focus on IMO (September 1998) (quoted in Aston, op. cit. note 266, at 160). 516 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 186, at 47-56; Vierheilig, op. cit. note 427, in particular at 60-80; Beigbeder, op. cit. note 274, at 72-74. 517 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; Aston, op. cit. note 266, at 132-138. 518 WMO, Art. 9; General Regulations 126-127. See Alexandrowicz, op. cit. note 186, at 56-61. 519 Art. 37.3 of this Convention (in the version of the Protocol of Modification of 3 June 1999). 514

810

chapter eight

§1293

The constitution of UNIDO provides that members that have not acceded to the Convention on Privileges and Immunities of the Specialized Agencies, but that 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 30 days.520 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.521

§1293 However, express constitutional provisions are unnecessary.522 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.523 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 that 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.524 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 required under Article 38 of the constitution.525 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 that may cause “watchful waiting” are amended according to the negative procedure. One example of such a structure can be found in the International Convention

520

UNIDO, Art. 21(2). ESA, Art. 5.1 and Annex III to the constitution. 522 E.g. 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; e.g. the 1979 Convention on the Conservation of European Wildlife and Natural Habitat, Art. 17.3. Another example of an ‘opt out’ without an express constitutional provision can be found in the 2010 amendments to the Rome Statute of the International Criminal Court, relating to the crime of aggression (Resolution RC/ Res.6, Annex 1, Art. 15bis.4). 523 Vienna Convention on the Law of Treaties (1969), Arts. 11-12. 524 Buergenthal, op. cit. note 43, at 99-100. 525 ICAO Doc. A26-WP/33 (1986). 521

§1295

legal order

811

for the Regulation of Whaling of 2 December 1946.526 The restrictions on whaling are incorporated in an annex that 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 90 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 that did not originally object to review the situation created by the non-participation of one or more other governments. (iv) Provisional application527 §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 from a specified 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 that notifies the other participating states of its intention not to become a party.528 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”.529 The organization that 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.530 Since ratifications are required, this entry into force should be regarded as provisional, and states that 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 13 members had ratified them.531 Notwithstanding the lack of ratifications, UPU Acts are generally fully applied by the members.532

526 161 UNTS, at 74; Trb. 1956, No. 15. Some fisheries 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. 527 D. Vignes, Une notion ambiguë: La mise en application provisoire des Traités, 18 AFDI 181-199 (1972). 528 Vienna Convention on the Law of Treaties (1969), Art. 25. 529 Yearbook of the ILC (1962 II), at 182 (Art. 24). 530 UPU, Vol. 1 of the Annotated Code, at 47 (1991). 531 Yemin, op. cit. note 46, at 98-99. 532 Id., at 101.

812

chapter eight

§1296

§1296 Article 17 of the Convention on the Elaboration of a European Pharmacopoeia, drafted by the Council of Europe, also suggests this procedure: 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.533 This provisional application, however, starts from the date on which the relevant member signs the convention. 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 Pharmacopoeia Convention was provisionally applied as of 1 March 1966,534 by which date only Switzerland had ratified.535

§1296A Protocol No. 14 to the European Convention on Human Rights, adopted in 2004, contains a number of adjustments to the procedures of the European Court of Human Rights, in response to the rapid increase in new applications and the growing backlog of cases (see above, §625-628). However, the entry into force of this Protocol was considerably delayed due to the absence of one ratification, that of the Russian Federation (ratification by all the parties to the European Convention was required). As Protocol No. 14 lacks a provision on its provisional application, the missing ratification blocked the introduction of reforms of the Court procedures. In view of the urgent need to introduce such reforms, two of the measures included in Protocol No. 14 (the single judge formation and the extended competence of three-judge committees) were copied in a new Protocol 14bis. The entry into force of this Protocol required the consent to be bound of only three parties to the Convention. Moreover, Protocol 14bis could be applied provisionally pending its entry into force. According to its Article 9, Protocol 14bis “shall cease to be in force or applied on a provisional basis from the date of entry into force of Protocol No. 14 to the Convention”. Protocol 14bis was concluded on 27 May 2009. It entered into force on 1 October 2009. However, this interim solution was only necessary for a brief period of time: on 18 February 2010, Russia ratified Protocol 14, which entered into force on 1 June 2010.536 This example illustrates the importance of the technique of the provisional application of treaties pending their entry into force.

533

European Treaty Series, No. 50. Ici l’Europe, April 1966. 535 Chart showing Signatures and Ratifications of Council of Europe, Conventions and Agreements, CoE, July 1971, at 27. 536 See the website of the Treaty Office of the Council of Europe (http://conventions.coe .int/). 534

§1297

legal order

813

e. Legal effect after ratification §1297 A ratified convention constitutes binding law for the states that have ratified it. As a rule, it is not binding on states that 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-more-favourabletreatment-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 that 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 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.537

What is the legal force of a convention with respect to the organization that 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 lawmaking attempt that failed and became 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.538 In principle, continuity prevails. If a newly independent state was 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.

537

See ESCAP, Guidelines for Maritime Legislation, Vol. I (3rd. ed. 1991), at 5. 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. 538

814

chapter eight

§1299

§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.539 (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 nonmembers to participate in a number of conventions. The requirement that the Committee of Ministers must be unanimous in doing so540 is a final 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.541 The Parliamentary Assembly subsequently recommended to the Committee of Ministers that all conventions of the organization be opened to non-members.542

By adopting 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,543 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

539 See thereon G.V. La Forest, The Labour Conventions Case Revisited, 12 CYIL 137-152 (1974); Polakiewicz, op. cit. note 416, at 49-55. 540 See, e.g., European Convention on State Immunity (1972), Arts. 36-41; Council of Europe Convention on Access to Official Documents (2009), Art. 17.1. 541 CoE Doc. SG (62) 4. 542 Parliamentary Assembly, Recommendation 510 (1968), 16 European Yearbook (1968), at 363, 365. 543 A decision which cannot be taken by the secretariat, see UNJY 1964, at 237-238.

§1301

legal order

815

the Council of Europe) or specific limitations are made to exclude states that are not generally recognized as such (for example, Katanga, Biafra, and, prior to 1980, Rhodesia). The most frequent limitation is to restrict adherence 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 non-autonomous members, the formula is not entirely watertight (see above, §76). 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.544 The Revised General Act of 28 April 1949 is also open to accession by non-members that are parties to the Statute of the International Court of Justice.545 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 that are members of any of the specialized agencies.546 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.547 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.548 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.549 The outcome of the application of the formula is that only those countries that 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 developed whereby three depositories are used (UK, USA, USSR).550 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;551 in the Agreement on the Return of Astronauts, the Rescue of Astronauts and the Return of Objects, launched into Outer Space, of 19 December 1967;552 and in the Treaty on Prohibiting Emplacement of Nuclear Weapons on Seabed and Ocean Floor, of 7 December 1970.553 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

544

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. 547 Vienna Convention on Diplomatic Relations (500 UNTS, at 95), Art. 48; Vienna Convention on Consular Relations (596 UNTS, at 261), Art. 74. 548 GA Res. 368 (IV) of 3 Dec. 1949. 549 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). 550 480 UNTS, at 43. 551 GA Res. 2222 (XXI) of 19 December 1966. 552 GA Res. 2260 (XXII), YUN 1967, at 34-35. 553 GA Res. 2660 (XXV). 545 546

816

chapter eight

§1302

capital of that state.554 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.555 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 more 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”.556 Other examples are the 1998 Statute of the International Criminal Court and the 2004 UN Convention on Jurisdictional Immunities of States and Their Property: both are open to “all states”.557

§1302 (2) Conventions enter into force after the 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 non-member states for the entry into force of a treaty drawn up under its auspices. The General Assembly, however, did not share this objection.558 The Council of Europe has provided in most conventions that non-members can only accede after the convention’s entry into force.559 §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. Should parties, non-members of the organization, be able to participate in the performance of these tasks?560 Usually, no provision is made for such participation, but in some cases the non-member parties can take initiatives for the amendment of the con-

554

Publication No. 83 of the Netherlands Ministry of Foreign Affairs, at 54. 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. 556 Trb. 1986, No. 125. 557 Statute ICC, Art. 125; UN Convention on Jurisdictional Immunities of States and Their Property, Arts. 28-29. 558 GA Res. 368 (IV). See R. Higgins, The Development of International Law through the Political Organs of the United Nations 271 (1963). 559 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; Council of Europe Convention on Access to Official Documents (2009), Art. 17.1. Exceptions are the 1979 Bern Convention and the 1995 Framework Convention for the Protection of Minorities; see Polakiewicz, op. cit. note 416, 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 that 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. 560 Zarras, op. cit. note 504, at 32-42. 555

§1304

legal order

817

vention. They may participate in the amendment proceedings when these take place outside the organization;561 they are, however, usually prohibited from doing so when the amendment is made within the organization.562 §1304 Some universal organizations invite non-members to participate in the drafting of their conventions,563 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,564 and several conventions of the Council of Europe (that are open to the EU)565 are open to international organizations that 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, and so forth. The ILO developed a standard practice for final clauses, which is applied to all its conventions.566 Other organizations have adopted the same procedure.567 The Council of Europe codified its practice in a model which is consulted for each new convention.568 The UN issued a Handbook of Final Clauses of Multilateral Treaties.569 The Vienna Convention on the Law of Treaties also contains detailed rules. If 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.

561 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 to be followed subsequently was to be decided by the General Assembly of the UN. 562 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. 563 See Note of the Office of Legal Affairs of the UN of 12 Feb. 1974, UNJY 1974, at 175-181. 564 Convention on the Registration of Objects launched into Outer Space, Art. 7, YUN 1974, at 63-65. 565 E.g. the 1979 Convention on the Conservation of European Wildlife and Natural Habitats, Art. 19.1. See Polakiewicz, op. cit. note 416, at 57-76. 566 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. 567 See e.g. FAO Conf. Res. No. 46/57; Conf. Rep. Ninth Session (1957), Appendix B; FAO Basic Texts, Vol. II, Section O. 568 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 416, at 302-306; Polakiewicz, op. cit. note 416, at 36). 569 Doc. ST/LEG/6 of August 1957. The most recent version is the UN publication ‘Final Clauses of Multilateral Treaties Handbook’ (2003), also available at http://treaties.un.org/doc/ source/publications/FC/English.pdf (February 2011).

818

chapter eight

§1307

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,570 entry into force, registration with the UN,571 admission of non-members, application to non-self-governing territories,572 reservations,573 authentic language,574 amendment,575 withdrawal576 and termination.577

§1307 Withdrawal from conventions will create problems in the case of lawmaking conventions that are meant to be generally applicable.578 International organizations try to limit such withdrawals to the minimum, but as long as states remain free to choose whether or not to become parties to conventions, withdrawals cannot legally be prevented. §1308 Apart from the problem of the admission of non-members (see above, §1300-1304), the issue of reservations may easily provoke political controversy. As a rule, reservations to conventions are not permitted,579 and they are particularly objectionable in law-making treaties.580 Where a member’s situation requires separate consideration, provision should be made in the conventions themselves.581

570

See Schachter, Nawas and Fried, op. cit. note 435, at 119-131. UN Charter, Art. 102. 572 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). 573 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 435, at 147-156. For a survey of UN practice, see UNJY 1975, at 204, 206, 207. 574 See Yuen-li Liang, Notes on legal questions concerning the United Nations, 47 AJIL 265 (1953). 575 “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. 576 Zarras, op. cit. note 504, 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. 577 Zarras, op. cit. note 504, at 48-50; O’Connell, op. cit. note 576, at 265-277; Vienna Convention of the Law of Treaties. Arts. 54-68. 578 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 Genève, 18 AFDI 140-160 (1972). 579 See K. Skubiszewski, op. cit. note 202, 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 266, at 109-110. 580 See also J. Sztucki, Some questions arising from Reservations to the Vienna Convention on the Law of Treaties, 20 GYIL 277-305 (1977). 581 ILO, Art. 19.3. See also N. Valticos, The International Labour Organisation, in Schwebel, op. cit. note 129, at 138. 571

§1309

legal order

819

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 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 rule that they must be adopted by organs of tripartite composition.582

§1309 In the WHO, reservations to conventions require the approval of the general congress;583 whereas in the ICAO reservations are generally permitted,584 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.585 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.586 §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 from the International Court of Justice on the relevant legal aspects.587 Until 1952, the Secretary-General of the UN followed a rigid system inherited 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.588 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.589 Reservations may be withdrawn at all times.590 In a joint separate opinion to the 2007 judgment of the ICJ in the Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002), it was stated that there has been the tendency in recent years “to view the Court’s 1951 Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide as

582

Id., at 137; see also Maupain, op. cit. note 416, at 131. Yemin, op. cit. note 46, at 196, 197, 199. 584 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. 585 Skubiszewski, op. cit. note 202, at 259. 586 UPU, Art. 22.6. See UPU, Constitution, General Regulations, Resolutions and Decisions, Rules of Procedure, Legal Status of the UPU (2010), at A.20-21. See also UNJY 1971, at 230-236; UNJY 1974, at 83. 587 Reservations to the Convention on Genocide, Advisory Opinion, ICJ Rep. 1951, at 15. 588 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). 589 Vienna Convention on the Law of Treaties, Art. 20, and D.W. Bowett, Reservations to nonrestricted multilateral treaties, 48 BYIL 67-92 (1976-77). 590 For formal aspects on the formulation and withdrawal of reservations, see UNJY 1974, at 190-191. 583

820

chapter eight

§1311

stipulating a régime of inter-State laissez-faire in the matter of reservations, in the sense that while the object and purpose of a convention should be borne in mind both by those making reservations and those objecting to them, everything in the final analysis is left to the States themselves”. It was noted that the European Court of Human Rights, the InterAmerican Court of Human Rights and the ICJ itself “have not followed this ‘laissez faire’ approach attributed to the International Court’s Advisory Opinion of 1951” but have rather pronounced themselves on the relevant reservations.591

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 that 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.592 In modern international law, however, this rule is no longer accepted.593 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 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

591 Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002), Joint separate opinion of Judges Higgins, Kooijmans, Elaraby, Owada and Simma, ICJ Rep. 2007, at 65 (quotations at 65, 69). 592 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. 593 For the development, see Scelle in: Annuaire de L’Institut de Droit International 1948 and Zacklin, op. cit. note 54, at 12-25.

§1312

legal order

821

remain Parties to earlier instruments are bound by the texts of these instruments, without ipso facto being bound by the amendments.594

§1312 According to the Vienna Convention on the Law of Treaties, multilateral treaties can be amended by the same majority that had the power to establish the text. The amendment can become effective between the parties that accept it, the original text continuing to bind those states that have not accepted the amendment.595 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 that ratify them. Only the continuing force of the original text can be questioned. Members that do not accept the amendments will remain bound to this text, but can they require application of this text by the members that 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 that 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.596 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 is concluded, the original convention will remain in force between all the parties. §1314 The UPU usually amends its conventions (the “Universal Postal Convention and the “Agreements”) 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 that 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 on which the organization switches over to the new version.

594 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. 595 Vienna Convention on the Law of Treaties, Arts. 39-40. 596 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 416, at 161-162.

822

chapter eight

§1315

The most important conventions are even officially abrogated when the new texts enter into force.597 The constitution gives binding effect to the new text.598 Ratification or non-ratification then becomes 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 (that usually take place every five years). For practical purposes, it was decided to renew these UPU “Acts” as a whole at each congress, a tradition that 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. In 2004, it was decided that not only the Constitution, but also UPU’s General Regulations, would be exempted from this practice and would therefore remain in force for an indefinite period.599 The UPU practice of total revision of its “Acts” (apart from the Constitution and the General Regulations) is explained by the organization itself as follows: 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 (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.600

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. §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, §1288-1294) 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 at least 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 597

UPU, Art. 31.2. UPU, Art. 22, paras. 2 and 3. 599 General Regulations, Art. 135. See also UPU, Constitution, General Regulations, Resolutions and Decisions, Rules of Procedure, Legal Status of the UPU (2010), at A.26. 600 UPU, Constitution, General Regulations, Resolutions and Decisions, Rules of Procedure, Legal Status of the UPU (2010), at A.26. 598

§1316

legal order

823

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 that may be amended more easily.601 §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.602 A justification for such a limitation exists when an organization wishes to retain the power to amend its conventions through its own organs without admitting to those organs the states that were unwilling to accept all the rights and obligations of membership. Should members that 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.603 §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 they therefore differ from amendments. Typing or printing errors, and mistakes of spelling, punctuation, numbering and so on, should be corrected at the initiative of the depositary.604 4. Binding rules §1318 Castañeda defines binding decisions as decisions that either change the law or oblige states to do so: in other words, decisions are binding if they change the pre-existing legal situation.605 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

601 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). 602 Vienna Convention on the Law of Treaties, Art. 40. 603 Id., Art. 39. 604 For the procedure followed by the Secretariat of the UN, see UNJY 1976, at 214-216. See, e.g., the various corrections made to the Rome Statute after its conclusion in 1998: http:// untreaty.un.org/cod/icc/statute/romefra.htm (February 2011). One of these corrections, relating to Art. 121.5 of the Rome Statute, was rather substantial, although it reflected the intentions of the drafters of the Statute. See A. Pellet, Entry into Force and Amendment of the Statute, in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: a Commentary 145-184 (2002), at 149, 180-181. 605 Castañeda, op. cit. note 200, at 225.

824

chapter eight

§1319

upon the serious danger that 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.606 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”.607 He then quotes the US Secretary of State, Hughes, President of the Washington Conference on the Limitation of Armaments, who declared that resolutions that 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”.608 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”.609 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 ground that representatives of both states participated in the adoption of the resolution and that their positive votes bound their states.610

§1319 The power of the League to take binding decisions was rarely used.611 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 exam-

606 Quoted from a letter of 9 May 1922 of the Swiss government to the League of Nations, LoN Official Journal, 1922, at 717. 607 G.H. Hackworth, Digest of International Law, Vol. V (1943), at 33. 608 Conference on the Limitations of Armaments, Washington (1922), Sixth Session, 4 February 1922, at 286. 609 Wilcox, op. cit. note 462, at 285. 610 PCIJ Series A/B-No. 42, 15 October 1931, at 116. 611 Wilcox, op. cit. note 462, at 270-285.

§1320

legal order

825

ples of decision-making that can be considered as the conclusion of (simplified) interstate agreements.612 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. 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).613 Where there is no appropriate constitutional provision, international organizations may sometimes take binding decisions on another legal basis. Thus, for example, the peace treaties concluded after the First World War invested the Council of the League of Nations with certain legislative powers, to be exercised by majority vote, with regard to modification of the provisions relating to minorities.614 The Treaty of Lausanne specifically charged the Council of the League with delimiting the border between Turkey and Iraq.615 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.616 A final example is provided by the trusteeship agreements, which oblige the administering states to apply recommendations of the UN and of the specialized agencies in the Trust Territories.617

§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 1.618

612 613 614

Castañeda, op. cit. note 200, at 309. See also Conforti, op. cit. note 196, at 257-288. St. Germain, Art. 69; Trianon Art., 60; Neuilly, Art. 57 (see Tammes, op. cit. note 15, at

283). 615

Treaty of Lausanne, Art. 3, para. 2. See Castañeda, op. cit. note 200, at 297. Treaty of Peace with Italy, Paris, 10 February 1947, Annex XI, 49 UNTS, at 214-215. See also GA Res. 289 (IV). 617 Castañeda, op. cit. note 200, at 299-300. See e.g. Trusteeship Agreement for the Territory of Tanganyika, Art. 7, 8 UNTS, at 96. 618 Falk, op. cit. note 266, at 783. 616

826

chapter eight

§1322

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.619 In the UN, the expression “decision” is often used for binding internal acts.620 In this study a broad definition is used (see above, §706). A binding decision will therefore be any legal formulation that has legally binding force. To indicate the decision as used in administrative law, the word will be capitalized. Thus, “Decisions” indicate acts that are binding on the government or the individual to which they are addressed. b. Types of binding decisions (i) Decisions addressed to governments §1323 Certain international organizations can take decisions binding on the governments of the members. Sometimes they may do so in practically their entire field of activity,621 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 disagreement on the question whether other decisions (for example, those taken on the basis of Chapter VI) can also be binding.622 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

619 In German as well as in Dutch a special word exists for an individually binding decision (”Entscheidung” and “beschikking” respectively). 620 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. 621 TFEU, Art. 288; 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 2007 International Coffee Agreement, Art. 14.3. Also the associations formed by the EU, see e.g. EU-Turkey, Art. 22(1). On the binding decisions of the EU, see R.H. Lauwaars, Lawfulness and Legal Force of Community Decisions (1973); Skubiszewski, op. cit. note 344, 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. 622 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.

§1323

legal order

827

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.623

Originally, most Security Council decisions were adopted in the form of “resolutions”. However, since the 1980s the Council has increasingly used the instrument of “presidential statements”.624 As observed by Wood, the term “presidential statements” 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.625 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.626 Unlike resolutions, they require consensus.627 Resolutions “are generally used for formal action” (for example, 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”.628 Like the UN, the OAS may also issue binding decisions in the field of maintenance of international peace and security;629 the WEU (dissolved in 2011) could do so in the field of arms control;630 and NATO can take binding decisions to implement the 1949 North Atlantic Treaty.631 However, only limited use of these powers has been made.632

623 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 195215 (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 and N. Angelet in J.-P. Cot, A. Pellet, M. Forteau (eds.), La Charte des Nations Unies (3rd ed. 2005), at 909-918; J. Delbrück in B. Simma (ed.), The Charter of the United Nations (2nd ed. 2002), at 452-464; M.C. Wood, The Interpretation of Security Council Resolutions, 2 Max Planck UNYB 1998, at 73-95. 624 E.g. in 2000, the Council adopted 50 resolutions and 41 presidential statements. In 2008: 65 resolutions, 48 presidential statements. In 2009: 48 resolutions, 35 presidential statements. 625 M.C. Wood, Security Council working methods and procedure: recent developments, 45 ICLQ 150-161 (1996), at 154. 626 P. Tavernier, Les déclarations du Président du Conseil de sécurité, 39 AFDI 86-104 (1993). See also UN Doc. S/26015. 627 Wood, op. cit. note 625, at 154. 628 Id. 629 OAS (Art. 60), in case the meeting of Consultation of Ministers of Foreign Affairs 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 143, at 228-235. 630 Protocol III on the Control of Armaments, Art. 3. 631 North Atlantic Treaty, Art. 9; see The North Atlantic Treaty Organization, Facts and Figures 321 (11th ed. 1989). 632 E.g. 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

828

chapter eight

§1324

The Organization for European Economic Cooperation, which preceded the OECD, could also address unanimous Decisions to its members.633 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”.634 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 Universal Postal Convention, the Letter Post Regulations and the Parcel Post Regulations.635 Formally, 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. However, the situation is 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 that are parties to them: they are binding on those countries only.636 §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.637 §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 such a nature as to restrict its application to one or more particular members, even when it is formally binding on all members.

NATO air strikes which will be conducted in close coordination with the UN Secretary General . . . ” (Press Release (94)15). 633 OEEC, Arts. 13-14. 634 OECD, Art. 6. 635 UPU, Art. 22.3. See UPU, Constitution, General Regulations, Resolutions and Decisions, Rules of Procedure, Legal Status of the UPU (2010), at XI-XII and A.26. 636 UPU, Art. 22.4; UPU, Constitution, General Regulations, Resolutions and Decisions, Rules of Procedure, Legal Status of the UPU (2010), at XII and A.20-A.21. 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. 637 OAPEC, Art 3. See Z. Mikdashi, The Community of Oil Exporting Countries 105 (1972).

§1326

legal order

829

§1326 Apart from regulations (see below, §1332-1334), two types of binding decisions can be issued by the European Union.638 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.639 Normally the effects of a directive should extend to individuals through the medium of the implementing measures.640 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 that 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.641 A Decision is binding in every respect on the addressee(s) named in it. The distinction between Decisions and directives 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 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 implies that the measure in question has legal effects vis-à-vis the collective members and the organs established by them. For example, if the UN Security Council has imposed financial sanctions on specifically mentioned individuals, a UN force or mission must comply with those sanctions, even if they have not been implemented by the country concerned.

638 TFEU, Art. 288. See in general G. Schmidt, Art. 249, in H. von der Groeben and J. Schwarze (eds.), Kommentar zum Vertrag über die Europäische Union und zur Gründung der Europäischen Gemeinschaft, Vol. 4 (6th ed. 2004), at 762-797; J.-V. Louis, D. Waelbroeck, M. Waelbroeck, G. Vandersanden, in Mégret Vol. 10 (2nd ed. 1993), at 475-522. 639 In the ECSC directives were called “recommendations”; they could be addressed to individual companies as well as to governments (Art. 14). The Court of Justice 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). 640 See e.g. Case 8/81, Becker, ECR 1982, at 70. 641 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).

830

chapter eight

§1328

Since 2003, the UN Mission in Liberia (UNMIL) occupied a property in Monrovia owned by someone who in 2004 was included in the list of individuals and entities subject to assets freeze sanctions imposed by the Security Council. Should the UN pay the outstanding rental fees to this person? The UN Office of Legal Affairs advised that, “while it is the responsibility of states to establish adequate mechanisms to enforce the sanctions imposed by the Security Council, the Secretary-General is, in any event, bound to comply with such sanctions”. Even if the country concerned did not implement the sanctions, the UN “continues to be obligated by the decisions of the Security Council and to take all necessary steps to comply with them”.642 Therefore, the rental fees should not be paid, but should be deposited in an escrow account.643

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 only operates within one legal order. Conflicts can only arise for the governments themselves in respect of rules that 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 the situation. 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 that have no power to issue Decisions often attempt to achieve the same result in conventions that become binding after a certain period of time (see above, §1288-1294), or that the members are under a pressing obligation to ratify.644 The result can also be effected by two other methods. First, a recommendation can be 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,

642 643 644

UNJY 2005, at 462-465 (quotations at 463). Id., at 465. See also Yemin, op. cit. note 46, at 176.

§1329

legal order

831

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 that 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. They may be unable to consult their parliaments adequately 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 its members to adopt particular conventions.645 The convention is formally passed 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 Union, in particular the Commission, which are empowered to address individual Decisions to enterprises operating within the common market (for instance, on competition).646 The instructions of Eurocontrol to aircraft commanders form another example of Decisions addressed to individuals.647 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 types of fish covered by the Convention are 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, need 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.

645

A. Elkin, formerly Legal Adviser OEEC, in Schwebel, op. cit. note 129, at 369. See A.G. Toth, Legal Protection of Individuals in the European Communities, Vol. I (1978), at 65-68. 647 Eurocontrol, Art. 16. 646

832

chapter eight

§1332

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.648 A negative Decision will seriously affect the landing rights of the airline in question. (iii) General regulations §1332 The European Union can issue regulations that (1) have general application (as opposed to Decisions); (2) are binding in their entirety (as opposed to directives); and (3) are directly applicable in all member states.649 ICAO establishes (by two-thirds majority of the ICAO Council) rules that bind all aircraft flying over the high seas. The members have committed themselves to ensure prosecutions of all persons violating those rules.650 ICAO standards for personnel licensing may also be binding on individuals.651 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 EU regulations has been clarified in the case-law of the European Court of Justice. 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”.652 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.653 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 Union.654 The third characteristic of regulations (direct applicability) is in fact composed of two elements. On the one hand, the Court has ruled that the principle of the precedence of EU law over national law requires, inter alia, that

648

ICAO, Art. 86. TFEU, Art. 288; Euratom, Art. 161. The wording in the ECSC Treaty was different, the effect was the same, ECSC, Art. 14. On EU regulations, see J.-V. Louis, Les Règlements de la Communauté Économique Européenne (1969); Lauwaars, op. cit. note 621; Toth, op. cit. note 646, at 55-61. 650 ICAO, Art. 12. See Buergenthal, op. cit. note 43, at 80-85. 651 ICAO, Arts. 39-40. See FitzGerald, op. cit. note 157, at 167. 652 Case 6/68, Zuckerfabrik Watenstedt, ECR 1968, at 415. 653 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. 654 Kapteyn & VerLoren van Themaat, op. cit. note 13, at 230. 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). 649

§1334

legal order

833

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”.655 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”.656 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 European Court of Justice spoke of quasilegislative acts.657 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 directly use national legal machinery for the implementation of its regulations (see below, §1522-1548).658 §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.659 This indicates that there are certain rules of international law that must take precedence over other (international) rules. Apart from those peremptory norms of international law that 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.

655

Case 106/77, Simmenthal, ECR 1978, at 643. Case 43/71, Politi, ECR 1971, at 1048. 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. 658 On the implementation of EU regulations by the member states, see Lauwaars, op. cit. note 654; J. Bonnes, Uitvoering van EG-verordeningen in Nederland (1994). 659 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). 656 657

834

chapter eight

§1336

B. General principles of law 660 §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.661 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 detailed rules will be derived from general principles common to the legal systems of the members.662 New organs, like the European parliamentary assemblies, took many rules from national parliaments, which were familiar to the persons who were involved in those organs. General principles of law form an additional source of rules of the legal order of international organizations.663 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.664 Important theories, such as the theory of implied powers,665 have been derived from general principles of law.666 In regional organizations, there may be general principles that form part of the legal order of the organization without necessarily being part of the general principles of the laws of other states. In several cases, the European Court of Justice has relied on general principles common to the laws of the members to fill gaps in the internal legal order of the organization.667 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

660 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). 661 Vienna Convention on the Law of Treaties, Arts. 53, 64. 662 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. 663 See further Amerasinghe, op. cit. note 15, in particular at 15-21; Sands and Klein, op. cit. note 15, in particular at 461-465. 664 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). 665 Reparation for Injuries Case, ICJ Rep. 1949, at 182. 666 See S. Rosenne, The Law and Practice of the International Court 1920-2005, Volume III Procedure (2006), at 1548. 667 See Schermers and Waelbroeck, op. cit. note 467, at 28-133.

§1338

legal order

835

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.668

Additionally, general principles of law are often applied by administrative tribunals.669 §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.670 The principle of equality between the sexes is one which has undergone considerable alterations over the years. Some 50 years ago, it was quite common for married men to receive particular allowances that were not paid to married women. However, case-law, both of national and of international courts has rejected this practice.671 Another principle that has become generally binding is the principle of freedom of association, in particular for trade union purposes.672

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 resolutions and may thus underline customary rules.673 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).

668

Algera Case, 7/56, 3-7/57, ECR 1957-1958, at 55. 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. 670 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 186, at 89. 671 See, e.g., UNAT, Case 162, UNJY 1972, at 133; ILOAT, Case 264, UNJY 1975, at 151-152; EU Court, Case 20/71, Sabbatini, ECR 1972, at 351; Cases 87-89/90, Verholen, ECR 1991, at I-3757. 672 C. Wilfred Jenks, The International Protection of Trade Union Freedom (1957), at 60, 62. 673 Alexandrowicz, op. cit. note 186, at 98-102. 669

836

chapter eight

§1340

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 that 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”.674 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 lawmaking 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.675 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 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”.676 Constitutions of international organizations are partial and functional, because they are limited to the area of operation of the organization and to those states that participate in it. Consequently, while states have one constitution, on the international plane there are many more. As a result, the problem of coordi-

674

I. Detter, Law Making by International Organizations 329 (1966). Such exceptions are Art. 103 of the UN Charter and the concept of ius cogens. 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.” 675 676

§1342

legal order

837

nation (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, constitutions are treaties between sovereign states and, like any treaty, they are concluded to regulate cooperation between the states that 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, constitutions are different from ordinary treaties, and to some extent escape the general rules of treaty law. The difference is the living body of law that 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 that are opposed to certain activities of an organization usually rely on specific provisions in the treaty that are considered to protect their sovereignty.677 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 to be activism, ‘mission creep’, 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 it is for states. 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 are 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.

677

E.g. UN Charter, Art. 2.7.

838

chapter eight

§1343

§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 that 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 in relation to their power to take internal decisions, and in respect of the binding character and substance of these decisions. International organizations are highly dissimilar, however, regarding their powers to take external decisions, as well as the binding character and substance of such external decisions. 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 from member states to be bound. 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, it is important to note that there is a third type of decision: binding unilateral decisions of international organizations such as certain resolutions of the UN Security Council, ICAO or the IMO, and different types of EU decisions. 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, although requiring a separate consent, in some cases are simply applied by member states that are not parties because they have no practical choice (for example, within UPU). 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 EU 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 defined regulations, directives and Decisions as legal instruments with a different nature than those of other organizations, necessary in view of the envisaged European integration objectives. But it has also been the European Court of Justice – of course, a creation of the member states as well – that has elaborated the distinct nature of these decisions. At the same time, notwithstanding this innovative character of EU decisions, these decisions never can perform their functions without active involvement of the member states. In particular in relation to the imple-

§1343

legal order

839

mentation of EU 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.678 But there will only be such benefit if this 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.679

678 679

Cf. W. Friedmann, The Changing Structure of International Law (1964), at 113-114. This conclusion is largely taken from Blokker, op. cit. note 15, at 43-44.

CHAPTER NINE

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. That person will also 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 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. However, such original interpretations may be challenged. This challenge creates a dispute between two parties. Questions of interpretation are actually disputes, or prospective disputes, concerning the interpretation of relevant rules. 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. §1345 However closely these two questions may be related, there are nevertheless certain differences between them. Questions of interpretation may be posed

1

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.). See further R. Jennings, Reflections on the Term ‘Dispute’, in R. St. J. Macdonald (ed.), Essays in Honour of Wang Tieya (1994), at 401-405; G. Hafner, Some Legal Aspects of International Disputes, 104 The Journal of International Law and Diplomacy 65-79 (2005); Chr. Schreuer, What is a Legal Dispute?, in I. Buffard et al. (eds.), International Law between Universalism and Fragmentation – Festschrift in Honour of Gerhard Hafner 959-980 (2008). 2

842

chapter nine

§1346

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:

(1) the text as the authentic expression of the intention of the law-maker; (2) the intention of the law-maker as a subjective element independent of the text; and (3) the declared or apparent object and purpose of the legal rule concerned.6 A. The text; practice of the organization §1347 Priority is usually given to the text itself.7 The International Court of Justice has said:

3 On interpretation in international law in general, see S. Sur, L’interpretation en droit international public (1974). 4 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. 5 See A. Beirlaen, La distinction entre les différends juridiques et les différents politiques dans la pratique des organisations internationales, 11 RBDI 405-441 (1975). 6 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). 7 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; G. Ress, The Interpretation of the Charter, in B. Simma (ed.), The Charter of the United Nations (1994), at 30-37.

§1347

interpretation and settlement of disputes

843

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

However, 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, in cases in which it both confirmed and 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

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

8 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). 9 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. 10 See e.g. UNJY 1995, at 419-420. 11 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); J.E. Alvarez, International Organizations as Law-makers (2005), at 79-81 and 87-92. 12 UN Doc. A/CONF.129/15. This convention has not yet entered into force. 13 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).

844

chapter nine

§1347

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, secondly, 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 that are party to a particular treaty, and not to the practice of the organization itself (“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 the ‘practice of the organization’ may rest. However, the reduced importance of textual interpretation is not only a consequence of the significance of the practice of the organization, but is also as a result of 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 Union, 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 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 that have ratified the Protocols, or become members of

14

Lauterpacht, op. cit. note 7, at 414-416. 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. 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). 15

§1348

interpretation and settlement of disputes

845

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.

B. The intention of the law-maker §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. Further, the common intention can be derived only from the opinions of those who made statements at the founding conference; and 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 adds to its drafts may be relevant for several UN conventions. Certain decisions of the European Union have also received comment when debated in the European Parliament.

C. The object and purpose of the rule concerned §1349 Interpretation by recourse to the object and purpose of a text (teleological or functional interpretation) is the most dynamic form of interpretation, since it can take account of the living character of an international organization.26 It may

20 Art. 32; B.N. Mehrish, Travaux Préparatoires as an Element in the Interpretation of Treaties, 11 IJIL 39-88 (1971); Alvarez, op. cit. note 11, at 95-100. 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). 26 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

846

chapter nine

§1349

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. Therefore, it seems essential for the application of this method of interpretation that the organ to which interpretative powers are 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”.27 Both the International Court of Justice28 and the Court of Justice of the European Union29 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 of this approach 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 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.30 According to Judge Alvarez, interpretation based on the purpose of a rule is particularly useful for law-making conventions that 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”.31 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”.32 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.33

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; Ress, op. cit. note 7, at 42-43; J.-V. Louis, The Community Legal Order 50 (2nd rev. ed. 1990); P. Sands and P. Klein, Bowett’s Law of International Institutions (6th ed. 2009), at 455-456. 27 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). 28 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. 29 See Schermers and Waelbroeck, op. cit. note 17, at 20-27. 30 ICJ Rep. 1950, at 229 (Peace Treaties). See also ICJ Rep. 1966, at 48 (Ethiopia and Liberia v. South-Africa). 31 ICJ Rep. 1951, at 52-53 (Reservations to the Convention on Genocide, dissenting opinion). 32 ICJ Rep. 1996, at 148 (WHO Nuclear Weapons, dissenting opinion). 33 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).

§1350

interpretation and settlement of disputes

847

D. Other issues relevant for the means of interpretation §1350 It could be submitted that the interpretative function of the EU Court is fundamentally different from the interpretative function of the International Court of Justice, because the European Union (as an integration organization) is 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.34 Both the EU Court and the World Court base their interpretative work on one fundamental principle: to give a meaning to constitutional provisions that is most favourable for giving effect to the objectives of the organization; or, in other words, “la poursuite de l’effectivité des finalités institutionnelles”.35 At the same time, both Courts have also used this principle to establish limits to the scope of interpretation (auto-limitation judiciaire, or selfrestraint; judicial caution).36 As far as the means of interpretation are concerned, Simon concludes that neither the International Court of Justice nor the EU 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 the desired result, they do not hesitate to mingle different canons of interpretation.37 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.38 However, at the same time – as has been demonstrated (see above, §1347) –, while there may be no fundamental difference, much more emphasis is usually given to the practice of the organization in the interpretation of constitutions. §1350A Do the abovementioned alternative means of interpretation also apply to decisions of international organizations, or only to their constitutions and conventions? More specifically, do the rules of interpretation of the 1969 and 1986 Vienna Conventions also apply to decisions of international organizations? While the main canons of interpretation discussed above are also relevant for the interpretation of decisions of international organizations, the rules of the two Vienna Conventions on the Law of Treaties apply to treaties only. Decisions of international organizations are adopted within the institutional setting of an organization, not by an ad hoc conference of states. In this context, particular attention has been given to decisions of the UN Security Council. Wood has warned that “caution is required” when applying the rules

34

D. Simon, L’interprétation judiciaire des traités d’organisations internationales (1981). Id., at 317. The same conclusion is drawn by Sands and Klein, op. cit. note 26, at 455-456. 36 Id., at 309-315. 37 Id., at 456. 38 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). 35

848

chapter nine

§1351

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 ”.39 Likewise, in 2010, the International Court of Justice has indicated that the interpretation of Security Council resolutions is not the same as the interpretation of treaties: While the rules on treaty interpretation embodied in Articles 31 and 32 of the Vienna Convention on the Law of Treaties may provide guidance, differences between Security Council resolutions and treaties mean that the interpretation of Security Council resolutions also require that other factors be taken into account. Security Council resolutions are issued by a single, collective body and are drafted through a very different process than that used for the conclusion of a treaty. Security Council resolutions are the product of a voting process as provided for in Article 27 of the Charter, and the final text of such resolutions represents the view of the Security Council as a body. Moreover, Security Council resolutions can be binding on all Member States . . ., irrespective of whether they played any part in their formulation. The interpretation of Security Council resolutions may require the Court to analyze statements by representatives of members of the Security Council made at the time of their adoption, other resolutions of the Security Council on the same issue, as well as the subsequent practice of relevant United Nations organs and of States affected by those given resolutions.40

While these observations by the ICJ relate to resolutions of the Security Council only, most arguments used to distinguish resolutions of the Security Council from treaties also apply to decisions of other organs of the UN, and to decisions of organs of other international organizations as well. In particular, the organic nature of decisions of international organizations and the importance of subsequent practice are similar, and are not unique characteristics of Security Council resolutions alone.

II. Authorities charged with interpretation A. Interpretation by the members 1. National executives §1351 Most rules of international organizations that are not directed towards their own organs will be addressed to the member states. The members will be the

39 M.C. Wood, The Interpretation of Security Council Resolutions, 2 Max Planck UNYB 1998, at 73-95 (quotation at 95). 40 Accordance with international law of the unilateral declaration of independence in respect of Kosovo, Advisory Opinion of 22 July 2010, para. 94.

§1351

interpretation and settlement of disputes

849

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 made in the first instance through application of the relevant rule, 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 (generally, 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 that best meets the international obligations of the state. When judges interpret treaties, they could encroach 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 in the context of litigation against the state, the Minister of Foreign Affairs may not be objective. In most states in which the judiciary takes the advice of the Minister of Foreign Affairs, such as the US, 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.41 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”).42 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 be bound by a governmental rule).43 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

41 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 Justice in the same case, 24 Nov. 1994, Series A, No. 296B, paras. 15-20. 42 See e.g. Ass. 8 April 1987, Ministre de l’intérieur et de la décentralisation c/Peltier, at 128, concl. Massot. 43 Groupe d’information et de soutien des travailleurs immigrés (GISTI), 29 June 1990, at 171183, 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.

850

chapter nine

§1352

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.44 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 courts45 §1352 We shall see in the next chapter (below, §1522-1548) that the 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. 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 that 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”.46 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)47 and Luxembourg (Tribunal d’Arrondissement)48 and, by implication, the German Supreme Court (Bundesgerichtshof )49 favoured the latter view. Courts in Hamburg (Oberlandesgericht, in a different case)50 New York (Court of Appeal)51 and England (High Court)52 seem to have been more restrictive.

44

Beaumartin Case, judgment of 24 Nov. 1994, Series A, No. 296 B, paras. 38-39. For the interpretation of treaties by national courts and for the methods these courts use, see Schreuer, op. cit. note 27, at 255-301; J.G. Merrills, Interpretation of the Bretton Woods Agreement, 26 ICLQ 218-223 (1977); A. Nollkaemper, National Courts and the International Rule of Law (2011). 46 IMF, Art. VIII, Section 2(b). 47 J. Gold, The Fund Agreement in the Courts 82-86 (1962). 48 Id., at 94-96; See also Cour d’Appel Paris, Gold, id., at 146. 49 Judgment of 9 April 1962, VII ZR 162/60; AWD 146 (1962); Gold in IMF Staff Papers (1964), at 467. 50 Gold in IMF Staff Papers 457-465 (1964). 51 Banco do Brasil case, id., at 468-473; also in 16 ICLQ (1967), at 294. 52 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). 45

§1353

interpretation and settlement of disputes

851

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,53 the Schleswig-Holstein Court of Appeals (Oberlandesgericht) in Lessinger v. Miran,54 and the Supreme Court in the UK (House of Lords)55 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.56 (The US Supreme Court rejected a writ of certiorari by which the applicants had requested a review). Similar problems have arisen when national courts have been required to interpret EU law. Article 81.2 EC (now Article 101.2 of the Treaty on the Functioning of the European Union) provided that agreements restricting competition and affecting trade between member states are null and void. However, Article 81.3 EC (now Article 101.3 TFEU) provided that exemption may be granted. Article 83 EC (now Article 103 TFEU) requires the Council to issue the appropriate regulations or directives in order to give effect to the principles set out in Article 81 (now 101 TFEU). Prior to the adoption of such regulations, Dutch courts considered Article 81 (now 101 TFEU) to be not yet operative, so that all restrictive trade agreements remained effective. By comparison, German courts generally decided that Article 81.2 (now 101.2 TFEU) required no implementation and had to be applied immediately.57

§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 entirely absent 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 to be 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

53

33 Hong Kong Law Reports (1949), at 231-282; Gold, op. cit. note 47, at 87-90. Gold, id., at 90-94. 55 Lord Justice Diplock (1966), 3 WLR 1293; Gold in IMF Staff Papers 383 (1967). 56 190 N.Y.S. (2nd) 352 (1959); Gold, op. cit. note 47, at 102-108. 57 L.J. Brinkhorst and H.G. Schermers, Judicial Remedies in the European Communities 249 (2nd ed. 1977). 54

852

chapter nine

§1353

organizations shall be accorded the same treatment as official communications of states.58 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.59 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.60 The Federal Communications Commission at least considered the proposition that it should not apply illegal decisions of an international organization. A German administrative court (the Verwaltungsgericht Frankfurt) went much further in its decision of 12 December 1966.61 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 288 TFEU) clearly provides that regulations are binding and directly applicable in each member state. The EU Treaties provide mechanisms for establishing whether a regulation is validly made.62 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.63 More recently, the European Court of Justice 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 . . .”,64 a landmark case was decided in 1991.65 In this judgment, the Court ruled that national courts may suspend the enforcement of a national administrative measure adopted in implemen-

58

IMF, Art. IX, Section 7; World Bank, Art. VII, Section 7. Gold, op. cit. note 47, at 20, 26, 55; Hexner, op. cit. note 4, at 354-356. Quoted by Gold in 3 ICLQ 267-268 (1954). 61 AWD 67-71 (1967); 5 CML Rev. 75 (1967-68); Brinkhorst and Schermers, op. cit. note 57 (first edition, 1969), at 205-206. 62 EC, Arts. 263, 267. 63 Schermers and Waelbroeck, op. cit. note 17, at 493 ff. 64 Case 314/85, Foto-Frost, ECR 1987, at 4232. 65 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. 59 60

§1354

interpretation and settlement of disputes

853

tation of an EU measure if certain conditions are fulfilled. Inter alia, the national court must have serious doubts as to the validity of the EU 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 EC/EU 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 EC/EU law has become even more important than before.66 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.67 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”.68 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,69 the legal adviser to the IMF published a number of articles on the application of the law of the IMF in national courts.70 Judging from the large number of references by national courts to these articles, this method seems to be effective.

66 H.G. Schermers, Annotation of Joined Cases C-143/88 and C-92/89, 29 CMLRev. 133-139 (1992). 67 Case number KG 01/975; judgment of 31 August 2001 (reproduced in 48 NILR 2001, at 357-361). See J. d’Aspremont and C. Brölmann, Challenging International Criminal Tribunals Before Domestic Courts, in A. Reinisch (ed.), Challenging Acts of International Organizations before National Courts 111-136 (2010). 68 Id., at 360. 69 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. 70 J. Gold, op. cit. note 47, articles on the same subject matter in IMF Staff Papers Volumes 11 and 14.

854

chapter nine

§1355

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 and draw conclusions therefrom. Wide distribution of that special committee’s reports would help to further uniform interpretation.71 To date, the system has not come into operation. The EU Treaties allow the courts of member states to obtain information from the EU Court 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 the interpretation of, and settlement of disputes on questions concerning, the rules of their legal order.72 Others do so without the express authorization of their constitutions.73 For example, a number of interpretations have been given by the plenary organ (the ‘Assembly’) of the International Oil Pollution Compensation Fund.74 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.75

71 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). 72 E.g. World Trade Organization, Art. IX.2. See in general Amerasinghe, op. cit. note 9, at 176-182. 73 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. 74 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. 75 See Doc. FUND/A/ES.1/13 of the Fund; College van Beroep voor het Bedrijfsleven, Case

§1356

interpretation and settlement of disputes

855

There are several reasons why policy-making organs may be more suitable than courts to give interpretations and to settle disputes:76 (1) 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. (2) Policy-making organs can solve problems by adopting 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, but 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. (3) 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. (4) 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 agencies77 and the commodity councils78 charged their executive organs with all questions of interpretation. Another reason may have been the difficulty in agreeing on a sufficiently representative external tribunal.79 The organizations that use a weighted voting system, in particular the IMF and the World Bank, have adopted official interpretations of several provisions of their

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 of Justice. 76 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). 77 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). 78 E.g. International Cocoa Agreement (2001), Art. 50; International Cocoa Agreement (2010), Art. 50; International Coffee Agreement (2001), Art. 42; International Coffee Agreement (2007), Art. 39. 79 J. Gold, Membership and Non-membership in the International Monetary Fund 388 (1974).

856

chapter nine

§1357

constitutions.80 Observers have been satisfied with this procedure, but not necessarily because weighted voting can be used in interpreting texts. In legal discussions, in which 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.81 §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.82 However, it was finally decided to charge the general congress of the organization with all questions concerning interpretation.83 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 did the general congress dispose of this power.84 §1358 Several international organizations leave the interpretation of their rules in the first instance to their general congress85 (or to their board).86 There may be a possibility of appeal to an arbitral tribunal,87 to the International Court of Justice,88

80 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, 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. 81 Gold, op. cit. note 79, at 388-390; Shihata, op. cit. note 80. 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). 82 T.O. Elias, The Charter of the Organization of African Unity, 59 AJIL 267 (1965). 83 OAU, Art. 27. 84 Constitutive Act of the African Union, Art. 26. 85 E.g. FAO, Art. 17; WHO, Art. 75; IMO, Art. 69; WMO, Art. 29. 86 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. 87 E.g. WMO. 88 E.g. FAO, WHO and IMO.

§1359

interpretation and settlement of disputes

857

or to either.89 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 as to whether an appeal can be brought only against final decisions, or also against interim decisions taken by a 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 a political organ may be disputed before a judicial organ. A decision as to the competence of the political organ ought, however, to be qualified as a final decision.90 §1359 As an independent authority, the legal department of a secretariat is often consulted on questions of interpretation. Usually, this department will provide interpretations only when expressly requested to do so.91 The following example may be offered. 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 2001 the Fifth (Administrative and Budgetary) Committee of the General Assembly requested the Legal Counsel of the UN to give his views on this issue. In his legal opinion, the Legal Counsel 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”.92 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”.93 However, the Fifth Committee 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”.94 Subsequently, the General Assembly decided “that the terms ‘takes note of’ and ‘notes’ are neutral terms that constitute neither approval nor disapproval”.95

In the IMF, the legal adviser published, in his personal capacity, a number of articles clarifying provisions of the IMF constitution.96 Such commentaries (although unofficial) are of great assistance to the national authorities that are required to apply the provisions.

89

ICAO. 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). 91 Many of the interpretations given by legal offices of the UN and the specialized agencies are published in the UNJY. 92 UN Doc. A/C.5/55/42, Annex II. 93 Id. 94 UN Doc. A/C.5/55/42, Annex II. 95 GA Decision 55/488, adopted 7 September 2001. See also UN Doc. A/BUR/65/1, at 7. 96 See the articles of J. Gold, most of them published by the IMF. 90

858

chapter nine

§1360

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, in particular when they are considering whether or not to ratify conventions, the ILO Secretariat furnishes information relevant to the interpretation of ILO conventions.97 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”.98 In ASEAN, the Secretariat may give interpretations of the ASEAN Charter, upon request of any member state and in accordance with the relevant rules of procedure.99 §1360 Even when not charged with interpretation, all organs applying rules of the organization do, in fact, interpret them.100 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.101

97 See C.W. Jenks, The interpretation of international labour conventions by the International Labour Office, 20 BYIL 1939, at 132-141; F. Maupain, Une Rolls Royce en mal de révision? L’efficacité du système de supervision de l’OIT à l’approche de son centenaire, RGDIP 465-499 (2010), in particular at 479. For examples, see UNJY 1987, at 225-233; UNJY 1991, at 340-346, in particular at 341 (para. 1). 98 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). 99 ASEAN Charter, Art. 51.1. 100 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). 101 13 UNCIO, at 709-710.

§1361

interpretation and settlement of disputes

859

§1361 Occasionally, policy-making organs resolve conflicts between different decisions of the same organization by establishing the priority of a particular decision. In 1971, the general congress of the ICAO (the Assembly) decided to stop inviting 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.102

§1362 The extent to which policy-making organs try to settle disputes concerning the interpretation of rules of the organization may be challenged in cases in which another means of dispute settlement has been expressly provided. In cases involving disputes between members, or differences in interpretation 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 that alternative means of settlement. If there is a principle that two parties, having agreed to a particular method of dispute settlement, are not free to use other means (the principle electa una via non datur recursus ad alteram),103 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.104

2. Judicial organs105 §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 of 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 that find themselves in the minority and may be outvoted in policy-making organs. When performing

102

ICAO Assembly Res. A 18-4. Ciobanu, op. cit. note 73, at 92-101. 104 See S. Muller, International Organizations and Their Host States – Aspects of Their Legal Relationship (1995), in particular Chapter 9. 105 See in particular Simon, op. cit. note 34. 103

860

chapter nine

§1364

this task, judicial organs would be well advised to accept Lambrinidis’ suggestion,106 and adjust their traditional methods to meet the objections that 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 Justice107 or refer cases to arbitration.108 Some international organizations expressly forbid their members, in disputes with other members, from using dispute settlement mechanisms other than those provided under the constitution in relation to disputes about the law of the organization. The Treaty on the Functioning of the EU provides: Member states undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein.109

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 judicial organ to be? A Special Court of Appeal might be considered: that is, a court established within the organization to provide a uniform interpretation of its laws and empowered to overrule decisions of the national courts that 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.

106

Lambrinidis, op. cit. note 76 [1963], at 85. E.g. ILO, Art. 37; UNESCO, Art. 14; WHO, Art. 75; IMO, Art. 70; CERN, Art. 11. 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). 108 E.g. UPU, Art. 32; ITU Constitution, Art. 56; ICAO, Arts. 84-85; Bank for International Settlements, Statutes, Art. 54. 109 TFEU, Art. 344. See also Euratom, Art. 193; Benelux, Art. 51 and Cases 90 and 91/63, ECR 1964, at 631-632; J. Schwarze, Das allgemeine Völkerrecht in den innergemeinschaftlichen Rechtsbeziehungen, 18 Europarecht 1-39 (1983), in particular at 14 ff.; Schermers and Waelbroeck, op. cit. note 17, at 643. 107

§1365

interpretation and settlement of disputes

861

§1365 Other organs that 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.110 This means that a supreme court decision is often submitted to them for consideration. They 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 to implement the judgments of these human rights organs. Since a reversal of a supreme court decision will usually 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.111 For two reasons, such opinions are of particular importance for the interpretation of the law of international organizations. First, the Court does not have jurisdiction in contentious cases involving international organizations: international organizations are therefore 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

110 European Convention on Human Rights, Art. 35.1; American Convention on Human Rights, Art. 46.1. 111 Keith, op. cit. note 107; 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).

