THE LEGAL NATURE OF INTERNATIONAL ORGANISATIONS AND THE LAW OF TREATIES

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' In the general legal order this becomes clear e.g. from the cardinal role of states as international law-makers (cf. P. Weil, "Cours general de droit international public", Recueil des cours 1992 / I, at 106). Within IGOs, this is reflected for instance by the fact that decision-making competence with regard to matters not strictly related to the internal functioning of the IGO usually lies with the organ composed of state representatives (cf. H. Schermers & N. Blokker, International Institutional Law, Martinus Nijhoff, 1995, para. 379). 1 Weil, op. cit. note 1, at 104; on the concept of legal personality from a "functional" perspective cf. H. Mosler, "Subjects of International Law", EPIL, vol. 7, 1984, 442-

459, at 444; and Special Rapporteur Paul Reuter in his Sixth Report on the Question of Treaties Concluded between States and lnternational Organizations or Between Two or More International Organizations: "International organizations are neither sovereign nor equal; all their powers are strictly at the service of their member states [... ]." (YILC 1977, vol. II (Part One), at 120, para. 6). When viewed as independent legal entities, the functional role of IGOs is implied by the very notion of 'functional' or 'derived' personality. 3 Cf. M. Koskenniemi, "The Future of Statehood", 32 Harvard International Law Journal 1991, 397-410. Among lawyers this is not a generally shared concern; while international relations scholars have, e.g. in the framework of regime theory, shifted away their focus from the state as a basic unit of analysis (cf. F. Kratochwil & D. Mansfield (eds.), International Organization, Harper Collins, 1994), international lawyers-operating within a formal(ist) system moulded on sovereign states-in general seem less inclined to do so. On the fact that '`constitutional norms relating to formal sources remain essentially state-based", while "political processes within the international system have undergone profound changes" e.g. G. M. Danilenko, Law-Making in the International, Community, Martinus Nijhoff, 1993, at 193-197 (citation at 194), and references. 4 M. Fitzmaurice, Actors and Factors in the Evolution of Treaty-Norms, Austrian Review of International and European Law 1999,2000, Kluwer Law International, 1-84, at 81. 5 Ibid., at 84. 6 The element of 'negotiation' is commonly set aside from the treaty-making process as such (cf. P. Szasz, "General Law-Making Processes", in C. Joyner (ed.), The United Nations and International Law, Cambridge University Press/ASIL, 1997, 27-64, at 45).

7 Likewise the fact that in some cases IGOs seem to be even less influential than NGOs- a suggestion conveyed in the case-studies on human rights (Fitzmaurice, loc. cit. note 4, at 35 ff.); NGOs are more prominent as political actors because they are not composed of states and they represent the interests of-sub-national or transnational-groups that do not coincide with the state population. The fact that doctrine has not yet endowed them with legal personality is less relevant at the extra-legal stage of the treaty-making process. 8 In the present context, the qualification 'legal' is meant to refer to aspects of the treaty- making process (broadly) governed by the law of treaties. This is without prejudice to the fact that negotiations themselves may-and in fact nearly always do-make use of legally formalised structures. Yet another matter is that, as put forward by professor Fitzmaurice (supra), the factors influencing the negotiation of treaties, may be legal (the division of competences between the EC and its member states) or extra-legal (the political weight of the different participants) in character. 9 That is, within the IGO as a focvm-infra, para. 3. The article by T. A. Mensah, "The Practice of International Law in International Organisations", in B. Cheng (ed.), Stevens & Sons, 1982, 146-163 is expressly concerned with this issue; otherwise, the question is touched upon in S. Rosenne, "United Nations Treaty Practice", Recueil des Cours 1954 /II, 281-444, at 282; and P. Reuter, Introduction to the Law of Treaties, London, 1995. for example Reuter appears to view the development of the law of treaties and that of international organisations partly as an interaction of "economic and realistic responses"

to the demands of international society (Reuter, Introduction, cit. note 9, at 3). " E. Lauterpacht, "The development of the Law of International Organization by the Decisions of International Tribunals", 135 Recueil des Cours 1976/IV, 379-478, at 389. 12 In what would be a social sciences approach; see T. Biersteker, "Constructing Historical Counterfactuals to Assess the Consequences of International Regimes", in V. Rittberger (ed.), Regime Theory and International Relations, Clarendon Press, 1995, 316-338, at 318. " Although this has probably at no point in time existed in a pure form, either in doctrine or in practice; see D. Kennedy, "International Law and the Nineteenth Century: History of an Illusion", 65 Nordic JIL 1996, 385-420.

cue I. Seidl-Hohenveldern & G. Loibl (Das Recht der Internationalen Organisationen einschliefilich der supranationalen Gemeinschaften, Carl Heymans Verlag, 1996, at 5) who base the existence and legal personality of an IGO on the fact that states "renounce to the exercise of an, if only infinitesimal, part of their sovereign rights" for the benefit of the organisation; cf. also Ch. Schreuer, "The Waning of the Sovereign State: Towards a New Paradigm for International Law?", 4 European JIL 1993, 447-471, at 451. of. the traditional listings of elements of a definition of an IGO e.g. in I. Brownlie, Principles of Public International Law, Clarendon Press, 1998, at 679; and Seidl- Hohenveldern & Loibl, op. cit. note 14, at 4. 16 Virally spoke of a "dialectic relationship" between the functions of the organisation and its structural elements; "the relationship between the objective and its means" (M. Virally, L'organisation mondiale, Paris, 1972, at 26). This is unrelated to the doctrinal stance subsequently taken with regard to the legal basis of 'capacities' or 'legal personality'.

