Appunti di International Organizations

DOCTRINE OF IMPLIED POWERS

The powers not expressly recognized to IOs can be exercised only if necessary to fulfill the mandate

of the organization→Overall, implied powers have been found to exist when treaties are interpreted in

such ways to guarantee their effet utile (=so their fullest effect)

case: Interpretation of the Greco-Turkish Agreement of December 1st, 1926; PCIJ (1928): it

❖ created a mixed commission with a resort to arbitrate if an agreement could not be found, but it

didn’t identify the party entitled to do so=Court affirmed that since the article remains silent, it’s

possible to deduce that the power to the arbitrator rests with the mixed commission because it

deals with questions of the nature indicated=it’s a power implied in the existence of another

granted one 4

case: Fédéchar case; Court of Justice of CECA (1956): whether High Authority had the power

❖ to fix prices as part of recognized power to regulate the market=Court affirmed that the power to

regulate implied the power to fix prices, because without such power the regulatory one would be

deprived of its effet utile

BUT→the criterion of being essential to the performance of duties doesn’t lead to legal certainty, however

there are other decisions in the same direction of wide interpretation:

case: Effect of Awards, ICJ (1954): whether General Assembly can establish an administrative

❖ tribunal capable of binding decisions=Court said that this power arose by necessary intendment

of the UN Charter, in fact since UN must promote freedom and justice for individuals, it can

establish a tribunal to do justice between organization and staff because it’s essential to ensure

the efficient working of the Secretariat=it considers the well-being of the individual organs

of the organization to determine implied powers

case: ERTA, CJEU: whether the EU could conclude an agreement related to road transport with

❖ third parties=Court said yes, on the basis of the fact that Union was competent to legislate in

matters of road transport, such internal competence must have an external counterpart=the

justification isn’t in the effet utile of the internal transports provisions, but to safeguard the

unity of EU law

RECONCILING THE TWO DOCTRINES

DOCTRINE OF ATTRIBUTION DOCTRINE OF IMPLIED POWERS

=manifest will of the founders that found =founders can’t predict circumstances where the

necessary to grant their organizations certain organization could need a power not expressly

powers⇒focus: state sovereignty granted to function effectively⇒focus: needs of

organization

How to find a compromise? A solution could be a limit to the applicability of the doctrine of implied

powers→ex. Judge Hackworth (dissenting opinion, case Reparation for Injuries): implied powers must

have an explicit power from which they are implied, so the mere necessity is insufficient.

DOCTRINE OF INHERENT POWERS

IOs have inherent powers to perform all those acts which they need to attain their aims, as long as

they are not expressly prohibited by the drafters

MEMBERSHIP IN INTERNATIONAL ORGANIZATIONS

In many organizations, a primary distinction must be made between original and joining members:

original members participated in the creation of the organization, joining members after the formation. In

practical terms there’s no difference, original members only have some privileges since they participate

in preparatory committees and are bound by the obligations even before the IO comes to life⇒What are

the rules of the membership?: each organization has its own rules→ex. United Nations:

Art. 4, UN Charter: “membership in the UN is open to all other peace-loving States which accept

the obligations contained in the Charter and, in the judgment of the Organization, are able and willing

to carry out these obligations”

→So, UN members have to be:

● states: only states recognized from international law are allowed to join⇒statehood: entity that

has an effective government, a territory, population and the capacity to enter into international

relations→N.B*: actually, IOs may be composed also of other entities (ex. FAO: it allows IOs to

join, in fact the EU is part of FAO)

● peace-loving: UN Charter was drafted after WW2, this requirement was very useful at the time,

but now it’s generally thought that the best way to ensure a peace-loving attitude is to incorporate

a potentially aggressive state 5

● accepting the obligations: aspiring members that don’t accept the obligations act in bad faith,

usually reservations are hard to get and can’t alter the object and purpose of the IO

● willing to carry out the obligations: aspiring members need to have the ability to engage into

international relations, implementing the obligations binding the IO→ex. 1920, Liechtenstein:

micro-state that placed many external affairs in the hands of Switzerland, so Assembly of League

of Nations denied its admission (then UN accepted it in 1990)

→However, besides the provisions of Art. 4, the judgment of the organization matters as well: it’s

possible that a state applies for membership and meets all requirements but still get refused because a

majority within the UN doesn’t want it to be a member→case: First Admission case (1940): after WW2

many states got rejected because they collaborated with Germany, the GA asked the ICJ for

advice=Court said that the conditions mentioned in Art. 4 are exhaustive, then states can’t be refused for

reasons other than those mentioned in the article BUT→Art. 4 is still made in broad terms, then it doesn’t

forbid the inclusion of any other factor reasonable and in good faith.