862

chapter nine

§1367

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.112 Thus it would seem almost impossible to raise questions of international institutional law before the Court in contentious cases. International organizations therefore mainly 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 can be compelled, without its consent, to submit its disputes to the Court.113 But this rule has been applied less restrictively in subsequent case law of the International Court of Justice. 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 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”.114 In 1975, the Court rendered an advisory opinion on the status of the Western Sahara, which concerned a dispute between Spain and Morocco.115 Likewise, the 2004 and 2010 advisory opinions of the Court essentially deal mainly or partly with disputes between states.116 §1368 When the International Court of Justice renders an advisory opinion in a case which in fact concerns a dispute between states, the question arises as to 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.117 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.118 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,119 in the first case concerning South West Africa,120 and in the Mazilu and Cumaraswamy cases.121

112

ICJ Rep. 1966, at 29 (South West Africa Case). PCIJ Rep. 1923, Series B, No. 5 (Advisory Opinion, Eastern Carelia). 114 ICJ Rep. 1971, at 23. 115 ICJ Rep. 1975, at 12. 116 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, at 136; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of 22 July 2010. 117 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). 118 ICJ Rep. 1950, at 71 (Peace Treaties). 119 ICJ Rep. 1962, at 151. 120 ICJ Rep. 1950, at 128-129. 121 ICJ Rep. 1989, at 175 (Mazilu) and ICJ Rep. 1999, at 62 (Cumaraswamy). 113

§1369

interpretation and settlement of disputes

863

§1369 What is the legal nature of advisory opinions?122 The Court itself has stated that, as they are only of an advisory character, they have no binding force.123 This makes their execution even more difficult than if they had binding force. In practice, however, 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 advisory opinions constitute one legal corpus.124 The difference in effect, if any, is small. An advisory opinion may expressly be declared binding on the parties, and several treaties contain such a declaration.125 It can be doubted, however, whether such express binding force may be given to an advisory opinion. The International Court of Justice has decided that this 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.126

§1370 Even where binding force is not expressly provided beforehand, the effect of an advisory opinion will differ little from that of judgments. Usually the question would not be asked if the organization had no intention of accepting the answer.127 The fact that the answer comes from the principal judicial organ of the UN, composed of judges of all parts of the world and of the main legal systems, will give it a persuasive force which can hardly be considered less authoritative than that of a binding judgment. It may be true that not all advisory opinions of the Court have been followed;128 but this would not be different if they had been judgments. On the other hand, in practice the binding force of judgments of the Court 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.129 In many respects, therefore, the force of a judgment of the Court in practice is no greater than that of an advisory opinion. Judgments also derive their authority from the persuasive reasoning of the Court. §1371 A power to give advisory opinions has also 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

122 S. Rosenne, The Law and Practice of the International Court, 1920-2005 (4th ed. 2006), at 1697-1702; 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). 123 ICJ Rep. 1950, at 71 (Peace Treaties). 124 De Visscher, op. cit. note 122, at 195. 125 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. 126 ICJ Rep. 1956, at 84 (Judgments of the Administrative Tribunal of the ILO, upon complaints made against the UNESCO, advisory opinion). 127 Sometimes advisory opinions have been requested as a means of postponing a decision (e.g. on UN membership). 128 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. 129 UN Charter, Art. 94. See also UNJY 1986, at 283-285.

864

chapter nine

§1372

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.130 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-American Court of Human Rights is competent to render advisory opinions at the request of OAS member states or organs.131 §1372 The Court of Justice of the European Union, 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 EU Treaties (see above, §619).132 §1373 Originally, the Benelux Committee of Ministers could request advisory opinions from the College of Arbitrators on legal questions relating to the provisions of the Benelux Economic Union Treaty.133 No such request has ever been made. When in 2008 the Benelux Treaty was revised, it was decided not to maintain the College of Arbitrators, and this procedure ceased to exist.134 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 Union, the Benelux Court of Justice and the Andean Court of Justice (see above, §618-622, §624). The Treaty on the Functioning of the European Union provides that: The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union.135

130 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. 131 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). 132 TFEU, Art. 218.11. See Schermers and Waelbroeck, op. cit. note 17, at 653-657. 133 Benelux (1958), Art. 52. 134 Treaty Revising the Treaty establishing the Benelux Economic Union (2008). 135 TFEU, Art. 267.

§1375

interpretation and settlement of disputes

865

All national courts applying EU law are empowered to request preliminary rulings. Courts of final instance are even obliged to do so whenever a question of EU law is raised before them and they consider a solution of that question necessary for delivering a judgment.136 §1375 The Court of Justice of the European Union considers the preliminary ruling to be a basis for cooperation between national courts and the EU Court. There is no hierarchical relationship between the national courts and the EU Court; instead, each performs its own function.137 Strictly speaking, the jurisdiction of the EU Court is to interpret EU law, while it is for the national courts to apply the EU rule(s) in question. In practice, interpretation and application are interrelated.138 The EU 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 more recent years such refusals have been made more frequently.139 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 European Court of Justice, 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 267 TFEU) and the scope and meaning of the earlier judgment. The Court of Justice 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 EU Court is not to give rulings on general or hypothetical questions, and, accordingly, to reply to questions of interpretation submitted to it within the framework of procedural devices arranged by the parties. Furthermore, the 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 preliminary rulings procedure is not employed for purposes that were not intended by the Treaty.140

§1376 Preliminary rulings are used not only to obtain interpretations of EU law; they may also serve as a means of securing from the European Court of Justice a ruling on the validity of acts of EU institutions, bodies, offices or agencies.141

136 TFEU, Art. 267; 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 381-389. 137 See K. Lenaerts, Form and Substance of the Preliminary Rulings Procedure, in Curtin and Heukels, op. cit. note 136, at 355-380. 138 Cf. A.M. Donner, Uitlegging en toepassing, in Miscellanea W.J. Ganshof van der Meersch II 103-126 (1972), at 123-124. 139 Schermers and Waelbroeck, op. cit. note 17, at 241-251. 140 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. 141 TFEU, Art. 267(b). See Schermers and Waelbroeck, op. cit. note 17, at 492-502.

866

chapter nine

§1377

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 EU 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 EU Court on questions of legality.

§1377 The EU preliminary rulings procedure is considered successful. It has given rise to a large number of important decisions of the European Court of Justice on the interpretation of EU law.142 In some treaties concluded within the scope of the EU, the possibility of obtaining preliminary rulings from the Court has been extended to fields such as the recognition of legal persons and execution of civil judgments.143 The 1997 Amsterdam Treaty and the 2001 Nice Treaty have further extended the scope of application of the preliminary rulings procedure.144 The success of the preliminary ruling procedure in the European Union inspired Benelux to adopt a similar provision for the uniform interpretation of Benelux law.145 Similar procedures are also found, inter alia, in the Austrian-German Property Treaty of 15 June 1957,146 in the Cartagena Agreement on the Andean Court of Justice (see above, §624), in the Treaty establishing a Common Market for Eastern and Southern Africa (see above, §641), and in the Southern African Development Community (Protocol on Tribunal and Rules of Procedure Thereof; see above, §641A). 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 European Court of Justice.147 §1378 The Treaty on a European Economic Area (EEA)148 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 EU Court. Three mechanisms have been set up for this purpose. Firstly, Article 6 EEA provides, inter alia, that provisions of the EEA Treaty, in so far as they are identical in substance to

142 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). 143 Schermers and Waelbroeck, op. cit. note 17, at 225. 144 TEU, Art. 35, paras. 1-3; TFEU, Art. 256.3. 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. 145 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. 146 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. 147 J. Polakiewicz, Andean Common Market, Court of Justice, EPIL Vol. 1 (1992), at 163. 148 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.

§1379

interpretation and settlement of disputes

867

corresponding rules of EU law, must be interpreted in conformity with the relevant rulings of the EU 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 EU Court, 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 EU 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 EU rule.149

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).150 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 ECOSOC and to the Trusteeship Council, but not to the Secretariat.151 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,152 so enabling them to obtain interpretations from the Court. These organs and organizations have exercised this power a number of times.153 Organs of other international organizations have no recourse to the International Court of Justice, and they often have no right of access to any other

149 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). 150 UN Charter, Art. 7. 151 Proposals to give this power to the Secretariat 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. 152 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. 153 E.g. 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); on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, at 136; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of 22 July 2010.

868

chapter nine

§1380

judicial organ in respect of which the right to ask for interpretations is limited to members.154 Some constitutions do not stipulate which organs are competent to ask for an interpretation: they state simply that questions of interpretation shall be submitted to a particular organ.155 Under such a provision, the executive board of the IMF once provided an interpretation that had not been requested by any member. It raised the question itself, at the suggestion of the Secretariat.156 There may be cases in which 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 Union, the principal organs have no right to request an interpretation. However, raising cases before the EU 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 result in interpretations of EU law. 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 states involved have accepted its jurisdiction, either in general, by a declaration under Article 36, para. 2 of the Statute of the Court, in specific treaties, or ad hoc for the specific case. States may bring disputes on the interpretation of constitutions to the Court unilaterally when the constitution concerned declares the Court competent to settle disputes at the request of one of the parties.157 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;158 others recognize the right of all members to request an interpretation, or a revision of the interpretation obtained by a third party.159

154

E.g. UPU, Art. 32. 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) and WMO (Art. 29) contain the same provision with the addition “unless the parties concerned agree on another mode of settlement” which suggests that the parties to the dispute should ask for an interpretation (the CERN Convention has a similar provision (Art. 11)). 156 Interpretation of 24 August 1955 concerning Art. V, Section 3. See Hexner, op. cit. note 4, at 363. 157 Statute of the ICJ, Art. 36.1. 158 E.g. UPU, Art. 32; ITU Constitution, Art. 56. 159 ICAO, Art. 84; IMF, Art. XXIX(b); World Bank, Art. IX(b); IFC, Art. 8(b); IDA, Art. 10(b). 155

§1381

interpretation and settlement of disputes

869

§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 they are 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 was made.160 §1382 In the European Union, the member states cannot normally request an interpretation of the legal rules of the organization. They may elicit interpretations, however, when disputing the legality of EU decisions (see above, §914). §1383 Policy-making organs charged with interpretation functions or the 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 the 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.161 Although the complaints probably originated with exporters, they were lodged by governments.

The requirement for interested individuals to channel their complaints through their national governments operates to limit interpretation and the settlement of disputes to those cases that a government considers to be 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.162

160

Hexner, op. cit. note 4, at 347. Szokoloczy-Syllaba, op. cit. note 76, at 520. 162 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). 161

870

chapter nine

§1385

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.163 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 Union, 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 EU law in order to establish whether the decision was validly adopted. Furthermore, private 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, in 1995 the Court of Appeal (Oberlandesgericht) in Karlsruhe asked for a further interpretation of Article 8. 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.164

§1386 An intricate system of cooperation between national courts and the international organ competent to issue interpretations has been created in the European Union (see above, §1374-1376). National courts, and also the Benelux Court of Justice,165 may request preliminary rulings on the interpretation of EU law and on the validity of EU acts. They are the only authorities competent to do so, and they frequently exercise this competence. Preliminary rulings have been provided not only on the interpretation of EU law but also on its validity (see above, §914) and, indirectly, on its application (see below, §1536). By 31 December 2009, 6,620 references for a preliminary ruling had been brought before the EU Court.166

163

J. Gold in a guest lecture at Michigan University Law School, 10 March 1969. J. Gold in IMF Staff Papers 389 (1967). 165 Case C-337/95, Parfums Christian Dior, judgment of 4 November 1997, in particular paras. 19-31. See also Opinion 1/09, 8 March 2011, not yet reported, paras. 81-82. 166 EU Court, Annual Report 2009, at 101. 164

§1387

interpretation and settlement of disputes

871

IV. Concluding observations §1387 One of the issues discussed in Chapter 8 was the lack of coherence of international law, which is explained partly by the fact that international lawmaking 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 that 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 of only limited attention in literature.167 There is a real danger that divergent interpretations that result from the exercise of this right will 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 complete 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”.168 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.169

§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 or no room for interpretation. When EU legislation 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 per cent 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.170 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)”.171 Despite the detail, differences of opinion concerning the definition of “heavy weapons” remained possible and in fact

167 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. 168 SC Res. 949 (emphasis added). 169 See International Herald Tribune, 17 and 18 October 1994; The Independent, 17 October 1994. 170 Directive 93/119/EC, published in OJ 1993, L 340/21. 171 NATO Press Release (94)15.

872

chapter nine

§1389

existed. Many more examples can be given. Articles 101 and 102 of the Treaty on the Functioning of the European Union apply to undertakings. Should “undertaking” be interpreted so as to cover social security bodies or an international organization such as Eurocontrol?172 §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 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.173 Numerous examples have been given in this Chapter. The secretariats of many organizations (for example, ILO and 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 that 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, is potentially at odds with state sovereignty, and is also capable of promoting the development of the legal order of the organization, as has pre-eminently been demonstrated by the EU Court.174 The procedure for preliminary rulings, in particular that of the EU, is an excellent example of an attempt both to respect state sovereignty (strictly speaking, the application of EU law remains a matter for the courts of the member states) and to ensure the uniform interpretation of EU law (the competence of the EU Court). In a large body of case law, the EU Court has elaborated its relationship with national courts under this procedure. It has been an important instrument enabling the Court to prevent the unity of the Union legal order from disintegrating through divergent interpretations of EU law, and also to guarantee legal equality among the member states and their citizens.

172 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 Court of Justice ruled that neither of these were undertakings under Arts. 81-82 EC (now Arts. 101-102 TFEU). 173 Cf. also M. Brus, Third Party Dispute Settlement in an Interdependent World (1995), in particular Chapter 7. 174 Pescatore, op. cit. note 26.

CHAPTER TEN

SUPERVISION AND SANCTIONS

§1390 It is generally recognized that one of the main tasks of international organizations is to supervise compliance with their rules. According to Seidl-Hohenveldern, this is even the raison d’être of any international organization.1 A number of studies have been carried out in this field, as well as in neighbouring areas such as compliance with rules of international law.2 The end of the Cold War has created a new climate with broadened perspectives for international cooperation and international law, enhancing the prospects of 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 to recognize officially 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 what sanctions are at the disposal of international organizations (Part V). Part VI offers some concluding observations.

I. Definitions A. Internal supervision §1392 Internal supervision is supervision of the organization by the organization itself. It may be defined as the overseeing of compliance by an international

1 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 255-274 (1994), at 255. 2 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); Blokker and 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); V. Röben, The Enforcement Authority of International Institutions, in A. von Bogdandy et al. (eds.), The Exercise of Public Authority by International Institutions – Advancing International Institutional Law 819-842 (2010). For the area of arms control, see G. den Dekker, The Law of Arms Control – International Supervision and Enforcement (2001).

874

chapter ten

§1393

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 these principal organs 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 employment-related action before an administrative tribunal (see above, §542-545). In international organizations with organs that 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 created an Inspection Panel, charged to review complaints from any group of private persons who allege 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 that prove ineffective, and in the better performance of acts that have been inadequately executed. In order to improve the accountability of their activities, international organizations have increasingly created evaluation mechanisms. For example, the International Fund for Agricultural Development (IFAD) has its own independent Office of Evaluation, which evaluates IFAD’s operations and policies and reports directly to the Executive Board (independently of IFAD management and the President of IFAD).4 §1394A A number of international organizations have created specific organs for internal supervision that, inter alia, investigate alleged misconduct by staff. For example, in 1994, the UN General Assembly established the Office of Internal Oversight Services (OIOS).5 This is an independent UN office, headed by an Under-Secretary-General who is appointed by the UN Secretary-General for one non-renewable five-year term. OIOS performs a wide variety of internal oversight

3 See W.R. Leonard, B.A. Lenny and O. Nwali, UN Development Aid, Criteria and Methods of Evaluation (UNITAR, 1971). 4 See www.ifad.org/evaluation/index.htm (February 2011). In 2010, IFAD’s evaluation policy was evaluated by an independent peer review. A number of positive conclusions were drawn, although it was also noted that “there are risks for the independence of the evaluation function”; “any possible incompatibilities between the evaluation policy and the Agreement Establishing IFAD should be resolved” (Doc. EB 2010/99/R.6, at 2). IFAD is currently implementing the recommendations made by this external peer review. 5 GA Res. 48/218B. OIOS succeeded the Office for Inspections and Investigations (see above, §1124).

§1395

supervision and sanctions

875

functions, including investigations of possible misconduct by UN staff (see above, §1124). Likewise, the International Criminal Court has its own Independent Oversight Mechanism, created by the Assembly of States of the ICC.6 This Mechanism “may receive and investigate reports of misconduct or serious misconduct, including possible unlawful acts by a judge, the Prosecutor, a Deputy Prosecutor, the Registrar and the Deputy Registrar of the Court . . ., all staff . . . and all contractors and/or consultants retained by the Court and working on its behalf ”.7 It “shall exercise operational independence under the authority of the President of the Assembly”.8 B. External supervision §1395 More important than the performance of acts by the organs of the organization is the performance by the members to which the acts are addressed. External supervision refers to the supervision of these members. International organizations have no police to enforce their law. Given that most of their legal rules are formulated as recommendations that 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 process by which they were adopted being more important than their substance.9 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.10 Normally, however, it is intended that the legal rules of international organizations be implemented. The application of, or compliance with, rules should be distinguished from their effect. Rules may be ineffective, even when fully applied.11 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 that are expected to be ineffective; nor will organizations actively supervise them.

§1396 There are many ways of pressing members to apply rules.12 When using the term “supervision”, all methods that 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

6

See ICC Statute, Art. 112.4, and Resolutions ICC-ASP/8/Res.1 and ICC-ASP/9/Res.5. Operational mandate of the Independent Oversight Mechanism, Annex to Resolution ICCASP/9/Res.5, para. 2. 8 Id., para. 12. 9 J. Kaufmann, United Nations Decision Making 127 (1980). 10 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. 11 R. Higgins in Schwebel, op. cit. note 10 (inter alia, at 387). 12 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 11, at 32-50. 7

876

chapter ten

§1397

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 single violation may not have this effect, but tolerance for repeated violations may become a settled practice and subsequently a customary law.13 §1397 Supervision is not only (not even primarily) a legal matter. Rather, political factors play a decisive role, especially the relations between members and the common desire for further cooperation.14 As Han observed, “law-abiding 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”.15 These factors will also make enforcement measures unnecessary, and they were therefore mentioned when we discussed the force of each type of decision in Chapter Eight. Supervision is not only of concern to the organizations themselves: members themselves 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 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 contained in 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, as is the case for many technical regulations issued by organizations such as ICAO, which cannot be applied in states that lack the necessary equipment.16 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.17 Many organizations increasingly prefer to draft recommendations that imply help will be provided by the organization for their realization, instead of drafting rules that contain at least some form of moral sanction.18 For organizations that 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 Trans-

13 See J. Gold, The “Dispensing” and “Suspending” Powers of International Organisations, 19 Ned TIR (1972), at 183-184. 14 See S. Sur, L’interprétation en droit international public 17-61 (1974). 15 H.H. Han, International Legislation by the United Nations 131 (1971). 16 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 10, in particular at 172-181. 17 See the conclusion of Stevenson in Schwebel, op. cit. note 10, at 363. 18 Id., at 431-440.

§1399

supervision and sanctions

877

port Association (IATA), can impose a system of supervision on its subjects more easily than can a public international organization, which has to try to control the behaviour of sovereign states.19

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 that are likely to receive wide attention are more difficult to commit than violations that will probably 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 are not published but are only reported to governments,20 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.21 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 International organizations are usually established by treaties between states. Each “contracting” party undertakes obligations vis-à-vis 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.

19

See e.g. R.S. Tauber, Enforcement of IATA Agreements, 10 HILJ 1-33 (1969). 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). 21 See e.g. YUN 1973, at 662-663. 20

878

chapter ten

§1401

In most cases in which 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.22 In the ILO, Ghana’s complaint against Portugal23 was part of a campaign of political pressure against Portuguese colonialism. Portugal’s complaint against Liberia24 was a reaction to this complaint against Portugal. Under the European Convention on Human Rights, the two cases brought by Greece against the United Kingdom25 were initiated in the interests of Greek people in Cyprus; the case of Austria against Italy26 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 people in Northern Ireland.27 The cases brought by Cyprus against Turkey concerned the situation in the part of Cyprus that was under Turkish control.28 The case of Denmark against Turkey was partly for the benefit of a Danish citizen; partly it served to examine, more in general, Turkish interrogation techniques.29 Two cases lodged by Georgia against the Russian Federation related to the arrest, detention and expulsion of Georgian nationals from Russia in the autumn of 2006 and to the treatment of four Georgian minors held in custody in South Ossetia.30 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.31 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.32 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.33 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 of the rules of the organization.

§1401 It is partly as a result of inefficient supervision by other governments that international organizations have often been charged with supervisory tasks. Does

22 The same conclusion is drawn, with respect to inter-state complaints under the European Convention on Human Rights, by S.C. Prebensen, Inter-State Complaints under Treaty Provisions – The Experience under the European Convention on Human Rights, in Alfredsson et al. (eds.), op. cit. note 42, at 441-463 (in particular at 449, 451). 23 45 Official Bulletin of the ILO, No. 2, Supplement II, April 1962, para. 720 ff. 24 46 Official Bulletin of the ILO, No. 2, Supplement II, April 1963, para. 460. 25 Yearbook on the European Convention on Human Rights, Vol. 1, at 128-131 and Vol. 2, at 174-198. 26 Id., Vol. 3, at 68-70; Vol. 4, at 112-182; Vol. 5, at 54-60. 27 Id., Vol. 21 (1978), Judgment of the Court of Human Rights of 18 Jan. 1978. 28 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. 29 Application no. 34382/97, Judgment of 5 April 2000 (friendly settlement) of the European Court of Human Rights. 30 Application no. 13255/07; Application no. 61186/09. In addition, in August 2008 Georgia requested the Court to indicate interim measures under Rule 39 of the Rules of the Court, following the Russian invasion of Georgia (see Press release no. 581, issued by the Registrar, 12 August 2008). 31 Cases no. 3321/67, 3322/67, 3323/67 and 3344/67. 32 Case no. 4448/70. 33 See L. Zwaak, A Friendly Settlement in the European Inter-State Complaints Against Turkey, SIM Newsletter (February 1986), at 44-48.

§1401

supervision and sanctions

879

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.34

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: 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.35

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 that have a direct interest and states that do not 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 Union 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.36 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 EU, member states may bring alleged violations of EU law by other member states before the EU Court pursuant to Article 259 of the Treaty on the Functioning of the EU. However, this has rarely happened in practice; the Court has rendered only a few decisions

34 35 36

ICJ Rep. 1962, at 343. ICJ Rep. 1966, at 45. See above, §1379-1386, for questions of interpretation.

880

chapter ten

§1402

under this procedure.37 On a few other occasions, such procedures under Article 259 were initiated, but after some time they 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.38 In 1992, a complaint was lodged by Spain against the UK, but this was also discontinued.39

B. Supervision by or on behalf of the organization 1. Supervision based on reports of the members §1402 Several international organizations oblige their members to report on the measures they have taken to fulfil their obligations to the organization. This is a wellestablished method of supervision which was already a feature of the sugar convention of 5 March 1902.40 It has been developed by the ILO41 and subsequently by several other international organizations, in particular for the supervision of their conventions.42

37 Case 141/78, France v. United Kingdom, ECR 1979, at 2923; Case C-388/95, Belgium v. Spain, ECR 2000, at I-3123; Case C-145/04, Spain v. United Kingdom, ECR 2006, at I-7917. Another case (C-364/10) is pending: in 2009 Hungary brought a complaint against Slovakia, claiming that Slovakia violated EU law by refusing the Hungarian President entry into its territory in August 2009 (see the reasoned opinion by the European Commission, no. IP/10/827, 24 June 2010). 38 Case 58/77. See A. Dashwood and R. White, Enforcement Actions under Articles 169 and 170 EEC, in 14 ELRev. (1989), at 409. 39 Case C-349/92; OJ 1992, C 346/6. 40 Convention relative au régime des sucres, Bruxelles, 5 Mars 1902, Art. 7, de Martens, Nouveau général de Traités, Deuxième serie, Vol. 31, at 280. 41 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; F. Maupain, Une Rolls Royce en mal de révision? L’efficacité du système de supervision de l’OIT à l’approche de son centenaire, RGDIP 465-499 (2010). 42 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 145155 (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); M. Kjærum, State Reports, in G. Alfredsson et al. (eds.), International Human Rights Monitoring Mechanisms – Essays in Honour of Jakob Th. Möller (2nd Rev. Ed. 2009), at 17-24. 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).

§1403

supervision and sanctions

881

The ICAO43 and the WMO44 request 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,45 while in other cases the reporting obligation only requires members to submit national legislation.46 The obligation to send in reports is usually derived from a treaty, but in some cases the reports are requested by resolution. 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 18 months of signature.47 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.48

§1403 Requests may be made for reports on particular obligations49 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 (five 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;50 in 1971, the organization decided that, in future, reports should only be requested by the Director-General on specific issues.51 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

43 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 16, at 88-101. 44 WMO, Art. 9(b); Resolutions 17 and 20 of the Second WMO Congress (1955); Yemin, op. cit. note 43, at 172. 45 Single Convention on Narcotic Drugs 1961, Arts. 18, 19, 20 (520 UNTS, at 151). 46 E.g. on stateless persons and refugees, see UN Doc. E/4143, at 13 ff. 47 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. 48 Annex 3 to the 1994 Agreement. 49 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). 50 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 10, at 214-215. 51 FAO Conference, 16th session, amendment adopted to Art. 11 of the Constitution.

882

chapter ten

§1404

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.52 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 usually been overshadowed by one basic flaw: states usually lack self-criticism.53 §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.54 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 years55 or five years.56 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.57 The Committee originally decided – following extensive discussions – that state parties would have to submit subsequent reports every five years.58 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.59

52 J. Crawford, The UN human rights treaty system: a system in crisis?, in Alston and Crawford (eds.), op. cit. note 42, at 1-12 (figures on overdue reports at 5). 53 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 42, at 129-144. 54 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). 55 E.g. Convention on the Elimination of all forms of Racial Discrimination, Art. 9. 56 E.g. Convention on the Rights of the Child, Art. 44. 57 International Covenant on Civil and Political Rights, Art. 40. 58 Boerefijn, op. cit. note 42, at 184-185. 59 UN Doc. A/53/40, Vol. I, Annex VIII (para. 7). See Boerefijn, op. cit. note 42, at 186-187.

§1404

supervision and sanctions

883

(2) Careful study and comparison of reports can be greatly facilitated by harmonizing their layout. Organizations often indicate the main headings under which information is required, or they use questionnaires,60 guidelines61 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.62 (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 past, in the ILO thousands of governmental reports were examined each year.63 More recently, however, this has been reduced following the decision to require reports concerning many conventions only every three years (as of 2011, for ‘fundamental’ conventions) or five years (for ‘technical’ conventions).64 In 1993, some 1,200 reports were received from governments (this amounted to only 65 per cent of the reports due);65 in 2009, 1962 reports were received (78 per cent of the reports due).66 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)67 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.68 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.

60

See e.g. WHO Resolutions WHA 2.37 and EB 7.R 71. E.g. the Human Rights Committee (Doc. CCPR/C/66/GUI/Rev.2); see Boerefijn, op. cit. note 42, at 178-182; UN Doc. HRI/GEN/2/Rev.6 (2009), Compilation of guidelines on the form and content of reports to be submitted by states parties to the international human rights treaties, report of the Secretary-General. 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 by states (see e.g. UN Doc. SCA/20/01(6) and the website of this Committee, www.un.org/Docs/sc/committees/1373/). 62 UN Doc. E/4144. 63 Id. 64 Maupain, op. cit. note 41, at 468. 65 Valticos, op. cit. note 41 [1994], at 102-103. 66 Maupain, op. cit. note 41, at 475. 67 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). 68 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. 61

884

chapter ten

§1405

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”.69 This element in the reporting procedure also seems to be successful from a quantitative point of view: in 1993, some 1,200 reports were submitted by governments, and 234 observations were received from employers’ and workers’ organizations.70 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 NGOs. As of 1990, NGOs 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.71 (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.72 §1405 EU 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 European Commission the provisions of national law that have been adopted to execute the directive in question, to enable the Commission to perform its role as watchdog over the execution of EU obligations. In addition, incomplete or incorrect implementation may be invoked by individuals before national courts. In order to emphasize that the implementation is an EU obligation that 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 the inclusion of such standard wording is “to increase legal security, transpar-

69 70 71 72

Valticos, op. cit. note 41 [1994], at 102. Id., at 102-103. Boerefijn, op. cit. note 42, at 218-219. See for more details Boerefijn, op. cit. note 42, at 198-203.

§1406

supervision and sanctions

885

ency and the effectiveness of controls in the carrying out of [EU] directives by the Commission as well as to inform operators and public opinion in general”.73 2. 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). However, 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.74 §1407 The Security Council of the UN may investigate any dispute or situation which might lead to international friction.75 The UN Sub-Commission on Prevention of Discrimination and Protection of Minorities and the UN Commission on Human Rights collected 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.76 For each study, a Special Rapporteur prepared a summary of material dealing with each country and forwarded it to the government concerned for comment and supplementary data. In the light of the answers received, the rapporteur revised 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.77

73

Europe, 28 November 1990, at 14. See e.g. GA Res. 3255 B(XXIX). On the legality of collecting information from other organizations, see also UNJY 1972, at 164, 166. 75 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 T. Schweisfurth in B. Simma, The Charter of the United Nations (2nd ed. 2002), at 594-608, and S. Bouiffror in J.P. Cot, A. Pellet, M. Forteau (eds.), La Charte des Nations Unies (3rd ed. 2005), at 1061-1074. 76 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. 77 Cf. R.B. Lillich (ed.), Fact-finding before International Tribunals: Eleventh Sokol Colloquium (1992). 74

886

chapter ten

§1408

§1408 From the 1970s, the Human Rights Commission of the UN became more active in collecting information about violations of human rights.78 In 2006, the Human Rights Commission was replaced by the Human Rights Council.79 Visits on-the-spot are initiated by Human Rights Rapporteurs, who report to the Council. There are two kinds of such rapporteurs. First, there are those who have been appointed to supervise the implementation of specific human rights norms, for example the prohibition to torture.80 Secondly, there are rapporteurs whose mandate is directed at specific country situations: for instance, such as Mr. Mazowiecki, who in the 1990s 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.81 The Human Rights Council created a new supervisory instrument: the universal periodic review mechanism. This mechanism reviews the human rights situation in all UN member states. It not only relies on reports submitted by the states concerned. In addition, for the purpose of this review the Office of the UN High Commissioner for Human Rights prepares a compilation of information contained in UN documents (for example, reports by treaty bodies such as the Human Rights Committee), and also prepares a summary of “credible and reliable information provided by other relevant stakeholders to the universal periodic review”.82 §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, because 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 disposal83 and to seek the most suitable ways and means for the speedy and total application of the Declaration.84 However, the UN has no means of sanctioning its declarations. The Special Committee collects information from every source85 and appeals to governments and to public opinion by publishing its reports. §1410 The European Union has wide powers to collect information even without the cooperation of the governments of its members. The European Commis-

78 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). 79 GA Res. 60/251. 80 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. 81 UN GA Res. 48/141. See A. Clapham, Creating the High Commisioner for Human Rights: The Outside Story, 5 EJIL 556-568 (1994). Proposals for the creation of such a Commissioner have already been made long ago; cf. R.S. Clark, A United Nations High Commissioner for Human Rights (1972). 82 Human Rights Council Res. 5.1 (endorsed by GA Res. 62/219), in particular para. 15. 83 GA Res. 1654 (XVI); see also below, §1414 (inspection). 84 GA Res. 1810 (XVII), 1956 (XVIIl) and 2105 (XX). On the work of the Special Committee, see its reports to the General Assembly, e.g. UN Doc. A/64/23. 85 See e.g. YUN 1976, at 687-690; UN Doc. A/47/23.

§1411

supervision and sanctions

887

sion has to promote the general interest of the Union and take the appropriate initiatives to that end. It is obliged to ensure the application of the EU Treaties.86 This broad authority provides the Commission sufficient basis to conduct its own fact-finding projects whenever necessary. In other articles of the EU treaties, the Commission is expressly empowered to collect information.87 The staff of the Commission systematically scrutinizes the official publications of the members,88 and consequently national laws that violate EU 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 EU 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 Council provides that the Commission must be notified of all agreements between enterprises that 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 that 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.89 In some other organizations, the secretariat

86

TEU, Art. 17.1; Euratom, Art. 124. TFEU, Art. 337; Euratom, Art. 187. 88 M. Gaudet, Director-General of the Legal Service of the European Communities, in Schwebel, op. cit. note 10, at 326-327. 89 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. 87

888

chapter ten

§1413

may enquire what measures members have taken for the execution of rules of the organization.90 Supervision by the secretariat is probably more effective than supervision by other members or by policy-making organs. The secretariat operates to 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 having 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.91 3. Supervision based on inspection92 §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.93 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. Continuous 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;94 subsequently, periodic visits also covered 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 missions95 and sometimes they have even been invited,96

90

See e.g. European Convention on Human Rights, Art. 52. H.A.H. Audretsch, Supervision in European Community Law 124-125 (1978). See also G. Fischer and D. Vignes (ed.), L’inspection internationale (1976). 93 Some examples are mentioned in the second edition of this book, paras. 1266-1267. 94 UN Charter, Art. 87. 95 See e.g. 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). 96 See e.g. YUN 1974, at 764; YUN 1991, at 811. 91 92

§1416

supervision and sanctions

889

although in other cases admission to the territory has been refused. In the latter instances, the mission may be cancelled,97 or a mission may be sent to neighbouring countries to conduct hearings or collect other information there.98 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 Peoples99 dispatched visiting groups to various non-autonomous territories.100

§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.101 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.102 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.103 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”.104 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).105 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.106 This agreement 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.

97

E.g. a mission to British Guyana in 1965, see YUN 1965, at 567. E.g. missions to Aden in 1963 and 1964, see YUN 1967, at 650-653. 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. 100 Cf. UN Doc. A/AC.109/2004 (1994). 101 A.L. Karaosmanoğlu, Les actions militaires coercitives et non coercitives des Nations Unies 27 (1970). 102 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). 103 SC Res. 80 (1950). See K.Th. Birgisson, United Nations Military Observer Group in India and Pakistan, in Durch, op. cit. note 102, at 273-284. 104 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 102, at 163-180. 105 For analyses of these and other observer groups, see Durch, op. cit. note 102. 106 Res. 915 of the UN Security Council. 98 99

890

chapter ten

§1417

§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 that were imposed against Italy in 1935 and 1936.107 The UN Temporary Commission on Korea108 was charged with supervising elections in Korea. Its task was later transferred to the UN Commission on Korea109 and finally to the UN Commission for the Unification and Rehabilitation of Korea (UNCURK),110 which supervised the Southern Korean elections in 1963.111 The Security Council committees established to supervise the application of the economic sanctions are of particular importance.112 Such mandatory sanctions were introduced for the first time against Rhodesia after the unilateral declaration of independence in November 1965.113 The Rhodesia sanctions committee carefully studied some 400 cases brought to its attention by governments, international organizations and individuals, and reported on them.114 A similar committee was created for the supervision of the mandatory arms embargo against South Africa.115 Subsequently, other sanction committees were created when economic sanctions were introduced by the Security Council, for example against Iraq,116 the Federal Republic of Yugoslavia (Serbia and Montenegro),117 the Taliban,118 terrorists and terrorist groups,119 Sudan,120 North Korea,121 Iran.122

§1418 Strong inspection systems have been created in particular in the area of disarmament and arms control. The International Atomic Energy Agency (IAEA) has a well-developed system of inspection.123 This was initiated in the early years

107 See thereon C. Lloyd Brown-John, Multilateral Sanctions in International Law, A Comparative Analysis (1975). 108 Established by GA Res. 122 (II). 109 Established by GA Res. 195 (III). 110 Established by GA Res. 376 (V), new mandate in GA Res. 2132 (XX). 111 Publication No. 77 of the Netherlands Ministry of Foreign Affairs, at 79. 112 See on UN sanction committees J.M. Farrall, United Nations Sanctions and the Rule of Law (2007). 113 See for the establishment of the sanctions committee SC Res. 253 (1968). 114 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). 115 SC Res. 421 (1977). 116 SC Res. 661 (1990). 117 SC Res. 757 (1992). 118 SC Res. 1267 (1999). 119 SC Res. 1373 (2001). 120 SC Res. 1591 (2005). 121 SC Res. 1718 (2006). 122 SC Res. 1737 (2006). 123 See P.C. Szasz, The Law of International Atomic Energy Agency Safeguards, 3 RBDI 196240 (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);

§1418

supervision and sanctions

891

of the IAEA, to examine operations conducted by the organization,124 but was later expanded and refined when the IAEA was charged with supervision of the NonProliferation Treaty.125 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. The IAEA has carried out many safeguard inspections; in 2009 there were 1983 such inspections.126 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 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.127 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.128 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.129 This dependence on the Director-General might impede the critical inspection of installations of the organization itself. However, as the responsibility of the DirectorGeneral 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 concluded with members that have agreed bilaterally to cooperate in the peaceful use of atomic energy.130 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). By 2010, the IAEA had concluded safeguards agreements with over 170 states.131 The board of the IAEA has adopted a model to be used as the basis for negotiating safeguards

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). 124 IAEA, Art. 12. For the IAEA’s “own” safeguards system, see IAEA Document INFCIRC/66/ Rev.2. 125 Non Proliferation Treaty, Art. 3. 126 IAEA Annual Report 2009, at V. 127 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). 128 IAEA Statute, Art. XII C. 129 IAEA, Art 7, paras. B and C; SIPRI Report, at 43-45. 130 See www.iaea.org. 131 For a list of safeguards agreements, see www.iaea.org/OurWork/SV/Safeguards/sir_table. pdf (August 2010).

892

chapter ten

§1418A

agreements with non-nuclear-weapon states.132 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.133 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.134 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.135 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.136

§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. 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.137 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.138 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.139 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

132 IAEA Doc. INFCIRC/153 (May 1971); 10 ILM (1971), at 855-872; www.iaea.org/Publications/ Documents/Infcircs/Others/infcirc153.pdf (August 2010). SIPRI Report, at 73-94. 133 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). 134 SIPRI Report, at 33. 135 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 123, 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). 136 See UN Doc. A/48/133 or S/25556 (1993) and SC Res. 825. 137 See S. Batsanov et al., The Organization for the Prohibition of Chemical Weapons, in Eyskens and Wellens (eds.), op. cit. note 123, Suppl. 7 (Oct. 2000), at 1; Den Dekker, op. cit. note 2, at 219-269. 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. 138 See the Chemical Weapons Convention, in particular its Annex on implementation and verification. See also Batsanov et al., op. cit. note 137. See for a brief description Factsheet No. 5, published by the OPCW. 139 Chemical Weapons Convention, Art. III.

§1418A

supervision and sanctions

893

(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).140 While routine inspections are “cooperative events” to verify the content of declarations,141 challenge inspections triggered by suspicions of non-compliance are very different. 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”.142 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 (for example, 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.143 The third type of inspection is carried out in case of alleged use of chemical weapons.144 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.145 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.146 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.147 There are some 200 inspectors recruited from some 60 states parties.148 Not all OPCW inspectors may carry out challenge inspections: this type of inspection may only

140 See for details the Annex on implementation and verification to the Chemical Weapons Convention, Part IID-G, paras. 31-65. 141 OPCW Factsheet No. 5, op. cit. note 138. 142 Chemical Weapons Convention, Art. IX.8. 143 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 OPCW Press Release, 1 August 2001. 144 Chemical Weapons Convention, Annex on implementation and verification to the Chemical Weapons Convention, Part IX, paras. 1-27. 145 Id., paras. 11-12, 22-23. 146 Id., Part II, paras. 1-9. 147 Id., Part. II, paras. 10-15. 148 OPCW Factsheet No. 5, op. cit. note 138.

894

chapter ten

§1418B

be performed by inspectors and inspection assistants especially designated for this function.149 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.150 §1418B A new type of verification technique has been created on the basis of the 1996 Comprehensive Nuclear-Test-Ban Treaty (CTBT). This Treaty has not yet entered into force.151 It provides for the establishment of a new international organization (the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO)). The aim of the CTBT is to prevent the proliferation of nuclear weapons by prohibiting the testing of such weapons and any other nuclear explosion. The organization will be established to verify compliance with the treaty: it will therefore be a supervisory body pur sang. A Preparatory Commission (PrepCom) has been established to make the necessary preparations, so that this verification regime is operational when the Treaty enters into force.152 The PrepCom itself is an international organization, and has functioned since 1997. Its secretariat (officially called the Provisional Technical Secretariat) is based in Vienna and has some 270 staff members. This PrepCom is responsible for building or establishing 337 facilities (321 monitoring stations and 16 laboratories) around the world to verify compliance with the Treaty; some 80 per cent of its budget is used for the purpose of establishing this global verification regime.153 The facilities are owned and operated by the host state, under the authority of the Secretariat. These installations make use of sophisticated technology: seismic, hydroacoustic, infrasound and radionuclide stations are used to monitor vibrations in the earth, the oceans and the atmosphere, and to detect radionuclides in the air. The information gathered by these installations is sent directly to an international data centre at the headquarters in Vienna, where it is made available to the signatory states and processed, analyzed and reported; the reports are released within a few hours.154 While these data belong to the signatory states, the organization is responsible for collecting and analyzing them.155 During

149

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). 151 The Comprehensive Nuclear Test-Ban Treaty, concluded in 1996. As at February 2011, 182 states had signed this Treaty, 153 had ratified it. For entry into force, it is required that the 44 states holding nuclear power or research reactors in 1996 have ratified the Treaty (Art. XIV and Annex 2 to the Treaty). Nine of these ratifications (China, Egypt, India, Indonesia, Iran, Israel, North Korea, Pakistan, US) are still lacking. 152 Established by Resolution CTBT/MSS/RES/1, adopted 19 November 1996. 153 See www.ctbto.org/the-organization/ctbto-preparatory-commission/standing-asaninternational-organization/page-1-status-as-an-international-organization/ (February 2011). 154 Information taken from www.ctbto.org. 155 Id. Currently more than 1200 persons in some 117 states are authorized to receive these data (information obtained from the CTBTO PrepCom Secretariat, February 2011). 150

§1419

supervision and sanctions

895

the preparatory phase, the PrepCom is testing the international monitoring system and the data are not to be used for verification purposes. After the entry into force of the Treaty, the member states may start a consultation and clarification process if they think that the data or information obtained through national technical means implies that one or more nuclear explosions have occurred.156 As a conclusive verification measure, they also have the right to request an on-site inspection. Such requests may not be refused by the state concerned. The Treaty has specific time limits: inspection teams will enter the state concerned within six days after the request has been made.157 Therefore, while the organization (currently the PrepCom; after the entry into force of the Treaty, the CTBTO) performs a crucial role in making available the relevant information, it remains for the member states to use this information and to trigger the various inspection mechanisms after entry into force. If an on-site inspection is carried out, the Executive Council has the power to decide whether non-compliance with the CTBT has occurred.158 §1419 Apart from the UN, the IAEA, the OPCW and the CTBTO PrepCom, 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 ICAO established the Standing Group on Implementation, which replaced a Special Panel formed for the same purpose in 1956. The Standing Group was composed of persons serving in their independent capacity, who were mainly required to consider whether the plans of the organization for different regions in relation to the operation of air navigation services were being adequately implemented by the members concerned. The panel or its members undertook missions to different regions and submitted reports and recommendations to the board of ICAO.159 In December 2007 it was dissolved.160 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”.161 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, that can supervise the activities of states is the International Committee of the Red Cross. According to Article 126 of the Geneva Convention relating to the Treatment of Prisoners of War of 12 August 1949,162 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

156

Art. IV, paras. 29-33 of the CTBT. Art. IV, paras. 34-67 of the CTBT. Art. IV, para. 65(a). 159 UN Doc. A/6288, at 27-28; Buergenthal, op. cit. note 16, at 114; FitzGerald, op. cit. note 16, at 181-185. 160 ICAO Doc. C-DEC/182/14. 161 IMF, Art. IV, Section 3(b). 162 75 UNTS, at 136; Publication No. 24 of the Netherlands Ministry of Foreign Affairs, at 268. 157 158

896

chapter ten

§1420

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,163 with the exception of military installations.164 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,165 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.166 The Commission may send inspectors into the territories of the members,167 in which 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.168 On the basis of this agreement, ad hoc inspections are conducted jointly. Separate agreements, between Euratom and the United Kingdom on the one hand, and the IAEA on the other, and between Euratom 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.169 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 European Court of Justice. In 1990, the Commission applied sanctions for the first time on the basis of Article 83 of the Euratom Treaty. A German firm, ANF Lingen, was placed under administration for four months.170 The company appealed for an annulment of this decision to the Court, but

163

Euratom, Art. 77 ff. Euratom, Art. 84. 165 Euratom, Art. 86. 166 Euratom, Art. 87. 167 Euratom, Art. 81. 168 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). 169 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). 170 OJ 1990, L 209; Nuclear Law Bulletin No. 47. 164

§1421

supervision and sanctions

897

this was rejected.171 The Commission has applied Article 83 sanctions subsequently in a few more cases.

§1421

[deleted]

§1422 In the European Union, the Commission can send out inspectors under Council Regulations No. 11 and No. 17.172 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. §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.173 This Convention created the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). 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.174 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

171

Case C-308/90, ECR 1993, at I-309; see also Nuclear Law Bulletin No. 52, December

1993. 172

In both regulations, Art. 14. 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); E. Svanidze, The European Convention for the Prevention of Torture, in G. Alfredsson et al. (eds.), op. cit. note 42, at 493-502. 174 The text of the statement has been reproduced in 4 EJIL 119-127 (1993). 173

898

chapter ten

§1424

matters, which often encroach upon delicate areas of the state machinery, and may involve financial burdens.175 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.176 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 that 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 Commission carried out investigations on the spot. It published its report177 on 25 June 1947, concluding that all three states had supported illegal activities in Greece.178 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”.179 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.180 The Trusteeship Council has sent fact-finding missions to Trust Territories when petitions have contained allegations that 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.181 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.182 The report of the mission that visited the Territory was discussed by the Trusteeship Council in 1966.183 In 2009, the UN Secretary-General, at the request of the Pakistani government, appointed a three member commission of inquiry to determine the facts and circumstances of the assassination of Benazir Bhutto, Pakistan’s former prime minister. The Commission’s report was published in April 2010 (see above, §463). 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, for example, member states and non-governmental organizations, or 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

175 176 177 178 179 180 181 182 183

Cassese, op. cit. note 173, at 124-125. See above, §613; cf. UN Doc. E/CN.4/1994/42, at 7-8. 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.

§1425

supervision and sanctions

899

Israeli soldiers. The UN Secretary-General decided to take the initiative to establish a factfinding team headed by the former President of Finland, Martti Ahtisaari. This initiative was supported by the Security Council.184 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.185 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”.186 The Secretary-General presented his report 1 August 2002.187 A final example is the UN Fact Finding Mission on the Gaza Conflict, created by the UN Human Rights Council, which produced the Goldstone report, named after its Chairman.188 This Mission was established in April 2009 with the mandate to investigate “all violations of International Human Rights Law and International Humanitarian Law that might have been committed at any time in the context of the military operations that were conducted in Gaza from 27 December 2008 – 18 January 2009, whether before during or after”.189 One of the main difficulties for the Mission was the refusal by Israel to cooperate with it; as a result, the Mission could only enter Gaza via Egyptian territory.

§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.190 The same is possible at the initiative of delegates to the general congress, who may be workers or employers.191 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.192 In all cases, the Commission found at least parts of the claim to be well-founded.193 To date, 12 Commissions of Inquiry have been established.194 The conclusions of these

184

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. 186 GA Res. ES-10/10. 187 Jenin Report, op. cit. note 185. 188 The Goldstone report was published in September 2009 and is reproduced in UN Doc. A/ HRC/12/48. 189 See UN Human Rights Council Res. S-9/1 and www2.ohchr.org/english/bodies/hrcouncil/ specialsession/9/FactFindingMission.htm (February 2011). 190 ILO, Art. 26. See Jenks, op. cit. note 41. See also N. Valticos, Les Commissions d’enquête de l’Organisation internationale du Travail, 91 RGDIP 847-879 (1987). 191 ILO, Art. 26.4. 192 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). 193 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. 194 See www.ilo.org/ilolex/english/INQUIRY.htm (February 2011); see also above, §655. 185

900

chapter ten

§1426

Commissions of Inquiry are legally binding.195 In addition, special “freedom of association procedures” have been created, even against states members that had not ratified the relevant ILO conventions.196

§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 through 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 30 to 40 countries in relation to many hundreds of cases.197 §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.198 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.199 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 fact-finding missions to Turkey during the last years of the Commission’s existence.200 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.201 It has only exceptionally done so,202 while applicants regularly suggest such investigations.203 In one case in which the Court had decided to carry out an investigation on the spot, all necessary preparations had been made (including air tickets, interpreters). However, only a week before the Court would carry out its descente, Russia required the Court to postpone its visit. Subsequently the Court claimed from Russia reimbursement of costs that were not covered by insurance, as “the impossibility of carrying out this visit on the scheduled date was imputable to the attitude of the authorities of the Russian Federation”.204

195

Valticos, op. cit. note 41 [1994], at 108. In particular ILO Convention No. 87; see Valticos, op. cit. note 12, at 367-379, and Valticos, op. cit. note 41 [1994], at 105-107. 197 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, op. cit. note 41 [1994], 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). 198 EFTA, Arts. 31, 33. 199 European Convention on Human Rights, Art. 28(a) (original text, now repealed). 200 See e.g. European Court of Human Rights, Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996, at 2260, §23. 201 Rule 19.2 of the Rules of the Court. 202 E.g. N. v. Finland (Application no. 38885/02), Judgment of 26 July 2005. 203 E.g. Osmanoğlu v. Turkey (Application no. 48804/99), Judgment of 24 January 2008, para. 35. 204 Shamayev and others v. Georgia and Russia (Application no. 36378/02), Judgment of 12 196

§1428

supervision and sanctions

901

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 to a conflict with a fact-finding mission.205 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”.206 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 in which only states have interests, supervision by the states or by the organization itself may be sufficient, but in cases in which 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 less, allowing them to institute actions before international tribunals against their own states. The proposition that international law traditionally only concerned states is, however, not correct. 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.207 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.208

April 2005 (quotation at para. 536). The Court requested Russia to pay the amount of EUR 1,580.70 into the Council of Europe’s budget. 205 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 NGOs in general, H. Thoolen and B. Verstappen, Human Rights Missions, A Study of the Fact-finding Practice of Non-governmental Organizations (1986). 206 Case 26/62, Van Gend en Loos, ECR 1963, at 13. 207 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). 208 Peace Treaty of Paris, 30 March 1856, Art. 9, de Martens, Nouveau Receuil Général de Traités, Vol. XV, at 774-775.

902

chapter ten

§1429

The treaty of Berlin of 13 July 1878209 attributes freedom of religion to the peoples of Bulgaria,210 Montenegro,211 Serbia,212 and Romania.213 The “Sublime Porte” undertook to improve the situation of the Armenians.214 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).215

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 that 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 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.216 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.217 Since 1962, the Trusteeship Council has considered all petitions itself. All petitions were 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.218 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.219 These

209 Treaty of Berlin of 13 July 1878, de Martens, Nouveau Receuil Général de Traités, deuxième Série, Vol. III, at 449 ff. 210 Id., Art. 5. 211 Id., Art. 27. 212 Id., Art. 35. 213 Id., Art. 44. 214 Id., Art. 61. 215 J.P.A. François, Handboek van het Volkenrecht, Vol. I (2nd ed., 1949), at 488-489. 216 See L.B. Sohn and T. Buergenthal, International Protection of Human Rights 225-294 (1973). 217 UN Charter, Art. 87. See e.g. YUN 1946-47, at 727, 728, 764. 218 UN Doc. A/6228, paras. 32-33 (see above, §1424). 219 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).

§1430

supervision and sanctions

903

petitions are studied by a subcommittee of the Special Committee.220 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.221 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 a state’s full jurisdiction over its 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.222 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.223 On average, the working group dealt with 20,000 to 25,000 communications per year.224 On the basis of petitions, the working party and the sub-commission studied situations in particular countries. They did 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 could refer situations to the UN Commission on Human Rights if they appeared to reveal a constant pattern of gross and reliably attested violations of human rights, requiring consideration by the Commission. The Commission could subsequently report to the ECOSOC,

220 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. 221 UN Doc. A/10023/Rev 1 (GAOR 30/Suppl. 23), para. 52. In more recent documents, no figures concerning the number of petitions are mentioned. 222 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). 223 These procedures were accepted by the ECOSOC in its resolution 1503 (XLVIII) and were revised in 2000 (Res. 2000/3). 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 78, at 309; Schreiber, op. cit. note 42, 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. 224 Orientation manual cited in note 223, at 12.

904

chapter ten

§1431

although in practice it has never done so. Instead, the Commission has used other means to exert pressure, such as the appointment of special rapporteurs. This regime for dealing with individual complaints was reviewed in 2006 and 2007, after the Human Rights Commission was replaced by the Human Rights Council. Following this review, the Human Rights Council adopted a new complaint procedure, which is based on the old procedure of ECOSOC Resolutions 1503 and 2000/3: it “was improved where necessary, so as to ensure that the complaint procedure is impartial, objective, efficient, victims oriented and conducted in a timely manner”.225 The objective of the complaint procedure is, as before, not to deal with individual cases, but “to address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances”.226 There are a number of admissibility criteria (for example, the complaint may not be “manifestly politically motivated”; domestic remedies must be exhausted). The Human Rights Council’s Working Group on Communications “shall decide on the admissibility of a communication and assess the merits of the allegations of violations, including whether the communication alone or in combination with other communications appear to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms”.227 On the basis of this information, the Human Rights Council’s Working Group on Situations prepares a report with recommendations for the Human Rights Council. The Council may adopt various measures, “in accordance with established practice”: for example, it may decide to keep the situation in a particular country under review, appoint an expert to monitor the situation and report back to the Council, or it may decide no longer to deal with the case confidentially but to “take up public consideration”.228 §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 that have expressly given such persons this right of petition.229 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

225 Human Rights Council Res. 5/1 (endorsed by the UN General Assembly in its Res. 62/219), para. 86. 226 Id., para. 85. 227 Id., para. 95. 228 Id., para. 109. 229 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). On the individual complaints procedure in this Convention, see Th. van Boven, The Petition System under ICERD: An Unfulfilled Promise, in G. Alfredsson et al., op. cit. note 42, at 83-90.

