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Summary The Law of International Organisations Lecture week 3
- Instelling
- Radboud Universiteit Nijmegen (RU)
The Law of International Organisatons Lecture week 3. 20 pages. Lecture typed out.
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The law of international organizations lecture 3 18-9-19International Organizations – Legal powers
We had an exciting weekend from an international law perspective. In the
Middle East the missiles or the drone, we still don’t know yet or at least it is not
out in the open, but the Saudi oil installations that were hit by a drone either
from the Houthi rebels in Yemen or by a missile from Iran. Raising very
intricate legal questions. Do the Houthi rebels have a right of self-defense in
response to Saudi attacks in Yemen? The Houthi rebels are not a State. What
about the Saudi intervention in Yemen, is that legal? They argue well we were
invited by the president that is recognized by the UN, but that is not in effective
control of the capital. This is a conflict which there are many interesting
international legal questions. Assume that Iran shot the missile, what is Saudi
Arabia and the US going to do? Is that legal what they are going to do, if they
are also going to target Iran? So very interesting questions, if you have to write a
bachelor thesis it could possibly be a very interesting topic to delve in to.
Structure
1. Three type of powers
2. Safeguards against excessive use of powers
3. Kahoot Quiz
4. Introduction to assignment: Uniting for Peace resolution
There are basically 4 more general principles, because before I am going to look
at the different types of powers. I told you that IO’s have their own will, but it is
important that they stay within the powers conferred upon them. There are
basically 4 principles why the powers of IO’s are so important for general
principles.
- Each action or act of an IO should be based on a power that the IO is
enjoying.
- In order to find what the powers are we have to look especially at the
constituent treaty. In this constituent treaty, the treaty that was made
which established the IO. In this treaty States thought about which powers
should we give the IO.
- The powers of IO’s are limited by the objectives and the functions that
IO’s have.
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, - IO’s should act within those powers that were determined by States in this
constituent treaty. Limited by their functions, their purposes. If they go
beyond their powers, then what they did could be ultra vires, so it could
be illegal when its violating the rules of the IO.
It is really important to look at this question, do IO’s have the power to do what
they want to do. The international legal order is all based upon the consent of the
States, States sovereign actors, the most important actors, they determine what is
happening. So they also determine what IO’s can do. This 4 underline
principles.
1. Three type of powers
I. Attributed powers
Powers explicitly given to an IO by States. IO are given/attributed a power.
The scope of attributed powers is determined by the constituent or other
document. Usually the constituent treaty.
o Example: article 10 UN Charter: you will that the General
Assembly may discuss any question or any matters within the scope
of the Charter. So the General Assembly is given this power to just
discuss everything as long as it is related to the functions of the
UN, purposes which you will find in article 1 UN Charter.
The Legality of the Use by a State of Nuclear Weapons in Armed
Conflict, ICJ Advisory Opinion, 1996 how do we know what the scope
is.
This was a question about the legality of the use by a State of Nuclear
weapons in armed conflict. What is the legality? Can States use Nuclear
weapons. This was a question posed by the WHO. So the organization
dealing with health. You can see of course that there is some sort of
correlation to use nuclear weapons that can have effect on health. Is this
question about the legality of the use arises within the scope of the WHO?
The WHO post the question to the ICJ “is it legal for States to use nuclear
weapons?”. What is the international legal status of using nuclear
weapons.
If you look at article 92(2) UN Charter, you see that in principle the WHO
can ask questions provided that those questions rise within the scope of
their activities. Is this question about the legality within the scope? The
ICJ took up this question. If you look at paragraph 19 on page 50 of your
reader in the case above that is marked yellow, then we can see how the
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, ICJ dealt with this question. ICJ: if you want to delineate the field of
activity or the area of competence of an IO one must refer to the relevant
rules of the organization and, in the first place, to its constitution. That is a
point that we already noted, look at the constituent treaty.
The ICJ continued if you go to page 51 paragraph 20. The ICJ is looking
at the functions of the organization. The function attributed to the WHO
are listed in 22 subparagraphs in article 2 of its Constitution. That’s
usually happening that a constitution or for example the Treaty. The
European Union lists down what the functions, the purposes and
objectives are.
The ICJ “non of the subparagraphs expressly refer to the legality of any
activity hazardous to health (..). In paragraph 21: interpreted in
accordance with their ordinary meaning in their context and in the light of
the object and purpose of the WHO Constitution, as well as of the practice
followed by the Organization, the provisions of its article 2 may be read
as authorizing the Organization to deal with the effects on health, so that’s
a bit of the point made earlier.
But then if you look at the paragraph just below still in paragraph 21,
whatever those effects might be, the competence of the WHO to deal with
them is not dependent on the legality of the acts that caused them.
The Court continues and eventually concludes that the WHO does not
enjoy the, well it does not arise within the scope of their activities. The
takeaway is in paragraph 25;
o Article 96 of the UN Charter makes clear who can ask for an
Advisory Opinion form the ICJ. We saw that the General Assembly
and the Security Council could do so. So they have an explicitly
attributed power in general to ask an opinion in relation to all legal
questions they think are relevant.
o Article 96(2) UN Charter: Other organs of the UN and specialized
agencies, which may at any time be so authorized by the GA, may
also request advisory opinions of the Court on legal questions
arising within the scope of their activities.
We have to see what the scope of the activities are.
o “IOs are subjects of international law which do not, unlike States,
possess a general competence. International organizations are
governed by the "principle of speciality", that is to say, they are
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