PROCEDURE OF ADMITTANCE

Art. 4, comma 2, UN Charter: “Each new member can be admitted to the UN after a decision of the

General Assembly upon the recommendation of the Security Council”→case: Second Admission case

(1950): tension between GA and SC about the meaning of the word ‘recommendation’, in fact GA argued

that since SC can only recommend, GA could admit a member even if SC disapproves=Court said no, if

SC doesn’t recommend a state for membership, there’s no basis on which GA can act=in this way, there’s

a sort of balance between the institutions, because the action of GA is conditional on action by SC (N.B*:

SC can always use veto power of permanent members that can block admission)→In general, this

procedure may change for other IOs→ex. 1) ILO, WHO: open; 2) FAO: 2/3 majority vote and

acceptance of some obligations; 3) EU: Art. 49, TUE: unanimous decision by the Council, having

consulted the Commission and having received the assent of Parliament. Also, applicant members shall

respect general requirements; sign an agreement between members-applicants and be subject to approval

procedures in each of the member states.

OTHER FORMS OF MEMBERSHIP

Are there different forms of membership? there are 4 alternatives:

● associate membership: states that are no full members, but are willing to obtain full membership

at a later date, so they have limited rights (ex. no right to vote)→ex. 1) mini-states: USA

proposed associate membership; UK full membership with renunciation of some rights (neither

was accepted); ex. 2) entities not responsible for their international relations (as long as the

responsible state accepts the obligations of associate membership)

● partial membership: states are full members or certain organs→ex. Switzerland: member of the

UN’s Economic Commission for Europe and Statute of ICJ, then UN member (2002)

● affiliation: private members that might enter some IOs→ex. UNWTO: allows companies, NGOs

N.B*: in general, IOs are meant to have as many members as possible, in fact having states inside follows

a ratio of peace-keeping and international order, that’s why entities can also be given the status of

observer: substitute or starting point for full membership, or also to accommodate entities that aren’t

proper states, so they have limited rights (ex. no right to vote, no circulation of official documents or

memorandum for discussion without special permission)→ex. Palestine: GA wanted to admit Palestine,

SC didn’t (USA was afraid that it would affect Israel), so it was decided to grant Palestine the status of

non-member observer state⇒how are they perceived? observers aren’t warmly embraced by members

because they don’t pay contributions, thus are perceived as free riders. However, they are invited to

receptions and can lobby for their cause (→also, IOs can be observers of other organizations)

STATE SUCCESSION AND MEMBERSHIP

What happens to obligations when states fall apart, merge or gain independence? a successor state will

usually be as much bound by existing customary rules as its predecessor→in general, each organization

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should have its own rules, but the doctrine is scarce: 1) successions are rare; 2) modalities of succession

may differ from case to case⇒we have to distinguish between:

merger: if 2 members merge, the new state takes over including possible obligations that

➢ previously existing states still needed to fulfill→case: German reunification: it shouldn’t be

bound by ILO-sponsored conventions that the former GDR had been a party⇒why? 1) it was

more an accession of Lander to an already existing entity, than a merger; 2) rebus sic stantibus:

states can escape from treaty obligations if a fundamental change of circumstances occurs

dissolution: if a state dissolves, since membership is personal a disappeared state can only be

➢ replaced by one successor state

● URSS: continuation was automatic: all old members agreed Russia would be the

continuation of URSS→N.B*: it took up the seat in the Security Council, but only after a

unique meeting among Heads of State to seal Russia’s continuity (alternative was to open

membership of Council, but UK and France wanted to settle the russian question)

● Czechoslovakia: no continuation was identified: Czech Republic and Slovakia applied

again for membership and were accepted

● Yugoslavia: continuation was controversial: Slovenia, Macedonia, Croatia and

Bosnia-Herzegovina left Yugoslavia, so Serbia (and Montenegro) affirmed to be the

logical continuation of Yugoslavia. Actually, the world community disagreed and Serbia

had to file for admission for most IOs that Yugoslavia belonged to.

FOCUS:

1. Serbia v. ICJ (1990): Bosnia started proceedings against Serbia, which presupposes that the

respondent state is a party to ICJ Statute (that follows from UN membership)=Serbia wasn’t a

member at the time, then ICJ didn’t have authority over it;

2. Serbia v. NATO (2004): Serbia complained NATO intervention in Kosovo in 1990s=Serbia

wasn’t a UN member, then complaints couldn’t be considered

=Serbia tried to apply this finding to the case brought by Bosnia, but Court argued it had jurisdiction to

address Bosnia’s complaint on a rat