§1431

supervision and sanctions

905

the UN General Assembly on 16 December 1966;230 the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;231 and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, adopted by the UN General Assembly on 10 December 2008.232 The European Convention on Human Rights contains supranational legislation for the benefit of the peoples of the treaty-making states. These states accepted international 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 that participated in the drafting of the Convention, however, were 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 that had made an express declaration acknowledging this right.233 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.234 The vigilance of the individuals concerned is shown by the fact that, compared to a very limited number of complaints by states, tens of thousands of applications 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 1978,235 the right of individual petition was accepted immediately by the states parties and required no special declaration.236 The consideration of complaints brought by states, on the other hand, depends on an explicit declaration.237

230 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). 231 GA Res. 39/46. 232 GA Res. 63/117. See also 48 ILM 256 (2009), with introductory note by T.J. Melish. 233 European Convention on Human Rights, Art. 25 (original text). 234 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). 235 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; D. Rodríguez-Pinzón, Basic Facts of the Individual Complaint Procedure of the Inter-American Human Rights System, in Alfredsson et al. (eds.), op. cit. note 42, at 619-634. 236 American Convention on Human Rights, Art. 44. 237 Id., Art. 45.

906

chapter ten

§1432

Under the African Charter on Human and Peoples’ Rights, individuals and nongovernmental organizations may send complaints to the African Commission.238 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.239

§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.240 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.241 Many complaints have been lodged pursuant to these provisions, the most successful ones having been against Spain.242 On the establishment of the GATT, a proposal was made for direct citizen complaint to the organization, but it failed to obtain sufficient support.243

§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 rectify the situation.244 §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 that are not to be studied by a UN organ. The European Commission may itself carry out investigations. Petitions that need not be studied by an international organ are weak, however, since they cannot form a ground for action by the organization.

238

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). 240 ILO, Art. 24. 241 See C. Wilfred Jenks, The International Protection of Trade Union Freedom (1957); N. Valticos, The International Labour Organisation, in Schwebel, op. cit. note 10, at 150-151. 242 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). 243 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. 244 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). 239

§1435

supervision and sanctions

907

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 to do so, that individual could appeal to the European Court of Justice.245 Under the current EU treaties, however, individuals have no such power,246 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 EU Court the basic question as to whether EU 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.247 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.248 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.249 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

245 ECSC, Arts. 88 and 35. See H.G. Schermers and D. Waelbroeck, Judicial Protection in the European Union (6th ed. 2001), at 592-594. 246 See TFEU, Arts. 258 and 265; 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 509543 (1966); Schermers and Waelbroeck, op. cit. note 245, at 644-645. 247 E.g. FAO, UNESCO. 248 Buergenthal, op. cit. note 16, at 110-112. 249 J. Salzberg, UN Prevention of Human Rights Violations: The Bangladesh Case, 27 International Organization 115-127 (1973).

908

chapter ten

§1438

intervention. In all these cases, unorganized, powerless groups of individuals were left without any defence against governments that, 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.250 In 1999, NATO carried out Operation Allied Force against the Federal Republic of Yugoslavia in response to 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?251

250 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). 251 UN Doc. SG/SM/7136 or UN Doc. GA/9596. Subsequently, triggered by the debate concerning the legality of the Kosovo intervention, the new notion of ‘Responsibility to Protect’ was developed. See in particular GA Res. 60/1, paras. 138-139 and the 2009 report by the UN Secretary-General (“Implementing the Responsibility to Protect”), UN Doc. A/63/677.

§1439

supervision and sanctions

909

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 (see above, §1387). 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 that may decide 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.252 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”,253 which may damage the position of the government concerned; secondly, the international relations of the state concerned will suffer. The strength of 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 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,

252 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). 253 A. Zimmern, The League of Nations and the Rule of Law, 1918-1935 (1936), at 472.

910

chapter ten

§1441

to be performed by a judicial organ. The ITU and the UPU refer such questions to arbitration.254 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 that for a number of years have persistently failed to apply conventions they have ratified (usually known as the “black lists”).255 As the decisions of the general congress are founded upon the conclusions of a committee of individual experts, the nonpolitical 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”.256 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.257 §1441 In most European organizations, political organs will also have to recognize a member’s violation of obligations officially. However, two important exceptions exist where the decision is taken by a judicial organ: the European Court of Human Rights, and the Court of Justice of the European Union. 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 by the Court of a violation legally obliges the state concerned to terminate the violation.258 §1442 In the EU, the Commission has to ensure that EU obligations are honoured.259 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 identified and a change of policy is requested.260 The Commission may refer the matter to the Court of Justice if the state does

254

UPU, Art. 32; ITU Constitution, Art. 56. Valticos in Schwebel, op. cit. note 10, at 434. 256 Valticos, op. cit. note 41 [1994], at 105. 257 Certain Expenses Case, ICJ Rep. 1962, at 179-180. 258 European Convention on Human Rights, Art. 46. 259 TEU, Art. 17.1; Euratom, Art. 124. 260 TFEU, Art. 258; 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 91; Dashwood and White, op. cit. 38; Schermers and Waelbroeck, op. cit. note 245, at 601 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 255

§1443

supervision and sanctions

911

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.261 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 (what is now) Article 258 TFEU. These actions brought resulted in 983 judgments (the overwhelming majority finding for the Commission).262 Article 141 of the Euratom Treaty was applied only a few times.263 In recent years, some 200 infringement cases are lodged before the Court every year, which is more than one-third of the Court’s total workload, but which represents “no more than 10-15 per cent of the overall suspected infringements investigated every year by the Commission services”.264 The Court sets no time limits for the implementation of its decisions under Article 258 TFEU (or Article 141 of the Euratom Treaty): as it has stated, the Treaty “does not confer any power on the Court to grant a period of time for compliance with its judgments”.265 Originally, the members usually complied with the decisions within a reasonable period of time.266 Gradually, however, more and more judgments remained unimplemented.267 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 EU obligation, but a new violation of EU law, namely the refusal to carry out a judgment of the Court.268 Prior to 1984, only three judgments under such ‘follow-up’ procedures had been delivered. Since then, this has happened more frequently: between 1984 and 2002, thirty such rulings have been given.269

§1443 An official declaration determining a situation to be 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

(1994), at 391-407; L. Prete and B. Smulders, The coming of age of infringement proceedings, 47 CMLRev. 9-61 (2010). 261 TFEU, Art. 260; Euratom, Art. 143. 262 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. 263 E.g. Case 7/71, Commission v. France, ECR 1971, at 1003; Case C-21/96, Commission v. Spain, ECR 1997, at I-5481. 264 Prete and Smulders, op. cit. note 260, at 11. 265 Case C-473/94, Commission v. Luxembourg, ECR 1996, at I-3207, para. 52. 266 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). 267 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 EU law. See for example OJ 1994, C 154, in particular Annex V (169-173), mentioning no fewer than 91 cases of Court judgments that were not yet complied with (situation as of 31 December 1993). In 2009 the Commission reported that 160 Court judgments remained unimplemented (situation as of 31 December 2008); see the 26th annual report on monitoring the application of Community law (2008), Annex V (EU Doc. COM (2009)675, see http://ec.europa.eu/community_law/ docs/docs_infringements/annual_report_26/en_sec_statannex_vol4.pdf (February 2011)). 268 TFEU, Art. 260; Euratom, Art. 143. 269 Calculated on the basis of the European Court Reports; additional information obtained from the Court of Justice.

912

chapter ten

§1444

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”.270 What that consequence may be varies from case to case. In the Namibia Case, the 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.271

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).272 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.273 The general conferences of some commodity councils may relieve a member of an obligation on account of exceptional or emergency circumstances.274 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.275 Article IX of the Agreement establishing the World Trade Organization provides for a procedure to waive obligations imposed on a member state.

V. 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. The possibility of imposing sanctions is therefore an important means by which 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

270 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. 271 Id., at 58. 272 See J. Gold, “Dispensing” and “Suspending” Powers of International Organizations, 19 Ned TIR (1972), at 170-171; also published in Selected Essays, op. cit. note 20, at 354. 273 IMF, Art. 8 (2), (3). 274 E.g. Art. 47 of the 2010 International Cocoa Agreement. 275 EFTA, Art. 31 (5).

§1446

supervision and sanctions

913

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 will 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 to international organizations the power to impose sanctions (see below, Section B). Some of these sanctions are to be implemented by the organization, while 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 hardly ever be applied. Indeed, it is forbidden, in principle, by the UN Charter.276 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 organization, 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 applies 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.277 As a rule, international organizations are reluctant to apply sanctions even when they are available. Governments do not enjoy being singled out for

276 277

UN Charter, Art. 2.4. Gold, op. cit. note 20, at 738-739, respectively 149-150.

914

chapter ten

§1448

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.278 §1448 Some authors distinguish “positive sanctions”, which are “rewards” for good behaviour, from “punishments” for bad behaviour.279 Such rewards seem acceptable when states do more than they are obliged to. For a normal performance of obligations, “rewards” would be the normal services of the organization. These services should not then be seen as favours, but rather the withdrawal of the services constitutes a sanction (see below, §1463-1465). A. Sanctions by the other members §1449 The obligations 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 that violates obligations owed to it (“self help”). It might therefore be possible for an interested state to apply sanctions that are intended to coerce another state into fulfilling its obligations to an international organization. Would this be permissible? Usually, international organizations have no express constitutional provisions addressing this question. 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.280 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, §14001401; 1439). An exceptional case of unilateral enforcement by individual members are the sanctions adopted in 2000 against Austria by the (then) 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 to Austria becoming a member of the European Union, and was also opposed to any further enlargement of the Union. In January 2000 – following unsuccessful attempts by other parties to form a new govern-

278 J. Gold, Certain aspects of the Law and practice of the International Monetary Fund, in Schwebel, op. cit. note 10, at 75. 279 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). 280 See e.g. Gold on the IMF in Schwebel, op. cit. note 10, at 478.

§1449

supervision and sanctions

915

ment – negotiations started between the People’s Party and the Freedom Party to form a new government. Within a few days, the prospect 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 if the new Austrian government were to 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”.281 On 1 February 2002, agreement was reached between the People’s Party and the Freedom Party to form the new Austrian government, which was sworn in on 5 February. Subsequently the sanctions by 14 member states took effect. The EU Treaty does not provide for sanctions such as these by member states. However, according to Article 7 EU (as it was phrased at the time), the Council may determine the existence of a serious and persistent breach by a member state of the 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 also an ‘EU element’. In particular, the sanctions were officially announced by the EU presidency on behalf of the 14 other members. At the same time, the European Commission was not formally consulted, but was only informed of the statement of the 14 members a few hours in advance. On 1 February, the Commission presented its own declaration, which “notes” the statement of the 14 members 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”.282 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”.283 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.284

281 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 953-963 (2000). See further the contributions to 55 Austrian Journal of Public and International Law (Heft 3). 282 See Europe No. 7646, at 3. 283 Happold, op. cit. note 281, at 957. 284 See Europe No. 7648, at 3.

916

chapter ten

§1450

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 6.1285 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 (which 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 experience of joint bilateral sanctions being imposed by the 14 other EU members 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, organizations cannot effectively impose many sanctions, even if their constitutions empower them to do so. Actions of an organization that antagonize a member may lead to the 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.286 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 that member. Even organizations that 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 (§134-135), the UN Charter does not contain an explicit right of withdrawal. Nevertheless, 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 situations in which there is a major breach of obligations, but sometimes its use is restricted to a more limited set of specified situations, such as the

285 286

This is now placed in Article 2 TEU, which refers to “values” instead of “principles”. J.G. Stoessinger, Financing the United Nations System 42 (1964).

§1452

supervision and sanctions

917

non-payment of contributions. The amendments to 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 that result from their participation in the organization.287 In other organizations, possible sanctions are not specified: the organization is empowered to take any coercive measures that 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.288 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.289 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 non-observance 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 subsequently 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.290

287 C. Leben, Les sanctions privatives de droits ou de qualité dans les organisations internationales spécialisées (1979); F. Dopagne, Les contre-mesures des organisations internationals (2010). 288 If the Security Council considered making a recommendation 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. 289 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. 290 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.

918

chapter ten

§1453

One more example is the European Convention for the Peaceful Settlement of Disputes, drafted within the framework of the Council of Europe. According to this convention, disputes between the parties to the Convention must be submitted to the International Court of Justice or to arbitration. The convention then provides: “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.”291

§1453 Two general questions are relevant: (1) May international organizations impose sanctions on members that have violated obligations other than those contained in the constitution of the organization? (2) May sanctions be taken that 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.292 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 that 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 questions 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.293

§1454 Many constitutions do not expressly provide for sanctions. However, despite this absence of provisions, several sanctions are possible in fields in which the organization enjoys discretionary powers. An organization may, for example,

291 European Convention for the Peaceful Settlement of Disputes (1957), Art. 39.2, 320 UNTS, at 243; Trb. 1957, at 203. 292 See Leben, op. cit. note 287, Partie II, Chapt. II (L’abus de sanctions), at 223-283. 293 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).

§1455

supervision and sanctions

919

refuse to elect a particular state to subsidiary organs, or it may restrict the services it renders to that state. In the following discussion of the sanctions international organizations apply, it should be noted that several of them have been imposed without an explicit constitutional basis. 2. Suspension of voting rights §1455 Suspension of voting rights is mainly used as a sanction for the nonpayment of financial contributions.294 As a sanction, it may vary in intensity. Some organizations may deprive their members of voting rights in all organs of the organization295 or just in some organs,296 while others may only suspend the voting rights in the general congress.297 This last approach 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.298 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 to do so by a two-thirds majority.299 §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 years300 (one year in the UNESCO and in the IMO,301 six months in some commodity councils).302 The general congress of the organization may then restore the voting rights if it is 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, which must be taken before the relevant voting takes place.303

294 As a rule, such a suspension covers voting on both substantive and procedural issues; see UNJY 1983, at 182-183. 295 E.g. ILO. 296 UPU General Regulations, Art. 129.1. 297 E.g. FAO and ICAO; TEU, Art. 7.3 (the Council); cf. also ICC Statute, Art. 112.8 (Assembly of States Parties and its Bureau). 298 UNIDO, Art. 5. 299 ILO, Art. 13.4. 300 E.g. UN, Art. 19; UPU General Regulations, Art. 129.1. However, in the UPU, 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. 128, paras. 9 and 10. These provisions were introduced during the 1999 Beijing Congress. 301 UNESCO, Art. IV, para. 8; IMO, Art. 56. 302 2001 International Coffee Agreement, Art. 25.2; 2010 International Cocoa Agreement, Art. 25.3. 303 See UNJY 2003, at 526-528.

920

chapter ten

§1457

For example, the ILO took such a decision in 1961, when special arrangements were made for Bolivia, China, Spain and Hungary.304 UNESCO has taken similar steps on a number of occasions,305 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; and in two cases, voting rights were restored as the arrears were about to be paid, which subsequently happened during the session.306 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.307

§1457 International organizations have usually restored the voting rights of members that 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, the contributions of which had been unpaid 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 that fails to meet its financial obligations.308 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 for 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 five per cent.309 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.310 The article was applied twice in other exceptional circumstances: in 1964 against South Africa,311 and in 1966 against Portugal.312 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”.313 However, in subsequent years the organization failed to implement this stricter policy, and the voting rights of the members in arrears were not suspended.314 In 1988, the World Health Assembly adopted a statement of principles governing the application of

304 International Labour Conference, 45th Session, Financial and Budgetary Questions (1961), at 107. 305 UN Doc. A/6905, para. 135. 306 Conference FAO, 19th Session, Report (FAO Doc. C77/Rep) 24. 307 P.C. Szasz, The Law and Practices of the International Atomic Energy Agency, IAEA, Legal Series No. 7 (1970), at 857. 308 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 16, at 46-55. 309 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 five per cent of the amount assessed each year was required. 310 Stoessinger, op. cit. note 286, at 222. 311 WHA 17th Session, Official Records No. 136. 312 WHA 19th Session, Official Records No. 152, at 503. 313 Res. 37.7 of the World Health Assembly. 314 See World Health Assembly Resolutions 38.13 (1985), 39.16 and 39.17 (1986), 40.5 (1987).

§1459

supervision and sanctions

921

Article 7, which again, in stricter terms, introduced a new policy.315 Subsequently, the voting rights of a number of members have been suspended.316 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.317 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.318 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.319

§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.320 The text of Article 19 of the UN Charter offers little support for this argument, however;321 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.322 On one occasion, the Soviet Union, France and several other states refused to pay their share of the expenses of UN peace-keeping activities (see above, §1213). According to the International Court of Justice, these expenses constituted expenses of the organization.323 When the amount of arrears of the states concerned exceeded the amount of contributions due for the preceding two 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

315

Res. 41.7 (1988). See Res. 41.20 (1988), Res. 44.12 (1991), Res. 45.8 (1992), 46.10 (1993) and, more recently, Res. 61.7 and Res. 62.4. 317 ICAO Assembly Res. A9-6, ICAO Doc. 7595 (Aq.-p./12), 1955. See Buergenthal, op. cit. note 16, at 49-51. 318 Buergenthal, op. cit. note 16, at 50. 319 Stoessinger, op. cit. note 286, at 236. 320 UN Doc. A/5431 (1963). 321 On Art. 19 UN Charter, see D. Ciobanu, Financial Obligations of States under Article 19 of the UN Charter (1973); C. Tomuschat in Simma, op. cit. note 75, at 363-376. 322 See note of 26 July 1968 of the Legal Counsel of the UN annexed to UN Doc. A/7146, UNJY 1968, at 186-188; Memorandum of the UN Office of Legal Affairs of 4 April 1974, UNJY 1974, at 156-157; 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. For a more extensive analysis, see C. Tomuschat in Simma, op. cit. note 75, at 363-376, and J.L. Florent in Cot, Pellet and Forteau (eds.), op. cit. note 75, at 815-822. 323 Certain Expenses Case, Advisory Opinion, ICJ Rep. 1962. 316

922

chapter ten

§1460

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.324 No voting rights would be suspended. The expenses of peace-keeping operations would be paid out of a special fund open to voluntary contributions of all members. After separating these expenses from the normal budget of the organization, Article 19 was no longer applicable, as the states concerned were not significantly in arrears in the payment of their normal contributions.325 §1460 Apart from the situation in which a member is in arrears in paying its financial contributions, voting rights may only be suspended in relation to a limited number of other obligations. The ICAO may also suspend the voting rights of members that 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).326 This provision was never applied.327 Under the 1983 International Coffee Agreement, a member that exceeded the quota allocated to it would have one or more of its subsequent quotas reduced by a quantity equal to 110 per cent of that excess. Only after three or more succeeding quotas were exceeded, would the rule apply that the voting rights of the member “shall be suspended”.328 In the case of an importing member, the Council “may suspend voting rights” where a member failed to comply with the obligation of limitation of imports from non-members (when export quotas are in effect).329 The subsequent coffee agreements (1994, 2001, 2007) 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 the member ineligible to use its general resources (excluding its Special Drawing Rights obligations). Secondly, 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.330 The third 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 com-

324

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). 326 ICAO, Art. 88. 327 Buergenthal, op. cit. note 16, at 52; information obtained from the ICAO Secretariat (April 1994). 328 Art. 42, paras. 3 and 5. 329 Art. 45 (5). 330 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). 325

§1461

supervision and sanctions

923

pose the IMF’s organs.331 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.332 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).333 With effect from August 1, 2000, the IMF decided to lift the suspension of Sudan’s voting rights.334 In recent years, sanctions have been used in particular against Zimbabwe.335 Why was the third amendment adopted, and why 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”.336 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.337 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.338 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”.339

3. Suspension of representation §1461 The general congress (Committee of Ministers) of the Council of Europe may suspend the right of representation of a member that has failed to fulfil its financial obligations.340 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.

331

IMF Articles of Agreement, Schedule L; see Gold, op. cit. note 330, at 142-144. Id., at 143-144. IMF Annual Report 2000, at 73. 334 IMF Press Release No. 00/46 (www.imf.org/external/np/sec/pr/2000/pr0046.htm (February 2011)). 335 See e.g. IMF Annual Report 2009, at 64. 336 Id., at 145. 337 Id., at 145. 338 Council of Europe, Press Release, 6 April 2000. 339 Parliamentary Assembly, Doc. 8631, para. 31. 340 CoE, Art. 9. 332 333

924

chapter ten

§1462

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.341 §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 subsidiary 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),342 and at the general congress of the ITU as of September 1965.343 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).344 In 1962, the OAS decided to exclude “the present government of Cuba from participation in the Inter-American system”, mainly because of Cuba’s “adherence to Marxism-Leninism” and its “alignment with the communist bloc”. Only in 2009 did the OAS withdraw this decision (see in more detail above, §147).

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 assistance may persuade a member to comply with the rules.345 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.

341

IAEA, Art. 19 B; WMO, Art. 31. H.G. Schermers, Some Constitutional Notes on the Fifteenth Congress of the Universal Postal Union, 14 ICLQ (1965), at 637. 343 See Res. No. 45 of the ITU Congress of 1965, UNJY 1965, at 143-144. 344 See YUN 1974, at 106, 117. 345 As C. Wilfred Jenks wrote in The Prospects of International Adjudication (1964), at 726: “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”. 342

§1464

supervision and sanctions

925

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.346 (2) When the IMF is of the opinion that a member is using its resources in a manner contrary to the IMF’s purposes.347 (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.348 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.349 The IMF was, however, reluctant to use this sanction.350 When it wished to exert pressure, which has happened more frequently since the 1980s, it has preferred to do so through other means. Examples are stand-by arrangements (which have a less official character since they are not classified as agreements under international law),351 the “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.352 Members of the IAEA may enter into an agreement with the organization to provide assistance in a nuclear energy project.353 The board of the organization will report any noncompliance 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).354 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 Nuclear Energy of 20 December 1957.355 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: (1) the suspension or termination of deliveries of materials, equipment or services supplied by or under the supervision of the Agency; (2) the return of materials and equipment supplied by or under the supervision of the Agency.356

§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.

346 347 348 349 350 351 352 353 354 355 356

IMF, Art. 26, Section 2(a). See also Schedule C para. 8. IMF, Art. 5, Section 5. IMF, Art. 6, Section 1. IMF, Art. 4, Section 6 (original text). Gold, op. cit. note 278, at 72-76. Id., at 82. Gold, op. cit. note 330, at 130-137. IAEA, Art. 11. IAEA, Art. 12, para. 7 C. Trb. 1958, at 55. Id., Art. 5, para. b.

926

chapter ten

§1465

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 ”.357

§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. In 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 what conditions aid will be granted.358 This gives the organization general power over its members, and enables it to withhold services without this being expressly provided for as a sanction. The European Commission may require the withdrawal of national regulations that are contrary to EU law in any particular field as a condition of taking measures in that field for the benefit of the state concerned.359 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.360 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 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.361 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.362 The League considered expelling Liberia, but finally decided to withdraw its offer of support, thus applying a sanction that was not provided for in the Covenant.363

357

Dobbert, op. cit. note 50, at 226. See also the “stick and carrot” discussions in Schwebel, op. cit. note 10, at 79-80, 459-488. 359 H.G. Schermers, Het toezicht door de Commissie op de naleving der verdragsverplichtingen door lidstaten en particulieren, Europese Monografieën No. 6 (1966), at 144. 360 Gingerbread case, No. 2-3/62; 8 Jur. (1962), at 851; ECR 1962, at 425. 361 TFEU, Arts. 263, 265. 362 LoN Covenant, Art. 23b. 363 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). 358

§1466

supervision and sanctions

927

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 of the organization.364 This may also be achieved by a separate treaty. In addition, it may sometimes be possible to suspend membership of a specific organ. 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.365 A member state of the Organization of American States “whose democratically constituted government has been overthrown by force may be suspended from the exercise of the right to participate in the sessions of the General Assembly, the Meeting of Consultation, the Councils of the Organization and the Specialized Conferences as well as in the commissions, working groups and any other bodies established”.366 In 2001, the General Assembly of the OAS adopted the Inter-American Democratic Charter. According to Article 21 of this Charter, “[w]hen the special session of the General Assembly determines that there has been an unconstitutional interruption of the democratic order of a member state, and that diplomatic initiatives have failed, the special session shall take the decision to suspend said member state from the exercise of its right to participate in the OAS by an affirmative vote of two thirds of the member states in accordance with the Charter of the OAS. The suspension shall take effect immediately”. In 2009, this procedure was applied for the first time, following the coup d’état against the government of Honduras. Honduras was suspended “from the exercise of its right to participate in the Organization of American States”.367 An example of the possibility of suspension of membership of a specific organ is the UN General Assembly resolution establishing the Human Rights Council. According to this resolution, the General Assembly, “by a two-thirds majority of the members present and voting, may suspend the rights of membership in the Council of a member of the Council that commits gross and systematic violations of human rights”.368 In February 2011, the Human Rights Council recommended to the General Assembly to suspend Libya’s membership of the Council.369

364 See e.g. UN Charter, Art. 5; WMO, Art. 31; IAEA, Art. 19 B; World Tourism Organization, Art. 34; Inter-American Development Bank, Art. 9(2); Asian Development Bank, Art. 42; AU, Art. 30; TEU, Art. 7.3. 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). 365 International Air Services Transit Agreement, Art. 2 (1). See also ICJ Rep. 57-58 (1972). 366 OAS Charter, Art. 9 (introduced in the OAS Charter in 1992 by the Third Protocol of Amendment). 367 OAS Doc. AG/RES.2 (XXXVII-E/09); reproduced in 48 ILM 1248-1249 (2009). 368 GA Res. 60/251, para. 8. 369 Resolution A/HRC/S-15/2, para. 14.

928

chapter ten

§1467

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 as a 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 guest status was suspended and not withdrawn in order to “maintain contacts and support any positive development in the country”.370

§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”.371 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. Another example is the suspension of Egypt’s membership from the League of Arab States, the Organization of Arab Petroleum Exporting Countries, the Arab Monetary Fund and the Organization of the Islamic Conference, as a sanction when Egypt signed a peace treaty with Israel in 1979. The constitutions of these organizations do not mention the possibility of suspension of membership. These suspensions were terminated a few years later.372 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 opinion, he mentioned that the relevant ITU Convention provided for sanctions only in two specific cases, neither of which was at stake in the draft resolution concerning Israel.373 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

370

Europe No. 6892, at 5. WMO Res. 38(Cg-VII) (1975). 372 Magliveras, op. cit. note 364, at 96-100. See e.g. Res. 18/10-P adopted by the Tenth Islamic Conference (1979), adopted with two abstentions and five “non-participants in the vote for procedural reasons”. 373 Reproduced in UNJY 1982, at 214-217. 371

§1468

supervision and sanctions

929

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):374 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 abovementioned 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 relevant 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. For example, the constitution of the International Fund for Agricultural Development 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.”375 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 in the absence of a 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 the rights and privileges the organization offers to its members. Besides these rights and privileges, the organization may suspend rights and duties that 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

374 375

Id., at 215. IFAD, Art. 9. Section 2(b).

930

chapter ten

§1470

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.376 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). 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.377 A declaration of scarcity by the IMF authorizes members to take retaliatory measures against the member that has been engaging in practices leading to the scarcity of its currency.378 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”.379

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 nonplenary organs by refusing to elect it. In the 2001 International Coffee Agreement, it was expressly provided that no member was eligible for election to the Executive Board if it was in arrears in payment of its financial contributions by more than six months.380 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).381

376

ICAO, Art. 33. See Buergenthal, op. cit. note 16, at 86-88. 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. 378 Gold, op. cit. note 20, at 748. 379 EFTA, Art. 31.4. For another example, see International Wheat Agreement 1962, Art. 21; 444 UNTS, at 48; Trb. 1962 No. 57. 380 International Coffee Agreement (2001), Art. 25.2. This sanction was not included in the 2007 International Coffee Agreement. 381 The formulation of such resolutions often indicates, 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. 377

§1471

supervision and sanctions

931

§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 to those regarding expulsion from the organization itself apply in these circumstances (see above, §146-148). When the stronger sanction is permitted, the weaker 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 of 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 but one of the organization’s members 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.382 May the General Assembly, nevertheless, create organs that are composed of all members but one? This 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.383 The Legal Counsel of the UN offered different advice.384 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 twothirds 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.385 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, a situation that endured until the end of the apartheid regime.

§1473 Other questions that have provoked disputes include the question of whether members may be banned from all conferences convened by the

382

UN Charter, Arts. 5 and 6. GA Res. 1761 (XVII). 384 Published in UNJY 1968, at 195-200. See also 8 ILM 213-219 (1969). 385 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). 383

932

chapter ten

§1474

organization,386 and the question whether a conference arranged by an organization may decide to exclude states invited by the organization.387 Portugal and South Africa were excluded from many organs of the UN and the specialized agencies. Both states were expelled from the UN Economic Commission for Africa.388 South Africa was no longer invited to participate in any capacity in activities of the FAO,389 or of the ICAO.390 Before Portugal was excluded from all activities of UNESCO, it was banned from the 28th International Conference on Public Education (Geneva, July 1965)391 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.392

§1474 As a sanction, expulsion from specific organs seems preferable to expulsion from the organization,393 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 between the organization and 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;394 states expelled from the IMF cease to be members of the World Bank;395 states that are no longer members of the World Bank cease to be members of the IFC

386

On this question, see UNJY 1966, at 153-164 (Portugal in UNESCO). 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). 388 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). 389 FAO Conference, 12th Session, Res. 38/63. 390 ICAO Res. A 18-4 of July 1971. 391 Decision of the board of UNESCO of 17 May 1965. 392 See e.g. YUN 1974, at 1027. 393 Sohn, op. cit. note 363, at 1425. 394 UNESCO, Art. 2.4. The International Refugee Organization had the same constitutional provision (Art. 4). 395 World Bank, Art. 6, Section 3. 387

§1477

supervision and sanctions

933

and the IDA.396 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 that do not justify expulsion from a specialized agency. It is difficult to see why states that have been expelled from the UN lose their membership of UNESCO, while other states that (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.397 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,398 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.399 The Security Council could therefore instruct an agency to impose sanctions on a member.400 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 that the latter is incompetent to take. 9. Economic sanctions §1478 Economic sanctions imposed on a member by the other 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 non-members. 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 cessation of hostilities.401 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.402

396

IFC, Art. 5, Section 3; IDA, Art. 7, Section 3. ICAO, Art. 93bis; IMO, Art. 10. 398 See e.g. Agreement between UN and FAO, Art. 4. 399 See e.g. Agreement between UN and FAO, Art. 6. 400 See W. Reisman, The Role of Economic Agencies in the Enforcement of International Judgments and Awards, 19 International Organization 927-947 (1965). 401 Publication No. 82 of the Netherlands Ministry of Foreign Affairs, at 64ff. 402 On economic sanctions, see M.P. Doxey, Economic Sanctions and International Enforcement (1971); Brown-John, op. cit. note 107; M.S. Daoudi and M.S. Dajani, Economic Sanctions – Ideals and Experience (1983); D. Leyton-Brown (ed.), The Utility of International Economic 397

934

chapter ten

§1479

§1479 Some states are more vulnerable to economic sanctions than others.403 There are also 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.404 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.405 On the other hand, even if not effective in economic terms, economic sanctions may serve useful political purposes. They may ultimately succeed because they constantly focus attention on the problem sought to be addressed, and implicitly legitimize actions against the target state that otherwise would be illegal.406 Additionally, economic sanctions perform an important function as an alternative to military sanctions, if it is felt necessary to show disapproval not only by adopting condemnatory resolutions, but also by taking concrete measures. §1480 The power to impose 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 EU, both following the adoption of mandatory Security Council resolutions and equally without such a basis.407 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 that had resorted to war in violation of the provisions of the Covenant.408 On the basis of this provision, the members were asked to apply economic sanctions against Italy after it had committed aggression against Ethiopia in 1935.409 The political climate, however, was not favourable towards the imposition of 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.410 The sanctions were not faithfully applied by all members, and had virtually no effect.

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. 403 Doxey, op. cit. note 402, at 98-100. 404 Id., at 125-129. 405 Id., at 140. 406 Lloyd Brown-John, op. cit. note 107, at 368. 407 See e.g. 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). 408 LoN Covenant, Art. 16.1. On the application of this provision, see R.B. Henig, The League of Nations 91-152 (1973). 409 Monthly Summary of the League of Nations 254-255 (1935). 410 G.W. Baer, Sanctions and Security: The League of Nations and the Italian-Ethiopian War

§1482

supervision and sanctions

935

§1482 Chapter VII of the UN Charter offers wider possibilities for enforcement measures. The Security Council may decide what 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.411 If the Security Council considers that these sanctions are inadequate, it may take recourse to military sanctions.412 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.413 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.414 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 the sanction was inherently unfit for this purpose. The resolution was finally withdrawn in 1950.415 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.416 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.417 In later resolutions, the scope of these sanctions was extended to all trade and to the severance of relations with Southern Rhodesia in general.418 The Council invoked Article 25 of the UN Charter, by which the members of the UN agreed to carry out decisions

1935-1936, 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. 411 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”. 412 UN Charter, Art. 42. 413 UN Charter, Art. 24.1. 414 GA Res. 39 (I). See Lino di Qual, Les effets des résolutions des Nations Unies 230-233 (1967). 415 By GA Res. 386 (V), YUN 1950, at 384. See also R.E. Sanders, Spain and the United Nations, 1945-1950 (1966). 416 GA Res. 500 (V). 417 SC Res. 232 (1966). 418 See in particular SC Resolutions 253 (1968); 277 (1970); 333 (1973); 388 (1976); 409 (1977).

936

chapter ten

§1483

of the Security Council. Although most states prohibited trade with Southern Rhodesia,419 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 1979.420 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.421 This recommendation was followed by many similar recommendations. 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.422 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.423 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 military vehicles produced in South Africa.424 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).425

§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 imposed by the Security Council. Since 1990, this situation has changed.426 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.427 A distinction can be drawn between embargoes on the delivery of weap-

419 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 388, at 112-124; L.T. Kapungu, The United Nations and Economic Sanctions against Rhodesia (1973); Kuyper, op. cit. note 114; Gowlland-Debbas, op. cit. 114. 420 SC Res. 460 (1979). 421 GA Res. 1761 (XVII). See also Res. 1699 (XVI) against Portugal. 422 E.g. Res. 311 (1972). 423 Res. 418 (1977). 424 Res. 558 (1984). 425 Resolutions 566 (1985), 569 (1985), 591 (1986). 426 See on the development of UN Security Council economic sanctions since 1990: D. Cortright and G.A. Lopez, Reforming Sanctions, in D.M. Malone (ed.), The UN Security Council – From the Cold War to the 21st Century 167-179 (2004). 427 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 V. Gowlland-Debbas (ed.), United Nations sanctions and international law (2001).

§1483

supervision and sanctions

937

ons and/or petroleum and petroleum products, and more comprehensive sanctions.428 In some cases (Federal Republic of Yugoslavia, Libya, Haiti), sanctions that began as a limited embargo have gradually been extended to comprehensive sanctions. Only in the case of Iraq did the Security Council immediately introduce comprehensive economic sanctions. When comprehensive economic sanctions are imposed, supplies intended strictly for medical purposes and (under certain conditions) foodstuffs, are excluded from the sanctions. Once introduced, the sanctions remain in force either for a specifically indicated period of time, or until the Security Council decides to lift or suspend them.429 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’ sanctions.430 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,431 travel restrictions for leaders and/or senior officials,432 and the prohibition of the import of diamonds.433 In addition, the Security Council has decided that all states shall take a wide range of measures against terrorists,434 and against the Taliban and members of the Al-Qaida organization.435 While this development towards smart sanctions must be welcomed, it has also created new problems. For example, on the basis of Security Council Resolution 1267 and subsequent resolutions, all UN member states must apply financial sanctions (asset freezes) and other sanctions to specifically designated individuals and entities associated with Al-Qaida, Usama bin Laden and/or the Taliban. The names of these individuals and entities are included in a consolidated list.436 The decision to put these individuals and entities on this list is taken by the ‘1267 Sanctions Committee’, a subsidiary organ of the Security Council. However, some individuals included in this list have denied any connection to Al-Qaida, but have

428 Embargoes on the delivery of weapons: e.g. Resolutions 713 (1991; Yugoslavia), 733 (1992; Somalia), 788 (1992; Liberia), 1298 (2000; Eritrea and Ethiopia), 1556 and 1591 (2004 and 2005; Sudan), 1572 (2004; Côte d’Ivoire), 1807 (2008; DRC); 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). 429 See further M. Forteau, La levée et la suspension des sanctions internationals, 52 AFDI 57-84 (2005). 430 See M. Craven, Humanitarism and the Quest for Smarter Sanctions, 13 EJIL 43-61 (2002). 431 E.g. Res. 1054 (Sudan). 432 E.g. Res. 1127 (Angola); Res. 1970 (Libya). 433 E.g. Res. 1173 (Angola); Res. 1306 (Sierra Leone). 434 Res. 1373. 435 E.g. Resolutions 1267, 1333, 1390. 436 See www.un.org/sc/committees/1267/consolist.shtml (February 2011).

938

chapter ten

§1483

faced considerable difficulties in having their names removed from the list.437 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. This lack of judicial protection has rightly been noted as a major shortcoming, not only in academic writings,438 but also by the UN Secretary-General,439 by national courts440 and by the EU Court.441 Only in 2009 did the Security Council take a first step towards remedying this deficiency when it created the Ombudsperson.442 The Ombudsperson is independent. Appointed by the UN SecretaryGeneral, (s)he has to deal with request from listed individuals to be removed from the Al-Qaida sanctions list (‘delisting requests’). On the one hand, the creation of this Ombudsperson is a major step forward in this highly sensitive policy field. Seen against the background of the absence of the possibility of judicial review of decisions of the Security Council (see above, §599-601, §912), this is a remarkable development, even though the decisions in question are very specific decisions taken by a subsidiary organ of the Security Council. On the other hand, from a legal perspective, it is obvious that the creation of the Ombudsperson has not solved the judicial protection problem. The Ombudsperson only has the power to

437 See e.g. the Sayadi case, which was brought before the Human Rights Committee (Communication No. 1472/2006). See for the Views of the Human Rights Committee in this case UN Doc. CCPR/C/94/D/1472/2006. 438 See e.g. Farrall, op. cit. note 112; L. van den Herik, The Security Council’s Targeted Sanctions Regimes: In Need of Better Protection of the Individual, 20 LJIL 797-807 (2007); M. Bothe, Security Council’s Targeted Sanctions Against Presumed Terrorists: The Need to Comply with Human Rights Standards, 6 JICJ 541-555 (2008). See also B. Fassbender, Targeted Sanctions Imposed by the UN Security Council and Due Process Rights – A Study Commissioned by the UN Office of Legal Affairs and Follow-up by the United Nations, reproduced in 3 IOLR 437-485 (2006); T. Biersteker and S. Eckert, Addressing Challenges to Targeted Sanctions: An Update of the ‘Watson Report’ (October 2009). 439 Letter dated 15 June 2006 by UN Secretary-General Kofi Annan to the President of the Security Council. Attached to this letter is an informal paper. This paper is confidential, but its main conclusions are included in the statement by the UN Legal Counsel to the Security Council on 22 June 2006 (Fassbender, op. cit. note 438). The Legal Counsel stated, inter alia: “[s]uch a person has the right to review by an effective review mechanism. The effectiveness of this mechanism will depend on its impartiality, degree of independence, and ability to provide an effective remedy, including the lifting of the measure and/or, under specific conditions to be determined, compensation” (UN Doc. S/PV.5474, at 5); see also UNJY 2006, at 481-484. 440 E.g. the June 2009 judgment by a Canadian federal court in Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580, [2010] 1 F.C.R. 267, in which it was observed that “[t]he 1267 Committee regime is [. . .] a situation for a listed person not unlike that of Josef K. in Kafka’s The Trial, who awakes one morning and, for reasons never revealed to him or the reader, is arrested and prosecuted for an unspecified crime” (para. 53). 441 Joined Cases C-402/05 P (Kadi) & C-415/05 P (Al Barakaat), judgment of 3 September 2008, in which the Court observes that the de-listing procedure existing at the time “does not offer the guarantees of judicial protection” and “is still in essence diplomatic and intergovernmental” (paras. 322-323). On this judgment, see the wide variety of opinions in 5 IOLR 323-379 (2008) and in 6 IOLR 257-298 (2009); see also N. Blokker, Reviewing the Review: Did the European Court of Justice in Kadi Indirectly Review Security Council Resolutions? On the Downside of a Courageous Judgment, in M. Bulterman et al. (eds.), Views of European Law from the Mountain – Liber Amicorum Piet Jan Slot (2009), at 315-326. 442 SC Res. 1904.

§1484

supervision and sanctions

939

make (non-legally binding) “observations”.443 In addition, the functioning of the Ombudsperson is limited to the Al-Qaida sanctions. For other individual sanctions lists, requests for delisting continue to be decided by the same body that initially decided to put the individual concerned on the list (the relevant sanctions committee). This situation will continue to provoke criticism, both by academics and by national and international courts, as it is at variance with basic due process norms. Whether and to what extent further improvements will be made in these targeted sanctions regimes will mainly depend on the political will to maintain these instruments in the arsenal of measures of the Security Council, and to make the adaptations necessary to improve judicial protection. §1484 To supervise the implementation of economic sanctions, the Security Council usually establishes a committee consisting of all the members of the Council.444 Such sanction committees are charged, inter alia, with examining the reports submitted by all UN members on the measures taken to implement the sanctions, 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.445 §1485 Since the time of the League of Nations Covenant it has been 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.446 §1486 When 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

443

Id., Annex II, para. 7(c). See e.g. Resolutions 661 (Iraq), 748 (Libya), 751 (Somalia), 864 (Angola) and 1970 (Libya). 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). Two other case studies on UN sanctions committees are P. van Walsum, The Iraq Sanctions Committee, in D.M. Malone (ed.) op. cit. note 426, at 181-193, and D.J.R. Angell, The Angola Sanctions Committee, in id., at 195-204. 445 E.g. Resolutions 769 (UNPROFOR, former Yugoslavia), 866 (UNOMIL, Liberia), 1572 and 1933 (UNOCI, Côte d’Ivoire). 446 E.g. 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 427. 444

940

chapter ten

§1487

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.447 In practice, such enforcement of economic sanctions has been successful in stopping trade with the state in question.448 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 military action (see below, §1507-1508) or they may themselves mobilize military units. In the latter scenario, several problems may arise. First, there is the question of 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.449 Secondly, the question arises as to what law should be applied to such forces. In their internal relations it will be a question of criminal jurisdiction,450 whereas in their relations with others, the main concern 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 that bear the responsibility for their deployment, 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 suc-

447 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). 448 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. 449 L.B. Sohn, The Authority of the United Nations to establish and maintain a Permanent United Nations Force, 52 AJIL 229-240 (1958). 450 D.S. Wijewardane, Criminal Jurisdiction over visiting Forces with special Reference to International Forces, 41 BYIL (1965-66), at 122-197.

§1488

supervision and sanctions

941

ceed when the forces are headed by a commander with diplomatic skill, assisted by political advisors.451 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.452 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.453 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,454 whilst the territorial jurisdiction is exercised by the host state.455 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”.456 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

451 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. 452 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). 453 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). 454 According to the House of Lords, action can be brought against the British Crown for damages caused by British troops serving within UN forces, see Attorney-General v. Nissan, 11 Feb. 1969, 44 ILR (1972), at 360; according to a Belgian court, the UN may invoke immunity against similar claims, see M. v. UN and Belgium, 11 May 1966, 45 ILM (1972), at 447, 448, 455. 455 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). 456 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).

942

chapter ten

§1489

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).457

§1489 In August 1968, troops from several Warsaw Pact members (mainly the USSR) invaded Czechoslovakia.458 §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.459 §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.460 Apart from the contrasting values that the forces sought to protect, other differences between these 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.461 §1492 The League of Nations Covenant did not provide for any mechanism for military enforcement measures 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.462 The League Council was merely obliged to issue recommendations concerning military sanctions.463

457 OAS Res. of 6 May 1965. On the concept of an Interamerican Force, see G. Kutzner, Die Organisation der Amerikanischen Staaten (OAS) 212-223 (1970). 458 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). 459 On this force, see G. Feuer, La force arabe de sécurité au Liban, 22 AFDI 51-62 (1976). 460 For a comparison of both cases and for the arguments by which they were supported and attached, see Schmeltzer, op. cit. note 458, at 97-124. 461 Feuer, op. cit. note 459, at 61. 462 LoN Covenant, Art. 16.1. 463 LoN Covenant, Art. 16.2.

§1493

supervision and sanctions

943

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.464 §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”.465 The agreement or agreements were to be negotiated as soon as possible on the initiative of the Security Council.466 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.467 Thus, two inroads were made upon one of the core aspects of state sovereignty: the state’s monopoly of the use of force. First, 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 Secretary-General recommended that the Security Council initiate negotiations for the conclusion of

464 F. Seyersted, United Nations Forces 28-29 (1966). On military actions of the League of Nations, see also Karaosmanoğlu, op. cit. note 101, at 27-30. On the history of intergovernmental military forces, see Williams, op. cit. note 455, at 17-87. 465 UN Charter, Art. 43.1. 466 UN Charter, Art. 43.3. 467 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.

944

chapter ten

§1495

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.”468 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 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”.469 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.470 Another example was the UN Observer Group in Central America (1989-1991), with a maximum strength of 1098 men.471 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

468

UN Doc. A/47/277 (S/24111), at 12-13. Cf. also UN Doc. A/50/60. 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 102. 470 Stoessinger, op. cit. note 286, at 105. For the financing of UN forces, see above, §951-954. 471 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 102, at 436-462. 469

§1496

supervision and sanctions

945

is the result of the more limited task of these “soldiers without enemies”.472 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. §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.473 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.474 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 that 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.475

The experience with UNEF I formed the basis for a report by the Secretary-General of the UN that greatly influenced the establishment of other UN forces.476 UNEF I operated on Egyptian territory with the permission of the Egyptian government.477 The Secretary-General of the UN withdrew the Force and actually dissolved it when (on 17 May 1967) the Egyptian president revoked the consent to have the forces stay on Egyptian territory.478

472

This is the title of a book by L.L. Fabian published in 1971. 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 464; 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 Peace-Keeping 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 471, at 43-78; M. Ghali, United Nations Emergency Force I, in Durch, op. cit. note 102, at 104-130. 474 For the composition of UNEF I, see The Blue Helmets, op. cit. note 471, at 56-57. 475 GA Res. 1001 (ES-1). 476 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. 477 For the agreement between the UN and Egypt, see 260 UNTS, at 62. 478 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 473, Vol. I, at 335-367; 473

946

chapter ten

§1497

§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 1964.479 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 peacekeeping forces in at least two respects. Firstly, 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 a number of decades proves that a peacekeeping 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.480 §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.481 UNEF II was an entirely new force, not a revival of UNEF I.482 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,483 but after the creation of the United Nations Disengagement Observer Force for the Golan Heights this number was reduced to just over 4,000.484 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 1973.485 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

YUN 1967, at 162-174; UNJY 1967, at 87-107; Y. Tandon, UNEF, the Secretary-General and the International Diplomacy in the Third Arab-Israeli War, 22 International Organization 529-556 (1968). 479 See The Blue Helmets, op. cit. note 471, at 213-259; G. Abi-Saab, The United Nations Operation in the Congo, 1960-1964 (1978); Higgins, op. cit. note 473, Vol.III (1980); W.J. Durch, The UN Operation in the Congo: 1960-1964, in Durch, op. cit. note 102, at 315-352. 480 See on UNFICYP Higgins, op. cit. note 473, Vol. IV, at 77-411; The Blue Helmets, op. cit. note 471, at 213-259. 481 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 471, at 79-98; M. Ghali, United Nations Emergency Force II: 19731979, in Durch, op. cit. note 102, at 131-151. 482 See UNJY 1974, at 159. 483 In February 1974, see YUN 1974, at 191. 484 YUN 1975, at 208; YUN 1976, at 214. 485 YUN 1973, at 213.

§1500

supervision and sanctions

947

between Israel and Syria of the same date, called for by Security Council Resolution 338 (1973).486 UNDOF also supervises the disengagement agreement with regard to areas of separation and limitations of armaments and forces.487 The maximum authorized strength of UNDOF is 1,450 men.488 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.”489 The maximum authorized strength of UNIFIL is 7,000 troops.490 A French contingent formed an important part of this peace-keeping 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.491 A number of observer missions were created,492 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.493

486 See on UNDOF The Blue Helmets, op. cit. note 471, at 99-110; M. Ghali, United Nations Disengagement Observer Force, in Durch, op. cit. note 102, at 152-162. 487 YUN 1974, at 189. 488 The Blue Helmets, op. cit. note 471, at 425. 489 SC Res. 425 (1978). 490 The Blue Helmets, op. cit. note 471, at 427; in practice UNIFIL’s strength was between 5000 and 6000 men. 491 See D.M. Malone (ed.), op. cit. note 426. 492 E.g. 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). 493 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 429434 (1993); J. Delbrück (ed.), op. cit. note 469; 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, Peacekeeping or Peace-making?, in Blokker and Muller, op. cit. note 1, at 29-47; D.M. Malone (ed.), op. cit. note 426, in particular at 391-588.

948

chapter ten

§1502

§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.494 Subsequently, the UN Transitional Authority in Cambodia (1992-1993),495 the UN Operation in Mozambique (1992-1995),496 the UN operations in Haiti (since 1993),497 the UN Assistance Mission for Rwanda (1993-1996),498 and in particular UN operations such as those 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; MONUSCO, created in 2010), East Timor (UNTAET (1999-2002) and UNMISET (created in 2002)), Liberia (UNMIL, created in 2003), the Sudan (UNMIS, created in 2005; UNAMID, created in 2007), and in the Central African Republic and Chad (MINURCAT, created in 2007) were given mandates that far surpassed those of the earlier forces.499 §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 types of problems encountered: UNPROFOR and UNOSOM. These differences become clear if the most important tasks of these forces are considered. UNPROFOR had to control the so-called UN Protected Areas in Croatia (then occupied by Serbia). 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 Srebrenica genocide of July 1995 showed the limits of this response 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

494

SC Resolutions 435 (1978) and 629 (1989). SC Res. 745 (1992). 496 SC Res. 797 (1992). 497 SC Res. 867 (1993) and subsequent resolutions. 498 SC Res. 872 (1993). 499 UNPROFOR was created in SC Res. 743 (1992), but most of its tasks were given in subsequent resolutions, in response to developments on the ground. 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. UNMIL: Res. 1509. UNMIS: Res. 1590. UNAMID: Res. 1769. MINURCAT: Resolutions 1778 and 1861. 495

§1504

supervision and sanctions

949

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”.500 §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 mine-clearing and to assist in the repatriation of refugees and displaced persons.501 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”.502 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 abovementioned basic differences between their mandates. The original requirement of host state consent to the presence of UN troops on its territory has not always been insisted upon in more recent missions.503 Furthermore, there is more scope than before for the use of force by some UN forces. In addition, while the permanent members of the Security Council

500 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). 501 UN Doc. S/25354, SC Res. 814 (1993). 502 SC Res. 954 (1994). 503 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.

950

chapter ten

§1506

were generally absent in the forces of the Cold War era,504 to avoid any involvement of these powers in the conflict, they participate fully in the more recent peace-keeping operations.505 In general, the strict separation in earlier operations between neutral peace-keeping and enforcement action has become blurred. This development is reflected in the “operational principles” for UN peace-keeping 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”.506 §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.507 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 that has acted in a way inconsistent with the aims of the organization.508 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.509

§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).510

504 Exceptions are the participation of the United Kingdom in UNFICYP and the participation of France in UNIFIL. 505 In the future, this development might have consequences for the financing of peacekeeping forces. While earlier, the non-participation of the permanent members justified the very large share they pay in the budgets of these forces, this justification now ceases to exist. 506 UN Doc. S/25859, at 1. 507 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; F. Berman, The Authorization Model: Resolution 678 and Its Effects, in D.M. Malone (ed.), op. cit. note 426, at 153-165. 508 See M. Akehurst, Enforcement Action by Regional Agencies with special reference to the Organization of American States, 42 BYIL 175-227 (1967). 509 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). 510 See also Chayes and Chayes, op. cit. note 2, at 34-67.

§1508

supervision and sanctions

951

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”.511 In a later resolution of 7 July 1950,512 the Security Council (still without the Soviet Union being present) welcomed the prompt and vigorous support that 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. Therefore, the Security Council did not establish a unified command by the UN, but recommended a unified command under the US. As the UN Secretariat later indicated, “the operation was not in fact under the control of the United Nations”, and “there was no direct involvement of the United Nations in the military operations”.513 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 in 1990-1991.514 Almost four months after 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”. This resolution was different from the Korea resolution. All permanent members of the Security Council were present when the resolution was adopted, 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.515

511 See Publications No. 26, 31, 35 and 38 of the Netherlands Ministry of Foreign Affairs; Seyersted, op. cit. note 464; Bowett, op. cit. note 473; 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 151312; UNJY 2003, at 553-555. 512 Publication No. 26 of the Netherlands Ministry of Foreign Affairs, at 71. 513 UNJY 2004, at 363-364. 514 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). 515 As was also observed by the UN Secretariat in an internal memo written in 2003: “[t]he Korean operation is, therefore, no different than other enforcement actions later authorized by the Council, and notably the Unified Task Force (UNITAF) in Somalia, Desert Storm in Iraq, and Operation Turquoise in Rwanda. As an authorized operation, it was not conducted under United Nations command and control (notwithstanding its name); it did not constitute a United Nations subsidiary organ, and was not funded by the United Nations budget” (UNJY 2003, at 553-555 (para. 4)).