Cf. terminology in W.G. Grewe, Epochen der Volkerrechtsgeschichte, Baden Baden, 1984, at 233. 'e The traditional view of IGOs as transparent structures is held e.g. by Bindschedler: "[...] this internal [administrative] law of associations of states ranks as international law in the same way as the other provisions" (R. Bindschedler, International Organizations: General Aspects, in EPIL, vol. II, 1995, 1289-1309, at 1290); a similar approach, implicitly, in the Opinion of the ICJ concerning The Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt: "International organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties" (ICJ Rep. 1980, at 89-90; italics added). 19 See infra para. 5. 20 This coincides with the "new dimension in the international community" mentioned by Schreuer, loc. cit. note 14, at451 ; cf. also G. Hartmann, "The Capacity of International Organizations to Conclude Treaties", 127-163, in K. Zemanek (ed.), Agreements of International Organizations and the Vienna Convention on the Law of Treaties, Springer Verlag, 1971, at 146, in which the IGO is presented as being simultaneously the top of a unit with its own legal order ("unity point") and a unit in a larger legal system ("diffusion point").

2' Be it with a (contested) administrative function, such as the UN Compensation Commis- sion in 1991 (e.g. B. Graefrath, "Iraqi Reparations and the Security Council", 55 ZaoRV 1995, 1-68), or with a semi-judicial function, such as the International Criminal Tribunal for the Former Yugoslavia in 1993 (G. Politakis, "Enforcing International Humanitarian Law: The Decision of the Appeals Chamber of the War crimes Tribunal on the Dutko Tadic Case (Jurisdiction)", 52 ZdR 1997, 283-329). 22 The Joint Vienna Institute came into being at 29 July 1994, established by the BIS, the EBRD, the IBRD, the IMF and the OECD (33 ILM 1505); see F. Rousseau, "`Joint Vienna Institute': breves remarques relatives la creation de 1'institut commun de Vienne", 1995 RGDIP, No. 3, 639-650. 23 "[O]n the international level, the basic principles are very simple: only final consent is legally binding but agreed formalities may act as milestones marking the procedural

stages leading up to the final consent." Reuter, Introduction, cit. note 9, at 4. 24 on the history of international institutions from an institutional perspective, D. W. Bowett, The Law of International Institutions, Stevens & Sons, 1982, at 1-13; from a general legal perspective, Bindschedler, loc. cit. note 18; against the background of different schools of legal scholarship N. D. White, The Law of International Organizations, Manchester University Press, 1996, at 1-56; references to the development of inter- national organisations parallel to that of the law of treaties are found in the introductory section of Reuter, Introduction, cit. note 9, at 1-16; the connection is also explored in S. Rosenne, Developments in the Law of Treaties (1945-1986), Cambridge University Press, 1989. 25 An occasional departure from the unanimity rule is found in the practice of some of the river commissions (see Bowett, op. cit. note 24, at 6-9); and P. Reuter, lnstitutions internationales, Presses universitaires de France, 1962, at 30-36. zb E.g. Reuter, Introduction, cit. note 9, at 8, who incidentally remarks that it "in practical terms often compares rather favourably with the League of Nations or the United Nations" 27 See K. Marek, "Contribution a 1'6tude de l'histoire du traite multilateral", 17-39, in

Emanuel Diez et al. (eds.), Festschrift fur Rudolf Bindschedler, Verlag Staempfli & Cie AG, 1980, with an account of instances of treaty-making practice preceeding the Final Act of the 1815 Congress of Vienna, which as a cluster of bilateral treaties was famous for being the onset of 'multilateralism'; M. Lachs, "Le developpement et les fonctions des traites multilateraux", 1957 Recueil des Cours 92/II, 228-341. ze E.g. Reuter, Introduction, cit. note 9, at 5-6. 29 see (on the 1930 Codiflcation Conference) S. Rosenne, League of Nations Conference for the Codification of International Law, 1975. 'o No. 19 of the Rules of Procedure of the Assembly. Either by implication from the League system in general, or explicitly envisaged; see examples of the Rules of Procedure of several conferences mentioned in S. Rosenne, UN Treaty Practice, cit. note 9, at 312. 'z See D. Kennedy, "The Move to Institutions", 8 Cardozo Law Review 1987, 841-988, at 962-963. 33 Reuter, Introduction, cit. note. 9 at 43. Adoption of the Act (93 LNTS 343) by the Assembly was preceded by authentication by the sole signature of the Secretary-General and the President of the Assembly. No further signature subject to ratification on the part of states was needed, only the final expression of consent to be bound.

the function may have held more legal aspects than it would later, in the United Nations era, when the competence of the depositary for any legal assessment was explicitly renounced; see S. Rosenne, "The Depository of International Treaties", 61 American JIL 1967, 923-945, references to the relevant UNGA resolutions at 928. See on League practice in general Rosenne, Developments, cit. note 24, at 353-359. 3S Such as the decline of monarchical institutions (Reuter, Introduction, cit. note 9, at 9- 10 ; cf. A. McNair, The Law of Treaties, Clarendon Press, 1961, e.g. at 131). 36 Which, in any event, in the main reflected on the negotiation process rather than on the legal aspects of the treaty; W. Jenks, "The Legal Personality of International Organ- izations", 22 British YIL 1945, 267-275. On institutional aspects of League practice see e.g. Rosenne, UN Treaty Practice, cit. note 9, at 311-313. " ILO Constitution Art 19; the International Labour Conference, composed of tripartite national delegations, was in itself a novelty; on the ILO in general, K. T. Samson, "International Labour Organization", EPIL vol. II, 1995, 1150-1159. 3e See Ch. Rousseau, Droit international public, Sirey, 1953, at 39; and Reuter, Introduction, cit. note. 9, at 43, who mention subsequent 'notification' by the Minister for Foreign Affairs to the Organisation, taking the place of deposit or even ratification. The direct role for the national legislature was considered farreaching and e.g. by the French government not accepted until 1926. 39 Resolution of 10/12/1920 (LoN Sp.Sup. Jan. 1921, at 18); part of the procedure was later enshrined in Articles 19 and 20 of the WHO Constitution.

°° W. Jenks, "Some Constitutional problems of International Organizations", 22 British YIL 1945, 11-72, at 48. 4' S. Rosenne, UN Treaty Practice, cit. note 9, at 313. ^2 T. Treves, "Innovations dans la technique de codification du droit international: la preparation de la conference de Vienne sur les traites passes par les organisations internationales", XXXII AFDI 1986, 474-494. The procedural aspect of 'rationalisation' of course leaves out of account that the practice of adoption by majority has left way for the development of a complex, time-consuming and otherwise sometimes undesirable practice with regard to treaty reservations. °3 From the publication Multilateral Treaties Deposited with the Secretary-General (UN Doc. StlLeg/Ser.E/-) it seems that, leaving aside a number of hybrid procedures, treaties adopted by the General Assembly and other permanent institutional bodies are in a ratio of 1 to 4 to treaties adopted at an ad hoc conference or meeting. 44 unless the subject is such as to warrant a two thirds majority vote (Article 18(2) of the UN Charter). Cf. Reuter, Introduction, cit. note 9, at 87.

45 UNCIO, Vol 9, at 79-81. A method similar to the ILO procedure, though without the element of "willingness to pursue the treaty-making procedure" implied by signature subject to ratification or a similar legal moment, is found e.g. in the case of the 1946 Convention on the Privileges and Immunities of the United Nations (1 UNTS 15; 90 UNTS 327) and the 1947 Convention on the Privileges and Immunities of the Specialized Agencies (33 UNTS 261 et seq.), which were 'adopted' and 'approved', respectively, by the UN General Assembly and subsequently envisaged a single legal act on the part of states, accession or succession, as the immediate expression of consent to be bound. See Reuter, Introduction, cit. note 9, at 88, on states who nevertheless communicated their accession "subject to ratification"; this was interpreted by the Secretary-General as a declaration of intention (see the 1959 Summary of the Practice of the Secretary- General as Depository of Multilateral Agreements (ST/LEG/7), para. 48). 46 An examination of the different UN organs and bodies involved in the treaty-making process falls outside the scope of this article, as does the doctrinal discussion on delegation and the role of IGO organs (See Schermers & Blokker, op. cit. note 1, paras. 217-235). An extensive survey of the various combinations and interactions is found in Review of the Multilateral Treaty-Making Process, UN Doc. ST/Leg/Ser.B/2; see also Rosenne, UN Treaty Practice, cit. note 9, at 321-326; Rosenne, Developments, cit. note 24, at 390-394; and Reuter, Introduction, cit. note 9, at 60-66. 47 For example, the 1982 Charter of the Asian and Pacific Development Centre, adopted by the UN ECOSOC's Economic and Social Commission for Asia and the Pacific (Resolution 225 (XXXVIII); UN Docs. E/198/20 and E/ESCAP/287).

48 infra note 105 and accompanying text (with regard to the interpretation of IGO constitu- tions) ; note 121 and accompanying text (with regard to IGOs as independent parties to treaties). 'y Cf. the ILC's reference to the 1959 Summary of the Practice..., cit. note 45, in its commentary to Art. 72 on the functions of the depository (YILC 1966, vol. II, para. 1, at 269).� 50 Article 9(2) reads: "The adoption of the text of a treaty at an international conference takes place by the vote of two thirds of the States present and voting, unless by the same majority they shall decide to apply a different rnle." 51 See infra para. 5. s2 Art. 9( 1 ) reads: "The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in paragraph 2." Cf. infra note 60 and accompanying text. Art. 9( 1 ) was drafted i.a. with a view to 'restricted' multilateral treaties. s3 This is in line with the tendency, noted by Reuter, to "institutionalize international conferences and turn them into entities" (Introduction, cit. note 9, at 87).

54 Commentary to final Draft Article 4, YILC 1966, vol. II, para. 3, at 191. ss If the subject of the conference does not easily allow for a division of work over different committees on the basis of substantive criteria, negotiating parties gain this procedural advantage by working in a Committee on the Whole rather than in the Plenary; an example is the 1968-69 Vienna Conference (Rule 50 of the Rules of Procedure, reproduced in UN Doc. A/Conf.39/11, at XXV). sb See supra note 31 and accompanying text. 57 Cf. in general, Treves, loc. cit. note 42; and S. Rosenne, "International Conferences and Congresses", EPIL, vol. I, 1992, 739-746. 58 Kennedy, Institutions, cit. note 32, at 967, and references to voting literature therein; cf. also L. Sohn, "Voting Procedures in United Nations Conferences for the Codification of International Law", 69 AJIL 1975 310-353, with a survey of practice 1944-1975. s9 See Part One, Rationale, of the Review of the Multilateral Treaty-Making Process, cit.

note 46, at 7-12 (citation of the Australian Foreign Minister at 7); the burden placed on the states' national systems, not all of which have extensive governmental machineries for the conduct of external relations, also becomes clear from the UNTTAR commissioned study by O. Schachter et al., Towards Wider Acceptance of UN Treaties, New York, 1971. 60 No. I of the Rules of Procedure (CD/8/Rev.7, 27 June 1996-www.unog.ch / frames / disarm / disdoc.htm). The CD dates back to the 1950s and is open to the nuclear weapon States and, presently, 56 other States. It is only loosely connected to the United Nations. Cf. Reuter, Introduction, cit. note 9, at 12, on the tendency to safeguard the position of the Great Powers by keeping the treaty-making process with respect to certain politically sensitive matters "outside the organizational framework". 6' No. 18 of the Rules of Procedure; cf. note 58 and accompanying text. bz UN Doc. A/50/L.78 (6 September 1996). 63 Art. 18(2) UN Charter; UN Doc. A/50/IO27 (10 September 1996); an analysis of the Comprehensive Nuclear Test-Ban Treaty (35 ILM 1439) and its genesis in G. den Dekker, "De beproeving van de Comprehensive Test Ban Treaty", I6 Merkourios 50, 1996, 7-13.

6' See e.g. C. Redgwell, "Reservations to Treaties and Human Rights Committee General Comment No. 24(52)", 46 ICLQ 1997, 390-412; and B. Simma, "Reservations to Human Rights Treaties-Some Recent Developments", in G. Hafner, G. Loibl, et al. (eds.), Liber Amicorum Professor Seidl-Nohenveldern, Kluwer Law International, 1998, 659-682. bs Rosenne, Developments, cit. note 24, at 250, and references; cf. note 54 and accom- panying text. 66 Ch. Alexandrowicz, The Law-Making Functions of the Specialised Agencies of the United Nations, 1973, at 15-39 (on convention-making within ILO, UNESCO and FAO); F.L. Kirgis, "Specialized Law-Making Processes", in Joyner (ed.), op. cit. note 6, 65-94.

6' Convention on International Civil Aviation (1944), 15 UNTS 295 (Arts. 37, 54(l), 90). See Alexandrowicz, op. cit. note 66, at 40-69 (on "quasi-legislative acts'' of Specialised Agencies); E. Klein, "United Nations, Specialized Agencies", EPIL, vol. 5, 1983, 349- 368 ; Kirgis, loc. cit. note 66, at 70 ff. 68 It has been rightly suggested that, for centralisation or independence, conventional IGOs should not be viewed as a closed category, but rather as part of a continuum to which "treaty regimes" belong as well; cf. D. Simon, L'interpretation judiciaire des traites d'organisations internationales: morphologie des conventions et fonction juris- dictionelle, Paris, Pedone, 1981, at 488: "[T]oute convention affectant un ensemble de moyens organists la realisation d'un objectif commun [...] engendre un ordre juridique propre destine mettre en forme juridique la coordination des instruments normatifs permettant la poursuite des finalités collectives." 69 Article 2(9)d of the Montreal Protocol stipulates that decisions (possibly taken by majority) are binding on all parties and enter into force six months after notification by the Secretariat. An analysis of the procedural aspects of the 1985 Ozone Convention (1513 UNTS 3) and the 1987 Montreal Protocol (1522 UNTS 3), in M. Fitzmaurice, "Modifications to the Principles of Consent in Relation to Certain Treaty Obligations", ARIEL 1997, 275-317, at 281-283 and 291-293 (citation at 291). 70 leaving aside the general difficulties related to a meaningful classification of IGOs, in the present context the distinction between political and technical organisations, or between IGOs that mainly act as a forum for interstate negotiation on the one hand and IGOs that act primarily as a machinery for rule-making acitvity on the other (Mensah, loc. cit. note 9, at 147), may be relevant.

71 Danilenko, referring to comments of states participating in the third UNCLOS (op. cit. note 3, at 67-68). 'z Cf. M. Fitzmaurice, who adheres to the first view (loc. cit. note 69, at 316-317), and, contrariwise, Alexandrowicz (op. cit. note 66, at 152), on the regulatory acts of Specialised Agencies: "this is no doubt an extra-treaty process". A cautious approach in K. Skubiszewski, "International Legislation", EPIL, vol. II, 1995, 1255-1261. See also references infra in notes 73 and 74. '3 White, op. cit. note 24, at 45. Cf. Danilenko, op. cit. note 3, at 192 ("they hardly qualify as new formal sources of general international law existing independently of a specific treaty arrangement") and, on the other hand, V. D. Degan, Sources of International Law, Martinus Nijhoff, 1997, at 6, who considers "'non-obligatory' rules" such as ICAO standards, to which, nevertheless, "the respective states almost invariably conform themselves," as a possible newly emerging source of international law. '4 Which was the approach of the International Court of Justice, when it treated the conflict between the 1971 Montreal Convention and SC Resolution 748-originating in the UN Charter—as a traditional case of conflicting treaties; Case concerning Questions on Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Provisional Measures), 14 April 1992, ICJ Rep. 1992, at 126.

75 See supra note 14 and accompanying text. '6 On what has been summarised by Rosenne as the traditionalist view and the constitu- tionalist view, see Developments, cit. note 24, at 190-200, with references to "traditionalist" and "constitutionalist" writing in its note 17; a summary of doctrinal views in Tetsuo Sato, Evolving Constitutions of International Organizations, Kluwer Law International, 1996, at 4-11 (for references note 1, at 3); see in general also Simon, op. cit. note 68. 77 'The Function and the Differing Legal Character of Treaties", XI BYIL 1930, 100-118, at 118; in The Law of Treaties (op. cit. note 35, at 254-259), the author grouped IGO constituent treaties with dispositive treaties under the heading of what would later be termed objective regimes. 'g See infra note 137; Art. 2(1 )j of the 1986 Convention reads: "'rules of the organization" means, in particular, the constituent instruments, decisions and resolutions adopted in accordance with them, and established practice of international organizations;" cf. Rosenne, Developments, cit. note 24, at 191.

the question of reservations has less practical importance since many constituent instruments do not permit reservations. It may be noted however, that Art. 20(3) of the Vienna Conventions respects the dual nature of the constitutive instrument also with regard to reservations: "When a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization"; on this matter, see Rosenne, ibid., at 218- 223. 80 Cf. Art. 40 (4) of the 1969 Vienna Convention: "The amending agreement does not bind any state already a party to the agreement which does not become a party to the amending agreement." 81 Cf. in general Skubiszewski, loc. cit. note 72, at 1256-1257. ez Cf. e.g. the Anglo-Iranian Oil Co. Case, ICJ Rep. 1952, at 104: "[The Court] must seek

the interpretation which is in harmony with a natural and reasonable way of reading the text, having due regard to the intention [of the Parties]." See, however, for a detailed and nuanced analysis of the role of the textual and the 'subjective' approach, S. Torres Bemardez, "Interpretation of Treaties by the International Court of Justice Following the Adoption of the 1969 Vienna Convention on the Law of Treaties", in Hafner, Loibl, et al. (eds.), op. cit. note 64, 721-748. e' Cf. Arts. 31-33 of the 1969 and 1986 Vienna Conventions on the Law of Treaties. The 'object and purpose test' was applied in a moderate form e.g. in the Ambatielos case ("the Court cannot accept an interpretation which would have a result obviously contrary to the language of the declaration...")-ICJ Rep. 1952, 28, at 45; cf. I. Sinclair ("there is also the risk that the placing of undue emphasis on the 'object and purpose' of a treaty will encourage teleological methods of interpretation."); The Vienna Convention on the Law of Treaties, 2nd ed., 1984, at 13 1. 8' Legality of the Use by a State of Nuclear Weapons in Armed Conflict, ICJ Rep. 1996, at 74. es Rosenne, Developments, cit. note 24, at 234, and case-law references therein. 86 Cf. the 1984 Nicaragua case (jurisdiction and admissibility), ICJ Rep. 1984, at 392.

"' Here the doctrine of 'implied powers' holds a prominent place; see e.g J. Klabbers, "Over het leerstuk van de impliciete bevoegdheden in het recht der intemationale organisaties" ("On the doctrine of implied powers in international organisations"), in J. Steenbergen, Ongebogen Recht, Den Haag, SDU, 1998, 1-11. R8 O. Schachter, "The UN Legal Order: An Overview", in Joyner (ed.), op. cit. note 6, 3-26, at 9-13; Rosenne, Developments, cit. note 24, at 241 and references; a detailed survey (for the purposes of determining the legal effects of such interpretations) in Sato, op. cit. note 76, at 161-226. gy On the basis of Art. 38 of the Statute, the ICJ is held to apply both general international law and the IGO's constitution, being a "particular" international convention. See also, on the 'duality of function' of the ICJ itself—an advisory function as a principal UN organ, and a contentious function as an organ of international law-L. Gross, "The International Court of Justice and the United Nations", 120 Recueil des cours 1967/I, e.g. at 370. Rosenne,, Developments, cit. note 24, at 234; cf. his general statement—with regard to the Court's interpretation of the UN Charter—that there is "little doubt that adherence to 'traditional' legal concepts of the law of treaties is not a prominent feature of the interpretation of those provisions by the Court, although it is not displaced entirely" (at 195). ). 9' See for an in depth study of the interpretation of IGO constitutions by the ICJ Sato, op. cit. note 76; Rosenne, Developments, cit. note 24; Simon, op. cit. note 68; Lauterpacht, op. cit. note 11 (aimed however, at distilling general norms of institutional law, rather than the law of treaties). 92 Sato, op. cit. note 76, at 154; cf. "their [of the host state and the organisation] clear obligation to co-operate in good faith to promote the objectives and purposes of the

Organization" (Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, ICJ Rep. 1980, 73, at 96). 9' Conditions for Admission of a State to Membership in the United Nations (ICJ Rep. 1947-48, 63); Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (ICJ Rep. 1960, 23). 9° Reparation for Injuries suffered in the service of the United Nations (ICJ Rep. 1949, 174); Effect of Awards of Compensation made by the United Nations Administrative Tribunal (ICJ Rep. 1954, 53); Namibia opinion (ICJ Rep. 1971, 16). y5 Rosenne is critical of its use also in the particular context of constituent treaties, because of its being potentially "unproductive in the political sense and [...] prejudicial to the authority of the Court" (Developments, cit. note 24, at 237); cf. supra note 83. yb Viz. a constitutional line of argument, concluded by the well-known phrase "was intended to exercise and enjoy [...] functions and rights which can only be explained on the basis of a large measure of international personality" (Reparation for Injuries, cit. note 94, at 179). Rosenne, Developments, cit. note 24, at 238-239.

98 Sato, op. cit. note 76, (in particular 41-159), including all cases before the Court in which constituent instruments were at issue up to the 1982 Application for Review of JudgmentN. 273 of the United Nations Administrative Tribunal. Sato's conclusions are more cautious than Simon's ("1'interpretation jurisdictionelle des traites constitutifs tend effectivement privileges le development des finalités institutionelles") op. cit. note 68, at 194). 99 certain Expenses of the United Nations (ICJ Rep. 1962, 151, at 157); and the 1971 Namibia opinion, loc. cit. note 94, at 16. For other references see Sato, op. cit. note 76, 41-159. '°° Competence of the General Assembly for the Admission of a State to the United Nations case, ICJ Rep. 1950, 7, at 9. 101 legality of the Use..., loc. cit. note 84, at 76 (italics added). Note however the argumentation in the Written Statement submitted on behalf of the Secretary-General of the United Nations (para 45) of 2 October 1998 in the case on the difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Opinion of 29 April 1999), in which "the established practice of the Organization, as confirmed by the Mazilu opinion" is implicitly equated with the "subsequent practice" of Art. 31(3)b of the 1969 and 1986 Conventions (texts at www.icj-cij.org/icj).

art. 2(1)j; for its text see note 78 (cf. accompanying text). 'o° As mentioned in the context of IGOs in a forum function, processes of decentralisation within IGOs are-somewhat artificially-Ieft out of account. 105 Loc. cit. note 99, at 189 (italics in the original); the Court however reaffirmed the validity of practice of an IGO organ (in casu the Security Council) as an interpretative tool in the Namibia opinion, loc. cit. note 94, at 22. '°6 Cf. supra note 89. 107 P. J. Kuijper, "The Court and the tribunal of the EC and the Vienna Convention on the Law of Treaties 1969", 25 Legal Issues of European Integration 1999, 1-23. 108 Rendered explicit in the case C-327/91 (France v Commission), [1994] ECR 1-3641 (point 36) and opinion 1/94, [1994] ECR, 1-5267 (point 52 and 61). Contrary to the

International Court, however, it does not seem to accept (as yet) the subsequent practice of Community institutions for the purpose of interpretation. See Kuijper, loc. cit. note 107, especially at 9-10. 109 As it had earlier in the Polydor case (Case 270/80, [ 1982] ECR, 329). "° Kuijper, loc. cit. note 107, at 2-4. Rosenne, Developments, cit. note 24, at 257-258.

112 See the ILC Commentary to the 1966 final Draft, loc. cit. note 49. 113 See UN Doc. A/Conf.39/C.l/SR.28, para. 28; on the genesis of Article 5, Rosenne, Developments, cit. note 24, at 203 ff. "a Cf. the comments on draft Article 4 (Convention Article 5) by the FAO, ILO, ITU, WHO (UN Doc. A/CONF.39/5, at 88-94); by the Council of Europe (UN Doc. A/ CONF.39/7, at 15-18). "5 Rather, discussion revolved around the possibility of extending the saving clause to IGOs that were parties to other IGOs; for that reason the draft Article was referred to the Committee on the Whole for substantive consideration during the Conference (see UN Docs A/C.6/40/10 and UNGA Res. 40/76; discussion in UN Doc. A/Conf.129 / C. I/SR.S). "6 Tenth Report by Special Rapporteur Reuter, YILC 1981, vol. II (Part One), at 46; cf. the Commission's Commentary on the final draft Articles in its 1982 Report (YILC 1982, vol. II (Part Two), at 13, paras. 40 and 42. 1 This argument is elaborated upon in C.M. Brolmann, "The 1986 Vienna Convention on the Law of Treaties: The History of Draft Article 366is", in R. Lefeber & J. Klabbers (eds.), Essays on the Law of Treaties: A Collection of Essays in Honour of Bert Vierdag, Martinus Nijhoff, 1998, 121-140.

"8 Case of the S.S. Wimbledon, PCIJ, Ser. A, No. 1, 1923, at 25 (the French text adds "precisement"). 119 For example, the League of Nations concluded agreements in several fields, without its capacity being confirmed nor seriously questioned (cf. Reuter, Introduction, cit. note 9, at 12, 36 (n. 50)); IGO treaty-making activity was, however, very rare in comparison to that of the UN era (Rosenne, UN Treaty Practice, cit. note 9, at 300); see also Hungdah Chiu, The Capacity of International Organizations to Conclude Treaties, and the Special Legal Aspects of the Treaties so Concluded, Nijhoff, 1966, at 8-16. the hallmark decision was the Reparation opinion (loc. cit. note 94), initially leaving room for some doctrinal debate, however, on the question whether legal personality of the UN could be considered to extend to all IGOs, and on the question whether international agreements concluded by IGOs were actually "treaties" (see K. Zemanek, "International Organizations: Treaty-Making Power", EPIL, vol. 5, 1983, 168-171). 'z' Cf. supra note 2. As in the previous paragraphs, the decentralisation and delegation of competences within IGOs or IGO systems will be, for the sake of simplicity, taken as a strictly institutional phenomenon and left out of account. On this development with regard to IGO treaty-making, see e.g. Chiu, op. cit. note 119, at 84-99; e.g. on agreements concluded by the UNHCR, a UNGA (Art. 22 of the UN Charter) subsidiary organ, M.Y.A. Zieck, "UNHCR's 'Special Agreements'" in Lefeber & Klabbers (eds.), op. cit. note 117, 171-187. With respect to the EC, a traditional conflict between the Council and the Commission in the case C-327/91 (France v Commission), loc. cit. note 108). 122 The filing systems of many organisations are operated on criteria of content rather than juridical form or status. By consequence, agreements were part of files on a particular topic or project, while the Legal Office would often only have material on the agreements on which it had been consulted. Only in the 1990s many organisations-such as the FAO, but also the EC-have initiated a systematic filing of agreements concluded by the organisation. 'z3 This holds true from a macro-perspective as well, for it is a fact that a considerable

percentage of treaties do not make it to the UNTS. In the UNTS "more than 2000 treaties to which international organizations are parties" had been published in 1983 (Zemanek, loc. cit. note 120, at 168-169). In a statement by the UN Administrative Committee on Co-ordination of that same year mention was made of "some 140 organizations" to have registered or filed and recorded agreements with the UN (UN Doc. A/C.6/38/4, § 5). for example the FAO (itself) for practical purposes distinguishes between a) agreements with states, concerning the representation of FAO (comprising headquarters agreements; FAO representatives in different states; and any agreement regulating the participation of FAO in Conferences); b) agreements with other international organisations (comprising "relationship agreements" (institutional liason) and "cooperation agree- ments" (operational liason)); and c) (standard) operational agreements with states, on the implementation of projects (with gratitude to Mr. D. Fadda, Legal Officer in the General Legal Affairs Service of FAO); such a general classification would seem to fit also the treaties to which the UN is a party (Rosenne, UN Treaty Practice, cit. note 9, at 394-407); H. Geiser proposes a classification ("based on a functional criterion") of "institutional" and "operational" treaties, which may be helpful for grasping the general image (Les Effets des Accords conclus par les Organisations Internationales (Etude en Droit des Traites des Organisations Internationales à la lumiere de la Convention de Vienne de 1969), Publications Universitaires Europeennes,1977, at 8-22, and references). On the classification of treaties in general, Rosenne, Developments, cit. note 24, at 18 I- 190 (citation at 187) and Reuter, Introduction, cit. note 9, at 35-38. izs See supra note 77 and accompanying text. 'zfi E.g Geiser, on the effects of IGO treaties (op. cit. note 124, and references).

ILC Commentary to the 1966 final draft articles on the Law of Treaties, loc. cit. note 49, at 187; there is a detailed summary of the travaux preparatoires of the 1969 Convention on this particular point in the First Report of Special Rapporteur Paul Reuter (YILC 1972, vol. II, at 171). The first statement to shed some light on the "special characteristics", which at no point during the drafting process had been explicitised, was the 1986 comment of the IBRD; apart from a reference to "the entry into force of an agreement occurring directly as a consequence of the separate actions of the legislative organs of the organization concerned" it contained, however, no examples of dramatic departure from the-subsidiary-rules of the 1969 Convention (UN Doc. A/CONF.39/ 7/Add.l and Corr.l). 'za Cf. the (second) statement of the IBRD in 1968, in which it expressed its "satisfaction" on the "tentative decisions" to limit the draft to treaties between states, "because of the concern that any such regulation should only be consequent on an extensive and intensive study of the existing and developing practices." (UN Doc. A/CONF.39/7/Add. 2, § 2) '2� UN Doc. A/C.6/38/4 (October 1983), para. 19. '30 25 ILM 543. 131 In concreto it was decided on an article by article basis which provision would need

substantive or drafting modifications in order to become applicable to IGO treaties (Commentary of the Commission to the 1982 final Draft, loc. cit. note 116, at 12); this approach was also reflected in the rules of procedure of the 1986 Vienna Conference (UN Doc. A/Conf.129/7). 132 see supra note 117 and accompanying text. 133 Cf. the expression of consent to be bound by an act of "formal confirmation" in Arts. 11, 14 of the 1986 Convention. "4 Cf. the reference to territoriality in Art. 29 of the 1969 and 1986 Conventions. 135 neither by this exact term (Article 7(3)b) or by reference to the "competent organ", as in art. 45(2)b of the 1986 Convention; the latter provides a good example of a substantive distinction between states and IGOs: IGOs must by the conduct of the competent organ be considered as having renounced the right to invoke a ground for invalidity. In some cases, notably that of (the acceptance of) reservations, the specific regime for IGOs proposed by the Commission was rejected during the Conference. 136 See in general on the differences and similarities between the two Conventions e.g. G. Gaja, "A 'New' Vienna Convention on Treaties Between States and International Organ- izations or Between International Organizations: A Critical Commentary", in 58 BYIL 1987, 253-269; F. Morgenstern,"The Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations", in Y Dinstein (ed.), International law at a Time of Perplexity, 1989, 435-447; H. Isak & G. Loibl, "United Nations Conference on the Law of Treaties between States and Inter- national Organizations or between International Organizations", 38 OZoRV 1987, 49-78.

