International Institutional law – Study Notes
Week 1A: Law of IO, interpretation and theories
Intergovernmental organization = based on the principle of sovereign equality.
Criteria IO:
Membership (states mostly, but can also be other entities, article 2 DRIO)
Own will separate from MS = distinct will, nuclear weapons opinion, para 19 +
Schmalenbach, at least one organ needs to have separate will.
White = distinct will = not necessary
Constitutive document (Treaty or another document)
Capable of adopting norms
Criteria supranational organizations: Schermers & Blokker:
Decisions of the organization must be binding on member governments
Organs taking the decisions should not be entirely dependent on the cooperation of
all participating governments
Organizations should be empowered to make rules that directly bind the inhabitants
of MS, thereby enabling the organization to perform governmental functions without
the need of possibility for national governments to transform the rules of the
organization into domestic law
Organizations must have the power to enforce their decisions without the
cooperation of the member governments
Organizations should have some financial autonomy
Unilateral withdrawal from the organizations should not be possible
Conclusion Schermers and Blokker: there is no organization yet that fulfills all the
requirements, the EU comes close.
® Positivism strives to isolate and analyze law in strictly legal terms. Sovereign equality of
states. Rules only binding with state consent (can be written treaty signature of
customary law, but you need have consent).
Kelsen: norm traced back to highest norm. But if you reach the top of the pyramid/the
highest norm, what is the justification for that?
® Realism derived in parts from Thomas Hobbes = state is most significant actor on the
international plane. Morgenthau.
® Liberals (John Locks state of nature) focus on the freedom of the individual and argue
that this should be the central tenet of international relations.
® Functionalism sees NGO’s emerging naturally to deal with common problems of a trans
frontier nature such as communications, waterways and pollution. IO can do such things
as would be necessary for their effective functioning. Klabbers. IO try to break free of
MS > Frankenstein’s Monster trying to break free.
,® Constructivism conceptualizes norms and rules as constraints. Hall.
® Constitutionalism: political power must be exercised within the limits of the law,
exercise of power must be controlled. Certain boundaries on what IO can and cannot do,
principle of legality, specialty, and attribution of powers.
Week 1B: international legal personality and applicable law
International legal personality
Reparation Opinion (Bernadotte) > does the UN have legal personality? YES, The UN could
not function, if it constantly had to consult with the ministers of foreign affairs of the
member states (MS). That would be the result if you said that the UN does not have legal
personality, because then it is the MS acting and not the organization.
If you have international legal personality > you can have rights/obligations, you can be
held accountable for violations and hold others accountable for violations. If you do not
have that personality, as an organization you cannot be held accountable, then you must
address the members instead of the organization.
Theories that explain international legal personality:
1. Subjective approach/will theory: subjective international legal personality (it's by the
will of states that IO has legal personality, can be explicit will or implied will (by
competences, powers and functions of organization).
2. Objective approach: Objective international legal personality. Organs are not subject to
authority of states. Its the organs that control the organization, not states = organization
hood.
If you believe the subjective approach = means legal personality is only for the
members. Non-members than not have any obligation or rights under treaties (pacta
sunt servanda).
If you believe the objective approach = means can also bind non-members (third states).
But this goes against the law of treaties (VCLT) (treaties only bind members party to the
treaty) so how can the objective theory explain this? So, non-members would say that
the UN does not have legal personality, because they don’t want to say they are bound
by anything. Objective approach cannot rally be explained. This theory can be called
false, because cannot be proved.
® SO SUBJECTIVE APPROACH IT IS!
3. Presumptive theory (Klabbers): if an IO acts like an organization with legal personality,
we should probably conclude that it has legal personality.
, > Do not have to know for exam per se!
Week 2A: The UN family
The United Nations; Organs:
1. General Assembly
2. Security Council
3. Economic and Social council (ECOSOC)
4. International Court of Justice
5. The Secretariat/administrative organ
6. The Trusteeship Council
Criteria for status of Specialized Agencies; Article 57
1. IO must be established by intergovernmental agreement (Treaty between states) =
NGO’s excluded
2. Organization having wide responsibility (Universal organizations) so not a regional one
3. Wide responsibility relates to the function of organization
Advisory opinion: WHO legality of the use of nuclear weapons, para 26.
Specialized agencies have relationship agreement through ECOSOC. Basis for SA =
Functionalism.
Conclusion: the UN has a coordinating role. The Specialized agencies are independent of
the UN, own budget, own constituent treaty etc. No hierarchical relationship, the UN can
only recommend (because both the Charter as the relationship agreements talk only about
recommendations), not tell the SA to tell what or not to do.
Are IO bound by decisions of other IO? if not members = not legally bound.
Schermers and Blokker: if members are also part of bigger organization, than they are
bound? But is not true says professor. Even if all members of IO are also member of a
bigger organization, does not mean that what the bigger organization decides are also
bound on them = NO
1. Principal organs are created directly by the constituent treaty.
2. Subsidiary organs are usually created by the principal organs. It might not have the same
composition.
1. Plenary organs: every member has a seat within the organ consult.
® Because of this, in the context of composition, a delegation is appointed by the
government of the MS, which represents the MS in the organization.
® Plenary organs are relatively big, they have annual sessions. They are subdivided into
committees, these are a kind of an offshoot of the same organ (same as plenary organ,
but for a specific thing; for example, planning the GA).
® Voting is regulated in constituent treaty. For GA either majority or 2/3 majority of votes
(sometimes by consensus; but this is not mentioned in the Charter). Rules of procedure
