Public International Law – Week 3
Gleider Hernandez, International Law – Chapter 5, States as subjects of international law
[See Week 4]
Gleider Hernandez, International Law – Chapter 6, International Organisations
6.1 Introduction; beyond the state
A number of other actors, most prominently international organisations created by states play an
increasingly important role in the development of international law.
6.2 Institutionalised cooperation: the rise of international organisations
The very first international organisations were created either to deal with localised questions such as
the management of international waterways or neutral territory. One example is the founding of the
Permanent Court of Arbitration in 1899, which is still in use today.
6.3 What is an “international organisation”?
International organisations are defined in Article 2(a) ARIO and have three main tenets. First,
Membership: an international organisation need be established and composed predominantly of
states, though non-state entities may in addition be members. Second, international legal
personality: international organisations require a set of organs through which it may assert a will that
is sufficiently distinct from its members that it may be regarded as autonomous. Third, governed
under international law: an international organisation must be constituted under, and be governed
by, international law. It should be noted, however, that there are first radical differences in the forms
international organisations may take, and second that there may be particularities for the law
governing each organisation.
6.4 Legal personality of international organisations
Legal personality represents the recognition by actors in a legal order that the legal person
concerned is entitled to hold rights and bear obligations derived from law. Therefore, it is important
to distinguish between international organisations having legal personality under international and
domestic law.
6.4.1 Legal personality under international law
6.4.1.1 The conferral of international legal personality on an international organisation
International organisations hold a derivative international personality in that it must be bestowed by
the members which have created it. The easiest means to do so is explicitly by treaty, such as in the
cases of the EU and WTO. However, it can also be bestowed by the ICJ, as happened in the case of
Reparation for Injuries, where it did so for the UN. The underlying logic here was that international
organisations could possess such rights, powers, privileges and immunities distinct from its members,
and as are necessary for them to exercise their functions.
6.4.1.2 The consequences of possessing international legal personality for international organisations
There are some general consequences that all international organisations share in common. First,
they must be capable of possessing international rights and of bearing international obligations and
duties as distinct from those of its members. Second, it may enter into a valid international
agreement with another legal person, usually a state or another international organisation, which is
then subject to the law of treaties. Third, it may have certain privileges and immunities which are
necessary for the independent and efficient functioning of the organisation.
6.4.2 Legal personality under domestic law
6.4.2.1 General principles
International legal personality does not automatically entail domestic legal personality, despite the
, fact that international organisations often require the capacity to perform legal acts in domestic law.
As a general rule, each legal system will recognise domestic legal personality in accordance with the
particular relationship between its national law and international law. Provisions establishing an
obligation to provide domestic legal personality do not apply to non-member states in accordance
with Article 34 VCLT.
6.4.2.2 Consequences of domestic legal personality: privileges and immunities
International organisations require certain privileges and immunities in order to perform their
functions effectively, which in essence constitutes an undertaking that the recognising or host state
will not interfere unilaterally with the workings of an international organisation. Such privileges and
immunities might result from treaties, though some argue that they may also result from customary
law.
6.5 Powers of international organisations
6.5.1 Express and implied powers of international organisations
The classic position is that international organisations only possess such powers as were expressly
attributed to them from the constituent instrument whence they derive their authority. However,
international organisations may also possess powers that are not explicitly conferred by their
constituent instrument, but that can be implied as they are considered necessary for the organisation
to fulfil its functions, as seen in the Reparation for Injuries opinion. The Certain Expenses opinion
moreover demonstrates that this doctrine of implied powers is in some respects indispensable for
the fulfilment of an organisation’s functions.
6.5.2 Interpretation of constituent instruments
Certain characteristics of the constituent instruments of international organisations share the
interpretation of the relevant treaty rules. Furthermore, the practice of the organisation and its
organs is also important in determining how the organisation and its organs are to function. There
might also be judicial interpretation of constituent instruments in some cases.
6.5.3 Decision-making in international organisations
6.5.3.1 Binding decisions of international organisations
For international organisations to be able to act effectively, in many situations it is necessary for its
member states to support and implement its functions. Accordingly, they may take decisions that are
addressed to and binding on member states.
6.5.3.2 Ultra vires decisions of international organisations
The potential exists for an organisation which takes a decision that exceeds the scope of its functions
for that decision to later be characterised as ultra vires by a judicial institution. In addition, the
possibility exists for national and regional courts to invalidate or find unlawful measures taken under
domestic law in the implementation of a decision of an international organisation.
6.5.3.3 Non-binding recommendations, determinations, and declarations
There are two steps to follow in determining whether a given decision of an international
organisation may be binding on an addressee of that decision. First, one must consider whether the
constituent instrument of the organisation bestows on it the power to take such binding decisions
without the consent of that specific addressee. Second, one must examine the text of a decision itself
to determine whether it demonstrates an intention, on the part of the organ, for the decision to be
binding on members. Many organs of international organisations, however, do not have the power
to issue binding decisions on members, though they may issue other types of instruments, as is the
case for the UN General Assembly (recommendations in the form of resolutions). Recommendations,
determinations and declarations may not be binding as such, they cannot be regarded as devoid of
legal effect: some constituent instruments oblige members to have regard, in good faith, on non-
binding decisions.
