International Institutional law Lectures
2021-2022 – Andre de Hoogh – University of Groningen
Lecture 1A ‘International Organizations, interpretations, theories’
Subjects of international law: states (primary subject), international organisations,
individuals, peoples.
The focus of this course is international organisations (IO) (so no non-governmental
organisations (NGO’s), because they are created under national law and have no status
under international law, except the international committee of the Red Cross (ISRC).
Sources of international law:
Primary sources:
• Treaties
• Customary international law
• General principles of law recognized by civilized nations.
Subsidiary sources:
• Judicial decisions
• Opinions of most highly qualified publicists.
The difference between national legal systems and international law:
In national legal systems you have a vertical relationship between states and the subjects
of law (everyone). Centralized authority where individuals have no choice, law is made by
parliament, courts decide disputes and we have police/army which enforces law and order
within the states, it's imposed upon us, we have no choice.
Between states we have a horizontal relationship, all states are equal. Only decide disputes
by consent. One state is not higher than the other. International law is thus horizontal, all
states are sovereign, no higher authority, no world government that can make the law.
Security Council enforce peace, not per se international law. International organisations can
make decisions, these bind the member states, can we still speak of the sovereignty of
states?
Horizontal relationship under customary international law: one state cannot make a decision
that binds another state. This is different with treaties, here you can make these agreements
and depending on the states accepting this treaty, you can bind certain things.
Each IO has its own legal system. So, you have to look at the constitutional treaty
(establishing treaty) and the other treaties arising from it and later even customary
international law. Each IO has thus its own legal system and thus we saw the law of IO.
When is something a state? they may look at the practice, most look: if the UN has accepted
it, so let’s follow, sometimes it's the other way around. Some states have been accepted by
other organisations, but not been accepted by the UN (Kosovo, Palestine). What’s the
, difference between UN and other organisations? In UN there are veto rights for some
permanent members, and these can block a state from joining, you don’t have this with the
other IO. So, the UN can block Kosovo and Palestine from joining the UN.
Classifications of IO; what types of IO do we have?
• General vs Special organisations (special can also be regional, like the EU, the UN is a
general organization).
• Political vs Technical organisations (it does not mean that technical organisations do
not deal with politics).
• Judicial organisations (ECHR, RSICC).
• Legislative organisations (just one; the EU).
• Universal vs Closed organisations (regional organisations are closed such as the EU,
universal organisations are open such as the UN).
• Inter-governmental organisations vs Supranational organisations.
Supra-national organisations: if you fulfill the following criteria
− Binding decisions;
− Organs not dependent on the Member States (MS), all the organs who have
members with a seat are thrown aside. Then you don’t have many left;
− Rules that directly bind the inhabitants;
− Enforcement without the cooperation of the MS;
− Some financial autonomy.
− Unilateral withdrawal is not possible.
→ the organization that comes the closest = the EU, even the EU might not fulfill all the criteria,
so is the distinction between intergovernmental and supranational organisations even
relevant if there are no consequences?
White: ‘Cooperation, consent and respect’.
When can we call something an IO; the criteria:
− More than 2 MS (professor would say 3 at least)
− It has its own wills separate from the MS; distinct will,
− Constitutive document (can be a Treaty),
− You need members (states)
Inter-governmental organisations = members which are states, states send representatives
to the IO, representatives are appointed by the governments of that state. The
representatives are subject to instruction of the State, they have to vote what the State
wants. Now we just use the term international organisations.
For IO we need a Treaty (so a contract is not possibly, because that’s governed by national
law). Treaty is governed by international law. Except for a Treaty, sometimes a kind of
decisions of international conflict is also possible (OPAC).
, Lecture 1B ‘International Legal personality and applicable law’
Special rules of interpretation?
→ Constituent treaties: article 5 VCLT
→ What is special about constituent treaties?
→ Object and purpose/subsequent practice
− In the light of its objects and purpose: article 31(a) VCLT.
− Subsequent practice: article 31(3)(b) VCLT
− WHO Nuclear Weapons opinion, para. 19.
The authority to interpret:
→ Provisions in constituent treaties: when it comes to the UN there is no organ which
has the power. Each organ in the first instance determines its competences.
→ Absent provisions in constituent treaties; in principle it is the parties which are
called upon the interpret the treaty, article 31 does not say so, but it is the parties
who must interpreted it. Collective interpretations by the parties have more weight
than an individual interpretation by a party. “Acting together come to an
interpretation”.
→ Binding dispute settlement on interpretation: can be through arbitration, it can also
come to the ICJ > what ICJ decides has only binding force between the two parties
before the ICJ < so not for others.
Theories of international organizations:
General
→ Theory: Knutsen, quoted by White (previous edition)
General theories:
• Natural law
• Legal positivism
• Policy orientated approach (Yale)
, • Critical legal theories: Marxist approaches, feminists, third world approached to
international law
• Realism, liberal internationalism, neoliberal institutionalism, (social) constructivism
Functionalism:
