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Summary The Law of International Organisations Lecture week 5
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The Law of International Organisatons Lecture week 5. 28 pages. Lecture typed out.
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The law of international organizations lecture 5 02-10-19International Organisations – Lawmaking & Treaty interpretation
We are going to deal with the topic of lawmaking, decision, resolutions, of the
General Assembly and the Security Council. What kind of effect do they have.
So that is one legal question we are going to address. The second question is still
under A in the structure. What happens when international norms collide and
possibly conflict. Than we are thinking especially of the EU legal regime, which
is really supranational, goes relatively far, is very much distinct from public
international law. EU law conflicting with, well United Nations decisions,
resolutions of the Security Council. So we are going to look at the relationship
between the legal orders of different IO’s, the UN and the EU. So that has to do
with the law dealing with the activities of IOs, lawmaking, legal effects. The 2
issues are merged in the second part of the lecture, because they are really
interrelated. That’s really much about Treaty interpretation. We once again look
at the question: what is a Treaty, different forms of Treaty. We look at the
Vienna Conventionally law of the Treaty and different interpretation methods.
Because lawmaking often results in really vague notions, sometimes as a result
of compromise international law, that’s really political. So we have very vague
notions sometimes in a Treaty. How do we go about interpreting such notions.
What methods are there for international courts and national courts. And then
we are going to look specifically at the question, well IOs are also active with
respect to a particular Treaty, what they do/the resolutions they
adopted/decisions they make, can that also lead to a particular interpretation.
Does that constitute subsequent practice that could be taking into account in the
interpretation.
So these are the questions we are going to deal with and then next week
we have another more interactive session building upon this. Very much looking
at also the question: Can the Security Council be a legislator, can it make laws in
general, in abstracto. And what about resolutions of the General Assembly, can
they be binding. What about the UN global compact, that was adopted in
December last year after much criticism also in the Netherlands. Several
political parties arguing against it, because it would give rights to migrants and
would further encourage migration. So the question is a bit, well General
Assembly adopted the Global Compact, how should we look at this Global
Compact. So that’s a question I’ll touch upon this week but we will look at that
much more in detail next week in class.
1
,Like last lecture I’ll in part B after the break have a small Kahoot quiz, to see
whether you are following everything that I am saying.
Structure
A. The Law Governing Activities of IOs
1. Internal vs. external law
2. Legal effects of decisions & resolutions
3. The relationship between the legal orders of Ios
B. Treaty interpretation & IOs
1. “Treaty”
2. VCLT
3. Subsequent practice?
A. The Law Governing Activities of IOs
1. Internal vs. external law
Lets shortly look again at the question: what kind of rules do we have in
international law, the law of international organization. The distinction is made
between on the one hand internal law and on the other hand external law.
Two types of rules:
- Internal law (Article 2 (1) (j) VCLT 1986)
o this Vienne Convention deals with treaties between States and IOs.
So this is much more a specific Treaty. You will find a definition of
internal rules meaning rules of the organisation in the article.
Internal rules are rules of an organisation. Rules governing
the functioning of an IO looking more at the internal affairs
of an IO. These internal rules is a separate closed system.
What is it than internal rules, well if you look at this
definition it refers to the constituent instruments.
o constituent instrument
the particular Treaty establishing an IO
the legality of the threat or use of force of Nuclear weapons
page 50 in your reader
§19: you will find some reflection of the ICJ on what
an constituent instrument is. “but the constituent
instrument of IOs are 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”.
2
, Does the WHO have the power to request an advisory
opinion and what the Court is than going to do is look
at the legal powers of the WHO. How does that work,
what are the powers. You will find them in the
constituent instrument.
So constituent instruments, the treaties establishing an
IO
o decisions and resolutions
adopted in accordance with them
it is red because this is what we are going to look at in the
rest of the lecture.
Could they have effect beyond the particular IO and
possibly bind non-MS?
o established practice of the organization (e.g. Art. 27 UN Charter)
examples
art. 27 UN Charter: relates to voting within the
Security Council
WTO agreement art 16. The WTO shall be guided by
decisions procedures and customary practices followed
by the contracting parties and the bodies
So certain practice within an organization can also constitute
rules of international law.
The ICJ came up in the Certain expenses opinion and in the
wall opinion, it relied upon the practice within the General
Assembly in order to arrive at a certain interpretation. So if
the treaties are silent on something or when concepts are
vague, the established practice of an organization might
actually help in determining what the rules are
External law
o Exernal rule binding an IO. This could be rules of public international
law. So outside of the constituent treaty. Think about other
international treaties, customary law, general principles etc. So the
whole area of public international law which is not the internal law of
the IO.
o It could also be national law. National law binding the IO.
Example: UN US HQ agreement 1947
You will find for example that ‘expected otherwise
provided the federal, state and local law of the US
shall apply within the HQ district.
External law binding the UN so the law of the US.
3
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