952

chapter ten

§1509

While the 1990-1991 enforcement action against Iraq had broad support and was legally relatively uncontroversial, the opposite is true for the 2003 military invasion of Iraq carried out by (in particular) the US and the UK, and supported by a number of other countries. Those in favour of this invasion claimed that it was mainly based on Resolutions 678, 687 and 1441 of the Security Council, and that no specific further resolution was required before military force could be used. Those against the invasion claimed that such a further ‘authorization’ resolution was required.516 Over the course of time, an overwhelming amount of support has been given to the latter point of view, inter alia by UN Secretary-General Kofi Annan.517 Therefore, while for this 2003 military operation the ‘authorization model’ was used as well, it became clear how much it needs a solid, generallysupported authorization. Without such an authorization this far-reaching sanction of military enforcement action lacks legitimacy. The organization’s authority is undermined, and member states supporting the operation may face severe political difficulties at home.518 Following the deep disagreement over the 2003 invasion in Iraq, in the UN a process of healing took place through the creation of the Highlevel Panel on Threats, Challenges and Change, the presentation in March 2005 of the “In Larger Freedom” report by the Secretary-General, and the September 2005 Summit Outcome Document. The report of the High-level Panel and the subsequent report by Secretary-General Kofi Annan both emphasized that “[t]he task is not to find alternatives to the Security Council as a source of authority but to make the Council work better than it has”.519 In the “World Summit Outcome” Resolution adopted by the General Assembly in September 2005, heads of state and government of the member states reaffirmed their commitment to multilateralism, international law, the rules of the UN Charter, and “the authority of the Security Council to mandate coercive action to maintain and restore international peace and security”; they also reaffirmed “that the relevant provisions of the Charter are sufficient to address the full range of threats to international peace and security”.520 §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”.521

516 There is a wealth of publications on this issue. For a number of diverging views, see the contributions to Agora: Future Implications of the Iraq Conflict, 97 AJIL (2003), at 553-642 and 803-872, and also various contributions to N. Blokker and N. Schrijver (eds.), The Security Council and the Use of Force – Theory and Reality – A Need for Change? (2005). 517 In an interview with the BBC World Service on 16 September 2004, see R. Zacklin, The United Nations Secretariat and the Use of Force in a Unipolar World – Power v. Principle (2010), at 1. 518 See e.g. the Chilcot inquiry in the UK and the Davids Report in the Netherlands. 519 A More Secure World: Our Shared Responsibility (report of the High-level Panel on Threats, Challenges and Change), UN Doc. A/59/565, para. 198; In Larger Freedom (report of the Secretary-General, March 2005), UN Doc. A/59/2005, para. 126. 520 GA Res. 60/1 (quotations from para. 79). 521 SC Res. 794 (1992).

§1510

supervision and sanctions

953

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 was 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 that would be available to the Security Council on a permanent basis, to be used “on its call”.522 As in the case of the model “Charter force”, but in contrast to the Korea and Iraq operations, in the case of UNOSOM II the organization was carrying out its own operation. In the Korea and Iraq operations, the UN had hardly any control over the operation, since it gave a very broad mandate to the members concerned. In the case of Somalia however, it was 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. For example, 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.523 §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” to conduct a relief operation.524 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 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

522

Art. 43.1. W.J. Durch, Peacekeeping in Uncharted Territory, in Durch, op. cit. note 102, 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). 524 SC Res. 929 (1994). 523

954

chapter ten

§1512

Agreement”.525 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 by the Security Council 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”.526 In addition, the years following the end of the Cold War have demonstrated that military enforcement action needs a solid legal basis and must be carried out in accordance with international law. The need for a solid legal basis was illustrated by the Iraq episode (see above, §1508). The need for military sanctions, as well as military operations by international organizations in general, to be implemented in accordance with international law was underlined in the context of a number of reports that UN peacekeepers have engaged in what is called (in UN language) ‘sexual exploitation and abuse’.527 Occasionally, such misconduct also took place in Cold War peacekeeping operations, but it has only been addressed systematically in recent years. The item “Criminal accountability of United Nations officials and experts on mission” is now on the agenda of the General Assembly. A group of legal experts528 has made a number of recommendations, including the recommendation to draw up a new convention to enable states to establish jurisdiction over the relevant crimes.529 The alleged perpetrators usually enjoy immunity from jurisdiction in the host state. Usually the organization will be reluctant to waive immunity in these cases to enable the host state to exercise jurisdiction, as the preconditions for a fair trial may not exist countries where peacekeeping is necessary. It is therefore required – in the absence of criminal jurisdiction of international organizations – that either the troop contributing country concerned or a third state exercises jurisdiction. These cases of misconduct must be taken seriously in order not to tarnish the reputation of peacekeeping, make it ineffective, and harm the legitimacy and authority of the organization.

525

SC Res. 940 (1994). Zemanek, op. cit. note 493, at 46. 527 See e.g. UN Doc. A/59/710. 528 Established by the Secretary-General pursuant to GA Res. 59/300. 529 UN Doc. A/60/980 (Annex III contains a draft text for such a convention). See also UN Doc. A/64/183. 526

§1513

supervision and sanctions

955

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 that sold more than their quota were ‘punished’ by a reduction of their next quota.530 They could also be compelled to sell into a buffer stock,531 a quantity that was counted against their next quota and which could be up to double that of the excess.532 These are interesting sanctions, the nature of which is similar to that of the misconduct concerned. §1514 But the most interesting recent developments in this field have taken place within the European Union.533 Traditionally, there were few means of enforcing judgments of the Court of Justice.534 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 (now EU) 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/EU obligation, but a new violation of EC/EU law, namely the refusal to take the necessary measures to comply with the earlier judgment (an obligation now contained in Article 260 TFEU). This ‘follow-up’ procedure was scarcely used in the early days, when judgments were generally complied with. This has, however, gradually changed in the face of increasing failure to implement judgments.535 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.536 Apparently, being charged under this ‘follow-up’ 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 (now EU) law that the member states are obliged to pay compensation for harm caused to individuals by breaches of Community

530 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. 531 E.g. International Cocoa Agreement 1975, Art. 35 (5); 6th International Tin Agreement (1981), Art. 36. 532 International Cocoa Agreement 1975, Art. 35 (6). 533 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. 534 The most far-reaching possibilities for enforcement were to be found in the ECSC Treaty, Art. 88. Under this provision, the High Authority of the ECSC could “take measures” against a member that failed to fulfil its obligations. This sanction has never been applied. 535 See for a specific example OJ 1988, C 160/3. See above, §1442. 536 See above, §1442.

956

chapter ten

§1516

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.537 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 EU 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 EU obligations.538 Following its Bonifaci/Francovich judgment, the 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 generally in the case of any infringement of EC law.539 Subsequently the Court has further developed and refined this case-law.540 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.541 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 European Court has formulated some minimum conditions that must be fulfilled in any case 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 260 TFEU, 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”.542 The Court may then impose a lump sum or penalty payment.

537

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 EU obligation will result in damages for individuals. 539 Cases C-46/93 and C-48/93, Brasserie du Pêcheur v. Germany and Factortame, ECR 1996, at I-1029. 540 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). 541 See further T. Tridimas, Liability for Breach of Community Law: growing up and mellowing down?, 38 CMLRev. 301-332 (2001). 542 The Treaty of Lisbon also created the possibility for the Commission to immediately request the Court to impose a lump sum or penalty payment (without first seeking a judgment that the member state has not complied with its obligations under the Treaties), in the specific case in 538

§1516

supervision and sanctions

957

The final decision on the imposition of these financial sanctions is taken by the EU Court, but the European Commission – as guardian of the Treaties – initiates the Article 260 procedure. The European Commission has issued a number of communications on the application of this provision.543 Originally 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”.544 However, in its 2005 judgment in the Fisheries Control case, the Court observed that the two financial sanctions serve different aims. The aim of the penalty payment is to stop the breach of obligations as soon as possible, while the lump sum should prevent similar infringements in the future. Therefore, because of their complementary role, simultaneous recourse to these two types of financial sanctions is not precluded, “in particular where the breach of obligations both has continued for a long period and is inclined to persist”.545 In its 2005 Communication, the Commission followed this approach and indicated that from then on it would include in its applications to the Court under Article 260 “a specification of a penalty by day of delay after the delivery of the judgment . . ., and a lump sum penalising the continuation of the infringement between the first judgment on non-compliance and the judgment delivered under Article [260]”.546 The amount of the financial sanction 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.547 The amount of the penalty payment is calculated as follows. A uniform base sum is used (as at February 2011: €640 per day), which is applicable to all kinds of infringements.548 This sum is multiplied by two coefficients that take into account both the seriousness of the infringement and its duration, and by an invariable factor for each member state (the “n” factor), which takes into account the capacity of the member state to pay and the number of votes it has in the Council.549 As at February 2011, the n factor for Malta is 0.33; for Luxembourg 1.00; and for Germany it is 21.44.550 A simulation by the Commission has demonstrated that these calculations may result in penalty payments proposed by the Commission ranging from (now) €640 per day for Luxembourg to €791,293 per day for Germany.551 The daily

which a member state has failed to fulfil its obligation to notify measures transposing a directive under a legislative procedure (Art. 260.3 TFEU). See the Communication from the Commission, “Implementation of Article 260(3) of the Treaty”, OJ 2011, C12/1, explaining how the Commission will make use of this new provision. 543 OJ 1996, C 242/6; OJ 1997, C 63/2-4 (method for calculating the penalty payment); EU Doc. SEC(2005)1658 (replacing the 1996 and 1997 Communications); EU Doc. SEC(2010)923/9 (updating the data used to calculate lump sums and penalty payments). See also Schermers and Waelbroeck, op. cit. note 245, at 638-640. 544 1996 Communication, para. 4 (italics in the original ); 2005 Communication, para. 10. 545 Case C-304/02 Commission v. France (Fisheries Control), ECR 2005, at I-6263, paras. 81-82. 546 2005 Communication, para. 10.3. 547 1996 Communication., paras. 5-8; 2005 Communication, para. 6. 548 2005 Communication, para. 15; 2010 Communication, at 4. 549 2005 Communication, para. 14 and paras. 16-18. 550 2010 Communication, at 4. 551 Europe No. 6888, at 9.

958

chapter ten

§1517

amount of the lump sum is calculated in a way broadly similar to that for calculating the penalty payment:552 a minimum lump sum has been set for each member state, for example for Malta it is €174.000, for Luxembourg it is €528.000, and for Germany it is €11.3 million.553 By mid 2009, the Court had decided more than ten cases in which financial sanctions against the member states were ordered.554 §1517 The creation of these two new possibilities to stimulate member states to comply with their EC (now EU) 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 the principle of sincere cooperation (now in Article 4.3 TEU). Nor is it surprising that this judgment has been criticized for lack of motivation.555 The judgment was well-timed, occurring as it did during a period of, on the one hand, increasing instances 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 also in particular because member states themselves (especially the United Kingdom) took the initiative for adding this sanction to the limited existing avenues of enforcing Community law.556 Is this just sheer masochism of 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? It may be interesting to examine national legal orders more closely for possible sources of power to enforce international legal rules.

552

2005 Communication, para. 23. 2005 Communication, para. 20. 2010 Communication, at 5. 554 The first case was Case 387/97, Commission v. Greece, ECR 2000, at I-5047. In this case the Commission proposed a penalty payment of €24, 600 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 in penalty payments. See the 19th annual report on monitoring the application of Community law (2001), EU Doc. COM (2003)324, para. 1.7. See on the more recent case law Prete and Smulders, op. cit. note 260, at 50-55. 555 See for example G. Bebr, Annotation of the Bonifaci/Francovich judgment, in 29 CMLRev. 557 (1992); Weatherill and Beaumont, op. cit. note 540, at 424-425. 556 See C.W.A. Timmermans, op. cit. note 260. 553

§1519

supervision and sanctions

959

When sanctions are needed against individuals, international organizations frequently call upon their members for help. A good example is the execution of UN economic sanctions. As violations of economic sanctions will normally be committed by private individuals, it is against individuals that action must be taken. Some states enforce sanctions 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.557

§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 assist in such enforcement? In international relations, state sovereignty and the unity of states can sometimes be overemphasized. States are sometimes held responsible for all acts of state organs, 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, the 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 do 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 discrepancies 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 that 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

557 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 114.

960

chapter ten

§1521

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 that have been undertaken. In law, the mere risk of non-fulfilment 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 dependent on electoral support, any public debate means pressure is available to encourage the government to meet its 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.558 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 that lacks government support.559 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). Another situation in which national parliaments could be used to promote compliance with international obligations relates to the execution of judgments of the European Court of Human Rights. It has been demonstrated that states “with strong implementation records are regularly characterized by active involvement of parliamentary actors in the execution process”. Within the Parliamentary Assembly of the Council of Europe, it has therefore been suggested “to strengthen the role of national parliaments in the implementation of Strasbourg Court judgments”.560

558 559 560

ILO, Art. 19, para. 5(b), see above, §1285, §1402-1404. J.E. Howard, Parliament and Foreign Policy in France 126-127 (1948). Parliamentary Assembly Doc. AS/Jur(2009) 36 (quotations at 7).

§1522

supervision and sanctions

961

2. Enforcement through national courts561 a. Should national courts apply rules of international law? (i) Monist and dualist theories §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.562 The ICAO decided in 1977 to publish national case-law on the conventions on private international air law.563 The provision of information by international organizations to domestic courts usually poses no problems.564

§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: 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 an action against his government, could he then do so on the ground that his government had violated an international

561 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 345, 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); A. Nollkaemper, National Courts and the International Rule of Law (2011); A. Roberts, Comparative International Law? The Role of National Courts in Creating and Enforcing International Law, 60 ICLQ 57-92 (2011). 562 See J. Gold in Staff Papers; the Office of Legal Affairs of the UN in UNJY. 563 R.H. Mankiewicz, L’Organisation de l’Aviation Civile Internationale, 23 AFDI 641-642 (1977). 564 P. Wendt, Auskunftsplicht von Organen der Europäischen Gemeinschaften gegenüber nationalen Gerichten und Marktbürgern, 16 AWD 485-486 (1970).

962

chapter ten

§1524

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,565 the rules developed within international law will apply. §1524 National constitutions differ greatly in this respect. The Irish constitution, for example, 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.566 In the absence of such express constitutional provision, other states also follow the same rule.567 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).568 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 (self-executing provisions). National laws, either prior or subsequent to them, may not be applied in so far as they are incompatible with such international rules.569 Many other states follow the same practice.570 §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 that are generally binding. However vague they may sometimes be, certain basic legal rules bind states as well as 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 that can be accepted as generally binding is the rule that the law of the whole takes

565 K. Skubiszewski, Resolutions of International Organizations and Municipal Law, 2 PYIL 80-108 (1968/69), at 81. 566 Constitution of Ireland, Art. 15, para. (2)1; Art. 29, para. 6. 567 E.g. the UK, and the Commonwealth and Scandinavian countries. 568 See V. Leary, International Labour Conventions and National Law 2 (1982). 569 Constitution of the Netherlands, Arts. 93-94. 570 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.

§1527

supervision and sanctions

963

priority over the law of its constituent parts.571 Binding rules of international law prevail over national laws.572 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 dualist 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, such as 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 the effective domestic implementation of treaties.573 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.574 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 that incorporates the treaty into national law. The result of this general transformation comes very close to the monist system: as soon

571 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). 572 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). 573 As has convincingly been demonstrated by Leary, op. cit. note 568, in 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). 574 See also A. Bleckmann, Begriff und Kriterien der innerstaatlichen Anwendbarkeit völkerrechtlicher Verträge (1970), with an extensive survey of literature (at 322-333).

964

chapter ten

§1529

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”.575 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 that 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 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

575

US Court of Appeals, 31 Oct. 1972, 11 ILM 1258 (1972).

§1530

supervision and sanctions

965

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. National courts are not objective, and are not perceived to be objective, when it comes to judging whether the state concerned has acted in conformity with international law, including the law of international organizations. As Nollkaemper has written: “Perhaps the most significant theoretical as well as practical barrier against considering national courts as a systemic force in the protection of the international rule of law is that national courts are an organ of the very states whose acts and omissions they are to control”.576 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 8, Section 2(b) (see above, §1384)). The District Court held:577 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 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

576 577

Nollkaemper, op. cit. note 561, at 299. N.J. 1965, No. 22; 13 Ned. TIR 61 (1969); Gold, 14 Staff Papers 393 (1967).

966

chapter ten

§1531

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:578 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. But it may be doubted whether Article 8, 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 EU 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.579 Even under difficult circumstances, enforcement of international rules by the national courts is probably to be pre-

578

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 on Human Rights in Eastern and Western Europe (1993). For the application of EC/EU 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. 579

§1532

supervision and sanctions

967

ferred to enforcement by the national executive, since governments are even more vulnerable to political pressure and public opinion. §1532 (3) Even if they are 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 EU law. EU law provides that regulations be directly applicable in each member state, thus dispensing with transposition. It 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 EU Court. The national courts adjudicate the cases brought before them. On all questions of EU law, they may ask for a preliminary ruling from the EU Court and in the last instance are even obliged to do so (see above, §1374). In its preliminary rulings, the EU Court answers the questions referred to it, thus interpreting the rules of EU 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 promoting the international legal order. Although it may be haphazard and pluriform, the strengthening of international legal rules that flows from national enforcement 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 that 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.580

580 See H. Rolin, Le contrôle international des juridictions nationales, 3 RBDI 1-23 (1967) and 160-206 (1968).

968

chapter ten

§1534

§1534 The dualist theory led to problems, particularly 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. Through the 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.581 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.582

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.583

§1535 Of the six original members of the European Communities, Germany and Italy are the only states that have traditionally been dualist. Conformity with the legal order of the Communities has thus been more difficult for these two states

581 See L. Constantinesco, Effets et rang des traits et du droit communautaire en droit français, Rivista di diritto europeo 259-301 (1968). 582 Civil Court of Brussels, 8 No. 1966, JT 685-687 (1966). 583 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.

§1535

supervision and sanctions

969

than for the others.584 Younger members of the European Communities and of the European Union with a dualist tradition, and all the dualist states in other international organizations that are able to make binding rules of law, meet the same difficulties. The European Court of Justice 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 that case before the Justice of the Peace in Milan, a conflict arose between the treaty establishing the EEC 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 Article 37 TFEU] , 53 [now repealed], 93 [now Article 108 TFEU] and 102 [now Article 117 TFEU] 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: 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.585 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.586 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

584 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 Kapteyn & VerLoren van Themaat, The Law of the European Union and the European Communities (4th rev. ed., edited by P.J.G. Kapteyn et al., 2008), at 71-82. 585 Constitution of Italy, Art. 11. 586 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.

970

chapter ten

§1536

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 [now Article 267 TFEU]. 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 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 Article 4.3 TEU] and giving rise to the discrimination prohibited by Article 7 [now Article 18 TFEU]. 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 Article 288 TFEU] , 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 Article 267 TFEU] is to be applied regardless of any domestic law, whenever questions relating to the interpretation of the Treaty arise.587

§1536 In the Van Gend en Loos case, it had been disputed before the Court of Justice whether a domestic court would be entitled to ask for a preliminary ruling

587 Case 6/64, Costa-ENEL, ECR 1964, at 593-594. See also the Declaration concerning primacy (Declaration No. 17) annexed to the Final Act of the 2007 Treaty of Lisbon.

§1537

supervision and sanctions

971

implying an answer to the question whether a member state had fulfilled its obligations. The Court of Justice decided this question in the affirmative. Since there is a special procedure to deal with defaulting members,588 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 Article 267 TFEU] empowered the Court to give an interpretation only – it could not render an opinion on the application of the Treaty. The Court held, however: In addition the argument based on Articles 169 and 170 of the Treaty [now Articles 258 and 259 TFEU] 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 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 Article 30 TFEU] 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.589 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 the preliminary rulings procedure 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.590

588

TFEU, Arts. 258, 259. 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 561566 (1970). 589 590

972

chapter ten

§1538

The Andean Court of Justice has held, in initial preliminary rulings, that Andean community law takes precedence over national law, and referred to the CostaENEL case of the European Court.591 (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 that 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.592 The clearest example is offered by the European Union, 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 that 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.593 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.594

§1539 Several national courts have taken decisions based on Article 8, Section 2(b) of the IMF.595 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.596 Conflicts between IMF provisions and subsequent national laws are unlikely

591

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. IMF Art. 8, Section 2(b). See also above, §1384. 594 Proceedings and documents of the United Nations Monetary and Financial Conference, Department of State Publication 2866 (1948), at 230, 334, 502, 576. 595 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. 596 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 595, 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 291-292 592 593

§1540

supervision and sanctions

973

to occur, since there will be no national legislation on the exchange control of foreign states. But conflicts with general national legislation are possible. In its decision of 2 July 1958,597 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 8, 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 8, 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 when it is willing to apply the international rules.

§1540 Apart from articles of the constitutions of the European Union and Article 8 (2)(b) of the IMF, there are some articles of the GATT that could be applied directly within the national legal orders of the member states. Article 3, which prohibits discrimination, has been applied in several judgments of the Italian Supreme Court (Corte di Cassazione) and of several American courts,598 but application has been refused by some German courts. The same applies to Article 2 para. 1(b), which prohibits increases in customs duties; Article 8, which limits fees to the costs of the services for which they are charged; and Article 11, 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.599

(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 greater 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.

(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). 597 Juristische Blätter 73-74 (1959); Gold, op. cit. note 595, at 109 ff. 598 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. 599 Sacerdoti, op. cit. note 598, at 232.

974

chapter ten

§1542

§1542 The European Union is the most important international organization that takes binding decisions suitable for direct application by national courts. EU institutions can issue regulations that are binding in their entirety and directly applicable in all member states.600 The Commission, the Council and the European Parliament jointly with 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 288 TFEU], 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.601

§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 that impose 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.602

600

TFEU, Art. 288. Case 17/67, Neumann, ECR 1967, at 453; see also Case 39/72, Premiums for slaughtering cows, ECR 1973, at 114. 602 See Kuyper, op. cit. note 114, at 75-76; Gowlland-Debbas, op. cit. note 114, at 558-559, 570. 601

§1544

supervision and sanctions

975

One example of such direct effect is the implementation of the UN economic sanctions against Rhodesia.603 Before any national laws were issued, the government of Cameroon applied the sanctions to a ship carrying Rhodesian tobacco.604 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.605 Consequently, the date of entry into force varied widely among the members of the UN.606 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 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.607 However, most IMF members have not formally given Article XXIX force of law.608 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 18 of the above Agreement [–now Article XXIX–], the Fund has interpreted the meaning and purpose of Article VIII, Section 2(b) as follows . . .”,609 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.610 Gold presumes that the reason for the absence of any reference to the interpretation is the question which this would raise of the effect of IMF interpretations under English law.611

603 See in particular SC Resolutions 232 (1966), 253 (1968), and 277 (1970). On their application, see Kuyper, op. cit. note 114. 604 UN Doc. S/7781, Annex 2, at 6. 605 Chile S/8786/Add. 5, at 9-12; Venezuela S/8786/Add. 3, at 9-11. 606 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. 607 Hexner in 53 AJIL (1959), at 364-365. 608 Id., at 354. 609 Tribunal d’Arrondissement de Luxembourg, 1 February 1956 (Pasicrie Luxembourgeoise 36-39 (1957)), translation by Gold, op. cit. note 595, at 95. 610 Decision of 5 October 1966, 3 WLR 1285 (1966); 3 Wa 11 ER (1966) (Gold, 14 Staff Papers 380-387 (1967)). 611 Id., at 382-383. See also F.A. Mann, Bretton Woods Agreements in English Courts, 16 ICLQ 539-542 (1967).

976

chapter ten

§1545

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 that 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 who legitimately expect 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 that 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 Union 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?612 The EU Court has accepted that individuals have the right to invoke before national courts all rules of EU law that 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.613 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 articles that prohibited states from introducing new import duties614 and from imposing any internal taxation on the products of other member states in excess of that imposed on similar domestic products.615 In principle, individuals may not only invoke provisions of the

612

Cf. PCIJ Series B, No. 15, at 17-18 (1928). See Schermers and Waelbroeck, op. cit. note 245, at 176-192. 614 TFEU, Art. 30. Case 26/62, Van Gend en Loos, ECR 1963, at 13. 615 TFEU, Art. 110. 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). 613

§1547

supervision and sanctions

977

Treaties and regulations but also those of directives and decisions that produce direct effects.616 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 (what is now) Article 110 of the TFEU. 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).617 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 European Court of Justice had decided that (what is now) Article 110 of the TFEU (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.618 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 Rhodesia.619 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

616 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, Does Direct Effect Still Matter?, 37 CMLRev. 1047-1069 (2000); S. Prechal, Directives in EC Law (2nd ed. 2005). For decisions addressed to others than the plaintiff, see Case 9/70, Grad, ECR 1970, at 837. 617 GATT, Art. III.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 598, at 244-247. 618 14 AWD 241 (1968). 619 SC Res. 232 (1966).

978

chapter ten

§1548

in the national courts of other states.620 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.621 As the Namibia Council had been recognized by the UN as the only legitimate representative of Namibia, it thus created the possibility of suing companies that violated the trade prohibition before the national courts of all states.622 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.623 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 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 need for sanctions to be imposed. States are usually responsible for ensuring that their citizens obey international rules, and indeed states sometimes 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 that 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.624 Nevertheless, punishment by national authorities is only an indirect sanction, the application of

620 E. Lauterpacht, Implementations of Decisions of International Organizations through National Courts, in Schwebel, op. cit. note 10, at 57-65 and 507-512. 621 Namibia Decree No. 1, GAOR 29, Suppl. 24 A (UN Doc. A/9624/ Add. 1), at 27-28. 622 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). 623 See N.J. Schrijver, The UN Council for Namibia vs. Urenco, UCN and the State of The Netherlands, 1 LJIL 25-47 (1988). 624 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

§1550

supervision and sanctions

979

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,625 warning,626 withdrawal of support of the organization,627 withdrawal of support by all members of the organization628 and fines.629 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 such ships. The inspecting state thus often acts as the agent of the collective interest.630 §1551 The most important sanction 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.631 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.632 The International Sanitary Council, established in Alexandria at the end of the 19th century, could fine ships that failed to apply the prescribed measures for quarantine.633 Both organizations have ceased to exist, but they proved that sanctions against individuals could be effective.

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. 625 EFTA, Art. 14.2. 626 Euratom, Art. 83.1a. 627 Euratom, Art. 83.1b, d. 628 ICAO, Art. 87. 629 TFEU, Art. 261; ECSC, Art. 36; 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 10, at 353. 630 C.H. Alexandrowicz, The Law-Making Functions of the Specialized Agencies of the United Nations 113 (1973). 631 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). 632 François, op. cit. note 215, at 1035-1041. 633 P. Sands and P. Klein, Bowett’s Law of International Institutions (6th ed. 2009), at 7.

980

chapter ten

§1552

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”.634 The European Union 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.635 Since 1979 fines over one million euro are no longer rare.636 In 1998 the European Commission published guidelines for the application of fines in the area of competition law.637

§1552 In the European Union, the fines are imposed by the European Commission after it has heard the person or enterprise concerned. It may seem objectionable for the organ that 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 EU Court. 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.638

VI. Concluding observations639 §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

634

Orrego Vicuña, op. cit. note 89, at 170. Schermers and Waelbroeck, op. cit. note 245, at 582-583. 636 E.g., 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 in the soda ash market. See Europe, 21 December 1990, at 11. It also imposed a fine of ECU 102 million on Volkswagen for restrictions on parallel imports (see Schermers and Waelbroeck, op. cit. note 245, at 583). 637 OJ 1998, C9/3. 638 See Kapteyn and VerLoren van Themaat, op. cit. note 584, at 831; Schermers and Waelbroeck, op. cit. note 245, 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). 639 These observations are partly taken from Blokker and Muller, op. cit. note 1, at 275-311. 635

§1554

supervision and sanctions

981

also applies to the 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 international society than in the domestic legal order. The notion of state sovereignty explains the reluctance displayed by states to accept the idea of a higher authority supervising whether they have complied with the 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 the highest authority itself (suprema potestas). This tension explains some of the strained supervision procedures that have been created within international organizations to promote rule compliance. Why is it necessary, within the ILO, 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, within the WTO, are international trade disputes first dealt with by ad hoc panels (partly composed of governmental members, albeit serving in their individual capacities), whose final reports are not res judicata but have to be adopted by an organ consisting of government representatives (which can only reject it by consensus)? Why does the election of judges of international courts and tribunals often involve 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 member states. As has been shown in this chapter, the methods used to achieve 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 when it comes to the issue of enforcement, which is probably the most

982

chapter ten

§1556

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.640 A mounting degree of resistance is discernable 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 interaction of states”.641 There is no procedure that 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 by the EU Court establishing an infringement of EU law by a member state may not be sufficient to swiftly bring the infringement to an end. 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, it has had implications for the methods of supervision employed. At present, monitoring 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 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.642 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

640 Case concerning application of the Convention on the prevention and punishment of the crime of genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Order of 13 September 1993, ICJ Reports 1993, at 349, para. 59. 641 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. 642 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).

§1557

supervision and sanctions

983

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.643

Most of Friedmann’s “international law of cooperation” has been created by, and is developing within, international organizations.644 Several studies have examined more closely the extent to which 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 international law a more vertical character.645 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 being subjected to legal standards (the problem of “legality”), and are far from capable of ensuring 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”.646 The problem of “efficiency” is that sanctions are hardly ever enforced by international organizations, and their deterrent capacity has been shown to be weak.647 The analysis in this chapter has demonstrated that new developments have occurred in relation to Leben’s problem of “efficiency”. Since 1990, the UN has taken enforcement measures much more frequently than between 1945 and 1990. Other organizations, for example the EU and the IMF, have introduced new possibilities to impose sanctions. In recent years, Leben’s problem of “legality” has also been addressed to some extent. Following the deep division amongst UN membership about the invasion in Iraq, the legal basis for UN operations and authorizations has become even more important than before. Moreover, as has been analyzed above (§1483), human rights considerations have stimulated both the development of targeted sanctions and the subsequent improvement of procedure for applying these sanctions. In addition, the problem of misconduct by UN peacekeepers is now taken more seriously (see above, §1512). It is generally accepted that the increased postCold War use of sanctions must take place in accordance with international law. If this is not done, the price to be paid is not only the lack of legitimacy of the relevant sanctions. Their effectiveness is at stake as well, as is – in the long run – the authority and credibility of the organization as a whole.

643 W.G. Friedmann, General Course in Public International Law, 127 RdC (1969 II), at 115-116. 644 As is also observed in the NIEO study by UNITAR, op. cit. note 642, at 70: “. . . the international law of cooperation is by necessity an institutional law, and has always been intimately associated with international organizations”. 645 Leben, op. cit. note 287, 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. 646 Leben, op. cit. note 287, at 365. 647 Id.

984

chapter ten

§1558

§1558 The emerging picture is one of an area of international law or, more specifically, of the law of international organizations, that faces rapid changes. As in any area 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.

CHAPTER ELEVEN

LEGAL STATUS

[I]n 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 to 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 situation. 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 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

1 E. Lauterpacht, The development of the law of international organization by the decisions of international tribunals, 152 RdC (1976), Vol. 4, at 403. 2 P. Sands and P. Klein, Bowett’s Law of International Institutions (6th ed. 2009), at 473. 3 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). 4 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. 5 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).

986

chapter eleven

§1561

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 were always 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 that 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 answers to these questions will be further illustrated in Chapter Twelve, in which we shall discuss the instruments 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 termination of this legal personality: the duration of the organization.

I. Status in international law A. Personality of international organizations in international law §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?

6 E.P. Evans, The Criminal Prosecution and Capital Punishment of Animals (1987, first published in 1906).

§1563

legal status

987

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), in which 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 through the member states collectively, or it ‘used’ the legal personality of the European Communities,8 until it became a legal person itself (see further below, §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 recognized 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 the happy few bearers of international rights and obligations. This is because of the absence of a centralized international legislative authority, competent to respond promptly to the recognized need of bestowing this quality upon international organizations. While in the domestic legal order the law prescribes the conditions and procedures for and by which entities may obtain the status of legal person, such conditions and procedures are lacking in the more horizontally-structured international legal order.9 §1564 Therefore, it took a long time before it became more common for constitutions of international organizations to provide expressly that these organizations

7 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. This will change only to a limited extent when the 2008 Treaty Revising the Treaty Establishing the Benelux Economic Union enters into force. According to Art. 28 of this Treaty, “[t]he Benelux Union shall enjoy international legal personality for the purposes of granting privileges and immunities”. 8 For example, when treaties were concluded between the EC and a third party. 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. 9 As Brownlie has observed, “[t]he international community has no legal and administrative process comparable to that of incorporation in municipal law . . .”; where there is no such process, “the primary test is functional” (I. Brownlie, Principles of Public International Law, 7th ed. 2008, at 676).

988

chapter eleven

§1565

have legal personality in international law.10 Such provisions oblige the members to accept the organization as a separate international person, competent to perform acts that under traditional international law could only be performed by states. They also clarify the status of the organization for non-members. If a nonmember 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.11 In addition, it has also been the case that a treaty has explicitly provided that no international legal person is created.12 §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 (during which 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”.13 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’”.14

This situation gave rise to a substantial doctrinal debate concerning the basis of international legal personality of international organizations. Traditionally, three schools of thought existed.15 According to the first school, such personality existed

10 ECSC, Art. 6; EEC, Art. 210 (original text); 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)). 11 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; Statute of the International Renewable Energy Agency (2009), Art. XIII.A; Agreement for the Establishment of the International Anti-Corruption Academy as an International Organization (2010), Art. I.2; in 1999, an agreement was concluded for the sole purpose of bestowing international legal personality upon the International Potato Center (see Trb. 2001, 32). 12 Agreement relating to the Establishment of the Functional Airspace Block “Europe Central” between Germany, Belgium, France, Luxembourg, the Netherlands and Switzerland (2 December 2010), Art. 2.2: “This Agreement does not create an international organization with international legal personality”. See www.fabectreaty.tv/downloads/FABEC_Treaty_English_version.pdf (March 2011). 13 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. 14 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). 15 For a somewhat different approach, see M. Rama-Montaldo, International Legal Personality

§1566

legal status

989

only if it was 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.16 The second school, of which Seyersted is the main proponent, developed the idea of objective legal personality of international organizations.17 As long as organizations have at least one organ with a will distinct from that of the member states, the objective theory contends, those organizations 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 representatives, and to mobilize international forces (see Chapter Twelve), how can such powers be exercised without the organization having the status of an 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 have 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 based on four main grounds:18 (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 Council, by authorizing the General Assembly to make recommendations to the member states, by giving the organization legal capacity, privileges and immunities in the

and Implied Powers of International Organizations, 44 BYIL 111-155 (1970). Cf. also B. Faßbender, Die Völkerrechtssubjektivität internationaler Organisationen, 37 ÖZöRV 17-49 (1986). 16 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 e.g. D. Feldman, International Personality, 191 RdC (1985 II), at 359. 17 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); F. Seyersted, Common Law of International Organizations (2008), in particular at 43-64. 18 Reparation for injuries suffered in the service of the United Nations, Advisory opinion, ICJ Rep. 1949, at 178-179.

990

chapter eleven

§1567

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”.19 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”.20 The Court intended to state merely that the UN “is a subject of international law and capable of possessing international rights and duties”.21 §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.22 §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.23 Closed organizations will have international personality only with regard to those states that have recognized them expressly, or implicitly by concluding 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

19

Id., at 179. Id., at 180. 21 Id., at 179 (emphasis added). 22 Id., at 185. 23 Cf. also C.F. Amerasinghe, Principles of the Institutional Law of International Organizations 86-91(2nd ed. 2005); Sands and Klein, op. cit. note 2, at 479-480. 20

§1569

legal status

991

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 not different from states that have not been universally recognized. §1569 Since the 1970s, there has been little discussion in doctrine or practice concerning the question of international legal 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.24 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.25 The two main cases in which the issue of international legal personality has been a problem in recent years are the cases of the OSCE and the EU. The OSCE was created as an international conference, and has 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.26 This has created a number of practical and legal difficulties. For example, OSCE staff members do 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 (for example, 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 participating states could not conclude proper seat agreements with the OSCE concerning the status, privileges and immunities of various of its organs, and national laws have been adopted to at least provide for some arrangements.27 For many years, the United States in particular was opposed to concluding a convention in which the legal status, privileges and immunities of the OSCE were laid down. One of the reasons for its resistance to such a convention was the

24 See e.g. 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; SeidlHohenveldern 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 (2nd ed. 2009), at 46-51. 25 See e.g. UNJY 1980, at 186-187. 26 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). 27 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).

992

chapter eleven

§1569

fear that this would change the nature of the OSCE from a flexible framework for cooperation into a more traditional international organization. In 2006, the US gave up its resistance. Subsequently, a “Draft convention on the international legal personality, legal capacity, and privileges and immunities of the OSCE” was negotiated and agreed upon at a technical level.28 However, this draft convention was not adopted by the OSCE Ministerial Council in view of the requirement by the Russian Federation that this could only happen if the OSCE had its own legally binding constituent instrument (‘no convention without a charter’).29 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, nor the 2001 Nice Treaty. In some legal writings, it was argued that the member states had implicitly given such personality to the EU.30 However, this was not accepted in practice until 2001. Only in April 2001 did the EU become a party to a treaty in its own name, thereby assuming that it had the capacity to do so.31 Subsequently, the EU concluded many more agreements.32 From this practice it was only a small step to include an explicit provision on legal personality in the treaties. Since 1 December 2009 (when the 2007 Lisbon Treaty entered into force), Article 47 of the Treaty on European Union states: “The Union shall have legal personality”.33 Although not specified, this provision covers both international legal personality and legal personality within the domestic legal orders of the member states.

28 For the text of this draft convention, see OSCE, Fifteenth Meeting of the Ministerial Council (Madrid 2007), at 65-80. 29 See for an overview until Spring 2009, S. Brander, Making a Credible Case for a Legal Personality for the OSCE, OSCE Magazine (March-April 2009), at 18-22. For an extensive analysis, see H. Tichy and U. Köhler, Legal Personality or not – The Recent Attempts to Improve the Status of the OSCE, in I. Buffard/J. Crawford/A. Pellet/S. Wittich (eds.), International Law between Universalism and Fragmentation. Festschrift in Honour of Gerhard Hafner, 455-478 (2008). 30 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); 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); 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); J.-C. Piris, La Personnalité juridique de l’Union européenne, in I. de Jong et al. (ed.), Liber amicorum Bernard Bot 67-77 (2003); J.-C. Piris, The Lisbon Treaty – A Legal and Political Analysis (2010), in particular at 86-88. 31 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. 32 E.g. 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). 33 Earlier, in June 2003, the so-called European Convention already included in its Draft Treaty establishing a Constitution for Europe a provision (Art. I.6) explicitly giving legal personality to the Union.

§1570

legal status

993

This EU experience is an example of how practice can be more powerful than politics. There was considerable political resistance to explicitly giving international legal personality to the EU. It was rejected at the highest political level in June 1997, when the Amsterdam European Council meeting rejected proposals to this effect. One day after this meeting, Prime Minister Blair firmly declared in the House of Commons: “others wanted to give the EU explicit legal personality across all pillars. At our insistence, this was removed”.34 However, as this episode has shown, in the end the clear practical need for the EU to be able to operate at the international level and conclude agreements in its own name prevailed over the political (‘superstate’) sensitivities that are associated with the notion of legal personality, no less strong in the 1990s in the EU than they were in the 1940s in the UN.35 §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 the context of 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.36 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, ‘black and white’ answer (yes or no),37 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 that have been attributed to them, whereas the scope of state powers is fundamentally unlimited. Since the powers that 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.38

34

Text obtained from the British Embassy in The Hague. This is also illustrated by Declaration 24 adopted together with the 2007 Treaty of Lisbon, in which the Conference of the representatives of the governments of the member states “confirms that the fact that the European Union has a legal personality will not in any way authorize the Union to legislate or to act beyond the competences conferred upon it by the Member States in the Treaties”. 36 The same view has been expressed by other authors; see e.g. Amerasinghe, op. cit. note 23, at 68, 78; Sands and Klein, op. cit. note 2, at 477; F. Dopagne, Les contre-mesures des organisations internationales (2010), at 35-40. 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 15, at 116-122. However, this seems to be a minority view (see Mosler, op. cit. note 3, at 446). 37 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. 38 E.g. Mosler, op. cit. note 3, at 443 and 445; Brownlie, op. cit. note 9, at 676; Seidl-Hohenveldern and Loibl, op. cit. note 5, at 48. 35

994

chapter eleven

§1571

§1571 A problem concerning the international legal personality of international organizations that has not yet been resolved in doctrine, and for which different solutions have been found in practice, is the issue of the (in)divisibility of international legal personality. Is it only the organization as a whole that 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 Union. In international relations, the EU 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 EU as such).39 Except for the European Central Bank, the institutions of the European Union (European Parliament, European Council, Council, Commission, Court of Justice, European Central Bank, Court of Auditors) do not have separate international legal personality.40 The six principal organs of the UN are an integral part of the UN and do not have separate legal personality.41 Subsidiary organs of the UN, such as UNICEF, UNITAR, UNRWA, WFP, UNDP, UNTAET and UNMIK, which have been entrusted with a wide range of direct functions, have regularly entered into commercial contracts and agreements with states and organizations in their own names.42 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 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”.43 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”.44

39 TFEU, Art. 308, first sentence: “The European Investment Bank shall have legal personality”. See D.R.R. Dunnett, The European Investment Bank: Autonomous Instrument of Common Policy?, 31 CMLRev. 721-763 (1994), in particular at 732. 40 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. European Central Bank: see TFEU, Art. 282.3, first sentence (“The European Central Bank shall have legal personality”). 41 A.J. Miller, The Privileges and Immunities of the United Nations, 6 IOLR 7-115 (2009), at 25. 42 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), UNJY 1995, at 452453 (legal personality of the Secretariat of the UN Framework Convention on Climate Change); UNJY 2004, at 351-352 (legal personality and implied treaty-making capacity of UNMIK); UNJY 2005, at 461-462 (treaty-making capacity of UNMIK); UNJY 2008, at 427-434 (autonomy of UNITAR). According to Miller, op. cit. note 41, “the fact that a UN subsidiary organ has authority to contract in its own name does not mean that it has an independent legal personality separate from that of the UN. . . . The real issue from an internal control viewpoint is whether the contract is properly authorized and approved” (at 29; see also at 33-34). 43 UNJY 1991, at 296-301. 44 Id., para. 4. The Centre was created in 1991. In 2003, its website (at the time www.cedare .org.eg) informed 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

§1572

legal status

995

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.45

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.46 But some rules may be relevant. This raises the question of the extent to which rules of international law are applicable to international organizations.47 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 that have not been recognized as customary international law? Is it permitted 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,48 and those containing the prohibition of starvation of the civilian population as a means of warfare?49 Is it permitted for the UN Security Council to impose financial sanctions upon individuals without respecting due process rights of these individuals, such as the right to obtain an independent review of this decision?50 Such questions have received more

the ‘Damascus Convention on Cedare’ [. . .]. This Convention became the primary legal instrument enabling the creation of the Centre”. This information is no longer available on the current website (www3.cedare.int (September 2010)). 45 ILC Rep. 1982, UN Doc. A/37/10, at 40. 46 F. Morgenstern, Legal Problems of International Organizations (1986), at 4. 47 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); F. Naert, International Law Aspects of the EU’s Security and Defence Policy, with a Particular Focus on the Law of Armed Conflict and Human Rights 361-453 (2010). 48 The 1949 Fourth Geneva Convention (Relative to the Protection of Civilians Persons in Times of War), Art. 23. 49 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. 50 See further above, §1483.

996

chapter eleven

§1573

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 EU and NATO. §1573 The UN is not a party to conventions such as the Geneva conventions and the International Covenant on Civil and Political Rights. According to many authors, the basis of international law is consent between states, express or tacit.51 States do not consider themselves bound by treaties that they have not ratified, nor do they apply rules of customary law that 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 to be 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.52 (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.53 (3) International organizations cannot participate in the creation of new rules of international law in the same way as states. Hitherto they have been accepted 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 of whether an international organization is subject to the rules of treaty law, one cannot start from the hypothesis that this is not the case unless the organization has expressly bound itself. It will often be

51 R. Jennings and A. Watts (eds.), Oppenheim’s International Law, 9th ed. Vol. I (1992), at 14-16. 52 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. 53 See in this context C. Brölmann, The Institutional Veil in Public International Law – International Organizations and the Law of Treaties (2007). In her study Brölmann contrasts the layered nature of international organizations (the members remain visible behind the institutional veil) with the one-dimensional character of the law of treaties (that proceeds “from the fiction of a unitary Normadressat” (at 256)). One of her conclusions is that the law of treaties “cannot accommodate layered subjects” (at 247).

§1574

legal status

997

necessary to search for the rules of international law that 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 . . .”.54 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).55 At the same time, while there seems to be general agreement on the basic assumption that international organizations “are bound by any obligations upon them under general rules of international law”, this does not resolve numerous uncertainties emerging in the practice of individual organizations. These uncertainties have been addressed in different ways, as the following paragraphs will demonstrate. In practice, international organizations have been reluctant to consider themselves bound by general international law as such.56 Moreover, as international organizations become more important, and in some cases act in a manner similar to states, there also is a greater need to clarify whether and by what rules they are bound. This is similar to the need once felt for states to more clearly define whether and by what rules they were bound. Increasingly, the express or tacit consent by international organizations will become the basis for considering them to be 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.57 This so-called Vienna II Convention will affect the way in which international organizations that are party to it can be considered to be 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 on the basis of the arguments listed in the beginning of this paragraph. However, at this point in the development of international organizations, such a situation does

54 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. 55 This is also true for the European Union that has a more developed autonomous legal order than other organizations. See J. Vanhamme, Volkenrechtelijke beginselen in het Europees recht (2001). 56 See also Naert, op. cit. note 47, at 449-450. 57 Text published in UN Doc. A/CONF.129/15. For an analysis of this Convention, see Brölmann, op. cit. note 53, in particular Chapters 9 and 10. The text of the 1986 Convention is almost similar to that of the 1969 Vienna Convention on the Law of Treaties. One of Brölmann’s conclusions is that attempts to accommodate the transparent nature of international organizations, present during the travaux préparatoires, were “ultimately blocked by the system of the law of treaties” (at 245).

998

chapter eleven

§1575

not yet exist: the Vienna II Convention is not yet in force, and even when it is, it may still take considerable time before many international organizations become parties to it.58 1. General principles of law §1575 States that 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 African Union, the Organization of American States or the Association of Southeast Asian Nations. 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 to which the majority of the member states are parties. §1576 In a number of cases the EU Court has applied general principles of law, such as non bis in idem, estoppel and legal certainty, in order to give substance to the legal order of the EU.59 It has also declared that it will ensure respect for the basic principles of human rights, which are incorporated in the general principles of EU law.60 At the same time, neither the European Communities nor the European Union have become parties to the European Convention on Human Rights. The Court of Justice has therefore never come to the conclusion that the Communities or the Union were bound by this Convention. At most it has, sometimes inspired by specific provisions of the Convention, ‘translated’ these provisions into general principles of EC or EU 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

58 As at February 2011, 29 states were parties to this Convention, as well as 12 international organizations. While the 1969 and 1986 Vienna Conventions on the Law of Treaties are almost similar, one difference is that only ratifications or accessions by states are counted for the purpose of entry into force (35 ratifications or accessions are required (Art. 85 of the 1986 Convention)). 59 See H.G. Schermers and D.F. Waelbroeck, Judicial Protection in the European Union 28-133 (6th ed. 2001). 60 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 e.g. Case 5/88, Wachauf, ECR 1989, at 2609; Case C-185/95 P, Baustahlgewebe, ECR 1998, at I-8417.

§1576

legal status

999

added). The Advocate General concluded that the 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 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”.61

Thus, in the absence of accession by the EC/EU, the Court has reserved to itself the right to determine the extent to which rights of the European Convention will enter the EC/EU legal order.62 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 Court of Human Rights. This is essential, since the European Convention has acquired its impact mainly through the case law of the Strasbourg Court.63 Thus, on present law, only EU accession to the Convention would guarantee citizens the full application of their Convention rights vis-à-vis the Union. In 1996, however, the EC Court found (“as Community law now stands”) that the EC has no competence to accede to the Convention.64 Nevertheless, this did not conclude 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”.65 And this was finally done when the 2007 Lisbon Treaty introduced the current Article 6.2 in the EU Treaty: “[t]he Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms”.66 However, it takes two to tango. Accession by the EU

61

Opinion of Advocate General Darmon in Case 374/87, Orkem, ECR 1989, at 3338. 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 that does not fall within the field of application of Community law (Case C-299/95 (Kremzow), ECR 1997, at I-2629). 63 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 52; 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); M. Kuijer, Toetreding van de EU tot het EVRM – Hét verjaardagscadeau voor een 60-jarig EVRM of een vreemde gast op het partijtje?, 35 NTM/NJCM-Bulletin 932-947 (2010). 64 Opinion 2/94, ECR 1996, at I-1759. In para. 34 the Court observed that “[a]ccession to the Convention would, however, entail a substantial change in the present Community system for the protection of human rights in that it would entail the entry of the Community into a distinct international institutional system as well as integration of all the provisions of the Convention into the Community legal order”. 65 Annex I to the Presidency Conclusion of this meeting of the European Council. 66 According to the second sentence of Art. 6.2, “[s]uch accession shall not affect the Union’s competences as defined in the Treaties”. 62

1000

chapter eleven

§1577

requires not only the consent of all 27 EU member states, but also the consent of the 20 parties to the European Convention that are not EU member states. The door to EU accession was unlocked when Protocol 14 to the European Convention entered into force (1 June 2010), providing that “the European Union may accede to this Convention”.67 The negotiations for EU accession to the European Convention started in 2010. Before the door to EU accession is opened, a number of technical and fundamental legal issues will have to be addressed. Again: it takes two to tango. The EU and its 27 members will need to take into account views and concerns of the 20 non-EU member states that are parties to the European Convention, and these 20 states will have to take seriously the EU concern that accession should not fundamentally affect core elements of the EU legal order.68 There is no alternative in a European legal order having one constitutional instrument for a much wider circle of states than the EU and its members. Among the key issues in these negotiations are the question of whether the EU’s foreign and security policy (for which the EU Court has no jurisdiction) should be under the jurisdiction of the Human Rights Court, and the relationship between the EU Court and the Human Rights Court in the interpretation and application of the European Convention in relation to EU law.69 These questions bring us to the next source of international law that may have binding obligations for international organizations. 2. Treaty law §1577 International organizations may be parties to international agreements.70 In that case, the binding force of the agreements can be based on the consent of the organization. Often, however, treaties exclude the possibility of international organizations becoming parties.

67

Protocol 14, Art. 17 (inserting a new paragraph 2 in Art. 59 of the European Convention). See in this context Protocol No. 8 (annexed to the TEU and to the TFEU) relating to Art. 6.2 TEU and the Declaration on Article 6(2) of the Treaty on European Union adopted by the Conference of the representatives of the governments of the member states (when adopting the Lisbon Treaty in 2007). According to Protocol No. 8: “[t]he agreement relating to the accession of the Union to the European Convention [. . .] shall make provision for preserving the specific characteristics of the Union and Union law, in particular with regard to: (a) the specific arrangements for the Union’s possible participation in the control bodies of the European Convention; (b) the mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the Union as appropriate”. In addition, this accession agreement “shall ensure that accession of the Union shall not affect the competences of the Union or the powers of its institutions. It shall ensure that nothing therein affects the situation of Member States in relation to the European Convention”. Also, nothing in the accession agreement shall affect Art. 344 TFEU (providing that EU members “undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided therein”). According to the Declaration on Art. 6.2: “[t] he Conference agrees that the Union’s accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms should be arranged in such a way as to preserve the specific features of Union law”. 69 On this relationship, see the Joint Communication from Presidents Costa and Skouris of 17 January 2011, available at www.echr.coe.int/NR/rdonlyres/02164A4C-0B63-44C3-80C7FC594EE16297/0/2011Communication_CEDHCJUE_EN.pdf (February 2011). 70 See below, §1748-1755. 68

§1577

legal status

1001

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.71 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 that 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 1949.72 This is legally correct. Only the principles of the Geneva conventions are part of the 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

71 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 . . .”. 72 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 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 of Peace Support Operations (2005), in particular at 161-179; A. Clapham, Human Rights Obligations of Non-State Actors (2006), in particular at 109-137; F. Naert, op. cit. note 47, at 369-370.

1002

chapter eleven

§1577

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.73 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.74 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”.75 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.76 It is an important contribution to the observance by UN forces of international humanitarian law, although it has a number of shortcomings.77 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 that are not parties to some of the relevant humanitarian law conventions.78 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 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.79 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 several human rights conventions. Such criticism has been expressed not only in academic writings.80 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”.81 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”.82

73

GA Res. 2852 (XXVI) and GA Res. 2853 (XXVI). See Schindler, op. cit. note 72, at 528-530. UN Doc. ST/SGB/1999/13, 9 August 1999. 76 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). 77 E.g. some of the provisions of the Bulletin deviate from treaty or customary international humanitarian law. See Zwanenburg, op. cit. note 76. 78 UNJY 1992, at 430-431. 79 See the report by Amnesty International issued 7 June 2000 (NATO/Federal Republic of Yugoslavia – “collateral damage” or unlawful killings?). 80 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). 81 UN Doc. E/CN.4/Sub.2/2000/33. 82 Id., §71. 74 75

§1577

legal status

1003

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”.83 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.84 The negative consequences of economic sanctions are limited, for example by the use of so-called smart sanctions (targeted at specific (groups of ) individuals) and by restricting the sanctions in time.85 The question of whether, or to what extent, the UN is bound by obligations included in treaties to which it is not a party has also arisen within the context of UN organs operating as temporary administrations over a particular territory. An example is the UN Mission in Kosovo (UNMIK), created by Security Council Resolution 1244 as an interim administration for Kosovo. In 2006, at the request of the Human Rights Committee, UNMIK submitted a report on the human rights situation in Kosovo since June 1999. In this report, UNMIK stated that, although provisions of international human rights treaties may be part of the applicable law in Kosovo as a consequence of an UNMIK regulation, “this does not imply that these treaties and conventions are in any way binding on UNMIK. It must be remembered throughout that the situation of Kosovo under interim administration by UNMIK is sui generis. Accordingly, it has been the consistent position of UNMIK that treaties and agreements, to which the State Union of Serbia and Montenegro is a party, are not automatically binding on UNMIK. In each case, a specific determination as to the applicability of the principles and provisions must be made”.86 The UN Secretariat followed a similar approach when, in December 2003, the Serbian Deputy Prime Minister wrote a letter to the President of the Security Council, complaining that UNMIK failed to protect and preserve Serbian cultural and religious sites throughout Kosovo and Metohija and did not comply with its obligations under the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954). The UN Office of Legal Affairs (OLA) advised that “[t]he applicability of the Hague Convention needs qualification”. UNMIK was bound “to apply the relevant provisions of the Convention with the necessary modifications flowing from the nature of UNMIK and the legal status of Kosovo”. The Hague Convention was not applicable as such, but the UN was willing to apply the “relevant provisions to the extent of their applicability in the circumstances”. Against this background, OLA suggested that “we should not necessarily undertake to be bound by Article 7 of the Hague Convention to establish ‘services or specialist personnel whose purpose will be to secure respect for cultural property’ ”.87

83 Resolution 2000/25 (adopted by consensus); reproduced in UN Doc. E/CN.4/2001/2; E/CN.4/Sub.2/2000/46 (at 71). 84 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. 85 See further above, §1483. 86 UN Doc. CCPR/C/UNK/1, at 28 (paras. 123-124). See further E. De Brabandere, PostConflict Aministrations in International Law 97-101 (2009). 87 UNJY 2004, at 350-351.

