Riassunto esame in inglese di "International Organizations", prof. Laura Carpaneto, libri consigliati "International Organizations" I.Hurd e "The Law and Practice of the United Nations" di Conforti e Focarelli

1

International Organization

1) Introduction to international organizations

2) The United Nations

 Introduction: from the origins of the Charter to the present trends to revise it

 Membership in the Organization: acquisition of and modifications in Membership Status

3) The United Nations: the organs

 The Security Council (SC)

 The General Assembly (GA)

 The Secretariat

 The Economic and Social Council (ECOSOC)

 The International Court of Justice (ICJ)

4) The United Nations

 The functions: General limits to the United Nations functions

 The maintenance of Peace

 The economic cooperation

 The protection of human rights

 Decolonization and self-determination of peoples

5) The World Trade Organization (WTO)

 Introduction

 Membership

 Organs

 Dispute settlement body

6) The World Trade Organization (Case law)

7) The IMF and the World Bank

8) The International Criminal Court (ICC)

1) INTRODUCTION TO INTERNATIONAL ORGANIZATIONS

It is important to state that international politics cannot be understood without thinking about IO and

that therefore IO cannot be understood without thinking about their legal and political aspect.

All IOs exist in the legal space between state sovereignty and legal obligation.

They are created by the commitments made by sovereign states, and their purpose is to bind those

states to their commitments; then some IOs are able to coerce their member states into complying

UNSC has a military component).

with their commitments (for instance→

In each organization, the particular relationship between obligation, compliance and enforcement is

different. 1) World trade organization WTO

2) International monetary found IMF

3) United nations UN

4) European union EU

5) World bank WB

6) International court of justice ICJ

7) International criminal court ICC ©Alice Mazzesi

2

8) International labor organization ILO

9) Organization of American states OAS

10) African union AU

11) Association of southeast Asian nations ASEAN

This approach allows us to look at both the law and the politics of these organizations: it begins

with an examination of the obligations that states take on when they become members of the

organization. The details of these obligations come from the legal treaties and charters that found

the organizations. These obligations are usually presented in clear language (for instance, the UN

Charter says members must “refrain from the threat or use of force” to settle their disputes) but

–

they inevitably leave a good deal of room for arguments over interpretation for the Charter, we

need to know much more about what counts as a “threat of force” and how self-defense should fit

with this obligation.

Despite the ambiguity that exists in all these commitments, we should still begin our study of IOs

by looking at what states have really committed to doing or not doing.

It is only through a familiarity with the legal terms of IO treaties that we can evaluate the competing

claims put forward by states regarding those obligations. States show a strong inclination to

present their own behavior as fully compliant with their legal obligations, and they equally suggest

that their counterparts in a dispute are breaking the rules. Most IOs are not equipped with a legal

body that has the authority to make authoritative judgments in disputes over compliance (the EU

and the WTO stand out as exceptions to this rule). Most often, contestation over compliance spills

over from the organization to the wider worlds of international law and international relations.

IOs are also usually given only very weak instruments of enforcement, and they rely on more

subtle tools that work through persuasion, reputation, and status in order to induce compliance. As

a result, the politics of compliance with IOs are complicated and represent the fusion of

international law and politics.

OBLIGATIONS

The IOs were all founded by inter-state treaties.

These treaties spell out in explicit, “blackletter” law the goals and powers of the organization and

the obligations and rules that member states must take on.

When governments join IOs, they promise to accept whatever rules or obligations are included in

these treaties. These may include rules that are explicitly set out in the treaty, as when the Statute

of the International Court of Justice says that decisions of the court are final and binding on the

states in the dispute (Arts. 59 and 60), and they may as well include indirect obligations that arise

in the course of the operation of the organization, as when the UN Charter gives the Security

Council the authority to create new legal obligations on UN members (Arts. 25, 39, 49).

The former are known in advance by states when they join the organization, while the latter are

more flexible and involve some risk that future practice might create obligations on states that they

were not expecting. In both cases, however, it is imperative to any understanding of the role and

power of the organization that we pay close attention to its founding treaty.

The legal terms in each treaty are the authoritative source of the obligations that states owe to

each other and will be finely parsed long into the future by diplomats, activists, and states who look

to use them to serve their own purposes.