'3' See Guide for the Draft Articles, prepared by the Secretariat, UN Doc. ST/Leg/16. '38 On dispute settlement in the 1969 and 1986 Vienna Conventions, see Rosenne, Developments, cit. note 24, at 296-336. 139 Article 6 of the 1969 Convention reads: "Every State possesses capacity to conclude treaties"; cf. supra note 118 and accompanying text. 140 see e.g. J. Klabbers, "Presumptive Personality: The European Union in International Law", in M. Koskenniemi (ed.), International Law Aspects of the European Union, Kluwer Law International, 1998, 231-253. 141 See e.g. discussions during the 50th-52nd meetings of the 2nd session (YILC 1950, vol. I, 70-88), and the Commission's Report on its 14th session (YILC 1962, vol. II, 35-37);

see also the First Report of Special Rapporteur Reuter (YELP 1972, vol. II, 171, at 196). 142 on the drafting history of Article 6 of the second Vienna Convention in general, see e.g. Klein & Pechstein, Das Vertragsrecht internationaler Organisationen, Berlin, 1985, at 22-33; and Morgenstern, loc. cit. note 136, at 440-443. 143 That is, apart from its systemic value. Article 6 reads: "the capacity of an international organization to conclude treaties is governed by the rules of the organization," and is compatible (because of the pluri-interpretable term 'governed') with either of the-apposite -views with regard to the legal basis of IGOs' capacity (F. Seyersted, "Treaty-Making Capacity of International Organizations: Article 6 of the International Law Commission's Draft Articles on the Law of Treaties Between States and International Organizations or Between International Organizations", 34 6ZURV 1983, 261-267). 144 See para. 17 of the questionnaire on 'preliminary questions' with regard to IGO treaties (ILC 1971, vol. II (Part Two), at 188). zaps Obligations for third parties (Art. 35) have to be accepted "in writing" by the addressees, and rights (Art. 36) are conditional upon their "'assent", which is presumed so long as the contrary is not indicated. In case these two categories cannot be clearly separated, the stricter regime applies.

146 Sixth Report of Special Rapporteur Reuter, YILC 1977, vol. II (Part One), at 126 (emphasis added). 147 Rosenne as quoted in C. Chinkin, Third Parties in International Law, Clarendon Press, 1993, at 37 (see, on the third party-regime of the Vienna Conventions 29-44 and 134- 140). 14R See Reuter, Sixth Report, loc. cit. note 146, at 126, and his commentary, in particular at 129-133; cf. the introduction of the Article at the 1440th meeting of that Session; YILC 1977, Volume I, at 134-135.

149 For a detailed account of the drafting history of Article 366is and document references, Brolmann, loc. cit. note 117, at 127-139. �so Cf. the observations of Mr. Riphagen (Netherlands) in the Sixth Committee (UN Doc. A/C.6/37/SR.40, paras. 50-67) and as a member of the Commission ("when two treaties met"; YILC 1982, vol. I, at 39), who convincingly argued that the situation covered by 366is in reality involved an "internal" treaty-relationship (between the IGO and its member states) and an "external" one (between the IGO and its co-contractors)-the question was how these were to be "linked". 151 On the question of the stratification of the EEC and its particular role in the question of 36bis, Br6imann, loc. cit. note 117, at 137-138. 152 see Reuter's comments e.g. at the 1704th meeting (YILC 1982, vol. I, at 37). 153 See e.g. comments on pre-final drafts of the article, reproduced in YILC 1981, vol. II (Part Two), Annex II (Section B for International organizations); ILO ("no experience that could shed light on the problematique of Article 36bis"); FAO (affirming only the existence of indirect obligations for member states); IAEA (declaring the article to be "virtually irrelevant to the IAEA").

154 See discussions at the Commission's 34th Session, 1704th-1707th and 1718th and 1719th meetings (YILC 1982, vol. I, at 36 ff.). �ss 1982 Report of the Commission, loc. cit. note 116, at 46. 156 The final version of Article 366is read: "Obligations and rights arise for States members of an international organization from the provisions of a treaty to which that organization is a party when the parties to the treaty intend those provisions to be the means of establishing such obligations and according such rights and have defined their conditions and effects in the treaty or have otherwise agreed thereon, and ifs (a) the States members of the organization, by virtue of the constituent instrument of that organization or otherwise, have unanimously agreed to be bound by the said provisions of the treaty; and (b) the assent of the States members of the organization to be bound by the relevant provisions of the treaty has been duly brought to the knowledge of the negotiating States and the negotiating organizations. " 157 The Article, merged into the new Art. 300 EC, provides (in para. 1 ) for majority decision of the Council on the conclusion of treaties and (in para. 2) for the fact that "[a]greements concluded under the conditions laid down above shall be binding on the institutions of the Community and on Member States." 158 Cf. the observations by Canada on the risk that the "rule of unanimity" would hamper the conclusion of e.g. headquarters agreements by organisations that take decisions by majority (UN Doc. A/Conf.129/5, at 161). ).

159 Calle y Cane, YILC 1977, vol. I, at 135. 160 urn Doc. A/Conf. 129/C. 1/SR.28, at 2. '"' Article 74(3) reads: "The provisions of the present Convention shall not prejudge any question that may arise in regard to the establishment of obligations and rights for States members of an international organization under a treaty to which that organization is a party"; on the discussions and amendments during the Conference, Brolmann, loc. cit. note 117, at 133-134. '6z Cf. the 1946 Convention on the Privileges and Immunities of the United Nations and the 1947 Convention on the Privileges and Immunities of the Specialized Agencies mentioned earlier (see supra note 45), notable for their entry into force for each state individually after its expression of consent, and for the status of "semi-parties" which they gave to the pertinent organisations, implicitly acknowledged by the ICJ in its Opinion on the Reparation case (loc. cit. note 94, at 179); see also Rosenne, UN Treaty Practice, cit. note 9, at 323-324.

`6' Cf. Schermers & Blokker, op. cit. note 1, para. 209; see supra note 87 and accompanying text on the contrast attribution principle-implied powers. 164 Supra, note 2 and accompanying text.

Abs As is the view of Professor Fitzmaurice; see supra note 4 and accompanying text.

166 Reuter, Institutions, cit. note 25, at 208.

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