1004

chapter eleven

§1578

The EU is a member of the World Trade Organization. But prior to the creation of the WTO the EC was never a member of the GATT. Was the EC bound by the provisions of the GATT? At the time, the EC treaty provided: “[t]he rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding states, before the date of their 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”.88 In the third International Fruit Company case, the Court of Justice held that the Community as such was bound by the provisions of the GATT, in so far as under the EC Treaty the Community had assumed the powers previously exercised by the member states in the area covered by the General Agreement.89

§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 that are also binding for international organizations, but they do restrict the powers that states party to them can transfer to these organizations. For this reason, they also limit the powers that can be accorded to international organizations. 3. Customary law §1579 In principle, international custom will apply as much to international organizations as it does to states. However, while this is generally recognized, much is also uncertain.90 What is the legal basis for applying customary law to international organizations? Are specific rules of customary law – which have generally been developed on the basis of the practice and opinio iuris of states – suitable to be applied to international organizations? To what extent is it relevant that international organizations so far have been rather reticent in accepting obligations under customary international law? Moreover, in the same way as with states, it is often unclear whether custom is binding as an external legal rule, or whether the

88

EC, Art. 307, first sentence. This is now TFEU, Art. 351, first sentence. 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 Court of Justice 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. 90 See for an overview of relevant literature on this issue: Naert, op. cit. note 47, at 391-396. 89

§1580

legal status

1005

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). 4. Decisions of other international organizations §1580 Some decisions of international organizations may apply to other organizations because they bind the member states of those other organizations. Binding decisions of the European Union will bind the member states of Benelux. Therefore, they will also have to be applied by the Benelux organization.91 Decisions of the Security Council can bind all UN members.92 They will therefore be binding on all organizations formed by UN member states.93 For example, resolutions of the Security Council introducing economic sanctions are binding for the European Union, which usually adopts legislation to implement the relevant decisions of the Security Council.94 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”.95 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.

91

With the exception of cases covered by TFEU, Art. 350. UN Charter, Art. 25. See e.g. Agreement between the UN and the World Bank, Art. 6. 94 See e.g. 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. 207 TFEU); as of 1 November 1993 (entry into force of the TEU), the legal basis for comparable sanction regulations was Art. 228a EC (now: Art. 215 TFEU). 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. 95 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). 92 93

1006

chapter eleven

§1581

§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.96 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 its flag. The distribution of different functions to various organizations obliges the world community to respect the competences of each organization.97 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.98 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 that 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, §1720).

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 who 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? Furthermore, whether or not the organization is responsible or liable, are the member states (also) responsible or liable for damage caused by ‘their’ organization? From the outset, a distinction should be made between the responsibility or liability of the organization under domestic law (discussed below, §1613-1616) and

96

See e.g. Agreement between UN and ILO, Art. 6. See in this regard, for example, Art. 2 of the Negotiated Relationship Agreement between the ICC and the UN, in particular Art. 2.3: “[t]he United Nations and the Court respect each other’s status and mandate”. See further Chapter 12, in particular paras. 1718-1720. 98 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). 97

§1583

legal status

1007

responsibility or 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.99 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 that cause damage or injury.100 The term ‘accountability’ refers to something broader: it has been defined as not only covering the 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.101 §1583 Normally an organization, like a natural person, is liable if its own acts cause injury to others. The existence of immunity for 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: “[w]e 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”.102 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”.103 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 UN or the United Kingdom (the owner of the helicopter) would bear the cost of possible compensation depended on the arrangements made between them.104

99

Sands and Klein, op. cit. note 2, at 516 et ff. 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. 101 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. 102 UNJY 1976, at 177. 103 UN Doc. A/51/389, at 4. 104 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); UNJY 2004, at 350351 (responsibility of UNMIK in case of failure to comply with the obligation to preserve and protect cultural and religious property); UNJY 2009, at 429-430 (if there is no liability, it may still 100

1008

chapter eleven

§1583

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 it is logical: otherwise, the separate legal personality of the organization, distinct from its member states, would be little more than a fiction.105 The link between international legal personality and responsibility issues was confirmed in the Reparation for Injuries Advisory Opinion of the International Court of Justice. In order to be able to answer the question of whether the UN had the capacity to bring an international claim, the Court stated that it first had to enquire “whether the Charter has given the Organization such a position that it possesses, in regard to its Members, rights which it is entitled to ask them to respect. In other words, does the Organization possess international personality?”106 In this case, the question was whether an international organization could bring an international claim. However, there is also the ‘mirror’ question of whether others could bring claims against international organizations. The answer to this second question is the same as to the first one. Being an international legal person also implies that claims may be brought against international organizations. This has since long been accepted by the UN, and was recognized by the ICJ in its Cumaraswamy Advisory Opinion, in which it held that the UN “may be required to bear responsibility for the damage arising from such acts [acts performed by the United Nations or by their agents acting in their official capacity]”.107 However, as simple and as logical as the link between legal personality and responsibility may be, the principle of responsibility of international organizations only gradually developed in the course of the 20th century.108 When this issue was discussed within the ILC in 1963, ILC member El-Erian noted that “the continuous increase of the scope of activities of international organizations [was] likely to give new dimensions to the problem of responsibility of international organizations”.109 However, ILC member (and Second Rapporteur on State Responsibility) Ago held that it was “questionable whether such organizations had the capacity to commit international wrongful acts” and said that “international organizations were too

be decided to make an ex gratia payment if this is in the interest of the organization); UNJY 2009, at 442-444 (damage to a car caused by a UN security and safety officer, obligation to compensate for the UN on the basis of an estimated cost of repair prepared by an independent appraiser). See also P.C. Szasz, The United Nations legislates to limit its liability, 81 AJIL 739-744 (1987). For the liability of the EU under international law, see J. Groux and P. Manin, The European Communities in the International Order (1985), at 141-147. 105 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). 106 Reparation for Injuries suffered in the service of the United Nations, Advisory Opinion, ICJ Rep. 1949, at 174 (quotation at 178). 107 Difference relating to immunity from legal process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Rep. 1999, at 62 (quotation at 89). 108 The first, pioneering study devoted to this is by C. Eagleton, International organization and the law of responsibility, 76 RdC (1950, I), at 319-423. 109 El-Erian made this remark in his first report for the ILC on the relations between states and international organizations, reproduced in Yb ILC 1963, Vol. II, at 159-185 (quotation at 184 (para. 172); also quoted by ILC Special Rapporteur Gaja in his first report on responsibility of international organizations, UN Doc. A/CN.4/532, at 2 (para. 3)).

§1584

legal status

1009

recent a phenomenon and the question of a possible international responsibility by reason of alleged wrongful acts committed by such organizations was not suited to codification”.110 One of the reasons why it took so long before the principle of responsibility of international organizations was accepted is probably simply that only a limited number of international organizations carried out operational activities in the context of which substantial wrongs could be done. In addition, it took considerable time before international organizations were seen as international legal persons that could themselves be subject to international obligations. §1584 Originally, in the absence of any rules on the responsibility of international organizations, the view has been taken that the main principles underlying the rules on state responsibility are applicable mutatis mutandis to international organizations.111 However, this is not the end of the matter. The International Court of Justice long ago rightly observed that to say that an organization is an international 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”.112 In practice it has become increasingly clear that new issues may arise in the context of the responsibility of international organizations, for which there can be no mutatis mutandis solution based on the rules for state responsibility. In reality, the problem of the responsibility or liability of international organizations is more difficult, inter alia because it may not be clear whether conduct should be attributed to the organization or to one or more of its members. §1584A The question of the attribution of conduct to the organization and/or its members has emerged, for example, in the context of military operations of the UN or authorized by the UN. As indicated (see above, §1495ff.), a distinction must be made between UN forces and military operations authorized by the UN Security Council but carried out by member states or regional organizations. While the former are organs of the UN, under UN command and control, this is different for operations for which an authorization has been given by the Security Council, but which remain under national or regional command and control. It is established practice for the UN to accept international responsibility for acts of the former if those acts amount to violations of an international obligation, as these forces are under UN command and control; but no responsibility is accepted for such acts by ‘authorized’ operations. In practice, sometimes joint operations have taken place, in which UN forces operate together with ‘authorized’ operations. In

110 Ago made his remarks in the context of the ILC work on state responsibility, Yb ILC 1963, Vol. II, at 229, 234 (also quoted by ILC Special Rapporteur Gaja in his first report on responsibility of international organizations, UN Doc. A/CN.4/532, at 2 (para. 3)). 111 M. Virally, Panorama du droit international contemporain, 183 RdC (1983), at 259; Klein, op. cit. note 47, at 394; Sands and Klein, op. cit. note 2, at 523-524. Also: ILC Special Rapporteur Gaja in his first report on responsibility of international organizations (UN Doc. A/CN.4/532 (2003), at 18-21. 112 Reparation for Injuries, Advisory opinion, ICJ Rep. 1949, at 179.

1010

chapter eleven

§1584B

such cases, “international responsibility lies where effective command and control is vested and practically exercised”.113 While this distinction is clear in theory, it is not always so clear in practice. In recent years, judicial decisions have revealed the difficulties of determining the precise legal nature of these Security Council resolutions and the allocation of responsibility for action carried out on the basis of these authorizations.114 In some UN peace-keeping operations it was at times difficult for the UN to exercise full command and control when one or more member states in practice continued to play some role in relation to ‘their’ troops. Perhaps this is related to the development of UN peace-keeping operations: since the 1990s in particular, some of these operations have truly been Chapter VII operations (with substantive use of force mandates), in which it sometimes may be more difficult for members not to interfere. Also, ‘authorized operations’ are not a monolithic type of forces that always have the same division of responsibilities between the UN and the participating countries. Some of the early authorizations, in particular that contained in Resolution 678 (1990) of the Security Council, are almost complete cartes blanches. However, the authorizations that have been given after Resolution 678 clearly give more control to the Security Council.115 §1584B It has also been demonstrated in other areas that new issues may arise in the context of the responsibility or liability of international organizations, for which there can be no mutatis mutandis solution based on the rules for state responsibility. Most organizations do not have their own resources, but depend on contributions from the members (see above, §965 ff.). If the organization is liable, is there still a role for the members? Since the mid 1980s, a number of questions specifically related to the responsibility of international organizations were raised, three of which will now be addressed in turn. While general answers will be given to these questions, it is evident that in specific cases, as always, more detailed answers can be given only when fully taking into account the law and practice of the organization concerned.

113

See UN Doc. A/51/389; UNJY 2004, at 352-356. See e.g. the Behrami and Saramati cases discussed below, §1590 (with regard to the authorization to KFOR), in which the European Court of Human Rights concluded that “the impugned action was, in principle, “attributable” to the UN”, as the Security Council “retained ultimate authority and control”). With regard to the Multinational Force in Iraq, the House of Lords (Regina (Al-Jedda) v. Secretary of State for Defence), [2007] UKHL 58, 12 December 2007 (per Lord Bingham of Cornhill) concluded at paras. 23-24 “[i]t cannot realistically be said that US and UK forces were under the effective command and control of the UN”; while “the international security and civil presences in Kosovo were established at the express behest of the UN and operated under its auspices, . . . [t]he multinational force in Iraq was not established at the behest of the UN, was not mandated to operate under UN auspices and was not a subsidiary organ of the UN”. 115 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), with references to further literature; F. Berman, The Authorization Model: Resolution 678 and Its Effects, in D.M. Malone (ed.), The UN Security Council – From the Cold War to the 21st Century at 153-165 (2004); N. Blokker, The Security Council and the Use of Force: on Recent Practice, in N. Blokker and N. Schrijver (eds.), The Security Council and the Use of Force 1-29 (2005). 114

§1585

legal status

1011

§1585 First, in situations in which an international organization is liable, are the member states simultaneously liable? In general the answer is no, unless the constitution of the organization provides for such simultaneous liability.116 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 have 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 is entitled to 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.117 As in the situation discussed (see 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 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”.118 If the answer is no, third party creditors are the victims, and the member states would be shielded behind the veil of the organization. But in the long run, the organization will also suffer, since

116 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. 117 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 116, at 298-306; I. SeidlHohenveldern, 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 727739. 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 531). 118 Higgins, op. cit. note 117, at 419.

1012

chapter eleven

§1588

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.119 While some authors have concluded that the member states are jointly and severally responsible,120 others have been more hesitant in recognizing such responsibility.121 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 this organization was explicitly rejected.122 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 any joint or residual liability of 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.123 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.124 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 European Court of Justice. However, most claims were dismissed (see below, §1614).125 In

119 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 116; 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 117, and the individual opinions of members of the Institut de Droit International, annexed to it; Klein, op. cit. note 47, at 426-520; Lawson, op. cit. note 52, 265-344; Sands and Klein, op. cit. note 2, at 516-531; Klabbers, op. cit. note 24, at 271-293; K. Schmalenbach, Die Haftung Internationaler Organisationen (2004). See also the ILC Commentary on Art. 57 of the Articles on State Responsibility (UN Doc. A/56/10, at 362). 120 I. Seidl-Hohenveldern, Corporations in and under International Law 121 (1987). 121 E.g. 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. 122 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). 123 See Higgins, op. cit. note 117, at 393. 124 Sixth International Tin Agreement, Art. 28.3. 125 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.

§1589

legal status

1013

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.126

§1589 Given the uncertain situation, it comes as no surprise that in subsequent practice a number of organizations expressly excluded the liability of their 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.127 Then again, a number of constitutions of international organizations have for a long time excluded any liability of the members.128 Such practice may have a number of consequences. First, for those organizations where liability of the member states is not excluded, it may 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 be, and might be expected to be, more reluctant when doing business with the organization, in particular when the liability of the member states is explicitly excluded. They will try to hedge their positions against a possible lack of creditworthiness of the organization. §1590 Another example in which the legal personality of an international organization was put to the test when it came to questions of responsibility and 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.129 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 member states 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

126

Higgins, op. cit. note 117, at 387-390. E.g. 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); Art. 33 of the International Agreement on Olive Oil and Table Olives (2005); Art. 22 of the International Coffee Agreement (2007); Art. 23 of the International Cocoa Agreement (2010). 128 E.g. the constitutions of IAEA, IDA, IFC and regional development banks. See Amerasinghe, op. cit. note 119, at 270-271; Hartwig, op. cit. note 116, at 147-152. 129 E.g. in 2000, to a Bulgarian family living in Sofia (reported in the Dutch newspaper Trouw, 3 August 2000). 127

1014

chapter eleven

§1590

was not carried out by these member states but by a different legal person not before the Court.130 Neither the ICJ nor the European Court dealt with this issue in these cases. This is a legal vacuum. NATO has both the capacity (as it is a legal person) and the power (disputed in this specific case)131 to carry out military action, but cannot itself be held responsible for such action. This implies the need 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.132 A few years later similar issues emerged in the Behrami and Saramati cases before the European Court of Human Rights. These cases concerned operations of international organizations present in Kosovo following the 1999 NATO military actions against Yugoslavia and the adoption of Security Council Resolution 1244. The key question was whether states participating in these operations could be held responsible for their conduct within the framework of KFOR (Kosovo Force, the NATO security presence in Kosovo) and UNMIK (UN Mission in Kosovo). The facts of the two cases are as follows. In March 2000, the brothers Gadaf and Bekim Behrami and other boys were playing in the hills in Mitrovica (Kosovo). They found a number of undetonated cluster bomb units dropped during the 1999 NATO bombardments. Not knowing the dangers involved, one of the children threw one of the units in the air. It detonated and killed Gadaf Behrami. His brother Bekim survived, but is now blind. The father of the Behrami boys brought a complaint against France before the European Court of Human Rights, claiming that French KFOR troops had failed to mark and/or defuse the undetonated cluster bomb units, which they knew were present in the area. The facts of Saramati also related to KFOR. In 2001 Mr. Saramati was arrested and detained by KFOR. He was accused of undertaking activities threatening the international presence in Kosovo. He was released from detention only after his release was ordered by the Supreme Court of Kosovo in October 2002. Saramati lodged a complaint against Norway before the European Court of Human Rights about his extra-judicial detention by KFOR (a Norwegian officer had arrested him at the time). France and Norway argued before the European Court that the acts concerned could not be attributed to them, as the UN exercised overall effective control of

130 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). 131 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. 132 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 47, in particular at 624-627.

§1590

legal status

1015

the territory. The UN claimed that the conduct by the French and Norwegian officials could not be attributed to the UN. A key element in these cases was the ‘control test’ to be applied, as this could play an important role in the determination whether the states concerned could be held responsible. The Court found that “issuing detention orders fell within the security mandate of KFOR and that the supervision of demining fell within UNMIK’s mandate”. What KFOR and UNMIK had done or had failed to do “was, in principle, ‘attributable’ to the UN”, because the UN Security Council retained “ultimate authority and control”. Since the UN is not a party to the European Convention on Human Rights and is not subject to the Court’s jurisdiction, the Court concluded that the complaints by Behrami and Saramati were incompatible ratione personae with the provisions of the Convention. Therefore it declared the complaints inadmissible.133 This decision was widely criticized, both from a human rights perspective and in view of the “ultimate authority and control” test that departs from the effective control test suggested by the International Law Commission.134 The UN SecretaryGeneral did not accept the Court’s conclusion, when he stated that “[it] is understood that the international responsibility of the United Nations will be limited to the extent of its effective operational control”.135 More generally, the Court’s decision demonstrated how much disagreement there may be over the answer to the question who is responsible in scenarios such as this one: the organization or its members. The judicial review implications of this answer are far-reaching, as the European Court of Human Rights has jurisdiction over states, not over international organizations.136 While individual states are within the jurisdictional reach of the Court, their conduct within the framework of international organizations is not, unless – in the opinion of the Court – the latter lack “ultimate authority and control”. This controversial “ultimate authority and control” test will not easily result in piercing the organizational veil and holding members responsible. This precisely may have been the reason why this test was used by the Court. Towards the end of its decision, it considers the following:137

133 Application no. 71412/01 (Behrami against France) and Application no. 78166/01 (Saramati against France, Germany and Norway), Grand Chamber Decision of 2 May 2007. 134 See e.g. P. Klein, Responsabilité pour les faits commis dans le cadre d’opérations de paix et étendue du pouvoir de contrôle de la Cour européenne des droits de l’homme: quelques considérations critiques sur l’arrêt Behrami et Saramati, 53 AFDI 43-64 (2007); R. Lawson, Mission Impossible – Het EVRM is niet van toepassing op VN-vredesmissies, 33 NJCM Bull. 39-63 (2008); P. Bodeau-Livinec, G.P. Buzzini, S. Villalpando, Note, 102 AJIL 323-331 (2008); K.M. Larsen, Attribution of Conduct in Peace Operations: The ‘Ultimate Authority and Control’ Test, 19 EJIL 509531 (2008); M. Milanovic and T. Papic, As Bad As It Gets: The European Court of Human Rights’ “Behrami and Saramati” Decision and General International Law, 58 ICLQ 267-296 (2009). See also the implied criticism expressed sotto voce by Special Rapporteur Gaja in his seventh report, UN Doc. A/CN.4/610, at 9-10 (para. 26). The effective control test is laid down in draft Art. 6 of the draft articles on responsibility of international organizations (adopted on first reading by the ILC in 2009). In its decision the Court extensively refers to the work of the ILC and to the effective control test (paras. 28-34), but it does not explicitly indicate why it uses a different test. 135 UN Doc. S/2008/354, at 4, para. 16 (12 June 2008, report on UNMIK). 136 This will change when the European Union will accede to the European Convention on Human Rights. 137 Para. 149 of the decision of the Court.

1016

chapter eleven

§1590A

Since operations established by UNSC Resolutions under Chapter VII of the UN Charter are fundamental to the mission of the UN to secure international peace and security and since they rely for their effectiveness on support from member states, the Convention cannot be interpreted in a manner which would subject the acts and omissions of Contracting Parties which are covered by UNSC Resolutions and occur prior to or in the course of such missions, to the scrutiny of the Court. To do so would be to interfere with the fulfillment of the UN’s key mission in this field including, as argued by certain parties, with the effective conduct of its operations. It would also be tantamount to imposing conditions on the implementation of a UNSC Resolution which were not provided for in the text of the Resolution itself.

The question remains, however, whether it was necessary for the Court to have recourse to the “ultimate authority and control” test in order to achieve the result it had in mind. It does not seem impossible that the effective control test could have yielded the same result. In practice, the role of the UN was certainly not limited to authorizing the operations in a carte blanche way, without exercising any further control over their implementation. For example, there was not only extensive reporting on the work of UNMIK,138 but also monthly reporting to the UN on the operations of KFOR.139 The arrest of Saramati was even mentioned in a meeting of the Security Council.140 Alternatively, while the UN was clearly responsible for UNMIK, KFOR or NATO (not the UN) could have been held responsible for KFOR’s conduct. §1590A The abovementioned examples demonstrate that new issues may arise in the context of responsibility of international organizations, for which there can be no mutatis mutandis solution based on the rules for state responsibility. After the International Law Commission (ILC) had completed its work on the state responsibility articles,141 the time was ripe to draft rules on the responsibility of international organizations. In 2001, the General Assembly therefore requested the ILC to begin its work on this topic.142 Commencing its work on responsibility of international organizations only shortly after having completed the articles on state responsibility, it was only logical for the Commission to take the state responsibility articles as a starting point. On many specific aspects of responsibility, it seemed prima facie that rules for states were sufficiently general to be equally applicable to international organizations. This would demonstrate that there would be one coherent body of rules on

138

E.g. UN Doc. S/2001/926. E.g. UN Doc. S/2001/333. See UN Doc. S/PV.4350, at 6. 141 See GA Res. 56/83, in which the General Assembly “takes note of ” these articles. 142 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 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). 139 140

§1590A

legal status

1017

international responsibility, just as the law of treaties is almost similar for treaties concluded by states and those concluded by international organizations. At the same time, it was clear from the outset that the ILC intended to approach the issue of responsibility of international organizations with an open mind, allowing for adaptations where required by the specific nature of international organizations. The 2002 ILC Working Group noted in this context the differences with the law of treaties: there is no treaty in force on the law of state responsibility, only articles of which the General Assembly has taken note, and “the issues that are specific to the responsibility of international organizations are more numerous than with regard to treaties”.143 In 2003, the ILC carefully phrased this ‘working hypothesis’ of following the state responsibility articles but making adaptations where required as follows:144 The Commission’s work on state responsibility could not fail to affect the study of the new topic and it would be only reasonable to follow the same approach on issues that were parallel to those concerning states. Such an approach did not assume that similar issues between the two topics would necessarily lead to analogous solutions. The intention only was to suggest that, should the study concerning particular issues relating to international organizations produce results that did not differ from those reached by the Commission in its analysis of state responsibility, the model of the draft articles on state responsibility should be followed both in the general outline and in the wording.

This certainly was a logical starting point for the ILC when embarking on this journey. The next question was what criteria should be used to decide whether or not to follow the state responsibility articles. While the ILC has not explicitly mentioned such criteria, Special Rapporteur Gaja stated in his second report: “[t]he need for coherence in the Commission’s work requires that a change, in respect of international organizations, in the approach and even in the wording of what has been said with regard to states needs to find justification in differences concerning the relevant practice or objective distinctions in nature”.145 The proof of the pudding is in the eating: the precise balance between following and adapting the state responsibility articles could only be found in the subsequent years of research, drafting and critical analysis by Special Rapporteur Gaja, other members of the ILC, legal advisers in the 6th Committee of the General Assembly and the academic community. In 2009, this resulted in a set of draft articles on the responsibility of international organizations, adopted by the ILC on first reading.146

143

ILC Report 2002, UN Doc. A/57/10, at 231-232. ILC Report 2003, UN Doc. A/58/10, at 30; these words almost literally follow those suggested by Special Rapporteur Gaja in his first report (UN Doc. A/CN.4/532, at 6-7 (para. 11)). In this context, ILC member Pellet in his 2000 preliminary study for the ILC referred to the state responsibility articles as “a legitimate starting point” (ILC Report 2000, UN Doc. A/55/10, at 136), while the 2002 Working Group more generally referred to these articles as “a source of inspiration” (ILC Report 2002, UN Doc. A/57/10, at 232). 145 UN Doc. A/CN.4/541, at 3 (para. 5). 146 Reproduced in UN Doc. A/64/10, at 13-178. 144

1018

chapter eleven

§1590B

§1590B The structure of this 2009 ILC draft adopted on first reading follows the structure of the state responsibility articles. The state responsibility articles consist of four parts, devoted to the internationally wrongful act of a state (Part One), the content of the international responsibility of a state (Part Two), the implementation of the international responsibility of a state (Part Three), and general provisions (Part Four). The articles on responsibility of international organizations are largely embedded in a similar structure: following an introductory Part One having two general articles (on the scope of the draft articles and on the use of terms), Part Two deals with the internationally wrongful act of an international organization. Parts Three and Four focus on the content and on the implementation of the international responsibility of an international organization. The only ‘new’ part is Part Five, devoted to the “Responsibility of a state in connection with the act of an international organization” (an issue that deliberately was not included in the state responsibility articles). Part Six has a number of general provisions. The structure within these different parts generally follows the parallel structure of the state responsibility articles. The parts dealing with the internationally wrongful act include chapters on the attribution of conduct, breach of an international obligation, responsibility of a state/international organization in connection with the act of another state/international organization, and circumstances precluding wrongfulness. The three chapters of the part relating to the content of the international responsibility carry the same titles (general principles, reparation for injuries and serious breaches of obligations under peremptory norms of general international law), and the text of the articles in these chapters is largely identical to the text of the parallel articles on state responsibility (Article 39 being the main novelty). The same is true for the part on implementation: its two Chapters have identical titles (invocation of the responsibility of a State/international organization and countermeasures) and the text of the articles is similar. If the 66 draft articles on the responsibility of international organizations are compared to the 59 articles on state responsibility, it is clear that most articles are similar. Nevertheless, the similarity is by far not as sweeping as in the 1969 and 1986 Vienna Conventions on the Law of Treaties. The 2009 draft articles adopted on first reading therefore demonstrate that the 2002 ILC Working Group was correct in its observation that “the issues that are specific to the responsibility of international organizations are more numerous than with regard to treaties”.147 Essentially, the differences between the 2009 draft articles and the state responsibility articles are twofold. On the one hand, a few articles on state responsibility are about issues that are exclusively related to states and were therefore not included in the draft articles on responsibility of international organizations.148 On the other hand, some ‘new’ articles were included relating to issues that specifically concern

147

ILC Report 2002, UN Doc. A/57/10, at 231-232. E.g. Article 10 of the state responsibility articles (relating to the conduct of an insurrectional or other movement which becomes the new government of a state). 148

§1590C

legal status

1019

the responsibility of international organizations. Most of these ‘new’ articles are about the relationship between international organizations and their members.149 For example, according to draft Article 16 an international organization under certain conditions incurs international responsibility if it adopts binding and even non-binding decisions addressed to its members, by which these members must or may commit an act that would be internationally wrongful if committed by the organization itself. This provision is inspired by the idea that an organization should not be allowed to achieve something indirectly, via its members, that it cannot lawfully achieve itself. Even more indirect, piercing the organization’s veil, it should therefore also prevent members from (ab)using ‘their’ organization for this purpose.150 Another example is draft Article 39. This provision is related to the issue discussed above in §1586. If an organization is liable, can it recover the costs from its members? Are the members obliged ‘to put the organization in funds’ to meet its liabilities? According to draft Article 39, “[t]he members of a responsible international organization are required to take, in accordance with the rules of the organization, all appropriate measures in order to provide the organization with the means for effectively fulfilling its obligations under this chapter”. This issue provoked considerable discussion within the ILC. The majority took the view that “no duty arose for members of an international organization under general international law to take all appropriate measures in order to provide the responsible organization with the means for fulfilling its obligation to make reparation. However, some members were of the contrary opinion, while some other members expressed the view that such an obligation should be stated as a rule of progressive development”.151

§1590C In response to critics, saying that the ILC in its work on responsibility of international organizations simply reproduced almost fully the state responsibility articles, Special Rapporteur Gaja stated: “this is not a mechanical replica of the earlier text nor based on a presumption that solutions applying to states are generally applicable to international organizations, but is the result of an analysis of the available materials”.152 The 2009 draft articles demonstrate that this statement stands on solid ground and that the ILC has so far, in its work on the issue of responsibility of international organizations, sufficiently taken into account the special nature of these organizations. The Special Rapporteur has often concluded, with respect to specific draft articles, that ‘there would be no or hardly any reason’ to depart from the wording of the state responsibility articles.153 At the same time, the reports of the Special

149 In particular: draft Articles 16, 17, 31.2, 39, 57-61. Klabbers correctly observes that “[t]he complicated nature of the relationship between an organization and its members becomes acutely visible where issues of responsibility are at stake” (op. cit. note 24, at 292). 150 See for a further analysis of this provision N. Blokker, Abuse of the Members, in 7 IOLR 35-48 (2010). 151 ILC Report 2009, at 125. 152 Fifth report on responsibility of international organizations, UN Doc. A/CN.4/583, at 3 (para. 2). Gaja repeated this in his sixth report (UN Doc. A/CN.4/597, at 3), referring to critics who “have used as a mantra the refrain that the Commission is basically replacing the term ‘State’ with ‘international organization’ in the articles on State responsibility” (id., at 2-3). 153 E.g. second report, UN Doc. A/CN.4/541, at 27 (para. 60); third report, UN Doc. A/ CN.4/553, at 11 (para. 27); fifth report, UN Doc. A/CN.4/583, at 17 (para. 56). This paragraph is almost fully reproduced from N. Blokker, Preparing Articles on Responsibility of International Organizations: does the ILC take international organizations seriously? A mid-term review, in J. Klabbers (ed.), Research Handbook on the Law of International Organizations (forthcoming).

1020

chapter eleven

§1590C

Rapporteur and the ILC reports make abundantly clear that the ‘copying’ of the state responsibility articles was never done without analyzing the law and practice of international organizations as well as legal doctrine. By and large, even though one may criticize the substance of the draft articles, the ILC has until now respected the idiosyncrasy of international organizations. The criticism that the ILC has simply, or without sufficient analysis, copied the state responsibility articles is unfounded. The criticism that the ILC work on this issue so far has not, or not sufficiently, respected the existing variety of international organizations is more difficult to examine, given the lack of information on the practice of many international organizations.154 However, this criticism also seems to be unfounded. The draft articles so far provisionally adopted are of a general nature. They are neutral as far as the substance of the activities of international organizations is concerned. They apply in each case where an international organization has committed an internationally wrongful act, and do not specify any ‘primary’ rules and the substance of such wrongful acts. It is perhaps understandable that the ILC work on this issue has been criticized, in view of the limited practice that is available. It is true that this has made it at times a somewhat theoretical exercise. Nonetheless, it is important that the ILC work on this subject is brought to a successful end during the next few years. Gradually, the activities carried out by international organizations have become more numerous and encroach more deeply on everyday life, so as to make it more likely that responsibility issues will arise, and more necessary to have a set of general rules in place. Moreover, in some cases these activities are very important, receive a lot of public and political attention (for example UN peacekeeping and UN authorized operations) and are brought before national and international courts. Without articles on the responsibility of international organizations, these courts would probably use the state responsibility articles by analogy. To the extent that they would take into account the special nature of international organizations, it is likely that this would be done in a rather ad hoc and improvised manner. It would lead to considerable legal uncertainty. Articles on the responsibility of international organizations would therefore fill a need. In finalizing its work on this topic, the ILC should continue to take international organizations seriously, and the same should be done by states when considering this work of the ILC.

154 Since the beginning of its work on this issue, it appeared difficult for the ILC to become familiar with relevant practice, as it received only limited relevant information. The ILC and its Special Rapporteur have regularly pointed at the need to have input from international organizations. Annually the relevant chapter of the ILC report is sent to organizations, with the invitation to give comments and to provide relevant materials. Only some 20 (organs of ) international organizations have reported on their practice. In 2004, the Special Rapporteur noted that there was little new in these reports: “[w]ith a few noteworthy exceptions, the replies hereto given by international organizations have added little to already published materials” (UN Doc. A/CN.4/541, at 2 (para. 2)). In 2007, he observed that “[a] wider knowledge of practice would clearly allow a better apprehension of questions relating to the international responsibility of international organizations. Moreover, the Commission would then be more consistently able to illustrate its draft articles with examples drawn from practice” (UN Doc. A/CN.4/583, at 4 (para. 5)).

§1591

legal status

1021

II. Status in national law A. Personality of international organizations in domestic law 1. Personality in the law of member states155 a. Constitutional provisions §1591 Constitutional provisions of international organizations granting 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 provide that the organization is to enjoy the legal capacity necessary to exercise its functions,156 and/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.157 Such provisions have also been included in separate treaties for some international organizations.158 Like international legal personality (see above, §1571), legal personality in municipal law is not necessarily attributed only to an organization that enjoys international personality “as a whole”. There are several cases in which 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 Union. The Bank possesses separate legal personality in municipal law.159 The same is true for the Supply Agency of Euratom160 and for the European Central Bank.161 Except for the European Central Bank, the institutions of the European Union (European Parliament, European Council, Council,

155 See B. Schlüter, Die innerstaatliche Rechtsstellung der internationalen Organisationen unter besonderer Berücksichtigung der Rechtslage in der Bundesrepublik Deutschland (MaxPlanck-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 25, at 85-96. 156 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; TFEU, Art. 335; Euratom, Art. 185; OAS, Art. 138; SADC, Art. 3.2; IRENA, Art. XIII.A. 157 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; TFEU, Art. 335; International Coffee Agreement (2007), Art. 7.1; International Cocoa Agreement (2010), Art. 5.1. 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. 158 E.g. the General Agreement on Privileges and Immunities of the Council of Europe (Art. 1). 159 TFEU, Art. 308. 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 39. 160 Euratom, Art. 54. 161 TFEU, Art. 282.3.

1022

chapter eleven

§1592

Commission, Court of Justice, European Central Bank, Court of Auditors) do not have separate international legal personality.162 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.163

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 an “Order in Council” to be an organization of which the UK and one or more foreign sovereign powers are members.164 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 a 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 as such – and thus allowed to sue in English courts. As Higgins has commented, the artificiality is apparent: some organizations are “created” by English Orders in Council, others are considered as foreign corporations.165 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.166 In Balfour, Guthrie & Co. Ltd., et al. v. US, the US District Court ND

162 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. European Central Bank: see TFEU, Art. 282.3, first sentence (“The European Central Bank shall have legal personality”). 163 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). 164 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). 165 Higgins, op. cit. note 117, 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). 166 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).

§1593

legal status

1023

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.167

§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 Immunities (UN) Act (Chap. 219, Revised Statutes of Canada 1952).168 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 1982.169

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 Convention on the Privileges and Immunities of the Specialized Agencies, which recognizes the legal personality of the specialized agencies.170 Their legal personality under municipal law could therefore be questioned in some of the large number of member states that 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.171 §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

167

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. 169 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). 170 Convention on the Privileges and Immunities of the Specialized Agencies (33 UNTS 262), Art. 2, Section 3. 171 YbILC (1967 II), at 299-302; UN Doc. A/CN.4/L.383 and Add. 1-3. 168

1024

chapter eleven

§1596

concluded that the organization had legal personality since its constitution172 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.173 In UN v. B., the Civil Tribunal in Brussels based 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).174 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”.175

§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.176 §1597 Originally no legal personality was granted to the European Union. At the time it was nevertheless argued that at least the capacity of the Union to operate within the territory of the member states was indispensable for the performance of its functions.177 Over the years, it has gradually been accepted that the EU cannot perform its functions without being a legal person. Since 1 December 2009, when the Lisbon Treaty entered into force, the TEU explicitly gives legal personality to the Union (see above, §1569). 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.178 The capacity of the UN to acquire and dispose of movable property has been fully recognized by non-members as well as by members.179 This capacity is also widely recognized in relation to immovable property.180 Nor have there been any registered cases in which the legal personality of the specialized agencies under private law has been denied by non-state members.181

172

UNRRA, Art. 1. ILR 337 (1949); NJ No. 150 (1951). 174 19 ILR 490 (1952); Pasicrisie belge, 1953 III, at 65. 175 Decision of 14 June 1954, ILR 756 (1955); Giurisprudenza Italiana, 1954 I, I, at 904. 176 J.E. Carroz and A.G. Roche, The Proposed International Commission for the Conservation of Atlantic Tunas, 61 AJIL 698 (1967). 177 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. 178 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; Miller, op. cit. note 41, at 29. 179 1967 study, at 213. No new developments are mentioned in the 1985 study. 180 1967 study, at 209; 1985 study, at 160. 181 1967 study, at 299-302; 1985 study, at 182. 173

§1599

legal status

1025

Regional organizations have need of legal personality under the laws of nonmembers no less than 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.182 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,183 and 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. 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.184

B. Application of domestic law 1. Competence to make use of national laws §1599 International organizations with personality under national law have the capacity to perform all acts 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

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. 183 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 SeidlHohenveldern and Loibl, op. cit. note 5, paras. 0342, 0721. 184 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.

1026

chapter eleven

§1601

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 of 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.185 There remain cases, however, where the organization must apply its own law. This is primarily true for all legislative and administrative acts of the organization. §1602 The application of the 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 on 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.186 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 the 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”.187

185 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. 186 On this problem, see B. Knapp, Questions juridiques relatives à la construction des immeubles par les organisations internationales, 33 SJIR 51-80 (1977). 187 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory

§1603

legal status

1027

§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 from the time of 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”.188 The UN’s Office of Legal Affairs (OLA) did not consider it advisable for UNHCR to become a founder of a trusteeship in Mexico (the goal of the trusteeship being to provide for the transfer of ownership of land to the Guatemalan refugees in Mexico), as this “could make UNHCR subject to the national laws and authorities, since the trusteeship would be governed by Mexican law”. Moreover, “the status of UNHCR as founder of the trusteeship could expose UNHCR to financial liability, as UNHCR could be held responsible for the activities carried out by the trusteeship”.189 This is in line with other advices given by OLA: the UN “should not be involved in the establishment, management or operation of an entity external to the United Nations, since such involvement . . . raises not only the issue of the United Nations’ mandate but also the issues of liability and the privileges and immunities of the United Nations. . . . by becoming involved in the establishment, management or operation of an external entity incorporated under the law of a member state, the United Nations would, effectively, agree to be governed by the member state laws in respect of the United Nations’ involvement with the external entity”.190

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.191 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.192 §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 in which international courts apply rules of private law. This is often done by international

Opinion, ICJ Rep. 1980, at 96. See also A.S. Muller, International Organizations and Their Host States – Aspects of Their Legal Relationship (1995), in particular Chapter 9. 188 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. 189 UNJY 2000, at 352-354. 190 UNJY 2005, at 450-455 (quotation at 454). 191 See Seidl-Hohenveldern and Loibl, op. cit. note 5, paras. 0340-0341. 192 On the practice of the UN, see UNJY 1976, at 159-176, and Miller, op. cit. note 41, at 94.

1028

chapter eleven

§1605

administrative tribunals (see above, §642-647), by arbitral tribunals (see above, §648 ff.) and by the EU Court. §1605 Article 340 TFEU and Article 188 of the Euratom Treaty expressly provide that in cases of non-contractual liability the EU is to apply “the general principles common to the laws of member states”. The Court has applied the former provision a number of times.193 It has also applied general principles of law in cases other than those concerning non-contractual liability.194 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 privileges195 §1606 The body of law applicable to international organizations is limited by provisions in the constitution of the organization,196 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 organizations.197 For that reason, states cannot apply to international organizations their national legislation on: (1) direct taxation (for example: Convention UN,198 Section 7(a); Convention Agencies,199 Section 9(a); Agreement ICC,200 Art. 8.1; Agreement OAS,201 Art. 5(a); General Agreement CoE,202 Art. 7(a); Protocol EU,203 Art. 3);

193

See Schermers and Waelbroeck, op. cit. note 59, at 519-571. Id., at 27-94. 195 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 24. 196 See e.g. UN Charter, Art. 105; ILO, Art. 40; UNESCO, Art. 12; FAO, Art. 16; OAS, Art. 133; CoE, Art. 40. 197 See Muller, op. cit. note 187, at 233-256; S. Muller, International Organizations and their Officials: to tax or not to tax?, 6 LJIL (1993), at 47-72; Miller, op. cit. note 41, at 59-72. 198 Convention on the Privileges and Immunities of the United Nations, 13 February 1946, 1 UNTS 16. 199 Convention on the Privileges and Immunities of the Specialized Agencies, 1 November 1947, 33 UNTS 262. 200 Agreement on the Privileges and Immunities of the International Criminal Court, 9 September 2002. 201 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. 202 General Agreement on Privileges and Immunities of the Council of Europe of 2 September 1949, 250 UNTS 12. 203 Protocol on the privileges and immunities of the European Union (replacing the protocol concerning the privileges and immunities of the European Communities of 8 April 1965), see OJ 2010, C83/266. 194

§1607

legal status

1029

(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 EU, Art. 4).204 What is a direct tax? Obviously each state has its own definition: it is therefore for the organization to give a uniform interpretation. As Miller has indicated, “the UN approach is functional – the difference between a ‘direct’ and an ‘indirect’ tax depends on who must pay it. . . . if a tax must be paid by the UN, it is a ‘direct’ tax, from which the organization is exempt. If the tax is payable as part of the price of goods or services, it is an ‘indirect’ tax”.205 This distinction is clear in theory, but in practice the question frequently arises whether a particular tax should be qualified as direct tax. 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,206 road taxes (or taxes on circulation),207 a licensing fee for the allocation of radio frequencies,208 an airport service charge,209 air navigation charges, landing and parking fees, airport taxes and visa fees,210 a “State Pollutant Discharge Elimination System (SPDES)”,211 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 direct taxation of the UN.212 At the same time, no exceptions are generally claimed for taxes that are, in fact, no more than charges for public utility services (for example, Convention UN, Section 7(a)). Examples are sewerage charges and waste collection charges; these charges have “a definite rate dependent upon the quantity supplied”.213 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 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”.214

§1607 Other national rules that cannot be applied to international organizations, because they would endanger the independent functioning of the organization, are rules authorizing:

204 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 324326. 205 Miller, op. cit. note 41, at 64. 206 UNJY 1987, at 213-214. 207 UNJY 1992, at 472-473 and UNJY 1995, at 405-407. 208 UNJY 1995, at 399-400. 209 UNJY 1995, at 405-407. 210 UNJY 2004, at 334-339. 211 UNJY 2006, at 445-447. 212 See e.g. 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; UNJY 2004, at 329-330. 213 Miller, op. cit. note 41, at 67. 214 UNJY 1992, at 474-475. See also UNJY 1995, at 399-400; UNJY 2004, at 333-334; UNJY 2008, at 437-439.

1030

chapter eleven

§1608

(3) search, requisition, confiscation and expropriation of property and assets (for example: Convention UN, Sections 3, 4; Convention Agencies, Sections 5, 6; Agreement ICC, Art. 6.2; Agreement OAS, Arts. 3, 4; General Agreement CoE, Arts. 4, 5; Protocol EU, Arts. 1, 2);215 (4) censorship216 (for example: Convention UN, Section 9; Convention Agencies, Section 12; Agreement ICC, Art. 11.2; General Agreement CoE, Art. 8; Protocol EU, Art. 5). Finally, no national rules should be applied that 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, Section 5; Convention Agencies, Section 7; Agreement ICC, Art. 10.1; Agreement OAS, Art. 6; General Agreement CoE, Art. 6).217 §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, . . . 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

215 In view of the inviolability of the premises of international organizations and the applicable immunities such as the immunity from search, the premises of the organization should exclusively be used by the organization, and not by other entities, such as NGOs (see UNJY 2005, at 450-455. See 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). Protection of the assets of international organizations has become increasingly relevant in recent years following the global financial crisis that started in 2008; see R.S.J. Martha, International Organizations and the Global Financial Crisis: The Status of their Assets in Insolvency and Forced Liquidation Proceedings, 6 IOLR 117-154 (2009). 216 Apart from documents, films are also immune from censorship, see UNJY 1969, at 205206. See also UNJY 1981, at 154, mentioning that the UN has rarely been confronted with the problem of censorship. 217 See UNJY 1987, at 214-215.

§1609

legal status

1031

employment of thousands of locally recruited staff – ranging from highly trained professionals to day labourers – in the operation of a complex welfare enterprise.218

The existence of a general rule of international institutional law granting privileges to international organizations also means, on the other hand, that privileges that have not been expressly mentioned in any agreement must occasionally be accorded. 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.219 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 such basic privileges, a host state may not discriminate against any international organization. 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.220 OPEC felt so discriminated against in relation to other organizations that it moved its headquarters to Austria. 4. Limits imposed by immunity from jurisdiction221 §1610 Most rules of national law are applicable to international organizations in the same way as to other subjects within the national jurisdiction.222 Adjudication 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 to public international law. As has been indicated by the UN Office of Legal Affairs: “[i]t 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

218

E.H. Buehrig, The UN and the Palestine Refugees 66 (1971). UNJY 1970, at 167. 220 See F. Rouhani, A History of O.P.E.C. 135 (1971). 221 See Jenks, op. cit. note 195, at 37-45; M. Wenckstern, Die Immunität internationaler Organisationen (1994); Klein, op. cit. note 47, at 227-246; A. Reinisch, International Organizations Before National Courts (2000); Miller, op. cit. note 41. For specific examples, see UNJY 1990, at 286-287. 222 An express provision to this effect seems unnecessary. 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 (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 185, at 75. See also Miller, op. cit. note 41, at 49-53. 219

1032

chapter eleven

§1610

on behalf of an international organization by the competent executive authorities of the states concerned.223 It goes without saying that in such cases the international organization is not submitting to the jurisdiction of the court”.224 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.225 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.226 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 in a case involving the European Space Agency (see above, §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 and the European Court of Human Rights before a New York District Court, after his application against Finland before the European Court was rejected.227 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: for example 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, such cases may entail considerable costs for the organization concerned (and thus, for their members). 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

223 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 District Court subsequently accepted this immunity claim.) 224 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 2004, at 326-328 and 332-333; Miller, op. cit. note 41, at 41. 225 UNJY 1978, at 186-187. 226 UNJY 1987, at 206-208. Immunity also applies to disciplinary actions before professional boards, such as a medical board; see UNJY 2009, at 435-437 (the staff members concerned are “subject to the staff regulations and rules, including to the disciplinary measures therein”). 227 Information obtained from the Council of Europe.

§1611

legal status

1033

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”.228 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,229 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’”.230 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.231 The availability of a legal system for transactions under private law may well be in the best interests of the organization. The European Union does not enjoy general immunity from jurisdiction. The Treaties even expressly declare that cases to which the Union is a party shall not, for that reason alone, be excluded from the jurisdiction of domestic courts or tribunals.232

§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.233 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.234 In addition, as the extensive study by Reinisch has

228 UNJY 1982, at 236. See Muller, op. cit. note 187, Chapter 5, and Reinisch, op. cit. note 221, 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”). 229 E.g. by Swiss courts. See L. Caflisch, Immunité de juridiction et respect des droits de l’homme, 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 651-676 (2001), in particular at 660-662. See for more examples C. Ryngaert, The Immunity of International Organizations Before Domestic Courts: Recent Trends, in 7 IOLR 121-148 (2010), in particular at 123-129. The Austrian Supreme Court stated: “[w]hile, under national law and prevailing international law, foreign states enjoy immunity only in respect of sovereign acts, but not in their capacity of legal entities in private law, the immunity of international organizations must, a matter of principle, be regarded as absolute when they are acting within the limits of their functions” (Firma Baumeister Ing. Richard L v. O., judgment of 14 December 2004, File No. 100b53/04y, reproduced in UNJY 2004, at 394-401 (quotation at 397)). 230 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. 231 F.A. Mann, International Corporations and National Law, 42 BYIL 150 (1967). 232 TFEU, Art. 274; Euratom, Art. 155. 233 Convention UN, Section 2; Convention Agencies, Section 4; Agreement OAS Art. 2; General Agreement CoE, Art. 3; Jenks, op. cit. note 195, at 37. 234 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

1034

chapter eleven

§1611A

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.235 McKinnon Wood gave three reasons why international organizations should enjoy immunity from jurisdiction.236 (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 that differ from the climate of judicial opinion elsewhere. (2) International organizations must be protected against baseless actions based on improper motives or instigated by the numerous cranks, fanatics or cantankerous people who may believe either that they have a duty to compel the organization to adopt a particular course of action, or that they have suffered a wrong at its hands. This argument 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 divergent ways, by national courts. §1611A 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 this need.237 One example relates to 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, following the Waite and Kennedy judgment of the European Court of Human

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 221, at 145-157. In recent years, however, national courts seem more reluctant to accept immunity of international organizations on the basis of customary international law and require a treaty basis, as is demonstrated in the study by Ryngaert (op. cit. note 229, in particular at 124-132). 235 Reinisch, op. cit. note 221, at 35-127. 236 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 195, 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. 237 See K. Wellens, Remedies against International Organizations (2002), in particular at 208219 (“The potential role of domestic courts”); A. Reinisch (ed.), Challenging Acts of International Organizations before National Courts (2010).

§1611A

legal status

1035

Rights, national courts have also rejected immunity claims when staff members did not have a proper legal remedy, for example when there was no possibility to bring their claim before an international administrative tribunal (see above, §544A). In other cases, not dealing with staff disputes, parties have claimed that the ‘Waite and Kennedy logic’ should also be applied, but so far not with much success.238 An example is a case in the United Kingdom in which Entico, an English publishing company alleging that it concluded a contract with UNESCO for the production of a calendar, challenged UNESCO’s immunity because it did not have a proper remedy, since UNESCO was of the view that no arbitration clause could be invoked in the absence of a contract. This was rejected. In the High Court of Justice, Justice Tomlinson stated “[i]t would be wholly inimical to the international scheme envisaged [ – the 1947 Convention on the Privileges and Immunities of the Specialized Agencies, in particular its Sections 4, 5 and 31 – ] if individual states party arrogated to themselves the power to determine whether the provision made by each specialized agency for the settlement of disputes is adequate, whether considered generally or by reference to the facts of a particular case”.239 Another example is a case in which relatives of the victims of the Srebrenica genocide brought a case against the UN before a Dutch court. The UN invoked its immunity, but the plaintiffs argued that they did not have any other legal remedy; therefore, the UN could not enjoy immunity. The Court concluded “that in international law practise the absolute immunity of the UN is the norm and is respected”. It held that “it is in principle not at the discretion of a national court” to decide whether the invocation of immunity was necessary for the fulfilment of the purposes of the UN, since this would be “contrary to the ratio of the immunity of the UN”. According to the Court, the ‘Waite and Kennedy logic’ did not apply to the UN, since – unlike the European Space Agency in Waite and Kennedy – the UN was founded before the European Convention on Human Rights came into force and since it has an almost universal membership.240 Subsequently, in March 2010, the Court of Appeal upheld the finding of immunity for the UN, albeit using a somewhat different reasoning.241

These examples demonstrate that the obligation to respect the jurisdictional immunity of international organizations is taken seriously by national courts. At the same time, even though this immunity is usually of an absolute nature, national courts have in certain cases rejected immunity claims in the absence of an alternative dispute settlement mechanism, against the background of the generally recognized right of access to a court and the obligation for most organizations to provide an alternative mechanism. Two observations are appropriate here. First, it should not be forgotten that the obligation for the organization to provide an alternative dispute settlement mechanism is mainly limited to private law disputes

238 See for an analysis of Dutch case law on jurisdictional immunity of international organizations T. Henquet, International Organizations in the Netherlands: Immunity from the Jurisdiction of the Dutch Courts, LVII NILR 267-301 (2010); see also Ryngaert, op. cit. note 229 (with main focus on private law disputes between individuals and international organizations). Specific examples of national court judgments using the ‘Waite and Kennedy logic’ are also given by Reinisch in the introduction to his book mentioned in the previous footnote, at 11 (footnote 30). 239 Entico Corporation Ltd v. UNESCO, [2008]EWHC 531 (Comm)(18 March 2008), reproduced in UNJY 2008, at 477ff. 240 District Court The Hague, 10 July 2008, LJN: BD6796, judgment in the incidental proceedings, paras. 5.13, 5.14 and 5.24. 241 In particular, the Court of Appeal did not agree with the argument of the District Court by which it distinguished the UN from ESA as far as date of creation and membership are concerned (Appeal Court The Hague, Case No. 200.022.151/01, 30 March 2010).