These treaties, such as the UN Charter, the IMF Articles of Agreement, and the Rome Statute of

the ICC, spell out the commitments their members are taking on and the powers that are being

granted to the organizations themselves. Once in place, the practice of the organizations is

governed by the terms of the treaty, and the obligations of the members are defined by the

commitments they made in the treaties. As a result, any examination of the powers and problems

of IOs must begin with the rules included in the treaties. to “accept and carry out the decisions of

These rules range from the commitment in the UN Charter

Council” (Art. 25), to the commitments that states

the Security write with the International Monetary

Fund that require policy changes in exchange for loans, to the promise to bring new labor ©Alice Mazzesi

3

the International Labor Organization to one’s national

conventions proposed by legislature for

consideration (Art. 19 of the ILO Constitution).

When assessing the impact of IOs, we must be realistic about these obligations. It is easy to

criticize the UN General Assembly, for instance, on the grounds that it passes many resolutions

with substantive clauses that are ignored by UN member states. However, this complaint makes

little sense when we remember that the UN Charter gives the General Assembly (GA) only the

power to “make recommendations” to states, and does not give it the power to take decisions or

impose new obligations (Art. 10).

UN members do not commit themselves to carry out General Assembly resolutions; these

resolutions are not legally binding obligations. As we shall see in Chapter 5, many of the UN’s

member states would likely not have joined the organization if the General Assembly had been

given the power to force them through binding resolutions.

The existence of the GA, and its majority rule voting system, is premised on it being a body that

makes recommendations rather than one that takes decisions. The Assembly’s influence therefore

cannot realistically be assessed by measuring compliance and non-compliance with its resolutions

–we need instead to use tools that notice the subtle power it has to define legitimate and

illegitimate behavior, and the contribution this makes to the broader political environment of state

behavior.

Similarly, it is difficult to understand US behavior toward the International Criminal Court without

close attention to the how the Rome Statute defines the powers of the Court relative to the states

that are its members.1 The US helped create the Court, and has a strong affinity for the goals of

the organization. It has used it via the UN Security Council with respect to Sudan and Darfur.

And yet it is highly ambivalent toward the organization itself. It has refused to become a member

and for many years it actively punished other states who did choose to become members.

These apparently contradictory positions toward the ICC can be reconciled by looking at the

particular obligations of members set out in the Rome Statute: the American view is that the Rome

Statute gives too much autonomy to the ICC’s prosecutor and judges. A complex balance between

state power and prosecutor’s power is defined deep in the fine print of the treaty. The technical

language in the Statute where states’ obligations are defined has outsized political implications in

international relations.

COMPLIANCE

With a well-grounded understanding of the legal obligations of states, we can then consider why,

when, and how well states comply with those obligations. Compliance is usually looked at as a

choice of states, but this book also looks at how IOs might shape world politics in ways that are not

understood by the imagery of “choice.” There are two moments where state consent is explicit in

and around IOs: at the moment of joining the organization and at the point where states see the

opportunity to follow or to violate its rules. It is common to think about international organization at

those moments where a state is faced with strong incentives to go against some rule of an

international organization.

This is often in the context of an international crisis where a country wants to violate the rules.

This was the case, for instance, with the American decision to invade Iraq in 2003 despite the fact

that the UN Security Council refused to grant the necessary authorization.

These are often dramatic moments as they pit state choices directly against international rules.

Not surprisingly, the record of state compliance with IOs at such moments is mixed: given sufficient

–

incentive, states are often willing to ignore their legal obligations though we should not ignore

those very interesting (and probably equally frequent) instances where states choose to comply

despite the incentive to violate. The chapters which follow examine these moments of choice,

where states are faced with a choice between compliance and violation. However, they also do

more by examining how international organizations have a prior influence over the resources with

which states conduct their disputes and how state behavior is understood. ©Alice Mazzesi

4

The focus on these moments of explicit consent or choice by states does not account for

everything of interest that passes in the relationship between states and international

organizations. Therefore, each chapter of this book also looks at more subtle ways that

international organizations influence compliance by states and other actors in world politics.

Many of the interesting effects that IOs have on states occur in a different register than that of

–

conscious strategic choice the organizations in this book all operate in part by shaping the

environment in which states exist, the interests and goals states have, and the background sense

of what is reasonable and normal in international politics.

For instance, the decisions of the UN Security Council over the years have helped construct the

idea of humanitarian intervention and as a result, the international response to new crises is

heavily conditioned by this idea and by its limits. Similarly, the ICJ advisory opinion on the legality

of the Israeli wall was not legally binding on Israel but it contributed to shaping the political

environment in which Israel has pursued its policies.

These effects can sometimes be subtle, but they are an important component of the practical life of

modern international relations and they must be taken into account as we consider the effects of

IOs in the world. As we consider state compliance with international organizations, we need to be

attentive to these more subtle effects as well as the more dramatic moments where states choose

to violate or comply with their obligations.

