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THE LAW & PRACTICE OF INTERNATIONAL ORGANIZATIONS – PRACTICUM (Blokker), Lecture and Reading Notes, Two exams at the end. Incl Assigements$27.78
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The Law and Practice of International Organization
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THE LAW & PRACTICE OF INTERNATIONAL ORGANIZATIONS – PRACTICUM (Blokker), Lecture and Reading Notes, Two exams at the end. Incl Assigements
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The Law and Practice of International Organization
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Universiteit Leiden (UL)
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International Institutional Law
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THE LAW & PRACTICE OF INTERNATIONAL ORGANIZATIONS – PRACTICUM (Blokker), Lecture and Reading Notes, Two exams at the end
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The Law and Practice of International Organization
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Assignemnt 1 Memo Typed
- Main issue: Whether it is possible to expel the three baltic states under the rules of
internal institutional law and the rules of the organization (but only partial)
- Nb. at the beginning was withdrawal, but did not support the proposal so must be
expelled
- Applicable rules:
- First resort would to the text of the NATO treaty
- Only stipulates voluntary withdrawal in Art XIII
- In theory, unlawful to expel without a provision (IIL, §148)
- 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 declara- tions to the same effect), have been
attributed such a competence
- Zeidler
- Other options:
- Possibility of expulsion because no longer meeting principles of the treaty:
- In a statement to the Senate Committee on Foreign Relations in
1949, then-Secretary of State Dean Acheson took the view that
such a nation could be booted out even in the absence of a
formalized suspension and expulsion procedure: “one of the
purposes of this preamble was to see if we could in some way
describe a democratic non-Communist country”... “if you can
describe the sort of objectives that are shared by all of these
countries, and one of them should no longer be able to be seeking
those objectives, then the basis is laid for a separation”
- Senate Committee on Foreign Relations: “Obviously, however, if a
member persistently violates the principles contained in the pact,
the other members will no longer be obligated to assist that
member. Clearly it would fail “to safeguard the freedom * * *” of its
people, “founded on the principles of democracy, individual liberty,
and the rule of law” as set forth in the preamble, and to strengthen
its “free institutions” as provided in article 2”
- But note not likely the case as these states have not turned
communist or violated any principle
- Material breach under Art 60 VCLT
- democracy, individual liberty and the rule of law — forms part of
the object and purpose of VCLT
- Should the conditions for the existence of a material breach be
satisfied, NATO’s member states would be entitled, by unanimous
agreement, to suspend the operation of the treaty in whole or in
part or to terminate it either in their relations with the defaulting
state or among them all (Article 60(2) of the Vienna Convention).
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Assignemnt 1 Memo Typed
For these purposes, a unanimous decision of the North Atlantic
Council, excluding the defaulting state, would suffice.
- Also probably not likely as have not violated this per se
- Expulsion to protect the organization
- Expulsion may be considered as an implied power of every
international orga- nization to enable it to defend itself against a
situation that would prevent it from functioning. On that basis,
expulsion should be considered possible whenever it is essential
to protect the organization
- But in this case not an obstructive member
- Possibility of exerting pressure on the 3 baltic states to withdraw
- In such cases, organizations have sometimes exerted pressure to
force the member con- cerned to withdraw ‘voluntarily’
- 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
- Eg. spain in the ICAO
- Eg. SA in WHO (Apartheid) & ILO
- SA in the IO for example, requested SA to
withdraw, but SA did not comply so the ILO
amended its constitution to exclude SA for the
WIPO
- Then, could withdraw according to Art 13 NATO
- Partial withdrawal
- In 1966, France withdrew from the military cooperation of
NATO, without withdrawing from the organization. This
raised the question whether partial with- drawal 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
- 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
- Suspension? Not expulsion
- Not v relevant
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Assignemnt 1 Memo Typed
Script
Good evening, regarding question number 1, I believe the main issue posed in the scenario is
whether it is possible to expel the three baltic states under the rules of internal institutional law
and the rules of the organization in order to ensure Putin’s request is fulfilled in order to avert
increased hostilities.
In this case, the first recourse would be directly to the NATO Treaty of 1949. Looking at this
instrument, it can be seen that expulsion is not mentioned. Schermers and Blockker in page
127, Thus, set out the general rule is that without an express provision IOs generally do not
have the right to expel members. After all, since some organizations contain express expulsion
clauses, it is difficult to accept that IOs that lack these, have been attributed this power. In this
sense, it would prima facie not be possible for NATO to expel these members.
Schermers and Blockker, however, also acknowledge in page 149 that it is accepted that in
exceptional circumstances, organizations can expel a member even if the constitution does not
provide for it: that is to protect itself, on the basis of material breach in Article 60 of the VCLT, or
a fundamental change of circumstances in Article 62 of the VCLT. The most applicable
exception in this case would be the first: expulsion for the protection of the organization.
However, this is usually applied in the context of an obstructive member or one that no longer
satisfies the conditions of membership.
It may be argued, however, that the baltic states were obstructive in denying their partial
withdrawal and later oposing their own expulsion as this would go against the principle in the
preamble of the NATO treaty, which mentions uniting “efforts for collective defence and for the
preservation of peace and security.” By opposing this measure, it is likely that the situation
would deteriorate, threatening the global stability and security. This approach must be taken with
caution, however, as the threshold would be really high when lacking an express provision, and
it may also be likely that this is not seen as obstructive behaviour per se, given that other routes
may be explored that do not involve such a harsh and long-term solution, as it would be
effective until after Putin retires from politics, which is greatly uncertain.
For this reason, a viable alternative to expulsion would be to exert pressure on the three States
to partially withdraw from the organization, voluntarily. Sohn argues in page 1425 of the Harvard
Law Review that IOs retain a wide flexibility to deal with a variety of situations which may occur,
which need not amount to stark expulsion. Withdrawal is possible under Article 13 of the NATO
treaty, and although this was already attempted in this situation, putting pressure on countries to
withdraw from organizations has proven effective in practice, as was the case with Spain in the
ICAO and South Africa during the Apartheid era with the WHO and ILO. Pressure could be
made by threatening with the possible expulsion mentioned previously or other political threats,
including excluding the three States from some or all of NATO’s activities or excluding the
governments, rather than the states, from international activities, as set out by Sohn in page
1420. By taking this route the three baltic States could withdraw on their own terms and partially,
as was originally stipulated.
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Assignemnt 1 Memo Typed
Partial withdrawal is possible, as explained by Schermers and Blockker in page 119, as France
withdrew partially from NATO in 1966, leaving only the military cooperation invoking the principle
that whoever can do more, can also do less. NATO therefore, could use political pressure
against these baltic States, to get them to partly withdraw voluntarily– leaving only the military
organ and with assurance of full-re entry. Since all members except them were already in favour
of this measure, there would be no opposition to this.
All in all, it can be seen that there are two more convincing routes: expelling the three states
based on the protection of the organization, and putting pressure on the three states to withdraw
partially. It would be advisable to take the latter route first, as the threshold for expulsion without
an express provision is very high, and it would maintain better political relations and would allow
the States to withdraw only partially and it is unclear whether expulsion could be partial. If this
does not prove successful, the more drastic action of expulsion could be put forward.
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