1036

chapter eleven

§1611B

and does not extend to other areas. The purpose of the immunity is precisely to prevent national courts of the members from interfering in the substance of the work of the organization. In general, international organizations cannot perform their functions if courts of the members have jurisdiction to scrutinize the exercise of such functions. It is for the members and for the organization itself, not for national courts, to decide what is necessary for the performance of the organization’s functions.242 Secondly, organizations should be generous in providing access to an appropriate and effective dispute settlement mechanism where they operate as private parties and therefore do not need immunity. It is clear that, in recent practice, more weight is attached to this obligation. If organizations are indifferent to this changing context and fail to ‘update’ themselves, it is more likely that national courts will do so by rejecting immunity claims. §1611B Another case in which the need of jurisdictional immunity of international organizations was questioned is the exercise of temporary governmental functions by international organizations. 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: [T]he 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.243 While it is clear that the governmental functions performed by the UN in such cases are different from other UN operations and that the performance of these functions may have implications for its jurisdictional immunity, this does not mean that the UN would not need such immunity. Although it may indeed be seen as a “surrogate state”, it is not a state, but continues to be an international organization. Neither the organization nor its staff will be able to perform its functions

242 As was rightly observed by the Dutch Supreme Court in a case against Euratom, 13 November 2007, paras. 6.3 and 6.4 (LJN:BA9173) and by the District Court of the Hague in the Srebrenica immunity case, para. 5.14 (see note 240 above). 243 Ombudsperson Institution in Kosovo, Special Report No. 1, 26 April 2001 (quotation taken from §23).

§1612

legal status

1037

if not adequately protected. At the same time, the performance of governmental functions requires that the organization concerned needs to create sufficient judicial protection for the population that is temporarily under its authority. De Brabandere has therefore rightly concluded that, in such cases, “[t]he answer to the question of how to improve the rights of individuals who cannot bring a claim against an international organization needs . . . to be found, not in an inconsistent exception to international organization immunity, but rather in the creation of effective alternative dispute settlement mechanisms”.244 §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. As the UN has stated: “immunity is never a release from a legal obligation but merely from the jurisdiction of national courts”.245 This may frustrate the enforcement of the law.246 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.247 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.248 The injurious effects of immunity from jurisdiction can be mitigated in two ways: (1) The organization can waive its immunity.249 After such a waiver, it appears in court in the same way as all other persons. But a decision against the organization cannot be enforced.250

244 E. De Brabandere, Immunity of International Organizations in Post-conflict International Administrations, 7 IOLR 79-119 (2010), at 119. 245 Quoted in Miller, op. cit. note 41, at 101. The same was stated in a 1945 memo by the ILO: “[s]uch immunity is not a franchise to break the law, but a guarantee of complete independence from interference by national authorities with the discharge of official duties” (quoted in Miller, op. cit. note 41, at 95-96. 246 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. 247 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). See also Miller, op. cit. note 41, at 20-23. 248 UNJY 1990, at 257-258. 249 For an example, see UNJY 2008, at 404-405 (waiver for the purpose of appearance as witness). 250 Only exceptionally the prohibition to enforce judgments against an international organization has not been respected. For an example, see UNJY 2000, at 346-347 (seizure of motor vehicles of UNICEF in an effort to execute a Court order; the UN protested these violations of

1038

chapter eleven

§1613

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”.251 It seems reasonable to accept this addition as a general refinement of the law of international immunities that would also be applicable to international organizations.252 Authority to waive the immunity of the UN is vested exclusively in the SecretaryGeneral. Executive directors of semi-independent programmes have no such power.253

(2) 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.254 Other contracts refer to the Administrative Tribunal of the ILO, which is competent to settle disputes arising from contracts of the ILO.255 Contracts of the European Union – particularly the research contracts of Euratom, in which large funds are often involved – frequently refer disputes to the EU Court. The treaties designated that court as the sole competent court for non-contractual liability.256 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.257 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.

the UN General Convention and the UN Charter “in the strongest terms”, demanding immediate return of UNICEF property). 251 Vienna Convention on Diplomatic Relations (1961), Art. 32. 252 There is some support for this in UN practice: see Miller, op. cit. note 41, at 93 (footnote 354). 253 UNJY 1969, at 224-225. See further Miller, op. cit. note 41, at 92. 254 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 47, 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; UNJY 2001, at 381-385. On UN practice, see Miller, op. cit. note 41, at 95-103. As indicated by Miller, “[t]he UN does not offer to arbitrate claims that relate to political decisions or actions that are not of a private law nature” (at 101, note 378). 255 See C. Wilfred Jenks, The Proper Law of International Organizations 244 (1962). 256 TFEU, Arts. 268, 274; Euratom, Arts. 151, 155. 257 See for examples in practice UNJY 1991, at 307-310. See also UNJY 1995, at 424-426; UNJY 2001, at 381-385.

§1614

legal status

1039

§1614 As described above (see §1588-1589), 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 EU Court.258 Parties to contracts without arbitration clauses took recourse to domestic courts directly.259 No court took the view that it could enforce the Tin Council’s liability for its debts.260 Thus, the remaining course for the creditors was to seek a general, ‘political’ solution, which was reached in December 1989. 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”.261

§1615 The only international organization having its own judiciary competent to decide questions of liability is the European Union. Its constitution expressly provides that in cases of non-contractual liability, the EU shall make good any damage caused;262 the Court of Justice has exclusive jurisdiction in disputes relating to compensation for such damage.263 The contractual liability of the Union is governed by the law applicable to the contract in question;264 here, the Union can be sued before the national courts of the member states. The founding fathers decided that it was not necessary to create specific remedies before the EU 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 Union was to be expected or feared.265 There is extensive case-law of the EU Court concerning both the contractual and non-contractual liability of the Union.266

258 The two applications before the EU Court were 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. 259 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 690692. A brief summary is also given by Amerasinghe, op. cit. note 119, at 260-265. 260 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 259, at 693). 261 House of Lords, as reproduced in ILM, op. cit. note 259, at 679. 262 EC, Art. 288; Euratom, Art. 188; ECSC (now dissolved), Art. 40. 263 EC, Art. 235; Euratom, Art. 151; ECSC (now dissolved), Art. 40. 264 EC, Art. 288; Euratom, Art. 188; ECSC (now dissolved), Art. 40. 265 Schermers and Waelbroeck, op. cit. note 59, at 520. 266 Id., at 519-571; see further T. Heukels and A. McDonnell (eds.), The Action for Damages in Community Law (1997).

1040

chapter eleven

§1616

§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 Union, it has been very difficult to obtain compensation for damages caused by joint acts of the organization and its members. The EU 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 Union by the EU Court.267

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 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 that 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.268 (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

267 268

254.

Schermers and Waelbroeck, op. cit. note 59, at 530-532. T.L. Karnes, The Failure of Union, Central America, 1824-1960 (1961), especially at 243-

§1619

legal status

1041

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 years,269 or it may never happen at all.270 Pending the entry into force of the constitution, further preparatory action may be required. The operation of the secretariat should be prepared so 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. §1619 Certain founding conferences leave such 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.271 Similar preparatory commissions have been created for most specialized agencies.272 For the Organization of African Unity, the Ethiopian Government seconded personnel to set up a provisional secretariat. That arrangement functioned for over a year. Then the SecretaryGeneral took office and the Ethiopian staff was gradually replaced.273 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.274 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

269

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). 271 Interim arrangements concluded 26 June 1945, 15 UNCIO, at 512-513. 272 See e.g. the agreement of 22 July 1946, establishing an Interim Commission for the WHO, 9 UNTS 33. 273 J. Woronoff, Organizing African Unity 188-189 (1970). 274 See UN Doc. IFAD/PC.13 of 28 Oct. 1977. 270

1042

chapter eleven

§1620

Organization, the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization and the Preparatory Commission for the International Criminal Court.275 Normally, preparatory commissions only function for a few years, until the entry into force of the constitution of the organization whose functioning these ‘PrepComs’ need to prepare. However, the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO PrepCom) has been performing its tasks for a much longer period, as the Comprehensive Nuclear-Test-Ban Treaty has not yet entered into force. This will only happen following ratification by the 44 listed states that in 1996 possessed nuclear power or research reactors. As at February 2011, 153 states had ratified this Treaty, but not yet all of the 44 listed states had done so. Meanwhile, the CTBTO PrepCom has become a fully-fledged international organization. It was established in 1996 by resolution adopted by the states signatories of the Comprehensive Nuclear-Test-Ban Treaty.276 Based in Vienna, its “Provisional Technical Secretariat” has some 270 staff members. The main function of this secretariat is to assist the PrepCom in the establishment of a global verification system for monitoring compliance with the Treaty.277

§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 Organization. Since neither of those organizations had officially come into being, the functions were taken over by their preparatory commissions.278 The composition, task and financing of preparatory commissions are usually regulated in separate agreements that are not subject to ratification.279 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 (for example, the Rules of Procedure and Evidence; the Elements of Crime) and in institutional fields (for example, the 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).

275 See for the Organization for the Prohibition of Chemical Weapons, 32 ILM 800 ff. (1993); for the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization, see www.ctbto.org; for the ICC PrepCom, see Resolution F adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. 276 Resolution adopted 19 November 1996, Doc. CTBT/MSS/Res/1. See para. 7 of the Annex to this Resolution: “The Commission shall have standing as an international organization, authority to negotiate and enter into agreements, and such other legal capacity as necessary for the exercise of its functions and the fulfillment of its purposes”. See also above, §34, §209A and §1418B. 277 Information taken from www.ctbto.org. 278 G. Woodbridge, UNRRA, Vol. I (1950), at 303-306; 311-315. 279 For the preparatory Commission of the IAEA, see Annex I to the IAEA constitution.

§1621

legal status

1043

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 (that is, following the election of the judges, the prosecutor and the registrar).280 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.281 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.282 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.283 From 1948-1951, this Secretariat was financed by loans from the UN Working Capital Fund. Only in 1951 did the member states (Contracting Parties) begin to pay contributions.284

§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.285 In a similar way, the constitutions of the Universal Postal Union and the International Telecommunications Union entered into force (provisionally) on predetermined dates, 18 and less than 2½ months respectively after the date of signature.286 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.287 This interim organization,

280 See further A.S. Muller, Setting up the International Criminal Court: Not One Moment but a Series of Moments, 1 IOLR 189-196 (2004). 281 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. 282 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. 283 GATT, Analytical Index: Guide to GATT Law and Practice (6th ed. 1994), at 1035. 284 K.W. Dam, The GATT, Law and International Economic Organization 340 (1970). 285 OEEC, Art. 24. 286 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. 287 Text in Staatsblad (Official Gazette of the Kingdom of the Netherlands) G.252; M.O. Hudson, International Legislation, Vol. 9 (1950), at 7.

1044

chapter eleven

§1622

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.288 §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.289 When one of the states (France) which had participated in the drafting of the Treaty Constituting the European Defence Community (1952) 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 the 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 that had participated in its creation.290 Many other organizations took effect as soon as a certain number of the founding states accepted their membership.291 (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.292 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.293 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

288

On its functioning, see YUN 1946-47, at 724-725. See e.g. TEU, Art. 54; TFEU, Art. 357; Euratom, Art. 224; Benelux (1958), Art. 100; Treaty Revising the Treaty Establishing the Benelux Economic Union, Art. 40.2; EFTA, Art. 40. 290 UN Charter, Art. 110.3; see also NATO, Art. 11. 291 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); AU, Art. 28 (two-thirds of the signatory states). 292 YUN 1976, at 469. 293 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); D. Gnamou-Petauton, Dissolution et succession entre organisations internationals (2008). 289

§1624

legal status

1045

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).294 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-1950.295 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. 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”.296 Succession between organizations is of a functional nature, as opposed to state succession, which is ‘complete’.297 And there are other differences

294

See L.W. Holborn, L’Organisation Internationale pour les Refugiés 537-55 (1955). J.G. Stoessinger, Financing the United Nations System 199 (1964). 296 Myers, op. cit. note 293, at 12. 297 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 293, at 111 (footnote 70)). 295

1046

chapter eleven

§1626

in relation to 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.298 §1626 The most striking example of one international organization succeeding another is the replacement of the League of Nations by the United Nations in 1946.299 Another organization that 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 succeeded to its property and its obligations.300 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 1980.301 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 (then) EC Treaty. The assets and liabilities of the ECSC are managed by the European Commission and are used to finance research in sectors related to the coal and steel industry.302

298 Myers, op. cit. note 293, 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). 299 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). 300 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” (op. cit. note 293, at 37). 301 Ribbelink, op. cit. note 293, at 156-195 (English summary at 226-227). 302 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 also Case T-25/04, González y Díez v. Commission, 12 Sept. 2007, in particular paras. 55-56: “although the succession of the legal framework of the EC Treaty to that of the ECSC Treaty has led, since 24 July 2002, to a change of legal bases, procedures and applicable substantive rules, that succession is part of the unity and continuity of the Community legal order and its objectives. . . . The continuity of the Community legal order and the objectives which govern its functioning thus require that, in so far as it succeeds the European Coal and Steel Community and in its own procedural framework, the European Community ensures, in respect of situations which came into being under the ECSC Treaty, compliance with the rights and obligations which applied eo tempore to both Member States and individuals under the ECSC Treaty and the rules adopted for its application”.

§1626

legal status

1047

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 that led to a perceived requirement for a new organization, rather than a revision and extension of the existing one.303 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.304 The World Trade Organization was created in 1994 mainly because the GATT was gradually supplemented by a number of separate (“side”) agreements, which were only accepted by less than one third of the GATT members. However, the other GATT members nevertheless benefited from these agreements through the operation of GATT’s mostfavoured-nation-clause. Thus, free-riding was promoted and the incentive to participate in negotiations for trade liberalization was reduced.305 Furthermore, it was expected that the World Trade Organization, being a more formally-constituted organization than the GATT, would not only have better recognition and understanding from the public and officials, but would also have a more explicit authority to work out cooperative relationships with both intergovernmental and non-governmental organizations.306 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.307 This agreement entered into force 1 January 1995. The new organization did not immediately replace the GATT.308 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

303 See L.M. Goodrich, From League of Nations to United Nations, 1 International Organization 3-21 (1947). 304 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. 305 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. 306 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). 307 Roessler, op. cit. note 305, at 84; M.E. Footer, An Institutional and Normative Analysis of the World Trade Organization (2006), in particular Chapter 1. 308 It was agreed that both organizations would be legally separate and would co-exist during a transitional period (Roessler, op. cit. note 305, 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)).

1048

chapter eleven

§1627

future of the world vine and wine sector”.309 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.310

§1627 Most of the abovementioned 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 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, a mixture of several different forms of succession may exist.311 Examples of absorption are the integration of the International Bureau of Education within the framework of UNESCO, as of 1 January 1969, and the integration of the International Patent Institute into the European Patent Organization. An example of a 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.312 The WEU was dissolved in 2011, after the EU had taken over most of its functions.313

§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 League-affiliated 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 (but 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

309 See the Preamble to the 2001 Agreement establishing the International Organization of Vine and Wine (Trb. 2001, 194, or www.oiv.int). This Agreement entered into force 1 January 2004. 310 Id., Arts. 1.1 and 17.2. 311 Myers, op. cit. note 293, at 15 and 37. 312 These examples are discussed by Myers, op. cit. note 293, at 26-36. 313 See Statement of the Presidency of the Permanent Council of the WEU, 31 March 2010; see documents of the Dutch House of Representatives (Tweede Kamer), TK 2009-2010, 32123V, No. 78.

§1629

legal status

1049

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 for dealing with the practical consequences of such an event.314 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).315 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.316 Often a qualified majority is required.317 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. 314 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. 315 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. 316 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). 317 In IFAD, where the Western countries, the developing countries and the members of OPEC each have 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.

1050

chapter eleven

§1630

§1630 Some constitutions provide that the organization must be dissolved when the number of members falls to fewer than five,318 four,319 or three.320 In some 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.321 §1631 Constitutions of temporary organizations will include some provisions on dissolution.322 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. For example, according to Article 62.1 of the 2010 International Cocoa Agreement, “[t]his Agreement shall remain in force until the end of the tenth full cocoa year after its entry into force, unless extended under paragraph 4 of this article, or terminated earlier under paragraph 5 of this article”.323 In case of termination, the International Cocoa Council “shall remain in being for as long as necessary to carry out the liquidation of the Organization, settlement of its accounts and disposal of its assets”.324 The most detailed regulations could previously be found in the International Tin Agreement, which provided not only how the organization could be dissolved, but also what would happen thereafter to its property and its archives.325 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.326 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

318

European Space Agency, Art. 25. South Pacific Regional Fisheries Management Organization, Art. 42. 320 European Molecular Biology Laboratory (Trb. 1973, No. 162), Art. 14; International Fund for Compensation for Oil Pollution Damage (Trb. 1973, No. 101), Art. 43. 321 European Centre for Medium Range Weather Forecasts (Trb. 1974, No. 7), Art. 21; EUMETSAT, Art. 19.2 (Trb. 1983, No. 161). 322 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 was created for a period of ten years (Art. 69, para. 1). 323 Emphasis added. The functional notion of a “cocoa year” is defined in Art. 2.6 as “the period of 12 months from 1 October to 30 September inclusive”. 324 International Cocoa Agreement 2010, Art. 62.6. 325 International Tin Agreement 1981, Art. 60. The International Tin Council was dissolved in 1990 following the 1985 tin crisis (see above, §1588 and §1614). See also Art. 17 of the constitution of the West Africa Rice Development Association, 10 ILM 666-667 (1971). 326 See also Myers, op. cit. note 293, at 40-42. 319

§1633

legal status

1051

and procedures: the succession, and so the dissolution, may then considered to be implied.327 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 agreement,328 or in the constitution of the new organization.329 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.330 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),331 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.332 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

327

This has happened in a few cases only. See Myers, op. cit. note 293, 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 300, at 178-179. 329 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). 330 UNESCO, Art. 11, para. 2; WHO, Art. 72; WMO, Art. 26(c). 331 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). 332 Hoyt, op. cit. note 299, at 41-43. 328

1052

chapter eleven

§1634

sufficient.333 The dissolution of the International Office of Public Hygiene was implemented before all members had expressed their approval.334 The Caribbean Free Trade Association (CARIFTA) was dissolved by a provision in the constitution of the Caribbean Community (CARICOM).335

In no case did any of the members that 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 they remained 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 that 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.336 §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 1921,337 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.338 Four member states of the old Danube Commissions had not been invited to the conference creating the new one;339 two others340 had not signed the new convention and had declared that they considered the old one still in force.341 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

333

OECD, Art. 14. Hahn, op. cit. note 300, at 178-179, 187. 335 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). 336 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). 337 League of Nations Treaty Series, Vol. 26, at 175-199. 338 33 UNTS 197-223. 339 Belgium, Germany, Greece and Italy. Austria was represented by an observer. 340 France and the United Kingdom. The US which was not a member of the old commissions had also objected. Austria joined the new commission in January 1960. 341 Art. 7 of the 1921 Convention expressly required unanimity for the dissolution of the European Commission of the Danube. 334

§1636

legal status

1053

continue until dissolved by all member states.342 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 in return for Rumania’s waiver of all claims to the rest of the Commission’s gold and British Treasury Bonds.343 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.344 Only questions concerning the pensions of former staff remained for the old commissions to settle.345 The most directly affected Western states participate in the new Commission: Austria as a member,346 (West) Germany as an observer (since 1957).347 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.348 The case of the Danube Commissions shows how an organization can be dissolved by the collective will of those member states that 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.349 Such a provision may lead to numerous withdrawals, which may in effect strangle the older organization. But the provision itself does not provide for dissolution. c. Acts of the general congress §1637 Constitutions providing for the possibility of 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 the general congress 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

342 B. Döll, op. cit. note 329, 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. 343 I. Seidl-Hohenveldern, Danube River, in EPIL Vol. I (1992), at 934-937. 344 Supplementary Protocol to the Convention regarding the Regime of Navigation on the Danube, Belgrade, 18 August 1948, Arts. 2, 3. 345 Hahn, op. cit. note 300, at 200-201, footnote 175. 346 From 1957 to 1960, Austria participated as an observer. See also Annex I to the Convention of Belgrade (1948). 347 Seidl-Hohenveldern, op. cit. note 343, at 936. 348 Döll, op. cit. note 329, at 123; Hahn, op. cit. note 300, at 200. 349 See e.g. ICAO, Art. 8.

1054

chapter eleven

§1637

organ of the organization, especially in organizations that impose more severe restrictions on amendment of the constitution and that do not allow their general congress to take binding decisions in other fields. Several authors are therefore opposed to the use of this method.350 In practice, however, 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).351 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.352 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).353 This decision was taken unanimously, but only 35 of the 45 member states were present.354 The International Refugee Organization (IRO) was also dissolved by a resolution of its general congress.355 Of the 18 members,356 Iceland was not represented when this resolution was adopted.357 The International Commission for Air Navigation (ICAN) was dissolved after the constitution of the International Civil Aviation Organization had been adopted.358 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 1974.359 During the two years following that decision, activities ceased and personnel moved away.360 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).

350

Kiss, op. cit. note 314, at 469. Hahn, op. cit. note 300, at 179-181. 352 Resolutions 94, 95, 97, 99, 100, 103; Woodbridge, op. cit. note 278, Vol. III, at 157-168. 353 Resolution 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. 354 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 299, at 74). He did not count Estonia, Latvia and Lithuania since they were no longer states. 355 Res. 108 of the General Council (9th session), Holborn, op. cit. note 294, at 748. 356 Listed by Holborn, op. cit. note 294, at 509. 357 Holborn, op. cit. note 294, at 757. 358 Hahn, op. cit. note 300, at 175-176. See also id., at 177-178 for the dissolution of the International Technical Committee of Aerial Legal Experts. 359 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) 377390 (1965); P. Lyon, SEATO in perspective, 19 Yearbook of World Affairs 113-136 (1965); G. Modelski et al., SEATO, Six studies (1962, reprint 1964). 360 See J.M. Van der Kroef, Hoe dood is de ZOAVO? 30 Int. Spect. 674-681 (1976). 351

§1638

legal status

1055

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.361 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”.362

§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.363 In other cases, general congresses have taken the same kind of action “in a bilateral way” by means of agreements with the organizations that 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. The League of Nations entered into a “Common Plan” with the UN concerning the transfer of activities and property.364 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,365 of services (such as the library and the stenographic service) and personnel,366 and of funds administered by the League.367 The United Nations Relief and Rehabilitation Administration (UNRRA) transferred its functions to several

361 Ribbelink, op. cit. note 293, at 180, 192 (English summary at 226-227); W. Hummer, Rechtsfragen aus Anlaß der Sukzession der A LALC durch die ALADI, in G. Lüke, G. Ress, M.R. Will (eds.), Rechtsvergleichung, Europarecht und Staatenintegration, Gedächtnisschrift für LeontinJean Constantinesco 259-282 (1983). 362 Agreement establishing the International Organization of Vine and Wine (2001), see Trb. 2001, 194, or www.oiv.org. This Agreement entered into force 1 January 2004. 363 Hahn, op. cit. note 300, at 179. 364 Approved by GA Res. 24 (I) of 12 February 1946. 365 Agreements of 16 July 1946 (1 UNTS 109); 31 July 1946 (1 UNTS 119); 1 August 1946 (1 UNTS 132). 366 Protocol of 1 August 1946 (1 UNTS 135). 367 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).

1056

chapter eleven

§1640

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).368 The International Institute of Intellectual Cooperation, which was closely linked to the League of Nations, was finally dissolved by an agreement with UNESCO.369 In a similar way, the International Bureau of Education and the International Relief Union transferred their resources and responsibilities to UNESCO,370 and the International Institute of Agriculture to the FAO.371 e. Disuse §1640 The Yearbook of International Organizations registers a number of public international organizations as inactive.372 Some organizations seem to have simply disappeared through disuse.373 This form of dissolution can apply only to organizations that do not, or no longer, have their own staff and that no longer operate, either for political reasons or because other organizations are better qualified to discharge their functions. On 15 November 1936, Germany withdrew from the International Commissions of the Elbe and the Oder.374 France, Britain and Czechoslovakia protested (9 December 1936).375 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.376

368 For the texts, see Woodbridge, op. cit. note 278, 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). 369 Hahn, op. cit. note 300, at 189-192. 370 See UNJY 1968, at 153-155. 371 FAO Second Conference Report (1946), at 62. 372 YIO 2008-2009, Vol. 1B, Appendix 3, at 2945-2946. 373 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. 374 Keesing’s Historisch Archief, 1934-1937, at 2542. 375 Id., at 2571. 376 See H.F. Strauch, Panafrika (1964), at 144 ff.

§1641

legal status

1057

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 (termination of a treaty in situations where there has been a fundamental change in circumstances).377 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.378 §1643 The termination of the East African Community is probably due to changed circumstances, both political and economic.379 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. Denouncing membership §1643A It can be submitted that liquidation of an international organization is impossible when none of the abovementioned 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

377

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. 379 R.H. Green, The East African Community: Death, Funeral, Inheritance, 10 Afr. Cont. Rec. A125-A137 (1977-1978). 378

1058

chapter eleven

§1644

last two members withdrew its membership. This method has only been applied when the Western European Union was dissolved in 2011. It is a far from solid method of dissolution, for, at the end of the day, all property and debts of the organization might fall to the last remaining member state if no adequate arrangements are made before the dissolution. The decision to dissolve the Western European Union was laid down in a “Statement of the Presidency of the Permanent Council of the WEU on behalf of the High Contracting Parties to the Modified Brussels Treaty – Belgium, France, Germany, Greece, Italy, Luxembourg, The Netherlands, Portugal, Spain and the United Kingdom”.380 Formally, this is not a decision taken by the WEU Permanent Council, but a political decision by the ten WEU member states. Paragraph 5 of this Statement stipulates: “The WEU has therefore accomplished its historical role. In this light we the States Parties to the Modified Brussels Treaty have collectively decided to terminate the Treaty, thereby effectively closing the organization, and in line with its article XII will notify the Treaty’s depositary in accordance with national procedures”. Article XII lays down a procedure for withdrawal. The WEU Permanent Council was tasked with “organizing the cessation of WEU activities . . . preferably by the end of June 2011”.381 Following this Statement, all ten member states withdrew from the Modified Brussels Treaty,382 and the WEU ceased to exist. i. Conclusion §1644 It is preferable that one of the abovementioned methods of dissolution is available. Constitutional amendment, or the adoption of an additional treaty to be ratified by all members, are always legally possible. Either one of them should be used in principle. However, there may be circumstances that do not permit a long delay. If this constraint were to apply, 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 that 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.383

380 See www.weu.int/Declaration_E.pdf (March 2011); documents of the Dutch House of Representatives (Tweede Kamer), TK 2009-2010, 32123-V, No. 78. 381 Statement, para. 7. 382 All member states except Portugal and Spain completed their withdrawal procedures before the target date of 1 July 2010. Art. XII provides for one year’s notice of denunciation. As a result, following the withdrawal by eight member states, only Portugal and Spain remained members after this target date. However, dissolution arrangements were made within the framework of the WEU when it still had ten members, so that the liquidation of the WEU was not left for Portugal and/or Spain. 383 See also Myers, op. cit. note 293, at 49.

§1645

legal status

1059

3. Consequences of dissolution a. Functions of the organization384 §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 longer justify the maintenance of the full organizational machinery. Any functions that remain will be transferred to one or more other international organizations. There will be few problems when all remaining functions are taken over by a single organization. In practice, however, this is not always the case. Sometimes the remaining functions are 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.385 It may also be the case 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.386 The UN accepted only “in principle” certain specific functions and powers of the League of Nations.387 The most important of these were the custody of treaties, the Economic, Financial and Transit Departments, the Health Section and the Opium Section.

§1646 When an organization does not transfer all of its functions to one successor upon 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.388 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 resolutions389 that its functions with respect to the mandated

384

Id., at 78-83. Woodbridge, op. cit. note 278, Vol. I, at 303-315; YUN 1946-47, at 160. Kiss, op. cit. note 314, at 473. 387 GA Res. 24 (I) (UN Doc. A/64, at 35); YUN 1946-47, at 110-113. 388 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 300, at 198199. 389 Res. of 18 April 1946, ICJ Rep. 1950, at 134. 385 386

1060

chapter eleven

§1647

territories would come to an end. The UN had not expressly taken over any responsibility from the League under the mandate system. The International Court of Justice rejected this contention.390 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.391 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.392

§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.393 Sometimes the successor organization is able and willing to continue the 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.394 The Secretariat, however, continued the old regime for conventions concluded under the auspices of the League of Nations.395

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 organization.396

390 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 293, at 59-77. 391 League of Nations Covenant, Art. 22.1. 392 ICJ Rep. 1950, at 137. 393 South-West Africa Voting Procedure, Advisory opinion, ICJ Rep. 1955, at 67-79. 394 GA Res. 1452 B (XIV). 395 UNJY 1971, at 224-225. 396 See e.g. Agreement establishing the World Trade Organization, Art. 16.1; International Cocoa Agreement 2010, Art. 65.2.

§1649

legal status

1061

The latter acts will lose their effect for those states that do not participate in the successor organization, just as acts of an organization lose force with respect to members that have withdrawn, but remain in force for the members of the original organization that are also members of the new one. Normally these acts will not be binding on those members of the new organization that 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; therefore, any existing interpretation and clarification of such acts also become part of the law of the new organization.397 §1649 Can acts that 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.398 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 that 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.399 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.400 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

397 See also H.J. Hahn and A. Weber, Die OECD, Organisation für Wirtschaftliche Zusammenarbeit und Entwicklung 71-72 (1976). 398 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). 399 Kiss, op. cit. note 314, at 478-480. 400 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).

1062

chapter eleven

§1650

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.401

(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 that 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 it has drafted. In many cases, however, international organizations are involved in the execution of their own conventions. They may act as depositary,402 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 1961,403 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 Economic and Social Council of the UN (ECOSOC), partly from a list of persons nominated by the WHO.404 The secretariat services are furnished by the Secretariat of the UN.405

§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.406 Would it be admissible to replace the disappearing organization with its successor without the express approval of all

401 Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Preliminary Objections, ICJ Rep. 1961, at 17-35. 402 E.g. UN Convention on the Law of the Sea. 403 Text in UN Doc. E/CONF.34/24/Add.1, at 300-315. 404 Single Convention on Narcotic Drugs, Art. 9. 405 Id., Art. 16. 406 See e.g. the Protocol of 11 December 1946 amending the Agreements, Conventions and Protocols on Narcotic Drugs, 12 UNTS 180.

§1652

legal status

1063

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 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.407 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.408 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 that do not accept the amendment.409 Parties to the convention should not be permitted to renounce their obligations without fulfilling the normal conditions for withdrawal on 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”.410 The UN did not seek to obtain the agreement of those parties to the conventions that 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.411

The international labour conventions adopted before the Second World War entrusted certain archive functions to the Secretary-General of the League of Nations

407

OECD, Art. 15. Hahn, op. cit. note 300, at 222-223. 409 Vienna Convention on the Law of Treaties, Arts. 39-41. 410 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. 411 ILC Report, op. cit. note 410, at 31, para. 25. 408

1064

chapter eleven

§1653

and sometimes referred to the League Covenant. By a special convention the organs and the constitution of the ILO were substituted.412 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 that transferred the functions or powers formerly exercised by the League of Nations to organs of the UN.413 These protocols dealt with various treaties relating to narcotic drugs,414 economic statistics,415 circulation of obscene publications,416 white slave traffic,417 traffic in women and children,418 and slavery.419 They 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 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 not otherwise eligible to become party to those conventions to accede thereto by depositing an instrument of accession with the Secretary-General.420 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.421 When, for example, the UN took over activities concerning narcotic drugs and statistics, most of the procedures relating to those activities were continued.422 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).

412 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. 413 ILC Report, op. cit. note 410, para. 28. 414 12 UNTS 179. 415 20 UNTS 229. 416 30 UNTS 3 and 46 UNTS 169. 417 30 UNTS 23. 418 53 UNTS 13. 419 182 UNTS 51. 420 GA Res. 1903 (XVIII), para. 4. See also GA Res. 2021 (XX). 421 Kiss, op. cit. note 314, at 490. 422 See UN Doc. A/134.

§1655

legal status

1065

§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 that were taken over by the World Meteorological Organization are nevertheless new rules as they were re-adopted by the later organization.423 The Staff Regulations of the OEEC were not continued by the OECD.424

(iv) General regulations §1656 General regulations of an international organization are binding law in the legal order of each member state. Although their source is external, they belong to, and 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 then continue only as provisions of the national legal order, and can be abrogated and changed by other rules of national law. So far, there has been no instance in which 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.

423

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). 424

1066

chapter eleven

§1657

(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. §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 certain 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.425 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 only a

425

Kiss, op. cit. note 314, at 482.

§1660

legal status

1067

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.426 Likewise, the WMO endorsed all technical resolutions of the International Meteorological Organization.427

§1660 A successor organization usually continues certain acts of the dissolving organization and refuses to do so with others. Even though the legal personality possessed by the Organization for European Economic Cooperation (OEEC) continued in the OECD, the latter did not maintain the OEEC’s 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.428 Such approval has subsequently been given for a number of acts.429

(vi) Agreements430 §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 and so on (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.431 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.432

426 Hahn, op. cit. note 300, 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). 427 Hahn, op. cit. note 300, at 180; WMO Congress, 1st Session, Res. 4. 428 OECD, Art. 15. 429 The Organisation for Economic Cooperation and Development, published by the OEEC (1960), at 37-39, 67. 430 For a definition of “agreement”, see below, §1744 ff. 431 The rules contained in Arts. 61 and 62 of the Vienna Convention on the Law of Treaties will be applicable. 432 Hahn, op. cit. note 300, at 222.

1068

chapter eleven

§1662

§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 Union.433 Each member once had its own trade agreements, but since the establishment of the common market, national trade agreements have gradually been replaced by EC/EU agreements (see below, §1772). This replacement is made with due consideration for vested rights.434 It would not be acceptable to declare that all such EU trade agreements would terminate if ever the EU 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 EU, in so far as practically possible. 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.435 §1663 Some agreements contain features of both of these groups: they concern the functioning of the organization but also contain substantial obligations that 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).436 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 to be extinct (see also above, §1646).437 Agreements made for the benefit of third parties may continue to exist, even when the organization that concluded them has been dissolved with no appointed successor. In such cases, enforcement may be difficult, and amendment impossible. Article 4 of the Agreement of 19 July 1946 between the League of Nations and the UN438 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.439

§1664 Several states made declarations before the Council of the League of Nations by which they undertook to protect minorities. The Council subsequently

433

TFEU, Art. 207. TFEU, Art. 351. Council decision of 19 July 2002, OJ 2002, L 194/36. 436 Decision of the Council of the League of Nations of 17 December 1920. 437 International Status of South-West Africa, Advisory opinion, ICJ Rep. 1950, at 131-136. 438 1 UNTS 114. 439 H. Chiu, The Capacity of International Organizations to conclude Treaties, and the Special Legal Aspects of the Treaties so concluded (1966), at 120. 434 435

§1665

legal status

1069

adopted a resolution taking note of these declarations,440 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.441 However, this does not exclude the possibility that the original declarations could remain in force as obligations for the benefit of the populations concerned. (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.442 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.443 By special agreement, the UN took over a number of contracts when it succeeded the League of Nations.444 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.445 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.

440 UN Doc. E/CN.4/367, referred to by L.B. Sohn and T. Buergenthal, International Protection of Human Rights 303 (1973). 441 Sohn and Buergenthal, op. cit. note 440, at 304. 442 See e.g. the Preparatory Committee for the World Trade Organization, Doc. PC/BFA/2 (1994). 443 OECD, Art. 15. 444 Arrangement of 31 July 1946, 1 UNTS 119-129. 445 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).

1070

chapter eleven

§1667

§1667 Special funds for personnel (such as staff pension funds) are sometimes transferred to another organization.446 When this is impossible, the funds must be administered independently. The organization and its member states must ensure that the pension obligations of the organization vis-à-vis its staff and former staff are honoured.447 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.448

§1668 According to general practice, a successor organization is not obliged to take over personnel of a dissolving organization.449 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 1974.450 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.451 This provision binds the OECD to all arrangements with third parties, including contracts with staff.452 The Secretariat of the World Trade Organization took over most staff of the GATT Secretariat, as was proposed by the WTO PrepCom.453 §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.

446 E.g. The International Office for Public Hygiene transferred its pension fund to the WHO, which accepted it by Res. WHA, 1.84. 447 B. Conforti, Ch. Dominicé and G. Ress, Les obligations des États membres d’une organisation internationale à l’ égard du système de pensions du personnel, 107 RGDIP 801-834 (2003). 448 WHO Executive Board Resolutions EB 23.R24 and EB 27.R24. 449 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. 450 K.R. Simmonds, The Caribbean Economic Community: A New Venture in Regional Integration, 23 ICLQ 453-458 (1974). 451 OECD, Art. 15. 452 Hahn, op. cit. note 300, 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). 453 See Preparatory Committee for the World Trade Organization, Doc. PC/BFA/2 (1994).

§1670

legal status

1071

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. The United Nations Relief and Rehabilitation Administration (UNRRA) did so by reducing its personnel, before its liquidation, to numbers capable of being 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 mid1947, UNRRA had reduced the number to 1,620. They were collectively transferred to the (Preparatory Commission for) IRO.454 Similarly, 92 employees were allocated to the FAO, 62 to WHO and 26 to UNICEF.455 Furthermore, some of the personnel responsible for the liquidation of UNRRA were transferred to the UN.456 The League of Nations transferred some of its staff collectively to the UN.457

§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.458 It is in the interests 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 not leave when their work is ended but when happenstance offers them opportunities for new employment.459 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.460 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 (BIRPI),461 WIPO agreed that it would take over all obligations concerning BIRPI’s personnel. Like BIRPI, WIPO was to accept

454 Woodbridge, op. cit. note 278, Vol. I, at 313, Vol. III, at 358 (agreement between the organizations, paras. 7 and 8). 455 Id., Vol. I, at 319, Vol. III, at 354 (agreements with WHO and FAO). 456 Id., Vol. III, at 361. 457 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. 458 Woodbridge, op. cit. note 278, Vol. I, at 314. 459 Id., Vol. I, at 316. 460 Id. 461 Bureaux Internationaux Réunis pour la Protection de la Propriété Intellectuelle.

1072

chapter eleven

§1672

the competence of the Administrative Tribunal 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.462 §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. An employee of the First United Nations Emergency Force (UNEF I), Mr. Semaan, was able to bring an action against the Secretary-General of the UN after the dissolution of UNEF I.463 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.464 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.465 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 by reference 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;466 a part was transferred to the International Labour Organization. The four former members of the League of Nations that at the time did not become members of the UN

462 See B. Knapp, Jurisprudence du tribunal administratif de l’organisation Internationale du Travail, 17 AFDI 433-434 (1971). 463 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). 464 Judgment of 25 February 1947, 30 ILO Official Bulletin No. 5, at 395; 18 ILR 458 (1951). 465 Case quoted from 20 ILR 531 (1953). 466 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.

§1673

legal status

1073

(Finland, Ireland, Portugal, Switzerland) were offered financial compensation467 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.468 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.469 Assets and liabilities of the ECSC are managed by the European Commission and are used to finance research in these sectors.470 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.471 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.472 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.473 The 1980 International Cocoa Agreement required the establishment by the Cocoa Council of rules that would govern the distribution of any balance remaining from 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.474

467 Final Report on the Board of Liquidation, at 49-50. See also Myers, op. cit. note 293, at 91-92. 468 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. 469 Decision of the representatives of the governments of the member states, meeting within the Council, 27 February 2002, Preamble (OJ 2002, L 79/42). 470 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). 471 T. Schweisfurth, Council for Mutual Economic Assistance, in EPIL Vol. 1 (1992), at 843. 472 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. 473 Arts. 43-44 (Trb. 1973, No. 101). 474 UNJY 1986, at 304-305.

1074

chapter eleven

§1674

§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;475 the UNESCO accepted the resources and the responsibilities of the International Bureau of Education and of the International Relief Union.476 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.477 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, in which 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.478

§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.479 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. For a successor organization acting against an individual, see the judgment of 27 March 1952 of the Civil Tribunal in Brussels;480 for an individual claiming from a defunct organization, see the Weiss case (above, §1672).481

§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

475

WHO Resolutions WHA 1.84 and WHA 3.98. UNJY 1968, at 153-155. 33 UNTS 223. 478 Annual Report of the UN Secretary-General 1955-56, GAOR, 11th Session, Suppl. 1 (A/3137), at 107. 479 See e.g. Resolutions WHA6.32; WHA8.15; EB21.R59; EB23.R70; EB.25.R55; EB43.R40. 480 19 ILR 490 (1952). 481 20 ILR 531 (1953). 476 477

§1678

legal status

1075

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.482 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.483 By the protocol of 14 April 1947, the League of Nations transferred the Library Endowment Fund to the UN.484 The necessary steps were taken “to ensure that the object for which the said fund was designed and its characteristic features would be maintained”. The International Press House Fund was transferred to the UN in a similar way.485 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).486 In none of these cases was the successor organization required to pay.

§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.487 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).488 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

482 See for instance the agreement of 19 July 1946, between the League of Nations and the UN, Art. 3, 1 UNTS 112. 483 Kiss, op. cit. note 314, at 491. 484 4 UNTS 450. 485 4 UNTS 443. 486 5 UNTS 389 and 395. 487 Woodbridge, op. cit. note 278, Vol. III, at 509-514. 488 See also Woodbridge, op. cit. note 278, Vol. I, at 309-311.

1076

chapter eleven

§1680

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”.489 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.490

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”.491

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, the role of the members in questions concerning the responsibility of international organizations 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 since the 1990s for the EU and the OSCE.

489

Woodbridge, op. cit. note 278, Vol. III, at 361; 27 UNTS 374. Res. 103 of the General Congress (Council); Woodbridge, op. cit. note 278, 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. 491 Myers, op. cit. note 293, at 97-98. 490

§1683

legal status

1077

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 that 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. However, it made clear that without the UN having 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 childhood 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 and in the explicit conferral of legal personality on the EU in the 2007 Lisbon Treaty. 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 most participating states are convinced of the need for a solution. §1683 The issues of accountability, responsibility and liability of international organizations have been hotly debated during the last two decades for at least two reasons. First, the prevailing general climate was characterized by increased attention for accountability issues, not only in relation to international organizations but also in relation to states and individuals. International organizations cannot – and should not – isolate themselves from this more general climate. Secondly, in

1078

chapter eleven

§1684

many cases international organizations have obtained extensive powers or have used existing powers more intensively than before, as is clear from examples discussed in this chapter (UN, EU, NATO, and also less well-known organizations such as the International Tin Council). 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.492 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 or liable for their own actions. If 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 such organizations accountable for their actions. 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); 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 (discussed above, §1590); and from judgments by national courts and by the EU Court directly or indirectly criticizing Security Council sanctions imposed against individuals without sufficient due process guarantees (see above, §1483). It is therefore timely that the ILC is now dealing with the subject of the responsibility of international organizations and has adopted on first reading, within a relatively short period of time, a set of draft articles. Without proper solutions for responsibility and liability questions it will become increasingly difficult for international organizations to perform their functions. §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 precisely. 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.

492

As has also been discussed in Chapter 5 (see e.g. §556, §700).

§1685

legal status

1079

§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 an organization’s functions are taken 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 TWELVE

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 Part I, we shall consider the partners with which external relations are maintained by international organizations: states and other international organizations. Special attention is paid to the issue of coordination between organizations. In Part II, we shall investigate the instruments used to conduct external relations. In demonstrating the similarity between these instruments and 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 Union, which has developed an extensive web of relations with non-members through trade, association and other agreements (see below, §1779 ff.). Apart from the EU, only a very limited number of organizations have entered into relations with non-members. 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, in which this is not possible, but in which some relationship is nevertheless necessary between an international organization and a non-member. For example, a state may not qualify for any form of membership. Often, such a state may become an observer to meetings, thereby permitting it, as a non-member, to participate in the work of the organization (see above, §180-184). The practical importance of such observers

1 For examples, see J. Gold, The FUND and non-Member States, Some Legal Effects, FUND Pamphlet Series No. 7 (1966).

1082

chapter twelve

§1688

varies. Observers from states that cannot become members for political reasons (such as the German Federal Republic in the UN until 1973, when it became a member) are of greater importance than observers from states that 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 fundamentally different systems for their international mail or telecommunications. In such cases, the non-members are at a disadvantage, as they are 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 that many international organizations conclude with their members on technical assistance (see below, §1771). In its relationship with an international organization, a member state is 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 state’s 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 OPEC) and the United Kingdom (host state of most commodity councils, including some of which it is not a member). In addition, Switzerland was one of the host states of the UN long before it became a member in 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 regarding the practical issues with which the organization is confronted: for example, 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 does con-

2

UNJY 1986, at 317-318. See A.S. Muller, International Organizations and Their Host States – Aspects of Their Legal Relationship (1995), in particular at 142-145. 3

§1690

external relations

1083

tact with the host city take place at an official level. An example is the invitation extended to 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 are laid down in a headquarters agreement (see above, §469477).5 Further rules are often included in special or supplemental agreements. For example, the UN has often concluded an agreement in the form of an exchange of letters to obtain permission from the relevant 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 Other examples are agreements that supplement the headquarters agreement.7 Even in the absence of such agreements,8 the organization will be under a general obligation to respect the law of the host state.9 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 income and assets (see above, §1606-1612).10 It also seems beyond doubt that the host state must admit to

4 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”. 5 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. 6 See UNJY 1991, at 333-334. 7 E.g. see the Fourth Supplemental Agreement between the UN and the US regarding the headquarters of the UN (in order to include newly leased premises within the Headquarters District), reproduced in UNJY 2009, at 34-36. 8 Examples are Benelux and the Danube Committee. When the 2008 Treaty revising the Treaty Establishing the Benelux Economic Union of 1958 will enter into force, the Benelux will have the capacity to conclude a headquarters agreement (see in particular Arts. 28-29 of the 2008 Treaty). 9 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. 10 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

1084

chapter twelve

§1690

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 that 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.11 The obligation to admit representatives from members follows logically from the hospitality that the host state grants the organization composed of those members. The obligation to admit observers from non-members 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. However, the US 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).12 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.13 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.14 Host states may 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 included in the EU ‘black list’ of persons to whom EU members would not issue visas.15 Several of these persons (for example Mirjana Markovic, the wife of former President Milosevic who resided in the UN detention unit in The Hague until he died in 2006) 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. The relevant EU sanction rules generally contain exceptions to enable host states of international organizations to fulfil their obligations vis-à-vis these organizations.

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, host country travel regulations, parking issues (see e.g. UN Doc. A/47/26; A/56/26; A/64/26). 11 R. Goy, L’accès au siège des organisations internationales, 66 RGDIP 357-370 (1962). 12 US Department of State, Statement on the visa application of Yasir Arafat, reprinted in 83 AJIL 253 (1989). 13 See the statement by Legal Counsel Fleischhauer, UN Doc. A/C.6/43/7. 14 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). 15 See OJ L 287/1 (2000); OJ L 57/3 (2001).

§1691

external relations

1085

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.16 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) uniform 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 decided to structure their cooperation on the basis of functional decentralization.17 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”18 and thus, an interrelated system of international organizations was founded: the “UN family” or “UN system”.19 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 remain aloof. Technical cooperation should not be 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 attract disproportionate attention and financing, and thereby hamper smooth cooperation in technical areas.

16 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). 17 On the advantages of functional decentralization see D. Mitrany, A Working Peace System (1943). 18 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). 19 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).

1086

chapter twelve

§1693

(3) Not all members of the UN might be willing to participate in every form of technical cooperation; and certain non-members might be suitable participants in technical projects. By separating the organizations, membership could be regulated accordingly.20 (4) Technical cooperation was, and is, usually directed by the appropriate government departments. This promotes expert knowledge of the issues and a likemindedness of the officials involved.21 The success of international cooperation could be threatened if national experts were to be deprived of ultimate responsibility for these activities.22 §1693 It has been questioned whether this system of functional decentralization is still the best structure for the UN family, 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.23 Further, 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 present system of functional decentralization 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.24 A report was prepared,25 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, 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

20 C. Wilfred Jenks, Coordination: a new problem of International Organization, 77 RdC 157303 (1950 II), at 172-173. 21 See also C. Fred Bergsten, Interdependence and the Reform of international institutions, 30 International Organization (1976), at 362. 22 See A.H. Robertson, The Council of Europe 216 (2nd ed. 1961). 23 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). 24 ECOSOC Res. 1768 (LIV) V; ECOSOC Res. 1906 (LVII). 25 UN Doc. E/5524.

§1694

external relations

1087

disarmament are within the competence of the United Nations and lie outside that of the specialized agencies”.26 §1694 The pro-centralization arguments related to the need for well-coordinated development assistance find their counterbalance in the desire for autonomy and decentralization within the administrations of the organizations.27 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 became 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 significant 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, and so forth, because salaries and pensions would automatically follow the so-called common system of the UN.28 The following organizations belong to the UN family as specialized agencies:29 International Labour Organization (ILO); Food and Agriculture Organization of the United 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); World Tourism Organization (UNWTO). 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. Because 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.30

26 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. 26). 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). 27 See e.g. YUN 1974, at 477. 28 A. Bogsch, Brief History of the First 25 Years of the World Intellectual Property Organization 18-19 (1992). 29 See www.unsceb.org/ceb/about/un (March 2011). 30 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).

1088

chapter twelve

§1695

But, for all practical purposes, it is in a similar position. 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, however the task of the Authority 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 negotiations.36 There is no common name or status for the abovementioned 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 that operate more or less autonomously, but without 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,

31 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); D.A. Irwin, P.C. Mavroidis, A.O. Sykes, The Genesis of GATT (2008). 32 While not a specialized agency, the OPCW concluded a cooperation agreement with the UN: see the Annex to GA Res. 55/283. 33 While not a specialized agency, the International Seabed Authority entered into a relationship with the UN through the 1997 Relationship Agreement: see the Annex to GA Res. 52/27. 34 While not a specialized agency, Art. 2 of its Statute provides for the conclusion of a relationship agreement with the UN. For the text of this so-called Negotiated Relationship Agreement between the UN and the ICC, see UN Doc. A/58/874, Annex (approved by GA Res. 58/318). 35 Agreement establishing the Common Fund for Commodities, Art. 29.1. See also the Fund’s 1993 annual report, at 41. 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 23.

§1696

external relations

1089

see below, §1722); 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 organs all recommendations that 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. Further, they 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 from taking into account in its considerations in the 1996 WHO Nuclear Weapons Advisory Opinion 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

39 ECOSOC Res. 1985/81; GA Res. 40/180. For the text of this agreement, see YUN 1985, at 593-597. 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. However, the 2004 agreement between the UN and the ICC lacks such a provision. 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

1090

chapter twelve

§1697

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 For the agencies, there was the constitutional problem 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. Since this failure, efforts have sometimes 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 that 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 specialized

Balekjian, op. cit. note 30, 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 20, at 228-238 (para 108). See also UN Documents A/394/Rev.l; A/404; A/449; A/494; and A/497. 43 See e.g. GA Res. 2748 (XXV), para 5. 44 Jackson Report (UN Doc. DP/5), Vol. II, at 14-15. 45 In both agreements, Art. I, para. 2. 46 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). 47 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. 48 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).

§1698

external relations

1091

agencies;49 there are also 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 b. The European Union §1698 The three European Communities (the European Coal and Steel Community, created in 1951; the European Economic Community and the European Atomic Energy Community, both created in 1957) could be regarded as a family of three international organizations. Unlike the UN family, this EC family was not established by mutual agreements, but through similar membership and common organs. Two of the four original 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) having been made into common organs by the 1965 Merger Treaty.53 The Court of Auditors has been a common organ for the three Communities since its creation in 1975. The Economic and Social Committee was common to the European Community and Euratom; the European Coal and Steel Community had its own Consultative Committee.54 Another common organ was the European Investment Bank. Technical committees were separated by their nature, but several services, such as the information service, were combined.

In 1992, this family of three European Communities was brought within a larger framework. The 1992 Treaty on European Union (Maastricht Treaty) created a new international organization, the European Union.55 The Union was founded on the three European Communities, which continued to exist as international organizations under this new umbrella, based on separate treaties and with their own legal personality. The three Communities have often been referred to as the first “pillar” of the EU. The 1992 Treaty on European Union added two more pillars: one containing provisions on a common foreign and security policy, the other concerning cooperation in the fields of justice and home affairs. The European Coal and Steel Community ceased to exist in 2002. The two remaining European

49 See WMO Publication No. 60 (Basic Documents No. 3), Agreements and Working Arrangements with other International Organizations (1988), Chapter II; www.wmo.int/pages/partners/ un_en.html (October 2010). 50 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); J. Wouters and D. Coppens, International Economic Policy-Making: Exploring the Legal Linkages between the World Trade Organization and the Bretton Woods Institutions 3 IOLR 267-315 (2006). 51 See for the text of the 1995 agreement between these organizations, UNJY 1995, at 356-359. 52 See UN Doc. E/5524/Add 4, at 13-28. On the competence to make further agreements, see e.g. UNIDO, Art. 19. 53 Treaty of 8 April 1965, which entered into force 1 July 1967 (OJ 152/2 of 3 July 1967). 54 ECSC, Arts. 18-19. 55 Treaty of 7 February 1992 (OJ 1992, C 224), which entered into force 1 November 1993.