ENFORCEMENT

Few international organizations are authorized to take effective enforcement action against state

members who fail to live up to their obligations.

A few have robust means of enforcing the rules against violators: for instance, the IMF can

withhold further loans from a non-compliant state; the UN Security Council can authorize military

action against a state that threatens international peace and security (such a threat is by itself a

violation of the Charter); and the WTO can authorize trade sanctions against members who violate

their commitments.

But the more normal condition is that members face at most a very indirect threat of punishment for

–

their violations for instance, the threat of a loss of reputation that might come from being publicly

branded as a rule-breaker. IO enforcement often involves playing on the apparent desire of states

to be seen by their colleagues in a positive light, as good international citizens.

This may be very powerful indeed, but it follows a different logic than more direct kinds of

enforcement threats. The absence of direct enforcement power is often held up as evidence of the

irrelevance, or at least the marginal importance, of international organizations and as a justification

for paying little attention to their rules and decisions.

Without the threat of enforcement, why would states ever concede to international organizations

when their interests point in the direction of violation? It is easy to dispense with this objection on

–

empirical grounds that is, it is easy to show that states do indeed often comply with international

organizations despite the lack of enforcement. What is harder to explain is why they do it.

For example, most countries that lose a case at the International Court of Justice end up changing

their policies as required by the Court despite the fact that the ICJ’s powers of enforcement are

essentially nil.

Why this result obtains is hard to know. It may be that states feel highly committed to the idea of

the rule of law and so they are naturally motivated to follow through with Court rulings. It may be

that states fear that other countries will be less inclined to enter into agreements with them if they

are thought to have reneged on commitments in the past.

It may be that the only cases that make it all the way through the ICJ process are ones that the

parties are comfortable having resolved by the Court, in which case the compliance rate is merely

an artifact of the selection process that filters its cases. Any of these mechanisms might produce

the high rate of “compliance without enforcement” that we observe around the ICJ.

They differ greatly, though, in what they mean for the power and authority of the Court. ©Alice Mazzesi

5

And to figure out which one is the correct explanation for any particular case requires a close look

at the working of the ICJ and at the details of the case and its parties. This kind of examination is

done in Chapter 8 of this book.

SOVEREIGNTY AND CONSENT

The tensions between state obligations and state sovereignty provide the fuel that drives world

politics in and around international organizations. State sovereignty is defined by the legal and

normative framework that says states are the final authority over their territory and the people

within it.

States are sovereign in the sense that they are not subject to any higher political or legal authority.

As a result, they have the exclusive right to make decisions over all domestic matters without

interference from the outside, and attempts by other states to apply their laws or policies across

the border are usually seen as illegal and possibly aggressive moves of extraterritoriality.

The laws and practices of state sovereignty lead to a clear distinction between domestic and

foreign affairs. This is as clear (in concept, at least) as the borders on the map that delineate

physical territory into separate countries. “institution”: it is a set of

Sovereignty is an international institution in the broadest sense of the word

rules that organizes social and political practice. It is not, however, a formal organization as I use

the term in this book.

The institution of sovereignty demarcates a domestic realm in which states have absolute authority

and an international realm in which the problems of interdependence get worked out.

In practice, of course, there is always some room for argument about the limits of the domestic

sphere, and of the absoluteness of sovereignty over domestic affairs themselves, and we shall see

in the following chapters that a good deal of the work of international organizations arises because

changes in one state’s domestic

of these arguments. For instance, since monetary policy such as

the interest rate can have large and immediate effects on the economic conditions in other states,

it is not self-evident how to draw the line between the rights of one state to set its own interest rate

and the rights of others to be independent from outside influence.

The principle of non-intervention is a logical corollary of state sovereignty. It is clear what non-

intervention means when it comes to military invasion from the outside, but its implications are less

that arise under “complex

clear when it comes to the more complex forms of cross-border influence

interdependence.” The demand for international organizations arises due to the unavoidable

interdependencies between states, and their utility is measured by their contribution to managing

them.

Because states are understood to be the highest political and legal authorities in the modern states

system, the rules of international law and of international organizations are always subordinate to

the rights of states. This creates many of the tensions that animate world politics. To the extent that

international laws exist, they exist because states have consented to them, and (for the most part)

international laws apply only to those states that have consented to them.

State consent is therefore the crucial element that brings international obligations into existence.

Possible exceptions do exist: for instance, the UN Charter includes a clause that requires that

members of the organization “shall ensure that