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Summary The Law of International Organisations Lecture week 2
- Instelling
- Radboud Universiteit Nijmegen (RU)
The Law of International Organisatons Lecture week 2. 15 pages. Lecture typed out.
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The law of international organizations lecture 2 11-9-2019Legal Personality of international organizations
I’ll start this introduction talking a bit about the OSCE, the Organization for
Security and Co-operation in Europe. I’ll tell you more about it later, but I think
I mentioned this last week, that this was created in 1975 during the cold war
between east and west. The idea was to have this common area of security and
peace between all these countries. It still has a relevant role now a days. You
night remember the conflict in Ukraine, in the eastern part Russian intervention.
The east wanted to be independent from the rest of Ukraine. Some even wanted
to be part of Russia. Fighting going on in Europe, something we would thought
would never happen after Yugoslavia. This organization had an important role to
play. It does a lot in terms of early warning, conflict prevention, mediation, post
conflict rehabilitation and this organization was there on the ground. But it faced
some difficulties, because this organization doesn’t poses international legal
personality. Meaning that a precious 10 weeks were lost before a memorandum
of understanding was made between the OSCE and Ukraine, about what is the
status of the mission these OSCE officials on the ground. It cost some time to
negotiate this memorandum and to also sign it and rectify it. Another problem
was that these officials of the OSCE on the ground were sometimes held
incommunicado (If someone is being kept incommunicado, they are not allowed
to talk to anyone outside the place where they are.), they were detained by
Russian forces or Ukraine forces. They didn’t have proper protection they have
a weaker status without an international legal personality. It was also difficult to
open bank accounts, enter into contracts, get vehicle plate numbers. These were
all the practical problems. The OSCE is one of the very few IO that don’t have a
international legal personality. You see the difficulties for such an IO. The
relevance of legal personality is often taken for granted, but when you see an
organization which lacks legal personality, you see real practical difficulties on
the ground hampering its effectiveness.
Structure
1. Subjects of international law (not very legal)
2. International legal personality
3. Legal personality at the national level
4. Immunities
5. Privileges and immunities of IO’s
6. Case study: OSCE
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,1. Subjects of international law
- actors baring rights and obligations under international law,
independently
• States:
- Remember this picture i showed you last week of Hobs and the
anarchy. The whole State system which started after Westphalia, until
the early 20th century, 19th century States were the only subjects of
international law. We had a really State dominated international
system.
• Individuals
- It was clear after the second world war ( also in the clip the reference
to crimes against humanity, genocide), especially with the Neurenberg
tribunals ( The trials were most notable for the prosecution of
prominent members of the political, military, judicial, and economic
leadership of Nazi Germany, who planned, carried out, or otherwise
participated in the Holocaust and other war crimes. The trials were
held in Nuremberg) that Human rights have obligations not to commit
those acts. They also have rights, human rights.
• IOs
- In the mid-19th century the IO’s were established.
• Other entities: MNCs, national liberation movements, belligerents.
Imprecise notion
- It is not a really legal concept. It has been invented primarily by
academics. It doesn’t tell you very much, its not really precise. So
therefore we prefer the notion of legal personality.
https://www.youtube.com/watch?v=Qrim5NkBbW0
Subjects of international law are entities in possession of legal personality. They
enjoy rights and hold responsibilities towards the international community.
International law replaced the medieval order of Europe by creating legal
relations between entities claiming to be sovereign equal and independent. As
international personality is an inherent feature to statehood, States are the
traditional and primary subjects of international law. However, there are other
players like IO’s, belligerent groups, multinational corporations, NGO’s and the
individual. While they are objects of international law yet enjoy a degree of
international legal personality, because States allow them to do so. IO’s are
created by States. They are partial subjects with limited rights and duties as their
legal personality depend on State’s actions. On the other side NGO’s are
established by individuals under domestic law, but despite the global reach and
impact its not a subject of international law. While multinational corporations
have extensive global power sometimes even more than States, the development
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, in investment law helped them to acquire a partial legal personality. In particular
as States and multinational companies are considered equal parties to a dispute
before the Courts. While international law is mostly made fore States, the
individual today is qualified as a partial subject of international law. In
particular in the area of war atrocities, genocides and crimes against humanity.
Seeing that these actions are committed by persons and not by abstract entities.
And lastly when rebels or belligerents (These adjectives mean having or
showing an eagerness to fight. Belligerent refers to a tendency to hostile
behavior) gain de facto control of a certain territory they may enter into
international agreements, which make them a partial subject of international law.
2. International legal personality
- the idea of legal personality started in the Roman times, when natural persons
like you and me started trading with each other. The idea was that we needed
something in order to make clear that we sometimes do undertake a commercial
activity not as a private person but as a non-private person. So the whole notion
of legal personality was created. If you apply this to an IO, an IO is an intangible
creature. It doesn’t really have a physical existence. Of course it has some HQs
somewhere, but also for IO you really need such a, well just like for natural
persons trading with each other, some sort of legal fiction. In order for them to
also make it possible to enter into legal relationships. To negotiate treaties, well
to enjoy immunities and privileges. To be a party that can bring a dispute before
the ICJ or via other actors to bring international claims. And also it is necessary
if another entity wants to start a dispute for because the international
organization has breached its obligations. So it is a really important notion and
precise. It is really a legal status conferred upon an actor by the legal system.
Example the EU is an actor that is really present at the international scene.
You see someone from the European Union on behalf of the European
Union present during the negotiations of the Climate Change agreement in
Paris. So the EU as an IO is also present during the negotiations of
treaties. This has to do with legal personality, because the EU enjoys
international legal personality it can do so.
Another example is when you see the president of the European
Commission together with Trump. So you see someone
representing the IO by having a meeting with a president of a State.
They could also negotiate about the famous tee tip free trade
agreement. So that is an agreement between the EU and the US,
between an IO and a State. It can only do so because it enjoys
international legal personality.
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