1092

chapter twelve

§1699

Communities could, together with the overarching European Union, then still be considered a family of organizations (see above, §27-28). This rather complex structure was considerably simplified by the 2007 Lisbon Treaty.56 The European Union replaced and succeeded the European Community;57 only Euratom continues to exist.58 As a result, the EU is nowadays no longer merely a family of international organizations, as its structure has become much more unitary. But this more unitary structure did not come out of the blue. It was already considered during the travaux préparatoires of the 1992 Treaty on European Union, but the time was not yet ripe.59 Years of maturation prepared the ground for the final agreement on a new, more streamlined structure for the EU.60 c. Inter-American organizations §1699 The Charter of the Organization of American States (OAS) provides for relations between the OAS and specialized American organizations;61 and 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; Inter-American Indian 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” that may be created by this organization are in fact independent international organizations, closely linked to SELA.63 They are flexible cooperation mechanisms that are dissolved once their objectives are fulfilled, or they may become permanent bodies of the system. At present, no such Action Committees exist.64 However, two former Action Committees still function

56

Treaty of 13 December 2007 (OJ 2007, C 306), which entered into force 1 December 2009. TEU, Art. 1, final sentence. 58 This is affirmed in the first paragraph of the preamble of Protocol 2 to the Treaty of Lisbon: “RECALLING the necessity that the provisions of the Treaty establishing the European Atomic Energy Community should continue to have full legal effect” (OJ 2007, C 306/199). 59 See N.M. Blokker and T. Heukels, The European Union: Historical Origins and Institutional Challenges, in T. Heukels, N. Blokker and M. Brus, The European Union after Amsterdam – A Legal Analysis 9-50 (1998), in particular at 18-19. 60 See D.M. Curtin and I.F. Dekker, The European Union from Maastricht to Lisbon: Institutional and Legal Unity out of the Shadows, in P. Craig and G. de Burca (eds.), The Evolution of EU Law (2nd ed. 2011, forthcoming). 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. 64 In 2005, during the XXXI regular meeting of the Latin American Council of SELA, Venezuela presented a proposal to create an Action Committee on Alternatives for Integration and Cooperation in Latin America and the Caribbean, but the issue was not considered in the following 57

§1701

external relations

1093

as cooperation mechanisms: the Latin American Technological Information Network and the Latin American Fisheries Development Organization.65 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”.66 In the so-called 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 “CMEA family”.67 Before the centralization caused by the revision of 1962, the CMEA itself could be seen as a family, rather than as an organization.68 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 treaty,69 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:70 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 above, §653).71 IFC and IDA make use of the organs and staff of the Bank and their members must be members of the Bank.72 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.73

ordinary meetings of the Council, and the proposal seems to have been abandoned. See www.sela .org/attach/258/EDOCS/SRed/2006/02/T023600001940-0-470I.pdf (March 2011). 65 YIO 2008-2009, Vol. 1, at 2138. 66 R. Szawlowski, The International Organizations of the “Comecon Family”, (Osteuropa Recht No. 2, 1966). 67 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 178185 (1988); J.M. van Brabant, Economic Integration in Eastern Europe (1989), Chapter 8. 68 J. Caillot, Le CAEM, Aspects juridiques et formes de cooperation économique entre les pays socialistes 68-69 (1971). 69 Protocol Concerning the European Conference of Ministers of Transport, 17 October 1953 (184 UNTS, at 41; Peaslee, Vol. V, at 334-339). 70 See www.worldbank.org. 71 See J. Fouret, The World Bank and ICSID: Family or Incestuous Ties? 4 IOLR 121-144 (2007). 72 IFC, Art. II, Section 1, Art. IV; IDA, Art. II, Section 1, Art. VI. 73 IFC, Art. IV, Section 5(a); IDA, Art. VI, Section 5(a); MIGA, Art. 32(b).

1094

chapter twelve

§1702

The 21 Arab Specialized Agencies have close links with the League of Arab States.74 These include the Arab Labour Organization, the Council of 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. §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, will overlap. There are at least five reasons why such overlaps may occur: (1) Several regional organizations have been established to undertake tasks also attributed to organizations of a universal character. (2) Organizations in different regions do similar work. (3) 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. (4) 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. (5) 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.75 §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

74 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 2008-2009, Vol. 1B, at 2156-2157. 75 See e.g. YUN 1973, at 868-869.

§1704

external relations

1095

War, there was an attempt to create such a central authority in the form of the League of Nations,76 but this organization never succeeded in supervising all the others.77 By contrast, the UN accepted a decentralized structure for its cooperation with the specialized agencies (see above, §1692).78 While a number of arguments favoured such a decentralized structure, it was recognized from the outset that this structure would face problems of coordination.79 Article 58 of the UN Charter accordingly provides: “The organization 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, §1707-1709). 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 through 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.80

76

LoN, Art. 24. 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). 78 UN Charter, Arts. 57-59, 63. 79 Coordination as a separate subject has mostly been studied within the UN family, where coordination problems have always loomed large. See Coordination of Economic and Social Activities, UN Studies No. 2, Carnegie Endowment (1948); Jenks, op. cit. note 20; 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 Analysis (1973), at 115209; M. Hill, The United Nations System: coordinating its economic and social work, UNITAR (1978); Bastid, op. cit. note 16; A. Lewin, La coordination au sein des Nations Unies: mission impossible?, 29 AFDI 9-22 (1983); H. Boussard, La coordination des organisations internationales: l’exemple du comité interinstitutions des Nations unies sur la bioéthique, Revue française d’administration publique no. 126 (2008), at 273-285. 80 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 UniversalRegional 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 26, at 65-84. 77

1096

chapter twelve

§1705

b. Forms of coordination §1705 Duplication of work is avoided by coordination. This is called “negative coordination”,81 as it tries to limit the work of one or more organizations. Since work that may be duplicated is not too difficult to identify, 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, each in their own respective spheres, to achieve optimal results.82 It may lead to new activities, to the filling of gaps between the work of different organizations, or it may lead to the diminution of activities pursued by some organizations. An important task of positive coordination is to ensure uniformity in the use of definitions, statistical data, reporting, and so forth. Harmonization of the methods of presenting data is vital to the usefulness of that data. Positive coordination may go so far that a common project replaces the schemes of individual organizations (“concerted action”).83 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, which 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, and for programme-budgeting comparable presentations are strived after,84 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 the international level: by whom? §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. An agreement is by far the most commonly used instrument for coordination, particularly among organizations of a universal character (see below, §1770). Sometimes constitutions expressly provide for such

81 Socini, op. cit. note 79, at 45-48. See also the report of the ad hoc UN Working Group on Coordination, UN Doc. E/3518. 82 Socini, op. cit. note 79, at 48-50. 83 Sharp gives some examples, op. cit. note 79, at 123-146. 84 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.

§1707

external relations

1097

agreements,85 but coordination is often achieved without legal provision when 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.86 Rivalry between secretariats, on the other hand, may seriously impede coordination. Magee attributed the poor relations that 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.87

§1707 At the international level, various organizations and organs have special coordination responsibilities. The UN is responsible for coordinating the policies and activities of the specialized agencies.88 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.89 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.90 Furthermore, since the 1960s, the agencies have been directed to accept priorities proclaimed in the UN Development Decades, covering the period 1961-2000.91 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”.92 Subsequently, the

85 See Chiu, op. cit. note 41, at 124-127 (specialized agencies), and Socini, op. cit. note 79, at 70-75 (European organizations). 86 Socini, op. cit. note 79, at 56. 87 J.S. Magee, ECA and the Paradox of African Cooperation, 580 Int. Conc. 40-64 (1970), at 32. 88 UN Charter, Art. 58. 89 See e.g. ECOSOC Res. 324 (XI) of 9 August 1950; Sharp, op. cit. note 79, at 114-115. 90 General Assembly OR, 7th Session, Suppl. No. 3 (A/2172, Report of the ECOSOC), at 88-89. 91 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. On the UN Development Decades, see O. Stokke, The UN and Development – From Aid to Cooperation (2009). 92 GA Res. 45/199, Annex, paras. 104-105.

1098

chapter twelve

§1708

General Assembly has set priorities in the 2000 Millennium Declaration, in which eight Millennium Development Goals (MDG’s) were formulated.93 The Declaration also emphasized the importance of coordination within the UN family: “[t]o ensure greater policy coherence and better cooperation between the United Nations, its agencies, the Bretton Woods Institutions and the World Trade Organization, as well as other multilateral bodies, with a view to achieving a fully coordinated approach to the problems of peace and development”.94 Since 1992, the ECOSOC holds one substantive session of 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.95 §1708 Under the ECOSOC and the General Assembly, the Committee for Programming and Coordination (CPC) is the main organ responsible for planning, programming and coordination.96 Originally, the CPC had 11 members. It was enlarged several times; since 1987, it has had 34 members.97 The terms of reference of the CPC were amended in 1976, 1977 and 1986.98 The Committee reports to the ECOSOC and, since 1976, to the General Assembly on important aspects of coordination.99 Periodically, it makes detailed studies of selected sectors; in 1979, for example, regarding information systems.100

§1709 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 responsibility for the 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 operational activities for development carried out at the national level.101 The Resident Coordinator is, at the

93

GA Res. 55/2. Id., para. 30. 95 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 2010-2011, at 119-120; www.un.org/en/ecosoc. On the 2010 coordination segment, see www.un.org/en/ecosoc/julyhls/cs2010.shtml (March 2011). 96 See B. Simma (ed.), The Charter of the United Nations – A Commentary (2nd ed. 2002), at 1009; UN Handbook 2010-2011, at 158-161; www.un.org/ga/cpc. 97 GA decision 42/450. 98 ECOSOC Res. 2008 (LX) and GA Res. 31/93; GA Res. 32/197; GA Res. 41/213. 99 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 65th Session (2010), UN Doc. A/65/16); see also UNJY 1987, a 175-176. 100 See UN Doc. A/34/38, Chapter IV, paras. 6-44. 101 GA Res. 32/197, para. 34; Simma, op. cit. note 96, at 973; www.undg.org/index.cfm?P=5 (November 2010). 94

§1710

external relations

1099

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 the strategic framework for the operational activities of the UN system, formulated for specific countries in which these activities take place. It has been defined as “the planning and programming mechanism that coordinates the United Nations response to the [challenges of development]”.102 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”.103 Increasingly, the World Bank also claims a role in this traditional UNDP niche. Early in 1999, World Bank President Wolfensohn proposed that the organization formulate for each developing country a Comprehensive Development Framework (CDF). This is a specific World Bank instrument governing the development of national poverty-reduction strategies.104 According to the World Bank, the CDF is “owned” by the receiving country, which 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”.105 It was difficult not to consider 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.106 Therefore, the question of who coordinates the coordinators becomes increasingly urgent. In 2006, another attempt was made to strengthen coordination in the area of development assistance. The High-level Panel on United Nations System-wide Coherence in the areas of development, humanitarian assistance and the environment presented its report “Delivering as one”.107 On the basis of the recommendations made by this Panel, “One UN” pilot programmes were implemented in eight selected countries. These pilots operate under one leader, one budget, one programme and one office.108 §1710 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

102 Report of the Secretary-General on the work of the Organization (1999), UN Doc. A/54/1, at 17 (para. 128); UN Doc. E/2008/60, in particular at 15-18; UN Doc. E/2009/76, in particular at 14-18; UN Doc. E/2010/53, in particular at 13-17; www.undg.org/?P=232#s2 (November 2010). For a list of completed UNDAFs, see www.undg.org/?P=234 (November 2010). 103 GA Res. 55/2, Box 6 (following para. 188). 104 See for more information: www.worldbank.org. 105 See www.worldbank.org/cdf/overview.htm. 106 See in more detail Blokker, op. cit. note 163. 107 UN Doc. A/61/583. 108 See further www.undg.org/?P=7#s2 (March 2011); UNJY 2009, at 391; UN GA Res. 64/289, paras. 20-21.

1100

chapter twelve

§1711

international machinery of the United Nations system”.109 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 formulated in an imperative way by the General Assembly, have in no way improved coordination”.110 In 2006, the High-level Panel on United Nations System-wide Coherence noted that “United Nations entities tend to operate alone with little synergy and coordination between them”.111 §1711 The coordination of administrative and budgetary procedures is easier than the 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 that apply methods of assessment similar to those of the UN (see above, §979).112 Such recommendations, which do not directly affect their operations, are usually accepted by the agencies. Thus, the assessment scales have gradually been approximated. §1712 The Council of Europe was originally considered to be the most suitable organization for coordinating the activities of European organizations113 since it can discuss, apart from defence,114 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.115

109

Quoted from ECOSOC Res. 1547 (XLIX) of 30 July 1970. 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 79, at 22); Simma, op. cit. note 96, at 975-976. 111 UN Doc. A/61/583, at 19. 112 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. 113 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 79, at 150-151) or Doc. 1030 of 12 December 1959; F. Alting von Geusau, European Organizations and Foreign Relations of States 146-148 (1962). 114 CoE, Art. 1(d). 115 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 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, dével110

§1713

external relations

1101

d. Coordination at the international level: how? (i) Priority for the acts of one organization §1713 Certain international organizations expressly claim priority for their own acts in the event of a possible conflict of competence with other international organizations. The UN Charter requires the members to give priority to their obligations under the Charter over any duties arising from another treaty.116 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.117 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.118 Both organizations are still searching for a mutually beneficial form of cooperation.119 In the late 1980s, both organizations cooperated successfully in the regional peace process in Central America.120

§1714 The constitutions of several regional organizations provide for some degree of primacy of (the acts of ) the organization over (acts of ) other organizations in the same region. 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”.121 This indicates an intention to give some priority to the acts of the OAS. 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.122 Consequently, NATO obligations can take priority over other international obligations among NATO members.

oppement 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). 116 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 Case, ICJ Rep. 1992, at 3 and id., at 114. 117 E.g. OAS, Art. 131; CoE, Art. 1 (c); NATO, Art. 7; see Jenks in 28 BYIL 61-62 (1951). 118 OAS, Art. 24. See Jimenez de Arechaga, op. cit. note 80. 119 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). 120 E.g. 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. 121 OAS, Art. 126. 122 NATO, Art. 8.

1102

chapter twelve

§1715

§1715 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 be settled more effectively in the constitution of the inferior organization. Certain constitutions expressly do so. The clearest example was offered by the Balkan Alliance.123 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 1949.124 In a similar way, the Treaty on the Functioning of the European Union gives precedence to the regional unions between Belgium and Luxembourg, and between Belgium, Luxembourg and the Netherlands.125

§1716 The priority of one organization’s acts over those of another may also be stipulated in agreements between international organizations. Thus, the UN specialized agencies agreed to cooperate in carrying out decisions of the Security Council concerning the maintenance or restoration of international peace and security.126 §1716A Many treaties to which the EU and/or EU member states are parties contain priority clauses.127 Some of those clauses give priority, in case of conflict, to the treaty to which the EU and/or EU member states are parties. Others give priority to EU law. Probably the most well-known example of the latter is the socalled disconnection clause, which has been used in particular in conventions of the Council of Europe. Disconnection clauses allow EU member states to apply in their mutual relations the relevant EU rules governing the same subject matter as the convention. The wording of such clauses is not always the same, but in a number of more recent Council of Europe conventions the following text is used:128

123 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). 124 Treaty of 28 February 1953, Art 8; Treaty of 9 August 1954, Art. 10. 125 TFEU, Art. 350. 126 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). The Agreement with the World Tourism Organization does not refer to decisions of the Security Council. 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). 127 For an overview and for examples, see J. Klabbers, Safeguarding the Organizational Acquis: The EU’s External Practice, 4 IOLR 57-89 (2007). 128 E.g. Art. 26.3 of the CoE Convention on the Prevention of Terrorism (2005); Art. 43.3 of the CoE Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007).

§1717

external relations

1103

Parties which are members of the European Union shall, in their mutual relations, apply Community and European Union rules in so far as there are Community or European Union rules governing the particular subject concerned and applicable to the specific case, without prejudice to the object and purpose of the present Convention and without prejudice to its full application with other Parties.

The EU and its member states favoured the inclusion of such clauses in a number of Council of Europe conventions, in order to protect the relevant EU rules against the application of – allegedly often less far-reaching – rules of the convention in their mutual relations.129 Other parties to the relevant conventions have regularly criticized the use of disconnection clauses, even though their validity cannot be questioned (since the parties to the relevant conventions agree to the use of such clauses). In their view, such clauses make EU member states into unequal convention partners, as they ‘disconnect’ EU law to some extent from the convention rules. Therefore, they affect the coherence of the regime laid down in the relevant convention, since some of its parties are allowed to apply inter se ‘their own’ regime of rules in the same area. Moreover, in their view, it is not always clear to parties that are not EU member states which specific EU rules are applicable; and, even if this is clear, such EU rules often change. A study of disconnection clauses carried out within the framework of the Council of Europe has therefore suggested, inter alia, that the need for such a clause should be assessed case-by-case; that such clauses do not cover the relations between the EU member states and the other parties to the convention (and may therefore not change the rights and obligations of EU member states vis-à-vis these other parties); and that if an EU regime of rules is different from that laid down in the relevant convention, this shall be without prejudice to the object and purpose of the convention.130 §1717 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 require. Problems can easily be caused when other organizations follow rules that 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

129 See Editorial Comments – The Union, the Member States and International Agreements, 48 CMLRev. 1-7 (2011), at 7: disconnection clauses “put third States on notice that member states among themselves had different, and even higher, loyalties as well, often embodied in Union legislation likely to go further than the international convention in question”. 130 CoE Doc. CM(2008)164 (with many references to literature and specific examples of disconnection clauses).

1104

chapter twelve

§1718

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 that was not intended when the UN rules were drafted.131

(ii) Delimitation of competences §1718 Coordination between the activities of international organizations will be facilitated when the competences of each organization are clearly delimited.132 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 when not all constitutions contain clear provisions according competences. 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 16th 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.133 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 (see below, §1708). 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.134 In the Council of Europe, the Committee of Ministers adopted the rule that other organizations should 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.135 On several occasions, the Council of Europe has

131 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. 132 See in general M. Ruffert, Zuständigkeitsgrenzen internationaler Organisationen im institutionellen Rahmen der internationalen Gemeinschaft, 38 AVR 129-168 (2000). 133 UPU Res. C 4 (1969), UNJY 1969, at 119-120. 134 See UN Doc. E/AC.51/1983/3 and Add. 1. 135 A.H. Robertson, Relations between the Council of Europe and the United Nations, 18 Eur. Yb. 93 (1970).

§1719

external relations

1105

suspended its activities when they overlapped with activities undertaken by, for example, the European Union. Conversely, the EU has also suspended some of its activities in view of the work done by the Council of Europe.136

§1719 It is important for competences to be defined clearly when new international organizations are established. A delimitation 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.137 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.138

§1720 In practice, it is often difficult to delimit 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.139 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.140 On 21 December 1965, it appealed to all the specialized agencies, in particular the World Bank and the IMF, to refrain from granting Portugal any financial, economic or technical assistance as long as the government of Portugal continued its policy.141 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.142 Subsequently the World Bank entered into a number of agreements granting loans to Portuguese and South African companies.143 It apparently considered these loans to be

136

Jacqué, op. cit. note 115, 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). 138 CEMT, Art. 11 (Peaslee V, at 337); Socini, op. cit. note 79, at 90. 139 GA Res. 2054 A(XX). 140 GA Res. 2105 (XX). 141 GA Res. 2107 (XX). 142 UN Doc. A/6825, at 8, referring to Art. IV, Section 10 of the World Bank constitution. 143 UN Doc. A/6825, at 7. 137

1106

chapter twelve

§1720

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.144 In a memorandum by the Secretariat of the UN,145 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.146 In a further resolution, the General Assembly recommended that the Bank withdraw the loans,147 to which the Bank replied that it had no power to do so.148 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 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.149 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.150 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.151 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

144 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. 145 UN Doc. A/6825. 146 Id., at 19-20. 147 GA Res. 2426 (XXIII). In 1976 the General Assembly addressed a similar resolution to the IMF, see GA Res. 31/6 H 8. 148 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). 149 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). 150 GA Res. 2107 (XX), para. 7(d). 151 5 ILM (1966), at 486-487.

§1721

external relations

1107

the contrary by the General Assembly”, and called upon the Fund “to put an end to such collaboration”.152 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 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.153 Again, the outcome of this incident may be considered as the consequence of the decentralized structure of the UN family, with opportunities for consultations between the constituent parts, but with hardly any power for the primus inter pares to enforce its views.

(iii) Common organs §1721 From their inception until the end of the ECSC (2002) and of the EC (2009), the three European Communities have had the same parliamentary and judicial organs. Since 1 July 1967, the Commissions and the Councils were also combined.154 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 identified as one of family’s 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.155 In 1977, the General Assembly endorsed this recommendation and decided that it should be gradually executed.156 In 1979, however, the Assembly returned to this matter and merely decided “to give consideration to the establishment” of one such board.157 Subsequently, this proposal for a single governing body has not been implemented.

152 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”. 153 See UN Doc. A/37/607, at 2. 154 Merger Treaty of 8 April 1965. 155 Group of Experts on the Structure of the United Nations System, UN Doc. E/AC.62/9, at 4, 42, paras. 17, 143-145. 156 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. 157 GA Res. 34/213.

1108

chapter twelve

§1722

§1722 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 operated. 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.158 Similar common organs or joint committees exist in other fields in which two organizations cooperate, for example the Codex Alimentarius Commission of the FAO and the WHO,159 the International Trade Centre of the WTO and the UN (acting through UNCTAD),160 the Intergovernmental Panel on Climate Change set up by the WMO and UNEP,161 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 (Development Committee).162 Many more examples could be given.163 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 the eventual failure of this organ largely to obstruction by the regional bureau of the FAO, which wanted to preserve its autonomy.164 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

158

See www.wfp.org, and UN Handbook 2010-2011, at 238-239. 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 (19th ed. 2010), and M.D. Masson-Matthee, The Codex Alimentarius Commission and Its Standards (2007). Website: www. codexalimentarius.net. 160 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 2010-2011, at 370-371; www. intracen.org. On the legal status of the Centre, see UNJY 1990, at 271-272. 161 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 2010-2011, at 268-269. 162 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. 163 See for an early example YUN 1947-48, at 554 (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 23, in particular at 43-45; N. Blokker, Proliferation of International Organizations: an exploratory introduction, in Blokker and Schermers, op. cit. note 26, at 1-49. 164 Magee, op. cit. note 87, at 44-45. 159

§1723

external relations

1109

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.165 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 conduct exchanges with the Council of Europe on a more informal basis in areas of mutual interest (such as antibribery and anti-corruption activities).166 In addition, liaison organs exist linking the Secretariats of the two organizations.167 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.168 A number of common organs have been created to coordinate the activities of the League of Arab States and its agencies and specialized organizations. However, these organs have not always been able to function satisfactorily.169

§1723

Organizations may also have common organs at secretariat level.

The most important example of a common organ at the 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.170 The CEB provides a point of 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, and is assisted by three high-level committees. The High Level Committee on Management (HLCM) is the principal

165 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). 166 Information provided by the OECD Secretariat and by the Secretariat of the Council of Europe, November 2002. 167 Arrangement between the CoE and the OECD, para. 29. 168 Information provided by the OECD Secretariat and by the Secretariat of the Council of Europe (November 2002). On the relations between the Council of Europe and the OECD, see also www.oecd.org/document/5/0,3343,en_2649_34489_33625029_1_1_1_1,00.html (March 2011). 169 M. Flory and T. Mahdjoub, La coordination entre les Organisations Arabes Spécialisées, in Flory and Agate, op. cit. note 74, at 107-131; see also YIO 2008-2009, Vol. 1B, at 2156. 170 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 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 2010-2011, at 173-174. Website: www.unsceb.org.

1110

chapter twelve

§1724

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.171 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.172 The third pillar of the CEB is the UN Development Group (UNDG).173 This Group brings together all the operational agencies working on development and is chaired by UNDP. The HLCM and the HLCP meet twice annually; in addition, between sessions, they undertake consultation and coordination by electronic and other means of communication. The UNDG meets four times a year. 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 which performs an independent task: the regulation and coordination of the conditions of service of the UN “common system” (the UN, most of the specialized agencies, and some other organizations).174 The UN Joint Staff Pension Fund administers the pensions of the staff of nineteen international organizations of the UN family.175

§1724 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 CEB, 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 twice a year and discusses matters such as staff rules, salaries and pension rights.176 §1725 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 many other international organizations (see above, §643).

171 UN Handbook 2010-2011, at 174-175; www.unsceb.org/ceb/brochure/overview/ceb/hlcm (March 2011). 172 UN Handbook 2010-2011, at 175-176; www.unsceb.org/ceb/brochure/overview/ceb/hlcp (March 2011). 173 UN Handbook 2010-2011, at 213; www.undg.org. 174 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 2010-2011, at 61-62. 175 See www.unjspf.org; UN Handbook 2010-2011, at 68-69. 176 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 170, Chapter V.1. See also A. Plantey, The International Civil Service 39-42 (1981).

§1726

external relations

1111

In a few cases, international organizations may appoint members to the subsidiary organs of other organizations.177 Although these members do not represent the nominating organization, they may, however, be regarded as representatives of the interests the nominating organization represents. While the organ does not become a common institution, the appointing organization is able to take some part in it. §1726 Some international organizations have common secretariats, which largely guarantees good coordination. It may be that a secretariat operates for two or more equal organizations, 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 Agency178 are provided by the OECD.

(iv) Joint sessions and meetings; joint programmes §1727 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 can be seen in the joint sessions of the two liaison committees of the Council of Europe and the OECD (see above, §1722). Another example is the joint meeting of the UNDP/UNFPA, UNICEF and the World Food Programme executive boards, held in New York from 15 to 18 January 2010.179 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,180 it proved impossible to have a joint session of these two principal organs of the UN in April 2001.

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.181 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

177 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. 178 OECD Council, Decision of 15 Nov. 1974, Art. 7 (14 ILM (1975), at 791). 179 UN Handbook 2010-2011, at 206. 180 See Simma (ed.), op. cit. note 96, at 1016-1019. 181 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).

1112

chapter twelve

§1728

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.182 §1728 Apart from joint sessions and meetings, organizations may also decide to organize joint programmes. Such programmes may benefit from the expertise of the organizations involved and may stimulate further coordination. The European Union and the Council of Europe carry out a number of joint programmes, for example programmes for the modernisation of the judicial system and criminal law reform in Turkey, for the establishment of an independent, reliable and operational judicial system in the Western Balkans, and for the setting-up of police forces capable of combating crime in the countries of South-Eastern Europe.183 (v) Consultations §1728A Consultations are another mechanism used to facilitate coordination. International organizations operating in the same field may organize regular or ad hoc consultations to achieve negative and positive coordination. Relationship agreements concluded between the UN and the specialized agencies, as well as agreements concluded between the UN and other organizations, usually mention the possibility of holding mutual consultations.184 A specific example is the annual “special high-level meeting” of ECOSOC with the Bretton Woods institutions, the World Trade Organization and UNCTAD.185 Another example is provided by the consultations between the European Union and the Council of Europe. According to the 2007 Memorandum of Understanding on the relations between these two organizations, “the Council of Europe and the European Union, within their respective policy frameworks, will consult regularly and closely, both at political and technical levels, on matters within the shared priority areas . . .”.186 At the most general level, such consultations take place within the framework of half-yearly “quadripartite meetings”, bringing together the Secretary-General of the CoE and representatives from the CoE Committee of Ministers, the EU Council and the European Commission.187

182 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. 183 These examples are mentioned in the 2006 Juncker report on the relations between the EU and the CoE (see www.coe.int/t/der/docs/RapJuncker_E.pdf (October 2010), para. 6). In 2005 the joint EU/CoE programmes costed over 47 million euros (id.). See for an overview of the current joint programmes www.jp.coe.int/default.asp (October 2010). 184 See e.g. the agreement concluded between the UN and the World Tourism Organization (Annex to GA Res. 58/232), Art. 14. 185 See e.g. UN Doc. A/63/80 – E/2008/67 (summary by the ECOSOC President of the 2008 special high-level meeting). 186 Memorandum of Understanding between the Council of Europe and the European Union, para. 41. 187 See e.g. the reports of the 29th quadripartite meeting that took place in Luxembourg, 27 October 2009: EU Council Doc. 15129/09 (Presse 312) and CoE Doc. CM/Inf(2009)47.

§1729

external relations

1113

(vi) Exchange of observers §1729 The presence of observers from one organization at sessions of another also promotes coordination between the organizations (see above, §185-187). The relationship agreements concluded between the UN and the specialized agencies as well as agreements concluded between the UN and other organizations usually mention the possibility of sending representatives to each other’s meetings. For example, according to Article 4.2 of the Negotiated Relationship Agreement between the International Criminal Court and the United Nations “[t]he Court may attend and participate in the work of the General Assembly of the United Nations in the capacity of observer”.

(vii) Reporting §1730 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 criticize the other when discussing its report.188 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.189 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.190 However, in 1977, the ECOSOC decided to discontinue the submission of “analytical summaries” of these reports.191 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 to state how improved coordination could facilitate the implementation of plans adopted by each agency.192 §1731 Several European organizations report to each other. For example, the OECD, the European Conference of Ministers of Transport, and the European Commission of the International Civil Aviation Organization report to the

188

Socini, op. cit. note 79, 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. 190 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. 191 ECOSOC Res. 2098 (LXIII); YUN 1977, at 775. 192 See UN Doc. A/48/317 for the replies from these UN bodies. 189

1114

chapter twelve

§1732

Council of Europe.193 The European Union has a close relationship with the Council of Europe. Over the years, a number of binding and non-binding agreements between these organizations have provided a framework for these relations. These agreements contain numerous reporting mechanisms. Most recently, in 2007 a Memorandum of Understanding was signed between the Council of Europe and the European Union, establishing “a new framework for enhanced cooperation and political dialogue”.194 For the relationship between the European Coal and Steel Community a specific Protocol was adopted, annexed to the constitution of the ECSC. This Protocol provided, inter alia, for reporting by the European Parliament to the Parliamentary Assembly of the CoE.195 In 1959, the EEC and Euratom, responsible for establishing appropriate forms of for cooperation with the Council of Europe,196 entered into an agreement with the Council.197 In 1987, this relationship was further strengthened through an exchange of letters.198 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. In May 2007, a Memorandum of Understanding was signed between the CoE and the EU to govern their relationship.199 All these agreements provide for reporting by various organs of these organizations.

(viii) Planning §1732 Long-term planning clarifies the work of one organization for all others. It will thus help coordination. 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”.200 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

193

Socini, op. cit. note 79, at 86-87. See www.coe.int/t/der/docs/MoU_EN.pdf (March 2011). The 2006 Juncker report on the relations between the EU and the CoE (see www.coe.int/t/der/docs/RapJuncker_E.pdf (March 2011)) made a number of recommendations for EU/CoE relations. One of the recommendations was that the EU should become a member of the Council of Europe by 2010, but this recommendation failed to receive the necessary support. 195 ECSC Protocol on Relations with the CoE, Art. 2. 196 TFEU, Art. 220; Euratom, Art. 200. 197 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). 198 OJ 1987, L 273/35. See for details: previous edition of this book, §1725. 199 See CoE Doc. CN(2007)74, or www.coe.int/t/der/docs/MoU_EN.pdf (October 2010). 200 Report of the Committee on Programme and Coordination on the Work of its 19th Session (UN Doc. A/34/38, Chapter II, para. 17). 194

§1733

external relations

1115

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.201 The Administrative Committee on Coordination (see above, §1723) therefore recommended the adoption of a synchronized fixed-horizon six-year plan as standard for the UN family.202 The UN originally used six-year plans; between 1974 and 2006, it used a medium-term financial plan, covering a period of four years; at present, it has a “strategic framework” and no longer a medium-term financial plan (see above, §1103). (ix) Exchanges §1733 Some international organizations cooperate closely and exchange plans and information by consulting each other.203 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 in coordinating activities. Mutual knowledge of activities is the first important step towards coordination. Many international organizations distribute documentation unilaterally, in order 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 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 that are members of both organizations.204

201

Id., paras. 29-30. Id., para. 19. On medium-term planning, see also GA Res. 31/93, YUN 1976, at 888-889. 203 See e.g. on the cooperation between the UN and regional organizations UN Doc. A/65/382 – S/2010/490. 204 See Robertson, op. cit. note 22, at 218-219. 202

1116

chapter twelve

§1736

§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,205 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 that 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 that 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 existing organizations. For the purposes of coordination,206 it may be just as 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 (for example, 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.

205 206

See e.g. Agreement between the UN and UNESCO, Art. 13, para. 1. Dupuy, op. cit. note 79, at 476.

§1739

external relations

1117

Some common training will also promote mutual understanding between international civil servants.207 A UN staff college was therefore proposed long ago by the Secretary-General of the UN (see above, §499). In 2001, the UN General Assembly approved the Statutes of the UN System Staff College.208 This College started functioning in 2002. It is based in Turin, Italy.209 e. Coordination at national level §1739 Coordination begins at home.210 Coordination at the national level is at least as important as coordination at international level.211 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 coordination.212 For example, in 1992 the General Assembly 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”.213 This is necessary, not only to prevent activities from 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 unintended interests and rivalries.214 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;215 and coordinating organs are often

207

Cf. GA Res. 47/199, paras. 43-45. GA Res. 55/278 (the Annex to this resolution contains the Statute of this College). See www.unssc.org (March 2011); UN Handbook 2010-2011, at 247. 210 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. 211 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. 212 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. 213 GA Res. 47/199, para. 9. 214 Magee, op. cit. note 87, at 62. 215 R.F. Hopkins, The international role of “domestic” bureaucracy, 30 International Organization 405-432 (1976). 208 209

1118

chapter twelve

§1740

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)216 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. (2) When the fields of operation of international organizations are more diverse, special coordinating organs may be needed. The state’s Ministry of Foreign Affairs usually functions as the coordinating body for national policies in respect of international organizations.217 This ministry 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 that are in direct conflict with their government’s policies in other organizations.218 To prevent such clashes, several states discuss questions relating to international organizations in interdepartmental committees in which all the departments concerned are represented.219 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 that 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).220 Neither the bureau that acts as intermediary between the state and various

216 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. and www.cept.org. 217 Cohen Jonathan, op. cit. note 211, at 198-201. 218 Jackson Report (UN Doc. DP/ 5), vol. I, at V. See also J. Kaufmann, United Nations Decision Making 64 (1980). 219 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). 220 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 211, at 201-203.

§1741

external relations

1119

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 decision-making process.221 There the permanent representatives of the member states have a dual role. On the one hand, they participate in the national decision-making on matters relating to the Union. On the other, they are members of 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 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).222 §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 that 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, §1709). 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.223

221 See Virally, Gerbet and Salmon, op. cit. note 220, at 613-717; J.W. de Zwaan, The Permanent Representatives Committee: its role in European Union decision-making (1995). 222 De Zwaan, op. cit. note 221. 223 GA Res. 2688 (XXV), Annex paras. 5-10 and 63.

1120

chapter twelve

§1742

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 that international persons use to exercise their external powers. The other instruments mentioned below have aspects of both. A. Agreements224 §1743 The 1969 Vienna Convention on the Law of Treaties (Vienna I) only covers 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.225 Its rules are almost identical to those of the 1969 Convention (Vienna I).

224 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 79, 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 Treatymaking capacity of international organizations, in: The Law and the Sea, Essays in Memory of Jean Carroz 22-42 (1987). 225 Text published in UN Doc. A/CONF.129/15. As at March 2011, 29 states (and 12 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 224; 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

§1744

external relations

1121

1. The notion “agreement” §1744 In the report of its 14th session, the International Law Commission mentioned sixteen different names for treaties.226 Of these, the term “convention” 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”,227 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 term “agreement” is used in the restrictive sense of indicating treaties concluded by international organizations, unless the context clearly indicates that another concept is intended.228 §1745 As a type of treaty, an agreement is made under international law. This distinguishes it from arrangements enjoying lesser binding force229 as well as from any contracts international organizations may conclude under the national law of a state. However, the distinction is not 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.230 Whether a particular instrument should be classified as an “agreement” or as a “contract under

the 1986 Conventions on the Law of Treaties: A Comparison, in: id., at 461-487; C. Brölmann, The Institutional Veil in Public International Law – International Organizations and the Law of Treaties (2007). 226 GAOR 17th Session, Suppl. No. 9 (A/5209), at 5. 227 Chiu, op. cit. note 41, at 50. For other names, see Schneider, op. cit. note 224, 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 Union, 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). 228 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. 229 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. 230 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 K. Zemanek (ed.), Agreements of International Organizations and the Vienna Convention on the Law of Treaties, Supplementum I to ÖZoR (1971), at 165-193.

1122

chapter twelve

§1746

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 treaty-making capacity. However, the subjects of an arrangement need not be the 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 that are not recognized as subjects of international law.231 The UN, for example, concluded agreements with the authorities of Katanga, concerning defence zones in that province of Zaire232 and a cease-fire.233 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 instead by the internal rules of the organization. Examples of this category are the interinstitutional agreements concluded within the European Union, between the European Parliament, the Commission and/or the Council (see also above, §1202).234 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 also 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 that 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

231

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 224, at 249, 267. 233 UN Doc. S/4940, Add. 7, para. 6; SCOR 16th year, Suppl. for July, August and September 1961, at 119-120. 234 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). 232

§1747

external relations

1123

of arrangement could be envisaged, however, in the form of a formal agreement between the organization and the member 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:235 formal agreements; exchanges of notes; disjunctive exchanges of notes (consisting of a direct offer, accepted subsequently and separately by the other parties);236 and parallel resolutions. Oral agreements may be a fifth group.237 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.238 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.239 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.240 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.241 This capacity has been amply confirmed in practice. Many agreements of international organizations have been published in

235 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). 236 Definition by D.P. Myers, The Names and Scope of Treaties, 51 AJIL 591-592 (1957). 237 Higgins, op. cit. note 224, 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). 238 See Karunatilleke, op. cit. note 235. 239 ICJ Rep. 1978, at 39. 240 ICJ Rep. 1994, at 112. 241 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 EC/EU, see below, note 238.

1124

chapter twelve

§1749

the UN Treaty Series,242 or elsewhere.243 The International Court of Justice has accepted the treaty-making capacity of at least certain international organizations.244 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 capacity to conclude agreements.245 Furthermore, as these relevant rules not only include the constitution of the organization, but also any subsequent practice,246 this leaves sufficient scope for any international organization to conclude the agreements it considers necessary, even without express authorization in its constitution. The existence of treaty-making capacity 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.247 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. However, 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.248

242 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 (ed.), op. cit. note 230, at 155-158. 243 Many organizations issue publications with agreements concluded by them or make them available from their websites. E.g. the ILO, the IMO and the Council of Europe. 244 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. 245 Riphagen, op. cit. note 225, 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 225, at 670-673, and F. Seyersted, Treaty-Making 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). 246 See Yb ILC 1974 II, Part One, at 148. 247 Yb ILC 1974 II, Part One, at 146. 248 See also Chiu, op. cit. note 41, at 112, 122, 154, 160, 169 and 178; Schneider, op. cit. note 224, Chapter IV, at 69-76; P. Pescatore, Les relations extérieures des Communautés européennes, 103 RdC (1961 II), at 56; D.M. McRae, Cooperation agreements and the Law Relating to Agreements Concluded by International Organizations, in Zemanek (ed.), op. cit. note 230, 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.

§1749

external relations

1125

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. However, such agreements have 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.249 The constitution of the IAEA provides for agreements with members willing to make special fissionable materials available.250 The constitution of the Council of Europe expressly anticipates an agreement with one member (France) on the headquarters of the organization;251 The same is true for the International Criminal Court (headquarters agreement with the Netherlands).252 The constitution of the World Bank provides for agreements with members on loans and guarantees.253 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.254 Agreements with non-member states are envisaged in the Treaty on the Functioning of the European Union, which provides inter alia for trade agreements and association agreements.255 The EFTA constitution provides for associations with other states or with

249 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. 250 IAEA, Art. IXA. 251 CoE, Art. 40(b). The agreement was concluded on 2 September 1949 (Treaty Series of the CoE, No. 3). 252 Statute of the ICC, Art. 3.2. 253 Arts. 3 and 4. 254 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. 255 TFEU, Arts. 207, 217, 218. See E.-U. Petersmann, Auswärtige Gewalt, Völkerrechtspraxis 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 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; 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,

1126

chapter twelve

§1750

international organizations.256 The OECD constitution provides for agreements with states that may participate in the work of the organization.257 Euratom and OECD may conclude agreements on all subjects within the limits of their competence.258 The Caribbean Community may negotiate agreements with members, non-members and other international organizations.259 Agreements with other international organizations are provided for in several constitutions.260 Both universal and regional organizations have concluded many agreements with other international organizations.261 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.262 Succession agreements are another category (see above, §1639).263 The vast majority of agreements between international organizations are bilateral, while a few are multilateral.264 Some international organizations have even concluded agreements with organs of other international organizations.265

§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 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 organs266 and on the development of international institutional law. This development may explain why organizations that did not conclude any agreements before the Second World War, and the constitutions of which contain no special provision, have entered into agreements since 1945.267 The evolution of the competences of the EC/EU explains why the EC/EU has acceded to an increasing number of conventions of, for example, the Council of Europe268 and the UN.269 International Relations Law of the European Union (1997); A. Dashwood and Chr. Hillion, The General Law of E.C. External Relations (2000). 256 EFTA, Art. 41(2). 257 OECD, Art. 12(c). 258 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)). 259 Caricom, Art. 70. 260 See e.g. FAO, Art. 13; UNESCO, Arts. 10, 11(1); WHO, Art. 70; ICAO, Art. 65; UNIDO, Art. 19; TFEU, Arts. 216-218; OECD, Art 12(b); EFTA, Art. 36; OAS, Art. 112(h); ICC Statute, Art. 2. 261 On the basis of the UNTS, Schachter estimated 200 agreements had been concluded between international organizations in the period from 1946 to 1960 (op. cit. note 242, 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 242, at 155-158. 262 UN Charter, Art. 63. See above, §1692-1693. 263 UNESCO, Art. 11(2); WHO, Art. 72; WMO, Art. 26(c). 264 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). 265 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. 266 Vienna II, Art. 6; Chiu, op. cit. note 41, at 21, 184. 267 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. 268 See R. Brillat, La participation de la Communauté européenne aux conventions du Conseil de l’Europe, in: 37 AFDI 819-832 (1991). 269 E.g. the 1992 UN Convention on Biological Diversity; see OJ 1993, L 309/1.

§1751

external relations

1127

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.270 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, OPCW and ICC, which do not qualify as specialized agencies.271 The Charter provides for certain other types of agreements, but only a small fraction of the agreements concluded by the UN falls within the categories authorized in the Charter.272 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.273

§1751 In the absence of express provisions, it may be difficult to establish what types of 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 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 that 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 that 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.274 It then acts to protect 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

270 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. 271 IAEA: GA Res. 1145 (XII). OPCW: GA Res. 55/283. ICC: see UN Doc. A/58/874, Annex (approved by GA Res. 58/318). 272 F. Seyersted, International Personality of Intergovernmental Organizations, in 4 IJIL 9 (1964); see also Kasme, op. cit. note 224, at 56-59. 273 See Jenks, op. cit. note 20, at 187-195. 274 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.

1128

chapter twelve

§1753

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 Union (EU).275 Originally, the European Community was expressly empowered to conclude agreements with third countries on commercial policy,276 and to conclude association agreements with third states or international organizations.277 Subsequently, such explicit competence in external relations was attributed in other areas as well: for example monetary policy (Article 219 TFEU), research and technological development (Article 186 TFEU), environment (Article 191.4 TFEU), and development cooperation (Article 211 TFEU).278 According to the European Court of Justice, this explicit enumeration of treatymaking powers 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: Article 210 [– now Article 47 TEU –] 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.279

§1754 The position adopted by the European 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.280 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

275

For literature, see above, note 238. EC, original Art. 111(2) (now repealed); currently TFEU, Art. 207.3. 277 Now: TFEU, Art. 217. 278 See Flaesch-Mougin, op. cit. note 255 [1993]. 279 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). 280 See also J. Groux, Le parallélisme des compétences internes et externes de la Communauté économique européenne, 14 CDE (1978), at 3 ff. 276

§1755

external relations

1129

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.281 §1755 The legal principles developed by the European Court of Justice 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. This means that a customs union possessing 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.282 b. Mixed agreements §1756 Often, a treaty or an agreement covers a field that 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.283

281

Kramer case (3, 4, 6/76), ECR 1976, at 1310. Cf. also Opinion 2/91, CMLR 800 (1993). 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. 283 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 255; 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 255, at 142-164; J. Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001); E. Neframi, Les accords mixtes de la Communauté européenne, aspects communautaires et internationaux (2007); C. Hillion and 282

1130

chapter twelve

§1756

The European Union frequently uses mixed agreements,284 usually when the substance of an agreement falls partly within the competence of the member states, and when, mainly in the past, not all other treaty partners were willing to accept the EC as a treaty partner.285 Provisions of the agreement that might be outside the competence of the organization, (and, in the early years, legal relations with states that 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 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”.286 Practice on the conclusion of mixed agreements is not very consistent, as it depends on the content of the agreements.287 For example, the association agreements with Greece

P. Koutrakos (eds.), Mixed Agreements Revisited (2010). On the definition of mixed agreements, see in particular H.G. Schermers, in O’Keeffe and Schermers (eds.), op. cit. above, at 23-26. 284 See Heliskoski, op. cit. note 283, at 249-280, for a list of the 154 mixed agreements of the EC concluded between 1958 and 2000. In 2010, some 250 agreements had been concluded as mixed agreements; see A. Rosas, The Future of Mixity, in Hillion and Koutrakos (eds.), op. cit. note 283, at 367-374 (this number of 250 agreements is mentioned at 371). 285 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. 286 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 283, at 199-206; Heliskoski, op. cit. note 283, 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). 287 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 283, at 207-248.

§1757

external relations

1131

(1961), Turkey (1963), and the African, Caribbean and Pacific Countries (the Lomé agreements of 1975, 1979, 1984 and 1989, and the Cotonou Agreements of 2000), 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. The seven “euro-mediterranean association agreements” concluded between 1998 and 2005 with Egypt, Israel, Jordan, Lebanon, Morocco, Tunisia and Algeria were concluded by the EC and its members.288 Some trade agreements were concluded by the E(E)C and its members.289 Most other trade agreements were, on the Community side, concluded by the E(E)C only.290

§1757 In theory, it might not seem too complicated to decide when the substance of an agreement falls within the competence of the European Union 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 Union, and even when the EU’s exclusive competence is beyond doubt, the member states sometimes resent their exclusion,291 or may insist on concluding a mixed agreement when this is unnecessary.292 (And member states are indeed excluded: in some opinions the Court has clearly stated that the existence of an exclusive competence for the EU excludes any competence on the part of the member states which is concurrent with that of the Union, in the EU sphere and in the international sphere.)293 Moreover, even when there is a clear demarcation of competences between the Union and the member states at the time of concluding a mixed agreement, it is possible that the division of competences may change over the course of time.294 As the European Court of Justice has indicated with regard to its advisory competence in relation to international agreements (see above, §619): “its opinion may in particular be obtained on questions concerning the division, between the Community and the member states, of competence to conclude a given agreement with non-member countries”.295 In a number of cases the Court has been asked whether agreements covered subjects for which the EC/EU was exclusively competent. To

288 Agreements with Algeria (OJ 2005, L 265), Egypt (OJ 2004, L 304), Israel (OJ 2000, L 147), Jordan (OJ 2002, L 129), Lebanon (OJ 2006, L 143), Morocco (OJ 2000, L 70) and Tunisia (OJ 1998, L 97). 289 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). 290 E.g. agreements concluded by the EEC under Art. XXVIII GATT; see e.g. 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; France attempted – in vain – to achieve that this arrangement was considered a mixed agreement. 291 O’Keeffe and Schermers op. cit. note 283, at ix. 292 For an example, see Rosas, op. cit. note 284, at 367-370. 293 Opinion 1/75, ECR 1975, at 1364; Opinion 2/91, ECR 1993, at I-1076, 1077. 294 Ruling 1/78, ECR 1978, at 2151 (para. 35); Opinion 1/08, 30 November 2009 (not yet reported), para. 116. See also Heliskoski, op. cit. note 283, 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”. 295 Opinion 1/08, 30 November 2009 (not yet reported), para. 109.

1132

chapter twelve

§1757

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”.296 How difficult it is to decide whether there is exclusive competence for the EU, or whether there is a partial competence for the EU 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 Commission requested the Court to give its opinion pursuant to Article 228 EEC [– now Article 218 TFEU –] 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 of 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”.297 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 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”.298 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 154 TFEU –] and the Directives adopted by the Council pursuant to it.299 But the Court established that this competence was not exclusive, mainly because rules adopted pursuant to Article 118a only establish minimum requirements, and leave the member states free to adopt more stringent measures or apply the relevant ILO provisions for that purpose.300 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”.301 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

296 Opinion 1/78, ECR 1979, at 2917; Opinion 1/08, 30 November 2009 (not yet reported), para. 166. 297 Opinion 1/75, ECR 1975, at 1364. 298 Opinion 1/78, ECR 1979, at 2918. See also Opinion 1/94, ECR 1994, at I-5267, para. 21. 299 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. 300 Opinion 2/91, ECR 1993, at I-1079. 301 Id., paras. 36-37. See also Opinion 1/94 ECR 1994, at I-5267.

§1758

external relations

1133

Community was exclusively competent. The EC has exclusive competence in the field of trade in goods, and in the area of trade in services only as far as cross-border services are concerned which do not involve any travel of people (but, for example, are provided by electronic means). As to all other trade in services, there is mixed competence.302

§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.303 In particular in recent years, in relation to UN conventions, third states have requested specific information about the division of competences between the EU and its members, in order to know which issues they have to address either to the EU or to its members (for example, in case a dispute arose).304 §1759 Other problems will arise when an international organization becomes a party to a mixed agreement while some of its members stay outside it.305 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 that also accept the burden of police and pollution control. §1760 Treaties that permit neither partial adherence, nor reservations excluding parts of the treaty, only permit parties that accept all provisions to adhere. States or international organizations that 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 to the treaty, 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

302 Opinion 1/94, ECR 1994, at I-5267; see also Opinion 1/08 of 30 November 2009, not yet reported. 303 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). 304 F. Hoffmeister, Curse or Blessing? Mixed Agreements in the Recent Practice of the European Union and its Member States, in Hillion and Koutrakos, op. cit. note 283, at 249-268. 305 Cf. also Dolmans, op. cit. note 283, at 63-70. The possibility of such partial adherence is mentioned in Art. 102 Euratom.

1134

chapter twelve

§1761

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 that are also parties to the treaty, and that it will only partly apply in relation to 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”,306 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 that did not participate in the agreement.307 An incomplete mixed agreement may also be concluded with another international organization: see, for example, the agreement concluded by Euratom and seven of its members (at the time all members with the exception of France and the UK) on the one hand, and the IAEA on the other.308 The Convention on International Liability for Damage caused by Space Objects applies to intergovernmental organizations that 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.309 Acceptance by the organization, however, only affects the space objects of the organization itself. The Convention does not aim to cover international organizations that 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 might join the organization. In principle, such new 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 that 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.310 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.

306

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 255, at 140. 308 Agreement of 3 April 1973, Trb. 1973, 97; Trb. 1974, 30; UNJY 1976, at 123. See also above, §1420. 309 Convention of 29 March 1972 on international liability for damage caused by space objects, Art. 22, 10 ILM 970 (1971). 310 Art. 5.2 of this Act of Accession. 307

§1762

external relations

1135

§1762 Mixed agreements cause special problems when they are, at the same time, constitutions of new international organizations.311 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 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 27 member states at stake, there would be 27 judges. In practice, the best solution would probably be to have 28 judges, but with limited competence: one may vote only on EU matters, 27 only on matters concerning the 27 individual member states. It is obvious that such a division of competences will often be difficult to make.312 Individuals may bring complaints against the EU and a member state at the same time, for example in a case in which a national law has been applied that is in fact an implementing law of an EU act. c. The competent organ313 §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 situations in which 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 from being reached, in these situations the conclusion of the agreement has then been entrusted to the collective membership of the organization. The diversity of opinion is illustrated by the agreements on privileges and immunities of international organizations.314 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 Europe).315 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

311

Cf. Dolmans, op. cit. note 283, at 86-92. See also Dauses, op. cit. note 255, at 157-170. 313 See T.I.H. Detter, The Organs of International Organizations exercising their Treaty-Making Power, 38 BYIL 421-444 (1962); Higgins, op. cit. note 224, 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 (ed.), op. cit. note 230, at 195-227; McRae, op. cit. note 248, at 18-26, 30-32. 314 See Chiu, op. cit. note 41, at 142-152. 315 250 UNTS, at 14. 312

1136

chapter twelve

§1764

Immunities of the UN).316 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.317 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.

§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 of the organization may have actively participated in its conclusion may be relevant when determining how the organs 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.318 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”.319

316 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. 317 See Doc. ICC-ASP/1/3, at 215. 318 Higgins, op. cit. note 224, at 249-253; Chiu, op. cit. note 41, at 84-97; Neuhold, op. cit. note 313, at 216-227. 319 Draft Convention on the Law of Treaties, Art. 4, para. 3, Yearbook of the ILC 1950 II, at 223.

§1766

external relations

1137

However, the general congress is not always competent. 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 those assigned tasks. For example, in the UN context: the UN Security Council on matters of peace and security; UNICEF and the UNDP in their specific fields; and the boards of IMO, ICAO and IAEA on several matters specifically attributed to them.

§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.320 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.321 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”,322 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”,323 or the administrative arrangement with the ILO Director-General on laissez-passer, of June-July 1950.324 As chairman of the Technical Assistance Board, he even concluded agreements on behalf of international organizations other than the UN.325 He was expressly authorized by the General Assembly326 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).327 On that basis, he concluded an interim headquarters agreement with the Netherlands in 2002.328 In 1981, the question of whether a formal agreement of cooperation can be concluded between the UN Secretariat and an international organization was brought before the UN Office of Legal Affairs. The Office concluded that in previous cases of such formal agreements, a negative reply had almost always 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

320 For authorizations in favour of the Secretary-General or another agent, see Detter, op. cit. note 313, at 427-437. 321 In some instances, secretariats have concluded agreements on other than administrative matters, see Detter, op. cit. note 313, at 425. 322 1 UNTS, at 163 ff. 323 47 UNTS, at 168 ff. 324 68 UNTS, at 213 ff. See also 43 UNTS, at 329 and Kasme, op. cit. note 224, at 190-194. 325 See e.g. 76 UNTS, at 120. 326 GA Res. 22 B(I). 327 Decision ICC-ASP/1/Decision 2 (see Doc. ICC-ASP/1/3, at 355). 328 Published in Trb. 2002, 211.

1138

chapter twelve

§1767

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.329

§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 will not be affected. The general congress can, therefore, terminate any agreement concluded by the Secretary-General 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 European Union, agreements are negotiated by the Commission in accordance with mandates issued by the Council. If the agreement envisaged relates exclusively or principally to the common foreign and security policy, the negotiations will be done by the High Representative of the Union for Foreign Affairs and Security Policy.330 The Commission (or the High Representative) is usually assisted by a special intergovernmental committee appointed by the Council.331 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 that belongs to the Council,332 which as a rule it only exercises after it has consulted the European Parliament. For five specific types of agreements, the Parliament must give its assent: association agreements, the envisaged agreement on EU accession to the European Convention on Human Rights, other agreements establishing a specific institutional framework by organizing cooperation procedures, agreements with important budgetary implications for the EU, and agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required.333 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 Court of Justice 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

329

UNJY 1981, at 149. TFEU, Art. 218.3. 331 TFEU, Art. 218.4. See B.R. Bot, Negotiating Community Agreements: Procedure and Practice, 7 CMLRev. 286-310 (1970); MacLeod, Hendry, and Hyett, op. cit. note 255, 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. 332 TFEU, Art. 218.6. 333 Id. 330

§1769

external relations

1139

not such that the Commission 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 [– now Article 218 of the TFEU –].334

3. The subject matter of agreements335 §1769 International organizations are not competent to make agreements in every field. Below, we will discuss some important subjects about which agreements are made. a. Agreements on the status of the organization and on relations with others336 §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,337 or they may concern the privileges and immunities of the organization and its staff (see above, §1606-1609).338 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).339 These agreements may also concern the transfer of functions (succession agreements).340 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.341 UNDP

334

Case C 327/91, France v. Commission, ECR 1994, at I-3678 (para. 41). See also Karunatilleke, op. cit. note 235, at 37-76. 336 See McRae, op. cit. note 248, at 1-55. 337 For examples of such agreements, see UNJY 1974, at 16-26 and 32; UNJY 1976, at 28-47 and 55; UNJY 1996, at 11,31, 39 and 79; UNJY 2008, at 40, 50, 58, 61; UNJY 2009, at 36, 40, 44, 49. 338 Chiu, op. cit. note 41, at 140-141; Repertory of Practice of United Nations Organs, Vol. V, at 327-331. 339 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. 340 See above, §1639. 341 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 335

1140

chapter twelve

§1772

uses a standard basic agreement, which was adopted in 1973.342 Besides the provisions on aid, this agreement also stipulates the privileges and immunities that UNDP missions are to enjoy in the state concerned and special facilities for its staff.343 It also stipulates that UNDP may maintain a permanent mission in the country.344 The member state remains responsible for the projects.345 It is to furnish UNDP with such relevant documentation as the latter may request.346 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.347 Any dispute is to be settled by arbitration.348 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. For example, the Intergovernmental Committee for European Migration (since 1987, the International Organization for Migration) 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.349 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.350 As further examples of agreements with members and non-members, the Loan and Guarantee Agreements of the World Bank may be mentioned,351 as may the forestry agreements of the FAO,352 the trade and other agreements (bilateral and multilateral) of the EU,353 the

J.M. van Wouw, Formal Aspects of Technical Assistance Agreements Concluded by the UN Family of Organizations, in Zemanek (ed.), op. cit. note 230, at 105-126. 342 UN Doc. UNDP/ADM/LEG/34. The text is reproduced in the UNDP Basic Documents Manual, Chapter II, and available at www.undp.org/idp/docs/TemplateSBAA.doc (March 2011). See also UNJY 1990, at 24-26. 343 Id., Art. IX. See also UNJY 1973, at 24-26; UNJY 1990, at 24-26. 344 UNDP/ADM/LEG/34, Art. II, para. 4(a). 345 Id., Art. III. 346 Id., Art. IV. 347 Id., Arts. V-VI. 348 Id., Art. XII. 349 ICEM, Art. 1, para. 3. See also Pescatore, op. cit. note 248, at 56. 350 Chiu, op. cit. note 41, at 12, mentions this as the sole LoN agreement with a nonmember. 351 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). 352 J.P. Dobbert, Decisions of International Organizations, Effectiveness in Member States, Some Aspects of the Law and Practice of FAO, in Schwebel (ed.), op. cit. note 351, at 222. 353 Hundreds of such agreements have been concluded. See the EU database EUR-Lex for a

§1773

external relations

1141

agreements between the World Trade Organization and its members or potential members,354 and the association agreements of the EU (see below, §1780-1782). The UN has concluded several trusteeship agreements under Article 85 of the Charter.355 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).356 Euratom has concluded agreements on cooperation and exchange of information with several states;357 the IAEA signed agreements on the supply of fissionable materials,358 research359 and inspection (see above, §1418).

d. Law-making agreements §1773 With some notable exceptions,360 international organizations have not participated in general law-making treaties. This situation may have to change in the future. Organizations deploying 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 that may arise in such contexts were demonstrated in the UN Sugar Conference of 1968, during which the representative of the (then) EEC stated that the EEC could only sign a resulting agreement as a single entity,361 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

complete overview of the agreements currently in force: http://eur-lex.europa.eu/RECH_repertoire.do?ihmlang=en (March 2011; Chapter 11 covers external relations). 354 GATT, Arts. XXVIII, XXXIII; WTO, Art. XII. 355 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). 356 E.g. 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 Novembre 1961, 68 RGDIP 60-109 (1964). More recent examples: with the DRC (UNJY 2000, at 23-34; UNJY 2006, at 34-36) and with Lebanon (UNJY 2008, at 30-39). 357 These agreements are published in the Official Journal of the EU. 358 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). 359 See e.g. 374 UNTS, at 133-145 (Master Contract between IAEA and US). 360 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 225, 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. 361 UN Doc. TD/SUGAR.7/EX/SR. 11 to 27, at 68; see also below, §1841 (EEC’s participation in the Sugar Conference).

1142

chapter twelve

§1774

Sugar Agreement was considered of the greatest importance, the Eastern European objections were overruled and the agreement accordingly provided that: 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.362

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.363 After the Sugar Conference (1968), the Community (now the European Union) participated in many other commodity agreements (see above, §81) and was gradually accepted as a treaty partner. §1774 The adherence of international organizations to purely legislative texts should be easy. Legislative texts are made to be applied. Thus, the more institutions that 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, international organizations have not yet adhered to such treaties. Numerous institutional and other complexities hamper such adherence. The first organization that is likely to jump these hurdles is the EU, which is now in the process of becoming a party to the European Convention on Human Rights. 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 Geneva 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 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”.364

362 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. 363 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. 364 Memorandum of the UN Office of Legal Affairs of 15 June 1972, UNJY 1972, at 153.

§1774A

external relations

1143

§1774A Long before the creation of the EU, the European Commission took the view that the EC should adhere to the European Convention for the Protection of Human Rights and Fundamental Freedoms to further promote the protection of human rights in Europe.365 This view was not shared by the Court of Justice (see above, §1576).366 Subsequently, the 2007 Lisbon Treaty introduced into the Treaty on European Union the explicit competence for the EU to accede to the European Convention.367 Earlier, Protocol No. 14 to the European Convention had opened the possibility for accession by the EU.368 The negotiations for such accession started in 2010, within the framework of a working group of the Council of Europe. These negotiations address a wide variety of mostly institutional questions, such as the following:369 (1) Should the EU have its own judge in the European Court of Human Rights? (2) Should the EU become a member of the Committee of Ministers (that supervises the implementation of judgments of the Court, adopts the budget of the Council of Europe, etc.)? (3) Should members of the European Parliament become members of the Parliamentary Assembly of the Council of Europe (that elects the judges of the European Court, including a possible future ‘EU judge’)? (4) Applications may be brought against the EU in cases in which the EU Court has not pronounced itself on the issue (because the individual concerned could not bring a direct complaint before the EU Court or because the national court dealing with the case did not request a preliminary ruling):

365 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). 366 Opinion 2/94, ECR 1996, at I-1759. 367 In surprisingly strong language: “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms” (Art. 6.2 TEU, first sentence (italics added)). The usual language is that the Union may conclude agreements (e.g. Art. 37 TEU, Arts. 216-217 TFEU). The use of the word “shall” may seem to suggest that the parties to the European Convention that are not EU members have no alternative but to accept accession by the EU, but it only serves an intra-EU purpose (and cannot do more than that): to make clear that the internal decision has been taken that the EU must accede, and that this cannot be questioned. 368 Art. 17 of this Protocol (2004) added a new paragraph 2 to Art. 59 of the Convention: “The European Union may accede to this Convention”. 369 See in more detail M. Kuijer, Toetreding van de Europese Unie tot het EVRM, 35 NJCM Bull. 932-947 (2010).

1144

chapter twelve

§1774A

in such cases, should the EU Court have the primeur to deal with the case, taking into account the ‘last resort role’ of the Strasbourg Court and the interest of the Luxembourg Court itself in pronouncing on a complaint of a human rights violation by the EU? (5) Applications may wrongly be lodged only against an EU member state, whereas such applications should also be lodged against the EU so that the EU will also be respondent in the case concerned (and vice versa): what should be the modalities of a so-called co-respondent mechanism to deal with this issue? (6) Should Protocols to the European Convention also be open to accession by the EU? (7) The EU Court does not have jurisdiction with respect to the EU’s foreign and security policy: should it be possible for the EU to exclude this policy area from the jurisdiction of the Strasbourg Court as well? This list of issues demonstrates the complexities involved in EU accession to the European Convention. While it may be expected that in the final answers to a number of the above questions the position of the EU will be similar to that of a state party to the European Convention, in other cases it will become clear to what extent the EU is different, and to what extent the veil will have to be pierced and a special arrangement is necessary to take into account the specific features of EU law.370 Even when provisional agreement is reached, such agreement may be brought before the EU Court for its opinion (as in the 1990s, when this Court blocked accession by the EC to the Convention (see above, §1576)). The EU Court has already expressed some concerns, in particular the concern that “the possibility must be avoided of the European Court of Human Rights being called on to decide on the conformity of an act of the Union with the Convention without the Court of Justice first having had an opportunity to give a definitive ruling on the point”.371 Future accession by the EU will add new dimensions to the relationship between the Luxembourg and Strasbourg Courts. At the same time, such accession implies submission by the EU, including the EU’s Court of Justice, to external scrutiny by the Strasbourg Court. It will be beyond doubt that the Strasbourg Court is the ultimate guardian of the European Convention. At the same time, the Luxembourg Court will remain the ultimate interpreter of EU law. In practice, the two courts will have to find a balance that respects these supranational responsibilities bestowed on them by their creators.

370 See in this context the first sentence of the Declaration on Article 6(2) of the TEU adopted by the Lisbon Intergovernmental Conference (2007): “[t]he Conference agrees that the Union’s accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms should be arranged in such a way as to preserve the specific features of Union law”. 371 See in particular a document of the Court (“Discussion document of the Court of Justice on certain aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms”), dated 5 May 2010, reproduced on the Court’s website (quotation at 4). See also the Joint Communication by Presidents Costa and Skouris of the two European Courts, 17 January 2011 (www.echr.coe.int/NR/rdonlyres/02164A4C0B63-44C3-80C7-FC594EE16297/0/2011Communication_CEDHCJUE_EN.pdf (March 2011).

§1775

external relations

1145

In the initial negotiations for Protocol 14 to the European Convention, it has been discussed whether the possibility of future accession to the European Convention should not be limited to the EU but should also be extended to other international organizations. This suggestion has considerable merit: in practice, numerous complaints involving acts of international organizations have been brought before the Strasbourg Court,372 mostly by lodging such complaints against the members of the organization concerned. However, the issues and complexities mentioned above explain why it has been decided, so far, to limit accession by international organizations to the EU. §1775 Some general economic treaties do permit European Union participation (see above, §81). Sometimes express provision is made for such participation.373 For example, the 2010 International Cocoa Agreement provides for EU membership of the International Cocoa Organization. According to Article 4.5 of this Agreement, “[a]ny reference in this Agreement to “a Government” or “Governments” shall be construed as including the European Union and any intergovernmental organization having comparable responsibilities in respect of the negotiation, conclusion and implementation of international agreements, in particular commodity agreements. Accordingly, any reference in this Agreement to signature, ratification, acceptance or approval, or to notification of provisional application or to accession shall, in the case of such intergovernmental organizations, be construed as including a reference to signature, ratification, acceptance or approval, or to notification of provisional application, or to accession, by such intergovernmental organizations”. 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 that 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 international law. There is no apparent reason why their right to participate in the establishment of new international organizations should be withheld.

372 E.g. Eurocontrol, the European Patent Organization, the European Space Agency, ICTY, the Iran-US Claims Tribunal, NATO. 373 E.g. the 1992 International Sugar Agreement, Art. 5.

1146

chapter twelve

§1777

§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 both organizations.374 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.375

§1778 The EU Court has determined that the European Union’s competences in the field of external relations include 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”.376 The Court has specified that, if the EU 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 [EU] 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 [EU] legal order. An international agreement providing for such a system of courts is in principle compatible with [EU] law. The Union’s competence in the field of international 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.377

374 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). 375 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; UN Handbook 20102011, at 238-239; www.wfp.org. 376 Opinion 1/76, ECR 1977, at 755-756. See on the legal status, within the EU 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). 377 Opinion 1/91, ECR 1991, at I-6106. Similarly: Opinion 1/09, 8 March 2011, not yet reported, para. 74.

§1779

external relations

1147

§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.378 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”.379 While the EEA Agreement provides for extensive cooperation between the contracting parties, it is fundamentally different from the European Communities, now the European Union. As was concluded by the European Court of Justice, 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, nonetheless 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.380

The EEA institutional structure is indeed fundamentally different from that of the European Union. The EEA Council is the general congress of the organization, composed of members of the Council and the Commission of the EU, and one member of the government of each of the participating EFTA states. As a rule, it is to be convened twice a year.381 The EEA Joint Committee is the board of the organization, consisting of representatives of the contracting parties. It meets, in principle, at least once a month.382 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.383 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

378 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. 379 EEA, Art. 1.1. 380 Opinion 1/91, ECR 1991, at I-6102. 381 EEA, Arts. 89-91. 382 EEA, Arts. 92-94. 383 EEA, Art. 95.

1148

chapter twelve

§1780

and Social Committee of the Community and members of the EFTA Consultative Committee.384 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 – 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.385 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.386 §1780 The European Union has concluded association agreements with many non-member states.387 One example is formed by the so-called Europe agreements, which are mixed agreements concluded with Central and Eastern European states.388 These agreements actually create new international organizations, of which the EU is one of the members. As with the EEA agreement, their purposes are more limited than those of the EU. 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 of, on the one hand, the members of the Council of the European Union and members of the Commission and, on the other hand, members of the government of the partner(s) in the association agreement.389 There may also be a junior congress, such as the Committee of Ambassadors under the Lomé Agreements and the subsequent Cotonou Agreement,390 and there is often also a parliamentary organ.391 §1781 A distinction is often drawn between three types of association agreements concluded by the EU and its member states with a third country or

384

EEA, Art. 96. Opinion 1/91, ECR 1991, at I-6104-6107. See also Opinion 1/09, 8 March 2011, not yet reported, in particular paras. 76, 89. 386 Opinion 1/92, ECR 1992, at I-2821. On the two EEA opinions by the EC Court, see the annotation by H.G. Schermers, 29 CMLRev. 991-1009 (1992). 387 See A. Weber in H. von der Groeben and J. Schwarze (Hrsgb.), Kommentar zum Vertrag über die Europäische Union und zur Gründung der Europäischen Gemeinschaft (6th ed., 2004), Band 4, at 1751-1786 (with references to further literature); MacLeod, Hendry, and Hyett, op. cit. note 255, at 367-385. 388 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). 389 E.g. Lomé IV (published in OJ 1991, L 229), Art. 30; Cotonou Agreement (published in OJ 2000, L 317/3), Art. 15.1. 390 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 on the one hand, and the EC/EU and its member states, on the other hand). 391 Lomé IV, Arts. 32 and 350-351; Cotonou Agreement, Art. 17. 385

§1782

external relations

1149

countries.392 The first type are “future membership” association agreements, concluded with non-member states 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 are “free trade” association agreements. The objective of these agreements is to create a customs union: for example, the agreements with Malta and Cyprus (until these countries became members of the EU). A third type are “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 are the Lomé Convention and the subsequent Cotonou Agreement. §1782 Institutionally, the full participation of international organizations in other international organizations need not pose any insurmountable problems. The European Union 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 EU 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). 4. The legal force of agreements a. Legal character §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,393 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 . . .”,394 are more in the nature of declarations of policy than legal obligations. They nevertheless establish international rules of behaviour.395 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.396

392

See e.g. Weber, op. cit. note 387. Chiu, op. cit. note 41, at 136. 394 Id., at 138. 395 C. Parry, The Treaty-making Power of the United Nations, 26 BYIL 139 (1949). 396 Chiu, op. cit. note 41, at 195; J. Fawcett, The Legal Character of International Agreements, 30 BYIL 387-388 (1953). 393

1150

chapter twelve

§1784

Such an intention is lacking in, for example, standby arrangements between the IMF and its members. In these arrangements, IMF resources are made available – under certain conditions – to members experiencing balance-of-payments problems. Standby arrangements are not concluded as international agreements.397 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 the 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. b. 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. An exception to this rule is permitted only when the violation was manifest and concerned a fundamentally important rule of its internal law.398 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.399 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.400 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 in which it is concluding a treaty with another state, a state may

397 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. 398 Vienna I and II, Art. 46.1; see also Neuhold, op. cit. note 313, at 254-267. 399 Vienna II, Art. 46.2. See also Groux and Manin, op. cit. note 255, at 123-125. 400 Vienna I, Art. 46.2; Vienna II, Art. 46.3.

§1785

external relations

1151

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 for loans, 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.401 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 that violates its constitution would act ultra vires. In the case of the Bank, however, a presumption of validity may 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 that contrasts sharply with the state context. 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 agreement only when he is supported by a resolution of the supreme organ of the organization, or when he acts in a field in which the necessary authority 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”.402 §1786 Agreements may not violate peremptory norms of international law (ius cogens);403 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;404 and the other party may invoke error, fraud or corruption to invalidate the agreement.405

401 General conditions for loans (July 31, 2010), Art. VIII, Section 8.01; available at http:// siteresources.worldbank.org/INTLAWJUSTICE/Resources/IBRD_GC_English_10.pdf (March 2011). 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. 402 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. 403 Vienna Conventions I and II, Arts. 53, 64. 404 Id., Arts. 51, 52. 405 Id., Arts. 48-50.

1152

chapter twelve

§1787

The supreme organ of an international organization (usually the general congress) can virtually always revoke an agreement, concluded on behalf of the organization, that 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. c. 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 Treaty on the Functioning of the European Union expressly states that agreements concluded by the EU “are binding upon the institutions of the Union and on its member states”.406 This seems a most appropriate provision. Where states have transferred powers to an international organization, they ought to be bound by the agreements that 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). If members were 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 that have acceded to the organization after the conclusion of the agreement. When joining 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.407

406

TFEU, Art. 216.2. See V. Haak, Zur Übernahme der von der EWG geschlossenen Völkerrechtliche Verträge durch die beitretenden Staaten, 6 EuR 119-129 (1971). 407

§1789

external relations

1153

5. The conclusion, entry into force and termination of agreements408 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 included in each agreement.409 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.410 Sometimes special negotiation committees are appointed, composed of representatives of members of the organization,411 or existing commissions are charged with the negotiations.412 Negotiations for other agreements are conducted by the secretariat of the organization.413 If credentials are needed, they should be issued by the organ competent with respect to 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.414 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.415 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

408

See also McRae, op. cit. note 248, at 26-34; Neuhold, op. cit. note 313, at 228-252. See FAO Basic Texts (2000), Volume II, Section N (also available on www.fao.org/legal ); J.P. Dobbert, op. cit. note 352, at 222. 410 Chiu, op. cit. note 41, at 90, 148-149. For the text of a resolution empowering the SecretaryGeneral to sign, see e.g. 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. 411 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 TFEU, Art. 218.4, providing that the Council may designate a special committee in consultation with which the negotiations must be conducted. 412 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. 413 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 224, at 253. At its sixth session the general congress of FAO authorized the Director-General 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 172-173, 177, 183. 414 Zemanek, op. cit. note 224, at 70. 415 Vienna Conventions I and II, Art. 47. 409

1154

chapter twelve

§1790

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 unauthorized signatures. UN officials have sometimes concluded agreements on behalf of the organization without the express authorization of the relevant competent organ. Members that 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.416 The members of the Secretariat had acted on the basis of a general authorization of the Security Council “to take the necessary steps”.417

§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 of 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 in which 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).418 Sometimes even the term “ratification” is used.419 Formal exchange of ratifications is usually omitted.420 The agreement enters into force with the last approval.421 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

416 See UN Documents S/4962 and S/5009 (SCOR, 16th Year, Suppl. for Oct., Nov. and Dec. 1961), at 61 and 171. 417 SC Resolutions 143 and 146 (1960). 418 E.g. 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). 419 Schneider, op. cit. note 224, at 54, note 19. 420 But not always: 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. 421 See Chiu, op. cit. note 41, at 104-105.

§1792

external relations

1155

entered into force when they had been approved by the General Assembly422 and by the general congress of the agency concerned.423 The agreements of the World Bank are not signed before they have been approved by the Executive Directors.424 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.425 §1793 Within the EU, the Commission usually conducts the negotiations for an agreement, on the basis of an authorization provided by the Council. Agreements are concluded by the Council, as a rule after consulting the European Parliament. In some specific cases (for example, association agreements and agreements with important budgetary implications for the Union), the Council must obtain the assent of the Parliament.426 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 and so forth, and agreements with states on the provision of (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, that approval may be decisive for the entry into force of the relevant agreement. 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.427 The loan and guarantee agreements of the World Bank, on the other hand, enter into force only after signature – which itself only follows approval by the board (the Executive Directors) – and after the conditions of effectiveness of the agreements have been fulfilled.428 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. This required a speedy procedure, devoid of such time-consuming elements as the requirements of parliamentary approval.429 422

GA Res. 50 (I) of 14 December 1946. Some constitutions require approval by the general congress, see e.g. WHO, Arts. 69-70. 424 Broches in 98 RdC (1959 III), at 385; Chiu, op. cit. note 41, at 179-180. 425 Higgins, op. cit. note 224, at 264. 426 TFEU, Art. 218. 427 Chiu, op. cit. note 41, at 103; 1 UNTS, at 210, 212. 428 Chiu, op. cit. note 41, at 180. 429 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 423

1156

chapter twelve

§1795

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 such reservations are prohibited or incompatible with the object and purpose of the treaty in question.430 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.431 Some agencies have made use of this provision.432 International organizations have sometimes accepted bilateral agreements subject to reservations or subject to a specific condition.433 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.434 e. Registration435 §1796 After their entry into force, treaties between states must be transmitted to the Secretariat of the UN for registration.436 The UN Charter imposes the same obligation in relation to “every international agreement entered into by any member of the UN”.437 However, this expression has never been defined. Agreements to which the UN is a party are registered ex officio by the UN.438 Agreements entered into by a specialized agency are at least filed and recorded when forwarded to the UN.439 Most specialized agencies (such as the World Bank and ICAO) register most of their agreements. Hundreds of agreements between international

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. 430 Vienna Conventions I and II, Art. 19. See also UN Doc. A/34/10, at 384, Art. 19bis. 431 33 UNTS, at 282. 432 Chiu, op. cit. note 41, at 107. 433 Schneider, op. cit. note 224, at 56-57. 434 YUN 1946-47, at 545. 435 On the competence of international organizations to receive treaties for registration and to publish them, see below, §1868-1869. 436 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 UN Office of Legal Affairs, reprint 2006). 437 UN Charter, Art. 102. 438 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 436, at 29. The regulations have also been published in 76 UNTS. 439 On the filing and recording of treaties, see below, §1869.

§1797

external relations

1157

organizations and states have been registered and published in the UN Treaty Series.440 Many others have not; but likewise, many treaties between states have not been registered.441 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.442 Thus, the UN declined to register an agreement between the Netherlands and the International Patents Institute.443

§1797 According to express statements of the UN, secretariat registration does not imply a judgment regarding the nature of the instrument.444 Therefore, the registration of agreements does not determine their status under international law. However, registration may be regarded as prima facie evidence of the international character of the agreement.445 §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.446 f. Termination §1799 Agreements may be concluded for a specific period of time447 or they may provide for denunciation448 in the same way as treaties between states. In many agreements, no provision is made for termination. To such agreements, the general rules of the law on treaties may apply. They provide that treaties with no provision regarding their termination, or for denunciation or withdrawal, are not subject to denunciation or withdrawal unless: (1) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or

440 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 242, at 154-160. See also Simma op. cit. note 96, at 1277-1292. 441 R.B. Lillich, The Obligation to Register Treaties and International Agreements with the United Nations, 65 AJIL 771-773 (1971). 442 UN Repertory of Practice, Vol. V, at 295, para. 31(c). 443 Schneider, op. cit. note 224, at 58, note 24. 444 UN Repertory of Practice, Suppl. No. 1, Vol. II, at 400; UN Treaty Handbook, op. cit. note 436, at 27. See also UNJY 1976, at 208-209. 445 Broches in 98 RdC (1959 III), at 354. 446 Chiu, op. cit. note 41, at 110. 447 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. 448 See e.g. the agreements between UNESCO and ILO (Art. 10), FAO (Art. 10) and IAEA (Art. XII); the 1995 agreement between WIPO and WTO, Art. 5(3).

1158

chapter twelve

§1800

(2) a right of denunciation or withdrawal may be implied by the nature of the treaty.449 Condition (2) 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 a unilateral withdrawal, there is a tendency to accept its legality, even when this 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.450 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.451

§1800 The two Vienna Conventions include the notion of a fundamental change of circumstances as being a possible ground for termination.452 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 EU trade agreements; and 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. B. Diplomatic relations 1. The notion “diplomatic relations” §1801 alia:

The functions of diplomatic missions, exchanged between states, are inter

(1) to represent the sending state in the receiving state; (2) to protect the interests of the sending state and of its nationals in the receiving state, within the limits permitted by international law; (3) to negotiate with the government of the receiving state; (4) to ascertain, by all lawful means, conditions and developments in the receiving state, and reporting on them to the government of the sending state; and (5) to promote friendly relations between the sending state and the receiving state, and developing their economic, cultural and scientific relations.453

449 450 451 452 453

Vienna Conventions I and II, Art. 56. 260 UNTS, at 62-89. UNJY 1974, at 182. Art. 62 of both Conventions. Vienna Convention on Diplomatic Relations (1961), Art. 3, para. 1.

§1802

external relations

1159

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; and 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. 2. Passive legation454 §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.455 This is apparently a right that 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.

454 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 255, 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). 455 Vienna Convention 1975, Art. 5.

1160

chapter twelve

§1804

§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.456 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.457 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 be transmitted to the Secretary-General of the UN.458 Since then, the institution of permanent missions has been generally accepted. The 1975 Vienna Convention presents rules on their establishment and functioning.459 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”.460 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.461 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

456 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 220, at 25-122. On permanent representatives, see also E. Hambro, Permanent representatives to international organizations, 30 YbWA 30-41 (1976). 457 R.F. Pedersen, National Representation in the United Nations, 15 International Organization 256-266 (1961). 458 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. 459 Vienna Convention 1975, UN Doc. A/CONF.67/16, Arts. 5-41. This convention has not yet entered into force. As at November 2010, 34 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). 460 UNJY 1987, at 218. 461 See UNJY 1992, at 490-491.

§1805

external relations

1161

and immunities by the Swiss authorities, to which they are not entitled in New York.462 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 such credentials.463 Apart from the permanent missions to the UN in New York, Geneva and Vienna, similar missions exist in many of the other cities that 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 Union464 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 provided in the 1975 Vienna Convention.465 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 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”,466 in the European Union “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.467 The diplomatic representatives at the European Union do not have access to meetings of EU 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.468 In New York, the Holy See is currently the only non-member state that maintains a permanent observer mission at the UN headquarters.469

462

See UNJY 1979, at 168-169. See also El-Erian, op. cit. note 454, at 484-486. See UNJY 1986, at 272. 464 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 220; De Zwaan, op. cit. note 221. 465 Vienna Convention 1975, Arts. 5, 7. 466 Id., Art. 1(8). See UNJY 1987, at 220-221. 467 GAOR 25th session, Suppl. No. 10 (A/8010/Rev.1). 468 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 220, at 718-830. 469 Permanent Missions to the UN, publication of the UN Secretariat (updated weekly). 463

1162

chapter twelve

§1806

As at November 2010, 164 non-member states had accredited diplomatic missions to the European Union.470 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).471 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.472 §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.473 Several international organizations, such as the OAS, the Council of Europe and the European Union have observer missions at the UN. The European Union 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.474

§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.475 In the 1975 Vienna Convention it was also expressly accepted that two or more states may accredit the same person as head of mission to the same international organization.476 §1808 Usually the procedure for accrediting permanent observers of non-members 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.477 In the European Union, credentials are submitted in a more formal

470 See http://ec.europa.eu/dgs/secretariat_general/corps/index.cfm?go=search.search& missions=1 (November 2010). 471 See http://ec.europa.eu/dgs/secretariat_general/corps/index.cfm?go=search.search& representations=1 (November 2010). 472 Id.; see also MacLeod, Hendry, and Hyett, op. cit. note 255, 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. 473 For the privileges and immunities of the permanent observer mission of the CMEA in New York, see UNJY 1975, at 157. 474 See MacLeod, Hendry, and Hyett, op. cit. note 255, 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). 475 This has been confirmed in the Vienna Convention of 1975, Art. 8(1). In particular, small states have used this possibility. 476 Id., Art. 8(3). 477 A. Glenn Mower Jr., Observer Countries: Quasi Members of the United Nations, 20 International Organization (1966), at 273, 275.

§1809

external relations

1163

manner, in duplicate: one to the President of the European Council, and one to the President of the European Commission.478 §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, they can collaborate more quickly and informally. The presence of representatives at the seat of the organization 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.479 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. However, at that time Switzerland and the Federal Republic of Germany were not members of the UN. For these two countries, meeting at such short notice would have been difficult, had they not maintained permanent observer missions in New York.

§1810 Permanent missions of members, and permanent observer missions of non-members, strongly resemble diplomatic missions to states. Both are composed of diplomats, and both perform very similar functions, such as keeping the sending state informed about relevant developments, explaining and defending the interests of the sending state and functioning as a liaison with the sending state.480 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 that are very similar to those granted to diplomats.481 Their legal obligation to do so

478 Answer to question No. 78 (1966), OJ 4049/66; Groux and Manin, op. cit. note 255, at 33; MacLeod, Hendry, and Hyett, op. cit. note 255, at 213-214; Vade-mecum for the use of the diplomatic corps accredited to the European Union and to the European Atomic Energy Community, para. IV (available at http://ec.europa.eu/dgs/secretariat_general/corps/index. cfm?go=vademecum.vademecum#4 (March 2011)). 479 See GA Res. 2177 (XXI) and Doc. A/6567 (Report of the Second Committee), GAOR 21st Session. Agenda item 37, Annexes, at 6. 480 On the tasks of permanent missions, see Virally, Gerbet, Salmon, op. cit. note 220, at 225-270. 481 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.

1164

chapter twelve

§1812

is often incorporated in a headquarters agreement482 or in general conventions on privileges and immunities.483 A general obligation to this effect has been incorporated in the 1975 Vienna Convention,484 which has not yet entered into force. The most important host states raised many objections to the Convention485 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.486 §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.487 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.488 States are understandably reluctant to grant privileges and immunities to their own nationals serving in foreign missions to international organizations (see 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.489 Privileges and immunities are applicable to missions to international organizations irrespective of whether the host state has diplomatic relations with the sending state of these missions and irrespective of whether this sending state accords similar privileges and immunities to diplomatic or other missions of the host state to that sending state. The principle

482 See e.g. Art. V, Section 15 of the 1947 US-UN Headquarters Agreement; see also UNJY 1987, at 224-225. 483 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. 484 Vienna Convention 1975, Arts. 20-37. 485 See records of the United Nations Conference on the Representation of States in their Relations with International Organizations, A/Conf. 67. 486 See 1953 ILR, at 380 and Yb ILC 1967 II, at 142-143. 487 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). 488 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 ). 489 Yb ILC 1967 II, at 175.

§1813

external relations

1165

of reciprocity, a key principle in diplomatic relations, is not applicable to the relationship between host states and missions to international organizations.490 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.491

§1813 Secondly, the relationship between the organization and the permanent mission may be closer than diplomatic relations between states. Although 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 Union, the permanent representatives of the members are assembled in a committee which performs a function within the scope of the organization.492 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 that 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 that exists for diplomats.493 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.

490

See Vienna Convention 1975, Arts. 82 and 83; UNJY 2009, at 474-475. 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). 492 TFEU, Art. 240.1. 493 See UN Doc. A/CN.4/L.129, Yb ILC 1968 II, at 163-164. 491

1166

chapter twelve

§1816

3. Active legation494 a. The right of active legation §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.495 The sending state only requires the special authorization of the receiving state for the appointment of the latter’s nationals to its diplomatic mission.496 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.497 A similar argument was presented with respect to the League of Nations during the early 1920s.498 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.499 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.500 §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.501 The proposal obtained insufficient support and was subsequently withdrawn.502 Most delegations considered 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

494 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 255, at 34-36; Morgenstern, op. cit. note 454, at 10-11. 495 Vienna Convention on Diplomatic Relations, Arts. 6 and 7 and the words “in principle” in Art. 8.1. 496 Id., Art. 8.2. 497 Res. of 19 November 1960, OJ 1496/60. 498 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). 499 See e.g. Seyersted, in 4 IJIL 12-14 (1964). 500 Pescatore, op. cit. note 248, at 190, and Hardy, op. cit. note 498, at 48, reach the same conclusion. 501 UN Doc. A/Conf.20/C.1/L7 of 6 March 1961. 502 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).

§1818

external relations

1167

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: it has a large number of representations to non-members (see below, §1836).503 Several organizations have established permanent missions in individual member states or in groups of members. There are similarities between such missions and diplomatic missions between states, 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.504 Since technical 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

503 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). 504 For an overview of the history of international development assistance and the role of the UN, see Stokke, op. cit. note 91, in particular Part I.

1168

chapter twelve

§1821

specialized agencies to respond with the services of properly qualified technicians.505 In the same year, the Secretary-General of the UN, in consultation with the ILO and the FAO, appointed a joint representative to Pakistan.506 By May 1952, there were fifteen representatives for the Technical Assistance Board in the field.507 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 1974, the UNDP employed 115 Resident Representatives, each supported by his own staff.508 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.509 §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, and 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. This report stated: 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.510

§1822 Since then, the UN has tried to improve the situation.511 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.512

505 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 182, 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). 506 Mangone, op. cit. note 182, at 162. 507 Id., at 163. 508 UN Doc. E/5524/Add.3, at 25. For staff expansion, see also Mangone, op. cit. note 182, at 187, 195, and UN Doc. DP/L.228, Annex 5, at 13. 509 UN Doc. E/5524/Add.3, at 17-25. 510 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. 511 See e.g. GA Res. 2688(XXV), paras. 62, 63. 512 A New United Nations Structure for Global Economic Cooperation, UN Doc. E/AC.62.9, para. 155.

§1822

external relations

1169

In 1977, the General Assembly of the UN adopted the recommendations of this group of experts513 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.514 The creation of such a new post was intended to 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.515 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.516 The 2005 World Summit also supported a strengthened role for the Resident Coordinator.517 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. It also observed that UNDP can make an important contribution to coordination in this area by effectively using the Resident Coordinator system.518 In 2009, it was reported that a “growing number of Resident Coordinators are called upon to perform humanitarian coordination functions”: in March 2009, 27 Resident Coordinators were concurrently designated as humanitarian coordinators.519 Since 2008 the UN Secretary-General has evaluated annually the Resident Coordinator system.520 These evaluations have emphasized the two key principles of this system. First, the development activities that are carried out within a developing country are the primary responsibility of the country itself, and the UN is providing assistance for these activities. Secondly, the Resident Coordinator system “is owned by the United Nations development system as a whole and . . . its functioning should be participatory, collegial and accountable”.521

513

GA Res. 32/197. For the tasks of the Resident Coordinator, see UN Doc. E/1979/34/Add. 1 /Rev. 1, Annex. 515 GA Res. 47/199; see also GA Res. 44/211, para. 15. 516 GA Res. 47/199. See also UN Doc. A/47/419, paras. 27, 95-115. 517 GA Res. 60/1, para. 169. 518 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. 519 UN Doc. E/2009/76, at 9. 520 See UN Docs. E/2008/60, E/2009/76, E/2010/53. 521 UN Doc. E/2008/60, at 6; UN Doc. E/2010/53, at 2-3. 514

1170

chapter twelve

§1823

§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.522 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,523 often serve several member states simultaneously.524 The regional missions of the specialized agencies may be quite large. UNDP Resident Coordinators lead UN country teams in more than 130 countries.525 The World Bank has over 100 field offices.526 The bulk of the developing countries have an average of between five and ten 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.527 Additionally, there are also some missions of international organizations that do not belong to the UN family. Thus, the European Union 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.528 After the establishment of the Special Fund,529 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,530 a task in which the Resident Representative played an important role. 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. In particular the role of the World Bank and its

522

E.g. in Brussels (EU liaison office), Tokyo and Washington. We use no capitals here in order to distinguish from the Regional Representative of UNDP. 524 Jackson Report II, at 288 and Table opposite, at 458. 525 See www.undg.org/index.cfm?P=5 (November 2010). 526 See for details www.worldbank.org. 527 UN Doc. A/47/419, at 33. 528 Mangone, op. cit. note 182, at 167. 529 GA Res. 1219 (XVII) of 14 December 1957. 530 Mangone, op. cit. note 182, at 180-188, 192; ECOSOC Res. 542 (XVIII) B, para. 1(a), 29 July 1954; Jackson Report II, at 9; Stoll, op. cit. note 505, at 526-527. 523

§1825

external relations

1171

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 that does not act in its capacity as an element of the organization but as a counterpart, the 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 centres531 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, comparisons with diplomatic or consular missions should be made with some reservation. Viewed from their position under international law, however, some basic similarities 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; and they take steps to urge the governments of the receiving states to pay their pledges to the UNDP or to fulfil other obligations.532 A Resident Coordinator is often regarded as the “UN man”,533 the “team leader for UN system activities”,534 and may be considered the “head of a mission” by host governments.535 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. As in the case of diplomats, where no prior consent of the receiving state is required for the appointment of a chargé d’affaires

531 532 533 534 535

Mangone, op. cit. note 182, at 193. Id., at 225. Id., at 227. UN Doc. A/47/419, at 32. Mangone, op. cit. note 182, at 188.

1172

chapter twelve

§1827

ad interim, consent of the host state is not necessary for the appointment of an officer-in charge pending the appointment of a Representative.536 The period spent in securing clearances for Resident Representatives/Coordinators varies from a few weeks to four months or more, and the percentage of candidates rejected is comparatively high.537 §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.538 This affects the position and prestige of the Resident Representative/Coordinator within that country.539 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),540 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,541 but sometimes under a special agreement.542 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.543 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.544 §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 as meeting them at the airport, helping them through customs, reserving rooms, changing money into local

536

UNJY 2009, at 471 (relating to the appointment of an officer-in-charge of UNIDO). Jackson Report II, at 352, 365. Berthoud in 4 JWTL 161 (1970). The UN Resident Representative in Kenya presented credentials to the President. However, this is exceptional. For possible reasons why states follow different procedures, see Stoll, op. cit. note 505, at 531. 539 Stoll, op. cit. note 505, at 533-535. 540 E.H. Buehrig, The UN and the Palestinian Refugees 84 (1971). 541 Convention of 13 February 1946, 1 UNTS, at 16 ff. 542 E.g. in Indonesia until it became a party to the said Convention in 1972. 543 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. 544 Berthoud, op. cit. note 538, at 162. 537 538

§1829

external relations

1173

currency, supplying information and transport, introducing them to local officials, briefing them on arrival, arranging for clerical aid, and so forth.545 (ii) Missions for other purposes §1829 In 2010, the UN had 63 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.546 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 the provision of information. Such missions have a temporary character and perform a 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 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 that, 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. (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.

545

Mangone, op. cit. note 182, at 166, 201, 224. See unic.un.org. 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)). 546

1174

chapter twelve

§1832

In UNESCO, National Commissions basically act in an advisory capacity towards their respective delegations to the general congress and towards their governments.547 They may, however, be used to promote the interests of the organization in the state concerned. One example of this is the rule that requires reports of the organization on the action taken by member states pursuant to a convention or recommendation also to be transmitted directly to the National Committees.548 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.549 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.550 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 to 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 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.551

547

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. 549 FAO, General Rules of the Organization, Rule XXXVIII. 550 WMO, General Regulations, Regulation 6. 551 Keesing’s Contemporary Archives, June 26–July 3, 1965, at 20813. 548

§1832

external relations

1175

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.552 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 weapons, 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.553 In 1999, the Special Commission was succeeded by the UN Monitoring, Verification and Inspection Commission (UNMOVIC).554 From December 1998, Iraq refused to cooperate with these commissions. Only in 2002 could UNMOVIC 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; and after a few weeks of fighting the Saddam Hussein regime was defeated.555

Special missions of international organizations are often sent to developing states. For example, UNDP uses special missions for programming, project formulation or evaluation purposes.556 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.557 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 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 there are also instances of two organizations reaching agreement to send a 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.558 Another example is the 1998 mission by Felipe Gonzalez as the Personal Representative of the Chairman in Office of the

552

Id., Sept. 30 – Oct. 7, 1967, at 22281. See also at 22670 and 22991. See N.D. White, Keeping the Peace 86-87 (1993). 554 SC Res. 1284. 555 For a description of events from the adoption of Res. 1441 to the end of the fighting in April 2003, see 97 AJIL 419-432 (2003). 556 Cf. Jackson Report (DP/5), Vol. II, at 288. 557 YUN 1976, at 955. 558 The objective of this mission was to promote progress in the elaboration of the Albanian constitution. See CoE Doc. 7978, Add. IV. 553

1176

chapter twelve

§1833

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.559 §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), established by Security Council Resolution 143 (1960).560 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. ONUC was a UN organ helping to enforce Congolese law in the Congo.561 It initiated an operation in 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.562 It was sent to Cyprus to help the government keep the peace on the island.563 Another early example is the UN Temporary Executive Authority, created to supervise the transition of Western New Guinea from Dutch colonial rule to Indonesian administration (1962-1963).564 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 only became operational 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.565 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

559

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); Durch, op. cit. note 120, at 315-352. 561 For the agreement between the UN and Congo, see 414 UNTS, at 229. 562 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. 563 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. note 560, at 219236. 564 See Durch (ed.), op. cit. note 560, at 285-298. 565 Id., at 353-375. 560

§1834

external relations

1177

impartially.566 Other examples of comprehensive UN operations that 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.567

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 members. 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 of 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 in Switzerland called for parliamentary approval, because they represented “new obligations”.568

§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.569 This article allows the members of closely integrated international organizations, such as the European Union, to use a common embassy abroad which could then be seen as a mission of the organization. The staff of the embassies of the members of the EU in several capitals meet periodically to consider questions of common concern. They report on such meetings to the EU in Brussels.570

§1836 The European Union has “delegations” in some 130 non-member states.571 Originally, the appointment of delegations in non-member states was done by the Commission, while in practice the Council had a role in both the decision to establish a delegation and the appointment of the Heads of Commission delegations

566 White, op. cit. note 553, 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). 567 See for details www.un.org/Depts/dpko. There is extensive literature on UN interim administration, e.g. C. Stahn, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond (2008); R. Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (2008); E. De Brabandere, Post-conflict Administrations in International Law – International Territorial Administration, Transitional Authority and Foreign Occupation in Theory and Practice (2009). 568 See Morgenstern, op. cit. note 454, at 10-11. 569 Vienna Convention on Diplomatic Relations (1961), Art. 6. 570 Hardy, op. cit. note 498, at 56-57. 571 See http://eeas.europa.eu/delegations/index_en.htm (March 2011).

1178

chapter twelve

§1836

(generally with the rank of ambassador).572 The Commission originally sought accreditation at the level of the Ministry of Foreign Affairs; since 1989, however, it did so at the level of Head of State. If this was not possible (for example for constitutional reasons in the receiving state), accreditation was done at the level of Head of Government. This change reflects the more important position that these delegations have occupied over the years. The 2007 Lisbon Treaty has strengthened the external identity of the EU. The position of High Representative of the Union for Foreign Affairs and Security Policy was created. The High Representative “shall represent the Union for matters relating to the common foreign and security policy. He shall conduct political dialogue with third parties on the Union’s behalf and shall express the Union’s position in international organizations and at international conferences”.573 The decision to open or close a delegation is adopted by the High Representative, in agreement with the Council and the Commission.574 The High Representative appoints the Heads of EU delegations abroad. In fulfilling his mandate, the High Representative is assisted by the European External Action Service, which shall work in cooperation with the diplomatic services of the member states.575 EU delegations in third countries are closer to embassies than any other mission of an international organization.576 The EU High Representative must take the necessary measures “to ensure that host states grant the Union delegations, their staff, and their property, privileges and immunities equivalent to those referred to in the Vienna Convention on Diplomatic Relations”.577 The delegation’s tasks are not limited to one particular function (as in the case of the Resident Representatives/Coordinators of the UN) but cover almost the entire field in which the EU operates.578 EU delegations cooperate closely with missions of the member states in non-member states. This is exemplified by the arrangements in Nigeria: in 2001, construction of a joint embassy compound in Abuja (the new capital of Nigeria) began, benefiting from the need for all existing missions of the member states and the EU delegation to move from Lagos (the old capital) to Abuja. Within this compound, the missions maintain separate premises, but also share a number of common facilities, such as the visa section. EU delegations 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

572

MacLeod, Hendry, and Hyett, op. cit. note 255, at 216-217. TEU, Art. 27.2. 574 See Art. 5.1 of Council Decision of 26 July 2010, establishing the organization and functioning of the European External Action Service (2010/427/EU), OJ 2010, L 201/30. 575 TEU, Art. 27.3; Council Decision of 26 July 2010, establishing the organization and functioning of the European External Action Service (2010/427/EU), OJ 2010, L 201/30. 576 See Reichling, op. cit. note 468. 577 Art. 5.6 of Council Decision of 26 July 2010, establishing the organization and functioning of the European External Action Service (2010/427/EU), OJ 2010, L201/30. 578 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. 573

§1837

external relations

1179

Articles 20 and 23 TFEU, 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. In some nonmember states, two or more Union members share one embassy. By a law (introduced before Congress on 28 September 1971), the delegation of the European Commission to the US was granted diplomatic status and all connected privileges and immunities.579 Before UK accession to the European 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 diplomats580 – 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.

§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.581 The talks were relatively successful, despite the fact that the Chinese authorities rejected the authority of the relevant General Assembly Resolution.582 (Although China was a UN member, the Chinese rights of membership were not exercised by the government in Peking at that time (see above, §260)). §1838 The European Union has 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.583 §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 in 1954 (see above, §1837), it was on the instruction of the General Assembly.

579

14 Europa van Morgen (March 1972), at 104. European Coal and Steel Community Act of 27 July 1955. 581 GA Res. 906 (IX). 582 Hardy, op. cit. note 498, at 51; YUN 1955, at 54-55. 583 See Art. 218 TFEU; C. Tomuschat in Von der Groeben et al., op. cit. note 387, at 5/474 ff.; MacLeod, Hendry, and Hyett, op. cit. note 255, at 85 ff. 580

1180

chapter twelve

§1840

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.584 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 provided for observers. Missions and offices that 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 the 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 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/EU membership of the FAO and the World Trade Organization (see above, §81-84). Another example of an organization operating with a certain degree of autonomy within another organization is the European Union within the UN General Assembly. According to Article 34 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.585 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”.586 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

584 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. 585 J. Wouters, The European Union as an actor within the United Nations General Assembly, in Kronenberger, op. cit. note 376, 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; M.B. Rasch, The European Union at the United Nations (2008). 586 Wouters, op. cit. note 585, at 404.

§1841

external relations

1181

obligation for these member states to, “in the execution of their functions, defend the positions and the interests of the Union, without prejudice to their responsibilities under the provisions of the United Nations Charter”.587 It is an EU obligation for all EU member states that are members of the Security Council (also for EU members that have been elected as non-permanent members of the Council) “to concert and keep the other Member States and the High Representative fully informed”.588 EU coordination concerning the work of the Security Council has gradually become a reality since the end of the 1990s. 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.589 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.590 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”.591 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

587

TEU, Art. 34.2. Id. 589 For organizations participating in organs of other organizations as observers, see above, §185-187. 590 For the EEC as a party to the Sugar Convention, see also above, §1773. 591 United Nations Sugar Conference 1968, Summary of Proceedings, UN Doc. TD/ SUGAR.7/12, at 44 (Records of 27 April 1968). 588

1182

chapter twelve

§1841

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 in paragraph (e) above while at the same time satisfying the Community’s institutional arrangements.592

Representatives of the European Commission participated actively in the discussions on behalf of the Community.593 The delegates of the member states only spoke on issues not connected with sugar (such as the representation of the EEC,594 the officers of the conference,595 and the position of the German Democratic Republic).596 The EEC was one of the thirteen members of the Working Party on Special Arrangements.597 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.598 The International Sugar Agreement 1968, which was drafted by the Conference, provided for EEC participation in the Agreement.599 Subsequently, the E(E)C, now the European Union, has participated in many other conferences,600 including those in which commodity agreements were negotiated.601 A point of controversy has been whether the EC/EU was exclusively

592 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). 593 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. 594 UN Doc. TD/SUGAR.7/12, at 44. 595 Id., at 23. 596 Id., at 38. 597 TD/SUGAR.7/EX/SR. 1-10, at 18. 598 TD/SUGAR.7/EX/SR. 11-27, at 68. 599 International Sugar Agreement 1968, Art. 2, para. 26 (see above, §1773). 600 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 255, 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. 601 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

§1842

external relations

1183

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 EC/EU and the member states. (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, and so forth) are continued.602 §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.603 C. Recognition of other subjects of international law §1843 Operating under international law, international organizations meet other – and also alleged – international persons. In determining 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 the state is 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

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). 602 See Tillotson, op. cit. note 601, at 119; MacLeod, Hendry, and Hyett, op. cit. note 255, at 185. 603 UN Repertory of Practice, Vol. 3, at 549.

1184

chapter twelve

§1844

or a government by the UN will be more important to that state or government than its acceptance by any other organization or state.604 Dugard even takes the view that “the international community has delegated the authority to recognize decolonized entities as states to the United Nations”.605 This is perhaps a bridge too far. Raič 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 may be granted (implicitly) by several states at the same time, this must be distinguished from collective recognition proper”.606

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 that would entail the recognition of non-members.607 §1844 Recognition by an international organization does not imply recognition by the members of the organization. For example, Israel has been admitted to the UN without having been recognized at the time by the Arab states;608 Kosovo was admitted to the IMF and to the World Bank in 2009, while numerous member states of these organizations had not recognized it.609 Likewise, the government that represents the state does not have to 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).610

604

Cf. J. Dugard, Recognition and the United Nations (1987), at 51, 73. Id., at 73 and 78-80. D. Raič, Statehood and the Law of Self-Determination 47 (2002). See also M.N. Shaw, International Law 313 (4th ed. 1997). 607 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. 608 YUN 1948-49, at 395-405. 609 See IMF press release No. 09/240 (29 June 2009) and World Bank press release No:2009/448/ ECA (29 June 2009). 610 See e.g. YUN 1974, at 487. 605 606

§1845

external relations

1185

1. Recognition of states611 §1845 The UN has recognized many states by admitting them as members.612 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 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,613 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 nonmembers as parties to conventions, or by channelling the relations through one or more of their members (see above, §1301). But even in the latter case, there is 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

611 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 604; Raič, op. cit. note 606, at 39-48. 612 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). 613 UN Charter, Art. 93.2.

1186

chapter twelve

§1848

cases, some form of de facto recognition may also be inferred from an invitation to participate in discussions concerning a dispute.614 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 that originally used the Vienna formula (see above, §1301) have been extended to all states.615 At the moment, invitations to “all states” create no problems, as there is currently little controversy over the question of which entities constitute states.616 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 1973.617 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.618 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,619 a resolution which was endorsed by the Security Council.620 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 EEC, the Council of Europe, and the UN).621 §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

614 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 612, at 1164-1168. 615 See e.g. GA Res. 3233 (XXIX), YUN 1974, at 865, concerning the Vienna Convention on the Law of Treaties. 616 For interpretation of the ”all states formula”, see UNJY 1974, at 157-159, and UNJY 1976, at 186-187. 617 GA Res. 3061 (XXVIII). See on this resolution 19 AFDI 628 (1973). 618 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. 619 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 604, at 98-108; Raič, op. cit. note 606, at 134-141. 620 Resolutions 402 (1976) and 407 (1977). 621 Dugard, op. cit. note 604, at 108-111; Groux and Manin, op. cit. note 255, at 26-27; Raič, op. cit. note 606, at 122-127. SC Resolutions 541 (1983) and 550 (1984).

§1851

external relations

1187

Turkey to the Council of Europe reinforced the politically significant view that it belonged to Europe. It facilitated, for example, the election of Turkey to seats in UN organs that 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 Union.622 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. When 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 that did not arise as a question of credentials was the recognition of the government of Poland by the ICAO.623 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

622 31 ILM 1485-1487 (1992). See Raič, op. cit. note 606, 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 606, at 313, footnote 86). 623 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).

1188

chapter twelve

§1852

reason for preferring recognition to admission of the Socialist Republic of Vietnam as a new member.624

3. Recognition of territorial sovereignty §1852 In October 1966, the General Assembly of the UN terminated South Africa’s mandate over South West Africa (Namibia).625 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),626 to rename the territory,627 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”.628 In other cases, the UN Security Council has expressly “non-recognized” territorial acquisitions, such as East Jerusalem and the Golan Heights by Israel.629 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.630 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 the question 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.631 The General Assembly declared that its attitude would not, of itself,

624 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). 625 GA Res. 2145 (XXI). 626 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). 627 GA Res. 2372 (XXII), para. 4(c). 628 ITU Council Res. No. 619 (1967); UNJY 1967, at 906. 629 Dugard, op. cit. note 604, at 111-115. 630 A noteworthy exception is the EU. 631 GA Res. 396 (V). In practice, the GA’s decisions on representation of member states have invariably been followed by organizations of the UN system; see UNJY 2003, at 531.

§1854

external relations

1189

affect the direct relations of individual members 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.632

§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 that 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